CAS has been described as a “six strikes” system. While the exact details of the CAS will vary depending on the ISP that employs it, the system is broadly structured as follows. Alleged infringing activity will be identified through an analysis system called MarkMonitor, which uses “both trained professionals and automated processes to identify illegal downloading of whole movies, TV shows and musical recordings”. Once the alleged infringing activity has been identified, notice is sent to the appropriate ISP informing them of the activity and, among other information, the Internet Protocol (IP) address connected to the alleged infringement. The ISP will then take action. The nature of the response will vary depending on whether the subscriber whose account is associated with the IP address has previously had action taken against them under the CAS (that has not been successfully challenged on review).

CCI describes the CAS as follows: “Educational alerts will come first, followed by acknowledgement alerts that require the recipients to let their ISP know they have received the notices. For accounts where alleged infringing activity continues, enhanced alerts that contain ‘mitigation measures’ will follow. These mitigation measures will vary by ISP and range from requiring the subscriber to review educational materials, to a temporary slow-down of internet access speed”. CCI states that “[t]he progressive series of alerts is designed to make consumers aware of activity that has occurred using their internet accounts, educate them on how they can prevent such activity from happening again (for example, by securing home wireless networks or removing peer-to-peer software), and provide information about the growing number of ways to access digital content legally”. CCI emphasizes that “termination of a consumer’s internet service is not part of any ISPs’ Copyright Alert System program”. As explained by CCI, “contrary to many erroneous reports, this is not a ‘six-strikes-and-you’re-out’ system that would result in termination. There’s no ‘strikeout’ in this program”.

Desiring to “set up a program that is accurate, fair, and protects consumer interests at every step in the process”, CCI has taken several steps to protect consumers. First, CCI “retained a recognized technology expert, Stroz Friedberg, to both evaluate the methodologies used by MarkMonitor to identify allegedly infringing activity, and to “review the technical processes used by each ISP to match subscriber accounts with IP addresses forwarded by the content owners”.

Second, CCI created a review system through which consumers can “seek review of alerts they believe were sent in error”. This review system is to be operated by the American Arbitration Association (AAA). As noted by CCI, “[t]he review system will allow consumers to ask a trained, impartial professional at AAA to review alerts fairly and confidentially, while honouring their expectation of privacy”. It has been reported that in order to initiate a review procedure, consumers will have to pay $35 to the CAS. It was also reported that this amount would be “refunded if the consumer wins the review”.

Free Speech Debate’s 10^th draft principle states that “We must be free to challenge all limits to freedom of expression and information justified on such grounds as national security, public order, morality and the protection of intellectual property.” The CAS must be scrutinized to ensure that it does not unduly burden freedom of expression in pursuit of the important goal of combating copyright infringement online. If not properly implemented, the CAS could prove to be a significant burden on freedom of expression. For instance, it is conceivable that the CAS could be constructed in such a manner as to flag not just downloads of whole works, but downloads of partial works, even if these works are embedded in new expression. This could have a significant impact on the dissemination of transformative works such as parodies, satire, mashups or machinima (among other types of works).

Justice Souter J., in the case Campbell v. Acuff-Rose Music, Inc., in 1994, defines transformative use as “add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message”. Souter J. states that transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright”. Given that in Eldred v. Ashcroft, fair use was described as a “First Amendment safeguard”, an intimate connection can be said to exist between transformative works and freedom of speech. Should the CAS be structured in such a way to restrict the dissemination of transformative works, free speech itself would be unduly burdened.

Furthermore, given that the CAS attributes responsibility for allegedly infringing activities to the subscriber whose information is attached to the IP address that has been used to allegedly infringe copyright, it is conceivable that subscribers who have themselves not engaged in any allegedly infringing activity could have measures taken against them, such as “a temporary slow-down of internet access speed”. By impeding their ability to access the internet in response to something they themselves did not do (or may not have authorised), such a measure can be seen as inappropriately impacting upon these individuals’ freedom of information and freedom of expression.

In seeking to ensure that the CAS does not unduly burden freedom of expression, I offer the following suggestions. First, the CAS should be monitored carefully to ensure it does not create alerts based on the dissemination of transformative works (or other works that contain parts of copyright-protected material embedded within non-infringing material). While a court could find that the use in question is not sufficiently transformative as to be considered fair use, and that it ultimately infringes copyright, this ought to be a determination made by a court and not by MarkMonitor or the CAS more generally.

