A new threat to media freedoms

Writers of the world, beware.  A new threat to our free­dom of speech is loom­ing and, for once, I am not inveigh­ing against the Offi­cial Secrets Act.  

Over recent years the UK has rightly earned a pun­gent repu­ta­tion as the libel cap­it­al of the world. And now it appears that this won­der­ful prac­tice is going “off­shore”.

How did this whole mess begin?  It turned out that someone in the Middle East could take excep­tion to a book writ­ten and pub­lished about them in the USA.   US law, some­what sur­pris­ingly con­sid­er­ing its cur­rent par­lous state, provided no route to sue.   How­ever, some bright leg­al spark decided that the UK courts could be used for redress, provided the offend­ing book had been sold in the UK — even if only a hand­ful of second-hand books had been sold over Amazon​.co​.uk — and Mr Justice Eady helped the pro­cess along mag­ni­fi­cently.  

And so was born the concept of “libel tour­ism”.  Satir­ic­al cur­rent affairs magazine Private Eye has long been cam­paign­ing against this, oth­er UK news out­lets gradu­ally fol­lowed suit, and the UK gov­ern­ment is finally tak­ing steps to rein in these egre­gious, if luc­rat­ive, leg­al prac­tices.  

3_wise_monkeysBut, hey, that’s pre­cisely when your off­shore crown depend­en­cies, oth­er­wise known as Brit­ish tax havens, come into their own.  The UK has for years turned a blind eye to the dubi­ous fin­an­cial prac­tices of these islands, the most geo­graph­ic­ally con­veni­ent being the Chan­nel Islands and the Isle of Man, where the atti­tude to self-reg­u­la­tion makes the prac­tices of the Square Mile look pos­it­ively Vestal.

Now it appears that Guern­sey is look­ing to become a hub of anoth­er luc­rat­ive off­shore prac­tice: libel tour­ism.  

Guern­sey has its own par­lia­ment — the States —  and can make its own laws.  So as the libel door closes on the UK main­land, a firm of off­shore tax law­yers has iden­ti­fied a won­der­ful busi­ness oppor­tun­ity. 

Jason Romer is the man­aging part­ner and intel­lec­tu­al prop­erty spe­cial­ist at the large “wealth man­age­ment” leg­al firm Col­las Cri­ll.  Accord­ing to his firm’s web­site, he also, coin­cid­ent­ally, sits on the island’s Com­mer­cial IP Steer­ing Group and the Draft­ing Sub-Com­mit­tee, and is thus con­veni­ently on hand to steer the new legis­la­tion through the States.

Hogarth_judgeAlso coin­cid­ent­ally, he appears to be an enthu­si­ast­ic advoc­ate of Eady’s infam­ous “super-injunc­tion” régime which has had such a chillingly expens­ive effect on the Brit­ish media in the last dec­ade.

So, if this law is passed, any­one, any­where around the world will be able (if they can afford it) to register their “image rights” in Guern­sey.  These rights can even last indef­in­itely after the ori­gin­al owner’s death.

This means that any­one, any­where, who feels that their “image” has been inap­pro­pri­ately reproduced/copied/pirated — the cor­rect leg­al ter­min­o­logy is hazy —  can then sue through the Guern­sey courts for redress.  This could poten­tially be a power­ful new glob­al tool for the sup­pres­sion of free speech.  As pub­lic out­cry swells inter­na­tion­ally against the US IP laws, SOPA and PIPA, and across Europe against the utterly undemo­crat­ic ACTA, this new law is a giant leap pre­cisely in the wrong dir­ec­tion.  

Guern­sey, my island of birth, has changed out of all recog­ni­tion over the last thirty years.  Ever since the 1980s infest­a­tion of off­shore bankers and trust fund law­yers, it has been tar­mac-ed over by greed and social divi­sion. Before then it was proud of its egal­it­ari­an­ism, Nor­man-French her­it­age, beau­ti­fully ana­chron­ist­ic pace of life, and an eco­nomy based on toma­toes and tour­ism.

Now, if this law is passed, it will be known for its eco­nomy based on rot­ten fin­an­cial apples and off­shore libel tour­ism.

I just wanted to get that out of my sys­tem now — while I can still freely express my thoughts and before the island can sue me for dam­aging its “image rights”.… 

Save Our Free Speech

The Guard­i­an today repor­ted that the United Nations Com­mit­tee on Human Rights had issued a damning indict­ment of the Brit­ish government’s use of legis­la­tion to sup­press a right that is fun­da­ment­al to all func­tion­ing demo­cra­cies: free­dom of expres­sion.

This is not news to me. But it’s inter­est­ing that free­dom of expres­sion is now being cur­tailed in so many var­ied, inter­est­ing and ima­gin­at­ive ways: libel laws, ter­ror­ism laws and offi­cial secrecy. That’s quite an arsen­al.

