Category Archives: Human Rights

Debate Write-Up: Rewriting History, ITN, 14 July 2014

Since the judgment of the ECJ in Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González (C-131/12), the Press has been full of articles and opinions about whether this is a practice that inhibits the freedom of expression, or whether individuals should be free to use the so-called “right to be forgotten” to reassert their privacy.

The Media Society (@themediasociety) organised a debate hosted by ITN (@itn) last night on this very issue. The chair of the debate was Alastair Stewart OBE, long serving newsreader for ITN, and speaking in the debate were:

The hashtag for the debate was #rewritinghistory.

The event kicked off with a video put together by Cathy Newman:

The basic premise that the balance between privacy and the freedom of speech is a difficult one to achieve, especially in the age of the internet leviathans such as Google or Facebook. Yet the concerns about privacy are not new; ever since computers became an everyday part of life and business, there has been a perceived risk that people’s privacy will be lost. This led to the passing of the Data Protection Act 1984, which gave people the right to know what information was held about them. Not long after this, the European Union passed the Data Protection Directive, which was later put into effect in the UK by the Data Protection Act 1998. This Act is significant, as it provided an exemption for journalists (s 32). Since then, the judiciary has been struggling with the balance.

However, the balance has been changed by the recent Google Spain case setting out a principle that individuals have the right to be forgotten. The ICO has put together draft guidelines following this judgment, and there are concerns that this will encourage the curbing of the freedom of expression. Given that local and national data protection authorities will have to deal with the judgment by setting out such guidelines for journalists, the essential question is whether there will be greater censorship or whether journalists are merely overreaching with their concerns.

Stewart then set up some of the key questions for the debate: is this essentially a fight between the Internet and governments?; is the protection afforded by the judgment excessive?; given the different protections afforded to privacy across the different EU states, will the UK move further away from the rest of the EU on this matter?; or are journalists being a bit precious with their concerns?

The first person invited to speak was Christopher Graham, the Information Commissioner. He started off by saying that the judgment is part of an overall review of the rules of engagement between Articles 8 and 10 ECHR, the right to privacy and the right to know. He acknowledged that there are some concerns about the changes, but pointed to an article in The Times on 8 July which claimed the result would be the forced destruction of material. In effect, he said, the Press were claiming this to be an EU removal of the s 32 protection. He said that this was almost 1984-esque in its analysis, rewriting what was happening to fit the narrative. However he was at pains to point out that the sky was not falling in.

He firmly reminded everyone that the media is not above the law, and that individuals do have the right to challenge the journalistic exemption under s 32 if something is not truly public interest journalism. This right to challenge the Press is being put across as a “chilling effect”. The Press do have the right to “tell it like it is”, but they do some from a privileged position. The ECJ judgment has confirmed that a search engine is a data processor and a data controller, and therefore the request to remove search engine results is in line with the Data Protection Principles as they stand. He points out that other legislation has created the right to be forgotten, such as the Protection of Freedoms Act and the Rehabilitation of Offenders Act.

One aspect of the judgment he does not necessarily welcome, however, is the expected tsunami of complaints to the ICO if Google (or any other body) refuses a requested. However, he notes that the prospective Data Protection Regulation will not remove the s 32 protection, it is safe. He finally mentioned the consultation his office is engaged in to gather views on how the judgment should work in practice.

Stewart then asked where he drew the line between public interest journalism and more general journalism. Graham acknowledged that the distinction was hard to spell out, but noted that publication of serious journalism was a key factor. He noted that this could also include celebrity publication but they were more likely to act in a way that breached the data protection principles.

Stewart further queried whether this judgment went beyond the deletion of redundant data and may result in data, such as that held by journalists for future use or verification, may be subject to deletion. Graham’s response noted that this judgment was focused on search engines, and their algorithms can be manipulated to bring something to the fore or hide it. The effect this manipulation can have can be very damaging. It is impossible to have a regular clear-out of data by way of an algorithm but search engines do need to act in line with the principles.

