Emerson, Lake and Palmer performing their 1971 album version of Pictures at an Exhibition

The Cowengate controversy certainly caught the imagination this week; and, by way of update to my earlier posts on the topic, I’ve collected some more links about the affair below. Perusing the coverage in print, broadcast, and online, a question has repeatedly occurred to me: for all that there was online outrage, how much of it was reflected in the print or broadcast media? My impression is that whilst online commentary reflected and often relied upon the print or broadcast media, there was (by and large) very little traffic the other way. Is this a fair assessment? Answers, please, in the comments below.

[The remainder of the post is another compendium of links relating to the Cowengate controversy]. Read the rest of this entry »

via the always-brilliant Courtoons:

Given that I have strongly defended anonymous speech on this blog (here and here), Sarah Hinchliff Pearons’s blogpost Accountability and Anonymity: Rethinking the Value of Anonymous Speech caught my eye. Her basic point is

… not to argue that we should not try to prevent lawsuits designed to stifle free speech. … Instead, I am arguing that in designing solutions to this problem, we must be careful not to place a premium on anonymous speech. While there are certainly circumstances under which anonymity is necessary, those situations are and should be limited. There is a reason why journalists are strongly discouraged from quoting anonymous sources – it prevents accountability. As we transition into an environment where more people than ever have the ability to communicate their ideas and opinions, it is more important than ever that we encourage accountability in the marketplace of ideas. Incentivizing anonymity is certainly not the way to do that.

Similar points and cases are discussed here here, here and here.

On the other hand, but there are times when speech is more important than accountability. Indeed, it is the very fact of the lack of accountability provided by anonymity that can make it a necessary means of dissenting political expression. When dissenters can protect their identities, they can express important critical – even, especially, unpopular – views. In such circumstances, anonymity serves a vital democratic function, confronting intolerance and protecting minorities from majority tyranny. If we must not over-rate anonymous political speech, we must likewise not disparage it simply because it is anonymous. Anonymity allows us to say things that might not otherwise be said; and in that are the seeds both of its odium and of its power. It can ensure that arguments are addressed on their own merits, undistorted by preconceptions (negative or positive) that readers may have about the arguments’ authors. Anonymous publications are not necessarily pusillanimous; and even if they are, they often have good reason to be (whether online or in the real world). As a consequence, facilitating dissent and providing a tool for intellectual honesty are benefits which outweigh the admitted disadvantages of anonymity and which should be reflected in the standards applied by the law, especially in cases of political speech.


Bonus links: Hilary. The Movie has its day before the US Supreme Court.

Update: see also the University of Alabama School of Law Symposium on Speech and Silence in American Law, and Paul Horwitz “Anonymity, Signaling, and Silence as Speech” (recently posted on SSRN).

Jeremy Bentham (1748-1832) (left) was a utilitarian philosopher, whose radical ideas on education inspired those who founded University College London. Nowadays, the Bentham Association (formerly the Bentham Club) is the Alumni Association for UCL’s lawyers, and it annually hosts a Presidential Address from an invited senior lawyer. This year’s address was given by Lord Pannick QC on the topic:

“Better that a horse should have a voice in that House [of Lords], than that a judge should” (Jeremy Bentham).

Replacing the Law Lords by a Supreme Court

It broadly concerned the implications of the removal of the final court of appeal from parliament, and can be heard online here. It covers a wide range of very interesting material, and is very well worth listening to. There’s no text yet online, but one aspect of it appears in Pannick’s column in today’s Times, taking the field on an issue I’ve looked at already on this blog (here and here); some extracts:

Seventy is far too early for a supreme court judge to retire . . .

… The argument for a retirement age of 75 for all supreme court justices is very simple. Those appointed are the cream of the judiciary. They inevitably take time to rise to the top, normally after serving for several years in the High Court and then in the Court of Appeal. It seems an awful shame to throw out judicial resources of such quality after a short stay in the supreme court when they are still fresh in mind and body and well short of their sell-by date.

… One can sympathise with the comments of Lord Bridge of Harwich in his final case in the Appellate Committee in 1995 when he expressed his annoyance at “the statutory presumption of judicial incompetence at the age of 75”. Lord Bridge, still at the peak of his considerable intellectual powers, went off to study for a mathematics degree.

… The appropriate balance between innovation and experience (or, if you prefer, between immaturity and senility) is, I think, a retirement age of 70 for judges of the High Court and the Court of Appeal. But for the supreme court, given the length of time that it will take for judges to arrive at such legal heights, a retirement age of 75 is more appropriate. Lords Reid, Wilberforce and Bingham of Cornhill, whose intellectual force, constitutional perspective, and good sense adorned the Appellate Committee of the House of Lords over the past 40 years, did much of their best work after 70. It would be a great detriment to the legal system if their successors were prematurely retired to a life as arbitrators.

On this one, I’m with Pannick, but I’m not sure Bentham would have approved: he didn’t trust judges much.


Update: joining Pannick’s column in the Times Online is the following related news story:

Judges fail in Tribunal bid to extend working lives beyond 70

Two judges fighting to work beyond the age of 70 have lost their case, the Tribunals Service has said. … The decision coincides with a move by legal peers to enable Britain’s top judges – those appointed to the new Supreme Court in the autumn – to stay on until the age of 75. …

I’ve blogged about the judges’ age discrimination challenge already; what I find most interesting is the throwaway line in the article that legal peers are lining up to support a retirement age of 75.