Bri­tain is now infam­ous for being the “libel cap­it­al” of the world. Wealthy indi­vidu­als can use our courts to sup­press pub­lic­a­tion of crit­ic­al books and art­icles any­where in the world, if they can prove that the book has been sold in the UK – even if it’s just one, second-hand copy on Amazon. The magazine, Private Eye, has been com­ment­ing on this extens­ively over the last year.

Then, under the slew of new counter-ter­ror­ism legis­la­tion that the Labour gov­ern­ment has intro­duced since 2001, it is now an offence to say any­thing that might “encour­age” ter­ror­ism. That defin­i­tion is so broad that, say, you or I made an inno­cent com­ment about the Palestini­an or Iraqi situ­ation, and this could be mis­con­strued by anoth­er per­son as encour­aging them to viol­ence, this could be assessed sub­ject­ively as a crim­in­al offence by the pro­sec­ut­ing author­it­ies. This is third party thought-crime.

These sort of laws have a neg­at­ive impact on free speech, as pub­lish­ers, edit­ors and journ­al­ists begin to self-cen­sor rather than run informed risks for the pub­lic good.

But it’s the third area of law that res­on­ates most with me, for obvi­ous reas­ons: the 1989 Offi­cial Secrets Act, which crim­in­al­ises any unau­thor­ised dis­clos­ure by serving or former intel­li­gence officers, noti­fied per­sons, and oth­er crown ser­vants and offi­cials. These people are the most likely to wit­ness high crimes and mis­de­mean­ors on the part of gov­ern­ment, police and the intel­li­gence ser­vices, and yet they are the most crim­in­al­ised in this coun­try for speak­ing out. Whis­tleblowers in oth­er areas of work are spe­cific­ally pro­tec­ted by the law under the Pub­lic Interest Dis­clos­ure Act (1998).

How did this hap­pen? Ever since the 1911 Offi­cial Secrets Act came into force, there has been legis­la­tion to pro­tect this nation’s genu­ine secrets against the actions of trait­ors. Under this law, crown ser­vants face 14 years in pris­on if they betray inform­a­tion to hos­tile powers. Of course we need to pro­tect genu­ine secrets, and this is cer­tainly safe­guard enough.

The change in this law was spe­cific­ally designed to gag genu­ine whis­tleblowers in sens­it­ive areas, not pro­tect nation­al secur­ity. This came about in the 1980s after the notori­ous failed pro­sec­u­tion of Min­istry of Defense civil ser­vant, Clive Pont­ing. In 1984 he blew the whistle on the fact the Brit­ish gov­ern­ment knew that the Argen­tini­an war­ship, the Gen­er­al Bel­grano, was sail­ing away from the exclu­sion zone dur­ing the Falk­lands War in 1982. Des­pite this, the order was still giv­en to attack it, and many were killed. Pont­ing was rightly out­raged by this, and went pub­lic. His actions were mani­festly in the pub­lic interest, and this was pre­cisely the suc­cess­ful defense he ran in court. Furi­ous, the Con­ser­vat­ive gov­ern­ment of the time re-wrote the secrecy laws, remov­ing the pub­lic interest defense to deter such prin­cipled whis­tleblowers in the future. And this is the cur­rent Offi­cial Secrets Act cri­ti­cised so strongly by the UN.

Inter­est­ingly, at the time the Labour party strongly opposed this change, rightly think­ing that this would cur­tail cru­cial inform­a­tion reach­ing the pub­lic domain. At this point, of course, many of them cor­rectly sus­pec­ted that they were on the receiv­ing end of illeg­al invest­ig­a­tions by MI5.

The roll call of Labour MPs who voted against the pro­posed Act as it passed through Par­lia­ment in 1988 includes such luminar­ies as Tony Blair, Jack Straw and the former Attor­ney Gen­er­al John Mor­ris. All these people went on to use the 1989 OSA to threaten and pro­sec­ute the intel­li­gence whis­tleblowers of the last dec­ade.

The blanket ban on free­dom of expres­sion for intel­li­gence per­son­nel appears to be illeg­al under the terms of the European Con­ven­tion of Human Rights. Sure, Art­icle 10(2) does give nations the lim­ited right to cur­tail free­dom of expres­sion in a pro­por­tion­ate way to pro­tect nation­al secur­ity. How­ever, the term “nation­al secur­ity” has nev­er been defined for leg­al pur­poses in this coun­try and is used as a catch-all phrase to pre­vent dis­clos­ure of any­thing embar­rass­ing to the gov­ern­ment and the intel­li­gence agen­cies. Plus, dur­ing these cases, law­yers and judges have con­sist­ently con­fused the notion of the nation­al interest with nation­al secur­ity – two very dif­fer­ent beasts. And free­dom of expres­sion can­not be leg­ally cur­tailed under the Con­ven­tion merely for reas­ons of “the nation­al interest”.

So I was heartened to read the UN’s ver­dict on this leg­al mess: “Powers under the Offi­cial Secrets Act have been “exer­cised to frus­trate former employ­ees of the crown from bring­ing into the pub­lic domain issues of genu­ine pub­lic interest, and can be exer­cised to pre­vent the media from pub­lish­ing such mat­ters”.”