Stewart then asked Professor Floridi whether the matter was one of too much ill-founded pragmatism, and whether there was in fact a real danger that interested parties were looking at the rules of engagement without thinking about the balance.

Professor Floridi responded that the judgment seemed to be more about upgrading the rules as they stand, rather than a comprehensive revision. The information that can be taken down in minimal, as it only works on a name and a URL and must be a request, individuals can find the information and links in other ways. The compromise that has been created by the ECJ and by Google is not suitable. Information is stratified, and a stratified response is required to solve the issue.

Stewart moved onto John Whittingdale MP, asking whether the law needs to be reviewed because the situation is now a mess. Whittingdale agreed. His opinion was that the law as it stood was clear, as he thought it clear for the Data Retention Directive, but now a much broader view of the content is required. When asked by Stewart about whether this notion of the public interest should be considered in primary legislation, Whittingdale responded that any such attempt would not hold up to scrutiny. Whittingdale was of the view that Google is essentially a large cutting library, and it makes no sense to require the removal of the “card index” to any such library, given the size of it. He also had concerns about those people who would be making the judgement calls on whether to remove the information. When asked whether we could move away from the EU on this matter, Whittingdale noted the current political difficulties with Europe and suggested that we could, looking at the wider context of how the UK value freedom of expression compared to other countries. Graham added that the important thing to do now is consider how the proposed Data Protection Regulation will maintain or alter the protections offered.

Stewart then asked John Battle whether the judgment had changed the compliance work at all. John’s response was that the judgment is difficult to apply, and in his view the sky is indeed falling in. His view mirrored that of Whittingdale, that the law was settled, and that journalists had clear protection. His concern was that the new Regulation had the broad balance approach but no clear journalistic protection. Added to this was the take-down notices that journalists were receiving from Google after a link was removed, and he feared that there was question of whether journalistic protection still existed.

Stewart moved onto Peter Barron to get his response from the Google side of things. He asked whether Google was behaving excessively in just agreeing to take down the links so quickly. Barron answered that they had a fine line to work with. Google has already reached 70 000 requests, and gets about 1 000 requests a day. Each one has to be dealt with individually. When asked about the guidelines Google employees use to make their decision, he responded that the ruling was vague, and the question of whether something was irrelevant or out-of-date was hard to examine in practice.

Stewart asked whether Google was tempted to take a hard line on the judgment and really minimise the links removed, because currently it appeared a removal was too easy to get. Barron said that there are three categories of requests: automatically remove; leave; and request more information. He said that this was a very fine line to work with, and that it was essentially a matter between the journalists and the ICO, but overall the judgment makes it clear that privacy trumps free expression. While they would like to leave all matters for the ICO to deal with, Google could not as such (in)action is against the law. When asked whether Google employees were acting as both judge and jury, Barron agreed that they were; conventionally, either the publisher had agreed to the take down, or there was a court order. Google did not want this power or responsibility, but they have no choice. In any event, there is always an appeal to the ICO by an individual. Here Barron noted the asymmetrical process, as journalists do not have the right of appeal to the ICO to reinstate links.

Stewart asked Professor Floridi whether he thought the judgment had resulted in nonsense. Floridi agreed, stating that the whole thing was a waste of financial and mental resources, especially as those searching could use US search engines to avoid the EU jurisdiction affecting their results. He said that this was a crucial issue and needed more consideration considering the impact of the judgment.

Graham then stepped in and said that the reality was that Google is a commercial business and makes its money from publishing personal data. He then pointed to the recent spat between George Clooney and the Daily Mail as something that would appear higher up on a list of search engine results for Clooney than his acting or charitable work. Stewart pointed out that this is in fact a good example of the ethics of a national newspaper being brought to the fore, but, while accepting it was a poor example, Graham said that Google is more than just a card index. Every case is different and needs to be looked at carefully. Barron agreed, saying that some cases are difficult to judge, and something may be in the public interest but the privacy rights of the individual may trump it. He pointed to an example of where the mother of an abuse victim made the request to take down links, because it would permanently follow the victim and may affect her future if employers searched for her. Barron believed in this case, despite the obvious public interest, the removal was the right thing to do.

