Category: Freedom of Expression

A Utopian solution to cross-border hate speech?

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| Freedom of Expression

Original illustration from Thomas More's Utopia, via WikipediaJames Banks (Sheffield Hallam University) has just published European Regulation of Cross-Border Hate Speech in Cyberspace: The Limits of Legislation (2011) 19 European Journal of Crime, Criminal Law and Criminal Justice 1-13 (SSRN | Ingenta). This is the abstract:

This article examines the complexities of regulating hate speech on the Internet through legal frameworks. It demonstrates the limitations of unilateral national content legislation and the difficulties inherent in multilateral efforts to regulate the Internet. The article highlights how the US commitment to free speech has undermined European efforts to construct a truly international regulatory system. It is argued that a broad coalition of citizens, industry and government, employing technological, educational and legal frameworks, may offer the most effective approach through which to limit the effects of hate speech originating from outside of European borders.

In particular, he considers that the Additional Protocol on Xenophobia and Racism (ETS 189) to the Council of Europe’s Convention on Cybercrime (ETS 185), whilst a laudatory endeavour, is undermined by US adherence to the First Amendment, so that “the law alone may not be the most appropriate mechanism through which to counteract hate speech online”. He therefore advocates recourse to a combination of technological regulation (eg, ISP self-regulation; voluntary filtering) and the education of web users to minimise the transmission and reception of online hate speech.…

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Declaration of the Committee of Ministers of the Council of Europe on “Libel Tourism” & Freedom of Expression

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| Defamation, Freedom of Expression, Libel tourism

From the Declaration of the Committee of Ministers on the Desirability of International Standards dealing with Forum Shopping in respect of Defamation, “Libel Tourism”, to Ensure Freedom of Expression, adopted by the Committee of Ministers on 4 July 2012 at the 1147th meeting of the Ministers’ Deputies:

13…. the Committee of Ministers:

– alerts member States to the fact that libel tourism constitutes a serious threat to the freedom of expression and information;

– acknowledges the necessity to provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury, and to align national law provisions with the case law of the Court;

– undertakes to pursue further standard-setting work with a view to providing guidance to member States.

via wcd.coe.int
…

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It’s safe to make jokes on twitter again: @pauljchambers wins #twitterjoketrial appeal

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| Freedom of Expression

Twitter logo, via Twitter websiteIn my previous post, I discussed what would happen if your airline made a mistake with your online booking. Let’s assume that you successfully booked your flight, and have turned up to the airport, only to find that your flight is cancelled. What would you do? Well, on 6 January 2010, it happened to Paul Chambers, and he sent a frustrated tweet:

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!!

I could have done as much myself (I am Spartacus). Unfortunately, Chambers found himself in very hot water: he was convicted of sending by a public electronic communication network a message of a “menacing character” contrary to section 127(1)(a) and (3) of the Communications Act 2003 (the Act); he was fined £385 and ordered to pay £600 costs. Fortunately for Chambers, there was eventually a happy ending: his appeal against this conviction was allowed today.

Congratulations to @pauljchambers and his fiancée @crazycolours, and kudos to his legal team, @DavidAllenGreen, @John_Cooper_QC, @sarahprz82 and @major_clanger. The case has been newsworthy online, especially on twitter at the hashtag #twitterjoketrial; and the successful of the appeal has been widely reported.…

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The Irish Constitution places a premium on honest and fearless debate and trusts in the power of argument and debate and reasoned discussion

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| Freedom of Expression, Irish Law, Irish Society

Referendum Commission logo, via their websiteThe words in the rather long title to this post are taken from today’s decision of Hogan J in Doherty v The Referendum Commission [2012] IEHC 211 (06 June 2012). It is nothing less than a tour de force in which he considered hugely complex and daunting questions with courtesy and erudition, notwithstanding enormous time pressures. The case concerned an application by Pearse Doherty TD for judicial review of certain statements by the Referendum Commission in the course of the campaign for the referendum which was held on 31 May 2012 in respect of the Thirtieth Amendment of the Constitution (Treaty on Stability, Coordination and Governance in the Economic and Monetary Union) Bill, 2012. Hogan J quite rightly dismissed the application, in a cogent and compelling judgment which will no doubt be pored over by constitutional lawyers for a long time to come. He covered many important issues of constitutional and EU law in relatively brief but entirely compelling compass. I will leave to other commentators to parse the substantive decision. I want in this brief post simply to quote (with links and emphasis added) a very important section of his judgment. They are four paragraphs of clarity, style and power which to my mind will have a hugely significant impact on the development of political speech rights at Irish constitutional law:…