Suzy must get the prize for popularising the best political coinage of the day, for – so far as I can see – it is she who has run with the name “Cowengate” for the sturm und drang surrounding satirical portraits of the Taoiseach (Prime Minister), Brian Cowen. In a piece of guerrilla artistry as ingenious as the coinage Suzy has popularised, caricatures of Mr Cowen were anonymously hung on the walls of the National Gallery of Ireland and the Royal Hibernian Academy. Once they were discovered, they were removed, but not before they had garnered sufficient publicity for RTÉ (Raidio Telefís Éireann, the national state broadcaster) to broadcast a story about them on the flagship 9:00pm television news programme.

It has been the occasion for lots of bad puns and some embarrassment on the part of the Taoiseach, the Gallery and the Academy, but in the ordinary course of things, the story should have blown over after about 48hours. However, things then took two turns for the worse. First, RTÉ apologised to Mr Cowen and his family or for any disrespect shown to the office of Taoiseach by their broadcast. Second, when the radio station Today fm covered the story, the Gardaí (the police) arrived at the station asking that an email with the artist’s details be handed over (.wav). Leaving the obvious jokes aside (because they have all been done better elsewhere), these two quite sinister developments raise some profound questions about freedom of expression in Ireland. Read the rest of this entry »

Ravel’s orchestration of Mussorgksy’s Pictures at an Exhibition, performed by the Philharmonia Orchestra conducted by Esa-Pekka Salonen at the BBC Proms in August 2006

This post is an addendum to Cowengate and Freedom of Expression (above). In the original version of that post, I had a paragraph of links to other coverage. Like Topsy, that paragraph growed and growed, so I’ve taken the list of links out of that post and put them here.
Read the rest of this entry »

Article XIX, the Global Campaign for Freedom of Expression, is an international human rights organisation which defends and promotes freedom of expression and access to information worldwide. Defamation is one of the Global Issues on which they focus. Indeed, their 2000 Defining Defamation report (pdf) seeks to set out an appropriate balance between the human right to freedom of expression and the need to protect individual reputations. Principle 4 of this document, concerning criminal defamation, provides

(a) All criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws. Steps should be taken, in those States which still have criminal defamation laws in place, to progressively implement this Principle.

Unsurprisingly, therefore, they have this week published an overview of worldwide defamation trends, which they have enlivened with interactive maps of applicable legislation and punishments. They simply record that, for both Ireland and the UK, there are civil and criminal sanctions for defamation. But, in a parallel development, they have lobbied (letter | press release (both pdfs)) the UK government to accept an amendment of the Coroners and Justice Bill 2008 put down by Dr Evan Harris, MP which would abolish criminal libel in the UK. [Update: see also Index on Censorship here and here] Harris told the Times:

Seditious libel and criminal defamation laws are a stain on our legal system and a terrible example to set in a world where free expression is so often restricted and oppressed. Parliament should sieze this chance to get rid of them.

In the same article, Geoffrey Robertson QC said

These laws have an inglorious history. They were deployed by the King’s lick-spittle judges in the Star Chamber to torture puritans, and later used against John Wilkes and Tom Paine’s publishers. Their continuing existence serves only to provide an excuse for modern despots when they jail their critics – they always claim that they are merely using laws that are also on the UK statute book. It is time to expunge them.

A wonderful discussion of these cases is provided by Lord Walker’s Bentham Club Presidential Address on Security, Freedom of Speech and Criminal Justice in the age of Pitt, Burke and Fox (pdf).

Consequently, the amendment proposed by Harris simply provided:

The offences of sedition and seditious libel under the common law of England and Wales are abolished.

However, the House of Commons website records that the amendment was not taken during the debate. This is a pity, and I hope that it can be taken when the Bill is debated again. I have already blogged extensively about a similar Irish effort (here, here, here, here, here and here) in Part 5 of the still-delayed Defamation Bill, 2006. Whatever happened to that? Indeed, as the title question asks: why are legislators so loath to repeal criminal libel provisions?

The theme of the afternoon plenary session of the third Legal Education Symposium was on

International and European Perspectives in Legal Education

As if she didn’t have enough to do as one of the organisers, this session was chaired by Prof Blanaid Clarke, and the session examined the ongoing the Bologna Process, which aims to create a common European Higher Education Area (to which her co-organiser referred in the first plenary session this morning).

The first speaker was Dr Attracta Halpin, Registrar of the National University of Ireland on the topic of European Higher Education post-Bologna 1999: Napoleonic tendencies?, discussing how much standardisation is likely to be achieved by 2020 and how much could be considered desirable. She gave a whistle-stop tour of what the Bologna process is all about, where it came from, where it is now, and where it is going. It was built on the concept of student and teacher mobility, and comparability of degree programmes. The second speaker was Prof Frans Vanistendael of the Centre for a Common Law of Europe at the Katholieje Universiteit Leuven on the topic of Ten Years of Bachelor – Master Reform in Legal Education, and in effect, he looked at Bologna in practice in law schools. Read the rest of this entry »