Stewart then asked Anya Proops whether the judgment had made her work more complex. She agreed, but pointed out that the discussion surrounding the matter was veering away from the key notion that a principle has been created where privacy trumps the right to know. This judgment is a clear assault on the freedom of expression, as there was no consideration of the democratic deficit this could result in, and there was no consideration at all of the European Charter of Fundamental Rights, particularly Article 11 which restates the right to freedom of expression across Europe.

She was also clear that there was no meaningful effect, given the lack of impact on search engines outside of Europe, and that the media were republishing material to show that it still had relevance and was in the public interest now. Stewart noted that Proops was acting in a case touching on those issues, but asked her whether this may have any impact on getting publicity for whistleblowing activity. Proops agreed with Graham that the new Regulation does extinguish the protection for journalists. Rather what it does is removes the monopoly away from the traditional media, it makes the protection more inclusive. While she could not discuss the details, she said that a case she was acting in hinged upon the question whether campaigning NGOs could use the exemption as it currently stands under s 32.

When asked whether there was a sensible solution, Proops noted that she thinks the ECJ got it wrong, and has set the discussions on the balance back. Any solution needs to serve both the interests of individuals to protect their privacy and the right to receive information. Graham added that he believed the situation could work, but that it requires all the relevant data protection authorities to create unified guidelines.

Holly Watt was asked for her views, but she believed that there were too many issues to sort the matter sensibly, and that for as long as she had been working as a journalist the entire question had been in a state of flux. Her role is connecting disparate information, and the judgment certainly limits her ability to do her job. Stewart asked her whether this was something that the Press deserved, given the public attitude to revelations over the previous few years. She believes that it depends on the example. Hers was the politicians’ expenses data, which was incredibly important at the time and still has an impact now. The paper still has the data, despite the ICO not being keen on it and against the recommendations of Leveson LJ. She said that the Press has had a difficult time lately, but it really needs to look forward.

Whittingdale noted that the intention of Parliament was to make what was (un)lawful offline the same online. He also pointed to s 12 Human Rights Act, where Parliament expressly set out the free of expression to the UK legal identity. His concern is that this judgment has concerns for liberty. When asked whether his committee should act on this, Whittingdale that this is more for the Ministry of Justice, though it is something he is happy to pursue. Graham said what should happen is a moratorium on action until a few cases have been appealed to the ICO and beyond, as this will ensure the right balance is drawn now. Proops disagreed, noting that the issue is EU wide. The UK has a strong value in freedom of expression, but other states do not and this will lead to patchwork protection. The whole purpose of the Directive and the Regulation is for one law across Europe.

Stewart then opened the debate to questions from the floor.

(AF note: I could not hear all the names, so apologies there. However, if people know the speaker’s name I am happy to fill it in)

A speaker from the University of Cambridge noted that the panel was slightly unbalanced towards the freedom of expression. He said that leaving it to the courts may be wrong, and that we should consider looking at the matter from a constitutional point of view. He also said that Google needs to focus on its responsibilities.

Mark Stephens (@MarksLarks), a well-respected media lawyer, asked two questions: 1) what is the ICO’s definition of journalism; and 2) whether the office will be getting more resources to deal with the expected appeals.

Graham responded that funding is a separate issue, as he is reliant upon notification fees for data protection registration, and only gets money from the government for the FOI work. Regarding a definition of journalism, he noted that it was hard to define, but if it walked like a journalist, talked liked a journalist … What matters is the public interest, and balancing a very difficult balance. Proops responded that this could lead to serious censorship if a piece did not meet the “serious journalism” threshold. She said we should also not forget how the less serious journalism funds the more serious journalism. Professor Floridi noted the difficulties of finding a definition, but highlighted a key principle in the debate, that the information is untouched and that accessibility to information is what is at stake here.

