Month: December 2010

Robert A Kahn (University of St Thomas School of Law, Minnesota) A Margin of Appreciation for Muslims? Viewing the Defamation of Religions Debate Through Otto-Preminger-Institut v Austria (abstract; via SSRN):

Critics of the global standard outlawing defamation of religions often view the proposal as an effort by radical Muslims to deprive the liberal West of long-held liberties. What if however, the supporters of the proposal are surprisingly moderate in what they ask for? What if the liberal West itself has a history of banning blasphemy? To explore these questions, this essay looks at the defamation of religions debate from the vantage point of Otto-Preminger-Institut v Austria 13470/87, (1995) 19 EHRR 34, [1994] ECHR 26 (20 September 1994) in which the European Court for Human Rights upheld an Austrian prosecution of a film potentially offensive to Catholics. The Otto-Preminger case unsettles the critics’ arguments in two ways. First, the majority suggests one could ban some blasphemy without stifling religions debate. Second, the dissent, while opposing the prosecution, would have allowed Austria to ban violent and abusive attacks on religious groups. This suggests a compromise where defamation of religions proposal is read as calling for a ban on the incitement of religious hatred. Finally, the Otto-Preminger case shows how to conduct a civil discussion about if and when to ban religiously offensive speech. There is a lesson for defamation of religion critics here as well.

See also Sejal Parmar “The Challenge of ‘Defamation of Religions’ to Freedom of Expression and the International Human Rights System” [2009] 3 EHRLR 353, noted here. Other relevant ECHR cases include:

• Müller v Switzerland 10737/84, (1991) 13 EHRR 212, [1988] ECHR 5 (24 May 1988);
• Wingrove v UK 17419/90, (1997) 24 EHRR 1, [1996] ECHR 60 (25 November 1996);
• Gündüz v Turkey 35071/97, [2003] ECHR 652 (4 December 2003);
• IA v Turkey 42571/98 [2005] ECHR 590 (13 September 2005);
• Giniewski v France 64016/00, [2006] ECHR 82 (31 January 2006);
• Klein v Slovakia 72208/01, [2006] ECHR 909 (31 October 2006).

If I have missed any, please let me know. Thanks!

Adam Wagner on UK Human Rights Blog takes up the perennial question of whether courtroom proceedings should be broadcast. Some extracts from his blogpost:

Should justice be televised?

The head of Sky News has argued in a new Guardian article that justice must be televised as allowing TV cameras in court would help restore public faith in criminal proceedings. …

The usual arguments in support are:

1. Television opens the court to public scrutiny
2. Televised hearings can educate the public about what happens in the justice system
3. Cameras have no negative impact on trials, according to U.S. research
4. The public have a right to see justice done, and the only proper way this can be accomplished is to allow them access to hearings through their TV sets

And the arguments against:

1. Televised justice leads to soundbites and sensationalism, and edited highlights of a case lose the subtlety of legal argument
2. Television fosters disrespect for the court
3. Cameras pervert the trial process as juries become star struck and lawyers grandstand
4. Victims and witnesses are intimidated an can be less safe as a result. …

The Lawtube age
The debate over cameras in court is as old as camera technology itself, but in the age of YouTube, 24-hour news and the iPlayer, it should be reopened. John Ryley is well placed to understand the power of TV coverage and expert editing, but will also know the dangers of sensationalising stories and issues. … There are good arguments for limiting such access, but these decisions should be taken from an informed perspective after testing the real effect which TV cameras would have on our judicial system. … It is often said that justice should not just be done, but should be seen to be done. As things stand, justice is very rarely seen and as a result our justice system continues to be poorly understood. Allowing TV cameras into court could provide the oxygen needed to ensure better and more interesting public access to the legal system.

Read more here. My earlier posts on the issue are here, here and here.

The 1960 movie Spartacus (imdb | wikipedia) (dir: Stanley Kubrick; screenplay: Dalton Trumbo) tells the story of a slave rebellion against ancient Rome led by the title character, a Thracian gladiator, played by Kirk Douglas. When the rebellion is eventually crushed by an army led by the Roman general and politician Marcus Licinius Crassus, played by Laurence Olivier, the recaptured slaves are told that they will be spared crucifixion if they identify Spartacus. Instead, one after another, they each proclaim “I am Spartacus“. It is a famous scene of solidarity – all the more so since screenwriter Dalton Trumbo was one of the blacklisted Hollywood 10, and he was the first blacklisted writer to write a screenplay his own name again when he wrote the screenplay for Spartacus, based on the novel by another blacklisted writer, Howard Fast. Wikipedia reports that the “documentary Trumbo suggests that this scene was meant to dramatize the solidarity of those accused of being Communist sympathizers during the McCarthy Era who refused to implicate others, and thus were blacklisted”.

