Tag 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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Human Rights Protection in Australia and the United Kingdom: Contrasts and Comparisons

On 5 July 2012, the Chief Justice of Australia, Ron French, gave a lecture in the very opulent Australia House on the differences and similarities between human rights protection in Australia and the United Kingdom. It was chaired by the Lord Chief Justice of England and Wales, Lord Judge.

French started his lecture by pointing out the most important difference between the two jurisdictions: Australia has a written constitution, and the United Kingdom does not. He also pointed out that Australia has no bill or charter of rights unlike the Human Rights Act 1998 in the United Kingdom, with him joking that the phrase “she’ll be right, mate” was a pithy way of describing the popular views of how human rights work. However, one of the great similarities and strengths of the two countries is the principle of legality based upon the common law and parliamentary sovereignty. There have been criticisms of Australia as a western democracy for a perceived failure to protect rights adequately, but French argues that there is protection present.

In September 2009, a committee on human rights reported to the Attorney-General of the Commonwealth of Australia on which rights should be better protected and how Australia can achieve that. One option was a statutory charter similar to the Human Rights Act 1998, but there was a concern that such a charter would remove the power and burden from the parliamentarians and place it on the judiciary. Instead, it was decided that education was the key way that rights should be protected, and other existing statutes could be altered to give the judiciary a power to interpret legislation in line with these rights similar to the power under s 3 HRA.

The committee suggested a common law Human Rights Act based upon the HRA in the United Kingdom and its dialogue model, but the Attorney-General said it could be divisive. Instead a human rights framework was created to promote education and to pass an Act of Parliament to form a joint committee on human rights to ensure that Australia complied with seven core human rights treaties. As an example of how this would work, in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, Teoh claimed that due to his children the Minister should have considered the impact of the Convention on the Rights of the Child (which Australia has ratified) when considering his deportation. That case held that it was correct for Teoh to have a legitimate expectation to be protected by an international treaty that Australia signed, though it was possible for the Minister to depart from his obligations under it.

It was decided that every new Bill was to be accompanied by a human rights statements, and the core treaties were:

  • the International Covenant on Civil and Political Rights;
  • the International Covenant on Economic, Social and Cultural Rights;
  • the Convention on the Elimination of All Forms of Racial Discrimination;
  • the Convention on the Elimination of All Forms of Discrimination Against Women;
  • the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment;
  • the Convention on the Rights of the Child; and
  • the Convention on the Rights of Persons with Disabilities.

There was also public discussion of putting discrimination law under common law and statute into one statute, as there are many that operate at both state and federal level. However, it was decided that this was unnecessary as s 109 of the Constitution can be used to prevent their operation under commonwealth law. In Mabo and Other v State of Queensland (1992) 175 CLR 1, a statute extinguishing the claim of Aboriginal groups to land was held to be inoperative under s 109 for grounds of discrimination. A further case where limiting fertility treatment in Victoria to married women only was also rendered inoperative.

Most territories have their own discrimination laws, some even in charter form. However, the Australian Constitution has no bill of rights to enshrine these laws, but it does contain protection for them. To find them, we need to look at the broader context, and the evolution of Australia as a country.

All the states acted as independent territories with their own supreme courts, but decided to federate in the 1890s, which required a draft constitution, as the colonies were given authority by imperial statute. The-then Chief Justice of Tasmania turned to the US Constitution as an example. Some representatives were not keen on the provisions in this, as for them some forms of discrimination were desired. However, the rights to trial by jury, free exercise of religion and the protection of a state’s residents from other states on the basis of their residence form part of the Constitution. There are other rights expressed within the document, as well as those more subtle.

Chapter 1of the Constitution sets up the law making power for the Commonwealth and the following chapter created the executive. Chapter 3 set up the judiciary: the High Court of Australia, federal courts, and the power to delegate federal authority to other courts, namely the supreme courts for each state. The High Court however remains the final appellate court for all. The Constitution contains a clear separation of powers, which is not found at state level. However, the independence of the supreme courts is now guaranteed and entrenched as a result of the Constitution.

Other express rights include as the prevention of civil conscription, the acquisition of property of just terms, and the power for the High Court to review the actions of an officer of the Commonwealth, an expansion to the right to trial by jury which requires a unanimous decision of a jury for conviction of a Commonwealth offence, and free movement and trade between states. A restraint of the practice of legal professionals between various states has also been removed.

In this way, the rights may be seen as legal and procedural guarantees as well as rights similar to those in our HRA. This also include the Kable doctrine, which prevents state courts from acting in a way that is repugnant to federal courts. This can also prevent the state judiciary from being bound by state legislation, such as the restrictions placed on a Magistrates Court to follow prescriptive legislative powers. The supreme courts cannot be deprived of their supervisory jurisdiction of the executive under the constitution and case law.

Other rights that have emerged from case law include the right of Australian prisoners to vote, to change election registration details after an election is called, and an implied freedom of political communication. The judiciary have also been known to take more direct action, as a book on shoplifting was denied a classification and therefore could not be published; however, while the appeal was dismissed, the judge as part of his reasoning attached the entire book to his judgment.

French noted that the United Kingdom does not have such cases, but our common law rights have the same constitutional power. The principle of legality ensures that construction of the law must follow the least infringing meaning. These rights and principles have their own importance and weight which is free from interference in statute. Australian examples include a provision against annoying Catholic pilgrims during World Youth Day as part of a papal visit could not be construed to prohibit all activity, and the reverse onus of the legal burden of proof falling on someone in possession of drugs could not be used to support the legal burden and evidential burden of trafficking offences.

French’s final point was this: the roles of the courts and the Constitution is key but is based upon the people working in their framework. However good a constitution is, it won’t work properly if there are bad people working in it, but however bad a constitution is, it will work if there are good people working in it.

The talk was hosted by the Anglo-Australian Lawyers Society and the Constitutional and Administrative Bar Association.

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