The next comments from the floor were from Lord Inglewood, who noted that the judgment is fixed currently so pressure needs to be exercised politically. Pressure needs to be exerted on the European Commission, the European Parliament, and the UK Parliament. He also raised the question as to whether a challenge could be raised in the European Court of Human Rights.

Joshua Rozenberg (@JoshuaRozenberg) asked two questions. Firstly, he asked whether using a non-EU version of Google would reveal all the “missing” links, which Barron confirmed is correct. He then asked whether Google should set up an internal review process, given that journalists cannot complain to the ICO. Barron said that webmasters have got in contact to reinstate links, most noticeably articles by Robert Peston on Merrill Lynch and certain Guardian articles. He said that Google has also announced the creation of an advisory board to discuss the broader issues at stake. Graham added that journalists in such circumstances do not have data protection rights contrary to those of individuals, but that Google is not and cannot be the final arbiter of such decisions. When Barron said that small search engines may not be able to cope with the costs that Google can lay out for extra staff and the like, Graham responded that that is the nature of business.

Katie Hind, Showbiz Editor for the Sunday People, asked whether there was a danger the ICO was creating an uneven playing field and making it more difficult for popular journalism. Graham responded that the information was still available, just not as easy to get to. His role is to help individuals who want to assert their data protection right. The facts of each case are what matters, and that self-interested voices are clouding the issue.

Bob Satchwell, the Executive Director of the Society of Editors said that the issue was getting further muddled. The question of resources and practicality is important, but what matters is the point of principle. Our value for the freedom of expression is high, but other EU states do not have the same value (here he pointed to France, noted for its pro-privacy stance towards its politicians). When asked by Stewart if this judgment was a case of self-inflicted wounds, Mr Satchwell responded that some journalists had done bad things, but the public is more concerned about the stories that they are not allowed to print.

James Milligan from the Direct Marketing Association noted that the first data protection legislation in this country came from a pre-Internet age, but the caselaw is now based on the reality of the Internet. It is important to lobby for a sensible Regulation. The Regulation is currently at the negotiation stage in the Council of Ministers, so there is still time for more lobbying to be done.

Greg Neale of the Media Society and founding editor of BBC History Magazine said that the issue is wider than first considered, considering historians and NGOs, among others, collect data for their work. Perhaps it is time to widen the concept of journalism and journalist to afford greater protections. The power of such rights is to be able to use the rights available to citizens in ways other than as an ordinary citizen. As a citizen first then a journalist, he should be able to use all the rights afforded to him as a citizen.

Another speaker from the floor agreed with that analysis, for if privacy trumps freedom of expression then there is an issue. Setting journalists apart however is not the right answer, given the move towards citizen journalists. Neither is keeping the status quo. What is important is that neither right trumps the other.

 

Analysis

This was a debate with passionately held views on either side. It did seem that Christopher Graham came in for criticism, given his stance as the Information Commissioner, but his role as he explained is to help individuals assert their data protection rights. Three points from the debate stand out:

  • one from Joshua Rozenberg, that it is possible to use other search engines based outside of the EU to get the lost results. This seems to make both the judgment and the surrounding panic about it redundant, if the ease of access to information is still there;
  • one from Professor Floridi that links to the above, that the information itself remains, and all that is being removed is the easy access to it by a search engine by using the target’s name; and
  • one from the speakers on the floor, that journalistic protections should be expanded to protect those who are not members of the traditional Press but do their own investigative work and blogging.

The third point above seems the easiest to deal with. The way that people take in and report information has changed dramatically over the past thirty years. The rise of blogging and search engines has allowed people to do their own digging and publish their own reports on matters of (to them) public interest. The work often has real value and yet, as matters stand, such bloggers are not entitled to the protection afforded by s 32 Data Protection Act. This may seem an affront to the principle of protection given that celebrity or more tabloid journalism can have that same protection. It is certainly a protection that needs to be enshrined in the new Regulation, noting that citizens of Europe are more than capable of using data in the public interest and should be protected.