Let’s hope this leads to the rein­state­ment of the pub­lic interest defence at the very least. Dur­ing this time of the unend­ing “war on ter­ror”, gov­ern­ments lying to take us into illeg­al wars, and the use of tor­ture and intern­ment, whis­tleblowers play an import­ant role in uphold­ing and defend­ing our demo­crat­ic val­ues. We need to pro­tect them, not pro­sec­ute them.

Legal doublethink re whistleblowers — my CPBF article, July 2006

Thanks to Wikileaks the concept of whis­tleblow­ing is once again, rightly, back in the prime-time news slots.

To high­light the Brit­ish leg­al double­think when it comes to whis­tleblow­ing cases, I repro­duce below an art­icle I wrote in 2006 for the excel­lent UK Cam­paign for Press and Broad­cast­ing Free­dom organ­isa­tion (CPBF).

Basic­ally, the rul­ing stated that a whis­tleblower can­not repeat their own dis­clos­ures in pub­lic, even though any­one else in the world can:

Hogarth_judge In 2006 I hadn’t heard of Mr “Justice” Eady (he had yet to reach his max­im­um velo­city), but he seems to have built up of bit of form since then.  He is now most notori­ous for his pun­it­ive rul­ings in many “libel tour­ismcases and celeb sex scan­dals, not to men­tion the odi­ous concept of the super-injunc­tion, start­lingly exem­pli­fied in the Trafigura case about alleg­a­tions of dump­ing tox­ic waste off the Ivory Coast — one of Wikileaks’s earli­er media suc­cesses.

Obvi­ously Eady, the man in charge of rul­ing on UK free­dom of expres­sion cases, was the per­son to go to if you had some­thing to hide.

Thank­fully he was replaced earli­er this year by Michael Tugend­hat QC, who flu­ently rep­res­en­ted the media’s corner dur­ing the Shayler whis­tleblow­ing years, and some of Eady’s most egre­gious decisions have already been over­turned by his suc­cessor.

 

CPBF_Logo  Anoth­er suc­cess for Brit­ish justice — Annie Machon (31÷7÷06)

It was anoth­er resound­ing suc­cess for Brit­ish justice, accord­ing to Annie Machon. Mr Justice Eady gran­ted a per­man­ent injunc­tion against Dav­id Shayler in the High Court today (Fri­day 28 July). In a breath­tak­ing rul­ing, Eady stated that Dav­id was not entitled to present evid­ence or cross-exam­ine his accusers (again), but instead issued a sum­mary judge­ment based on asser­tions made by MI5.

This means that Dav­id can now only talk about a restric­ted range of dis­clos­ures — spe­cific­ally what appeared in the Mail on Sunday on 24 August 1997. This means that he can­not talk about a whole range of top­ics which are in the pub­lic domain and have already been cleared via the injunc­tion and for the pub­lic­a­tion of my book, Spies, Lies and Whis­tleblowers.

Spe­cific­ally, this means that, while I and the rest of the world can talk about state-sponsored false-flag ter­ror­ism, includ­ing the Gad­dafi plot, Dav­id is banned. Very con­veni­ent when the 911 cam­paign is tak­ing off.

The tem­por­ary injunc­tion was issued in Septem­ber 1997 on the expli­cit under­stand­ing that a full leg­al hear­ing would be needed before it could be made per­man­ent. Dav­id has now been denied this.

Also, the injunc­tion has been abused repeatedly, for example allow­ing the gov­ern­ment to spin lies against him when he wished to reveal the wrong­ful con­vic­tion of two inno­cent Palestini­ans, Samar Alami and Jawad Bot­meh, for the bomb­ing of the Israeli embassy in Lon­don in 1994. Also, when he tried to alert the gov­ern­ment to murder and a major ter­ror­ist attack organ­ised by MI6 officers in the Gad­dafi plot, he did so leg­ally via the injunc­tion.

For his pains, he was the one thrown in pris­on in Par­is in 1998.

The injunc­tion has also repeatedly been used to intim­id­ate journ­al­ists (one of whom was tried and con­victed) and to stop the media invest­ig­at­ing the crimin­al­ity of MI5 and MI6. With this rul­ing, the judge has also abol­ished at one stroke the media’s right to pub­lish whis­tleblowers’ testi­mony if they can argue it caused no dam­age to nation­al secur­ity.

If any future whis­tleblower emerges from the intel­li­gence ser­vices, and is injunc­ted, the media has lost this defence, enshrined by par­lia­ment in crim­in­al law (Sec­tion 1.5 of the OSA). And why is an injunc­tion neces­sary any­way? There already exists a crim­in­al sanc­tion under the Offi­cial Secret Act. The judge was kind enough to say that the injunc­tion was for David’s own good and would stop him hav­ing to break the OSA again! We are through the look­ing glass.

Yours in won­der­land, Annie