The phrase has been in the news recently because it has been taken up on twitter #IamSpartacus in solidarity with Paul Chambers (Guardian | Telegraph). He was concerned that he would miss a flight last January from Robin Hood Airport in Nottingham to Belfast due to bad weather, and tweeted

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!

He was fined £1,000 of sending a message of menacing character by means of a public electronic communications network contrary to section 127 of the Communications Act 2003; and his appeal was dismissed. The tweet was plainly a joke; the prosecution should never have been taken; it should have failed; and the appeal should have succeeded. It has become a cause célèbre on twitter #TwitterJokeTrial. And there is an excellent analysis of the legal issues by Matthew Flinn on the UK Human Rights Blog (reposted on Inforrm’s Blog):

Twitter joke trial: Do offensive tweeters have freedom of expression rights?

… Mr. Chambers is now taking his case on appeal to the High Court, and it will be interesting to see the extent of any discussion of his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR), and whether or not the application of section 127 to Mr. Chambers’ case is compatible with that right. (more…)

Picking up on last week’s post about Milton’s Areopagitica, in the classical liberal tradition, the fact that speech is offensive is not in itself a sufficient reason to censor it. As John Stuart Mill (pictured left) put it, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”. And he utterly rejected that offence could amount to such harm:

Before quitting the subject of freedom of opinion, it is fit to take notice of those who say, that the free expression of all opinions should be permitted, on condition that the manner be temperate, and do not pass the bounds of fair discussion. Much might be said on the impossibility of fixing where these supposed bounds are to be placed; for if the test be offence to those whose opinion is attacked, I think experience testifies that this offence is given whenever the attack is telling and powerful, and that every opponent who pushes them hard, and whom they find it difficult to answer, appears to them, if he shows any strong feeling on the subject, an intemperate opponent. But this, though an important consideration in a practical point of view, merges in a more fundamental objection. (more…)

By way of update on this morning’s post, here is an extract from an email I received today from the Irish publishers Round Hall (the local imprint of Thomson Reuters) which raises very similar issues:

Oops! Correction of Offer Price for The Criminal Process

Correction

Our E-newsletter distributed on 30 November 2010 contained a mistake in relation to the 20% savings advertised for The Criminal Process by Thomas O’Malley.

The correct offer price, valid until the 15 December 2010, is in fact €316, and not €136 as advertised in our latest e-newsletter. The list price is €395. I’m sure that you will agree that this is still an excellent offer for this particular title!

Our sincere apologies for any confusion caused. (Our marketing department is doing suitable penance at the moment, and is also paying a little visit to the optician…)

(more…)

An item in the Readers’ Queries feature on the Consumer page in last week’s Irish Times caught my eye, not least because it raised very interesting issues about ordering goods online:

Online TV deal too good to be true

A reader was on the Arnotts website recently pricing televisions when he found a 42” model for €1,498. According to the site it had a discount of €1,400. “A TV for €98? Where could I go wrong? So I put in my Laser card details, expecting to be told the order could not be processed due to a pricing error but no, it went through. I got a confirmation e-mail a few minutes later with an order number,” he writes.

He “kept checking the tracking of the order on their web page and it said the order was processed and waiting for a delivery date. Later that evening I got an e-mail saying they had made an error in pricing and my order was cancelled.”

The incident has left him curious. “Since Arnotts never took any money from my account but did issue the order number, do they have to honour the order or are they completely within their rights to cancel it? I’ve mentioned this to a couple of my friends and no-one has any idea where they stand if they see something for one price and then are told the price is a mistake.”

The answer is short and simple. Arnotts was not under any obligation to process the order because money had not changed hands – in a virtual sense – so there was no contract in place. Stores, both online and off, do not have to honour a price displayed because in law, it is an invitation to treat rather than a price fixed in stone. If a price is wrong, consumers cannot expect to profit from the genuine mistakes of a retailer.

This is another example of a fairly common problem of mis-stated prices on websites (which I’ve discussed here, here and here), but I’m not sure I agree with this short and simple analysis of why Arnotts did not have to honor their discount of €1,400 and sell the tv for €98. Don’t get me wrong; I agree that Arnotts did not have to sell the tv for €98; I just don’t agree with the explanation in the extract above. (more…)