The others can be lumped together. What actual use is this judgment if the search results can easily be found simply by changing the location settings on a browser? Quite simply, none. The rights to impart and receive information are still strong. Perhaps what this judgment brings out is that a new sub-right based upon these rights is now being determined, the right to easily accessible information. At what point does information become hard enough to find that the right to receive that information has been breached? Given the judgment, it seems that any such threshold must be high.

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Seminar: The Prospects for a British Bill of Rights, Sir Leigh Lewis, 24 January 2013, UCL’s Constitution Unit

UCL’s Constitution Unit hosted a seminar looking at the prospect for a British Bill of Right, which was given by Sir Leigh Lewis KCB. Sir Leigh was the chair of the controversial commission set up by the Prime Minister to look at the possible use for a British Bill of Rights. The report was published on 18 December 2012, and this is the first chance that Sir Leigh has had to reflect on it in public.

Background

After a quick straw poll in the room showing that most people had not read the summary of the report, Sir Leigh started with its background. The commission was set up as a response to the political impasse caused by human rights in the coalition formation discussions. It was already clear to most that the manifestos of the two parties clashed on this are, and so the formation of a commission is a tried and tested political response which buys the politicians some time before having to deal with the issue.

Sir Leigh was appointed the Chair, following his long service in the Department of Work and Pensions, and he was supported by eight other commissioners. Each party selected four commissioners, and often their views represented the views of the party they were selected by. The terms of reference that the committee worked under were ‘interesting’; it was apparent that the parties had negotiated them to a fine level of detail. The key words for the commissioners were as follows: The Commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties. This was taken by all the commissioners to mean that any resulting Bill would supplement the existing European Convention in UK law, even though it was noted by a small minority that they wished it were not so.

While the commission was working, the external environment put greater pressures on the work they were doing. As examples, the Hirst judgment on prisoner voting had returned to the fore, and the deportation cases of Abu Hamza and Abu Quatada had exacerbated the polarisation of the views that were already deeply held by many.

Methods

The commission decided that transparency was key in their work, so all the papers and minutes were published. The commission met 19 times, and engaged in different types of outreach work. This includes open consultations for the public, a large by-invitation seminar in Birmingham, receipt of submissions from key groups, and discussions with the devolved administrations. All the responses were read and summarised by the secretariat, and about half were read the commissioners.

The commission decided not to hold Leveson-style hearing for pragmatic reasons, such as time allowed and costs, and also they felt that it did not suit the nature of the task. Similar to this, the commission did not commission their own polling; although deliberative polling was considered, finding the correct questions to ask would prove too difficult, and the commission wanted no skew at all.

Recommendations

They released 24 recommendations, 17 of which were agreed by all commissioners. The key one, that a United Kingdom Bill of Rights should be established so long as it incorporated the EUROPEAN CONVENTION ON HUMAN RIGHTS fully, was only agreed by seven of the nine commissioners. The two who disagreed, Baroness Helena Kennedy QC and Professor Philippe Sands QC believed that this level of detail was not necessary, as the failure of the EUROPEAN CONVENTION ON HUMAN RIGHTS, European Court of Human Rights and HUMAN RIGHTS ACT had not been fully explored by the commission.

One thing that was agreed by all was that they thought it key to provide steers as to what any such Bill should contain. A question that arose out of this was whether the Bill should contain other additional rights. This was not opposed in principle; the Convention if drafted today would be a very different document to the one drafted 50 years ago. Various rights were proposed, including equality rights, and children’s rights. Some members also thought that enshrining the right to a form of administrative justice should also be enshrined in the Bill if it was ever drafted. When considering socio-economic and environmental rights, it was decided that they would not be suitable for such a Bill, as most felt that overall that these rights required the making of choices and decisions that were best left to the elected politicians, not the courts.