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Open justice and closed tribunals: refugee hearings and the Rule of Law

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| Freedom of Expression, Media and Communications, Open Justice, The Rule of Law

Refugee Appeals Tribunal logo, via their websiteIn a previous post, I considered the common law and constitutional aspects of the principle of open justice. In Wednesday’s Irish Times, Carol Coulter reported on a case in which a child asylum seeker is alleging perceptible bias on the part of a member of the Refugee Appeals Tribunal. At present, the applicant is seeking leave to bring judicial review proceedings against the rejection of her asylum application, and the leave hearing is expected in the coming months. In an accompanying story, Coulter discussed previous cases which have challenged the secrecy and perceived unfairness of the Tribunal. That reference to “secrecy” set me thinking about the principle of open justice in the context of closed tribunals, and this post is a first attempt at applying the principle in that context. In that respect, I very much welcome discussion of my analysis in the comments.

The starting point is section 19(4A) of the Refugee Act, 1996 (also here) as inserted by section 7 of the Immigration Act, 2003 (also here), which provides:

(a) The chairperson of the Tribunal may, at his or her discretion, decide not to publish (other than to the persons referred to in section 16(17) [of the 1996 Act, also here]) a decision of the Tribunal which in his or her opinion is not of legal importance.

…

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Offence and confusion – updated

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| advertising, Freedom of Expression
Not Gay Advert, via Guardian


Adverts by the Core Issues campaign group, centred around the slogan above, suggesting that gay people could be cured, have been banned from London buses by Boris Johnson, Mayor of London, and chair of Transport for London.

On the other hand, the British Humanist Association ran an advertising campaign on London buses several years ago. Their slogan said “There’s probably no god. Now stop worrying and enjoy your life”. More recently, Stonewall ran a campaign around the slogan “Some people are gay. Get over it!”.

Both the BHA campaign and the Core Issues campaign were controversial, and cleared by the Advertising Standards Authority update: notwithstanding earlier reports, it seems that the ASA did not adjudicate on the Core Issues campaign. But the opposition to the latter has been much greater, resulting in the Mayor’s decision to ban the adverts. I am very confused about this, as I can see no material difference between the three campaigns. All three are insulting or offensive to significant groups of the population, and all three should be assessed on the same standard. They should all be published, or all banned. For my own part, I think that the above slogan is horribly offensive, but I don’t think that offense is a sufficient standard to ban it or any of the other adverts.…

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Seeing justice done – open justice and the limits of the common law

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| Freedom of Expression, Juvenal, Open Justice, The Rule of Law

Blind Lady Justice, mural on the wall of the Criminal Courts of Justice, DublinA little while ago, I argued that liberty, democracy and the rule of law together constitute the constitutional trinity on which many modern states are founded, and that, not only are there the traditionally understood strong liberal and democratic justifications for freedom of expression, there are also equally strong free speech justifications founded in the rule of law. In yesterday’s decision in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (03 April 2012), the Court of Appeal for England and Wales made this point in rhetoric of great eloquence, perspicuity and vigour (though the judgments are curiously ambivalent in their ambit and ambition).

In my earlier post, I argued that, a commitment to the rule of law – where law is equally applied in open court by an impartial judiciary – both reinforces and is reinforced by robust protection of freedom of expression. The proper protection of fundamental rights reinforces the necessity for the protection of free speech as one of those fundamental rights. The proper functioning of impartial judicial tribunals is reinforced by the protection of free speech, which ensures monitoring of and comment upon the operation of such tribunals.…

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