Mechanisms

The commission also considered the mechanisms with any Bill should operate on broadly similar principles to those in the HUMAN RIGHTS ACT. This included a mechanism for a declaration of incompatibility such as that found in the HUMAN RIGHTS ACT. The commission found the formula in the HUMAN RIGHTS ACT to be a subtle balance between the elected legislature and the judiciary, and saw no reason to change that.

Responsibilities

The commission also considered whether any such Bill should include a concept of responsibilities. This was suggested in light of the green papers released under the previous Labour government, and the discussions at the Birmingham seminar showed support for this. The commission concluded that it was not desirable to make rights conditional upon the exercise of responsibilities; this denied the inherent universality of rights. Instead, it was suggested that some form of declaratory non-justiciable statement could be made to encourage those covered by the Bill to support the ties of respect and responsibility that bind society.

Devolution and Europe

As noted above, the devolved administrations were also considered in the process. The devolved governments of Scotland and Wales understandably felt that the matter was for them to decide in their own area, and said that their populations were much less concerned anyway. However, Sir Leigh said that the polling, with the above caveat in mind, showed that the reactions of the people in these countries were much in line with England on the matter. The Northern Ireland question was much more complicated, and there was not time to discuss it in the seminar. However, it was clear that any future debate must be sensitive to the devolution or independence of the countries in the United Kingdom.

The commission was also ask to consider and review the European Court of Human Rights as part of a wider constitutional review. This was prior to the UK’s assumption of the chairmanship of the Council of Europe. One matter that stuck out was the backlog of cases, which has only modestly dropped since it became a public concern. The commission recommended a significant reduction in the number of cases that was sent to the court, and that these were limited to serious cases where interpretation of the Convention was required. There were also questions about the remedies the court could offer, and suggested reform of the judicial appointment process. However, this was only ever to be interim advice and was left at these points.

Reactions

Following publication, the reactions were overwhelmingly those of disapproval. The Telegraph’s response was the only positive plaudit from the Press, and Sir Leigh read out some of the less flattering ones, including a comment from Ben Emmerson QC, who said the commission was kin to the editors of the Daily Mail and the Sun sitting down together to write the constitution. Sir Leigh’s own view reflected that of the commission’s values: that there needs to be respect for different viewpoints and that any debate must be well-informed. He said that the argument that better education would solve the problem of public ownership of human rights was too simplistic, but there is a nugget of truth to the matter. Sir Leigh borrowed the words of Lord Lester QC, who noted that in Europe we are rare as a country to not view human rights as part of our constitutional rights, and human rights cases as matter decided by our laws, but rather in line purely with the Convention. Rather, we feel a sense of alienation about the whole concept. This issue of public ownership is why the seven of nine commissioners suggested the adoption of a Bill of Rights for the United Kingdom.

The seminar was followed up by a Q&A session done under Chatham House rules.

Thoughts

One thing was clear after that seminar: Sir Leigh was very proud of the commission’s thoroughness, and was not disheartened by the lack of approval. He admitted that he knew it would always have been a difficult and mostly thankless task. What was most interesting about the seminar was the impact of the human rights arguments within the devolved administrations. While the coalition was busy forming the government in Westminster and having discussions about human rights, they had not considered what the other administrations within the United Kingdom may feel about the issue. Welsh politicians have renewed calls for a separate legal jurisdiction to England, and the Scottish independence referendum has the chance to change the political structure of the United Kingdom in a big way. With these two issues and the increasingly loud rhetoric on both sides of the debate, it is not surprising that the commission did not achieve as much as it had hoped. Its lasting contribution may well be to provide a snapshot of the human rights agenda at this point in time, so that any debate to be had will be, as the commission suggests, well-informed.

 

Other UCL Constitution Unit seminars can be found here.

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