To this end, the CAS should only be triggered when works are downloaded in their entirety. This appears to be the way in which the system is currently configured. One blog post from CCI indicates that MarkMonitor is structured so as to identify when whole works are downloaded. Additionally, in a 2011 Memorandum of Understanding it is noted that “[f]or purposes of generating ISP Notices, the Content Owner Representatives further agree to focus on instances of P2P [peer to peer] Online Infringement involving files or data consisting primarily of infringing material or containing unauthorized copyrighted works in complete or substantially complete form and to avoid instances of P2P activity in which de minimis amounts of allegedly infringing material are incorporated”.

Second, the CAS should be configured in such a manner as to distinguish between the distribution of whole works that are protected by copyright, and whole works that are not protected by copyright. Copyright is time-limited. After the period of copyright expires, individuals are permitted to disseminate full copies of formerly copyright-protected works without having to first seek the authorization of the copyright owner. The CAS should be scrutinized to ensure that the dissemination of works that are no longer protected by copyright does not result in alerts being sent to subscribers.

Third, careful attention should be paid to the content of educational alerts and educational materials to ensure they present an accurate picture of copyright law. For instance, educational materials should be reviewed to ensure that they discuss fair use and other defences to copyright infringement, and do not simply claim that each unauthorized reproduction of a work (or a part of a work) constitutes copyright infringement. As well, both the rhetoric used in the materials and any claims about the harm caused by copyright infringement should be carefully analysed. To this end, I suggest that all educational materials and alerts should be published online on CCI’s website or in a separate “online information center” (the creation of which appears to be mandated in the 2011 Memorandum of Understanding).

Fourth, care must be taken to ensure that the methods used by MarkMonitor to identify allegedly infringing activity and the processes used by ISPs to match IP addresses to subscriber accounts are accurate, that they are not overbroad, and that they do not infringe on individuals’ privacy rights.  The decision by CCI to retain Stroz Friedberg to evaluate these methods and processes can be seen as a recognition, on the part of CCI, that these issues are important and need to be taken seriously.

Concerns have been raised, however, as to Stroz Friedberg’s impartiality.  As CCI noted in a blog post dated 30 October 2012, it was reported that “a former employee of Stroz Friedberg lobbied several years ago on behalf of [the Recording Industry Association of America] on matters unrelated to CCI”. In response to these reports, CCI, while reiterating its confidence “in the Stroz team’s skill and ability to deliver an independent review of the content community’s methodologies as they relate to CCI and the CAS”, took two additional steps in order to restore faith in the impartiality of Stroz Friedberg and in the CAS.  First, it “decided to have another expert review Stroz’s initial evaluation of the content community’s processes”. Second, it announced that it would be releasing, to the public, the report prepared by Stroz Friedberg “to enable interested parties to review it for themselves”. CCI also reiterated its previous commitment to “periodically review the content community’s methodologies to ensure that they operate with the accuracy and quality we expect and that consumers deserve”.

While these steps are laudable, I urge CCI to go further. Specifically, I suggest that CCI publish, on its website, the methodologies used by MarkMonitor, the technological processes employed by ISPs, and the reports resulting from CCI’s periodic reviews, to allow for public scrutiny and review.

Fifth, I suggest that detailed data should be collected, by an independent body, with respect to the operation of the CAS. This data should be made public on CCI’s website and should be regularly updated (potentially in “real time”). Information that might be collected could include the number of alerts issued at each stage; the number of reviews that are heard; the time taken to hear and decide a review; and the extent to which individuals received erroneous alerts.

This open approach to the collection and dissemination of data would differ significantly from the process contemplated in the 2011 Memorandum of Understanding, which noted that “[n]one of the records and data relating to the Notice Process and Copyright Alert Programs shall be made publicly available by CCI without prior approval by a majority of the Executive Committee”.

CAS has the potential to serve an educative function and may play a positive role in reducing the amount of copyright infringement online. However, while it is important to protect copyright, it is also important to ensure that any protection does not unduly burden freedom of expression. As noted in the Memorandum of Understanding, efforts to deter copyright infringement “must respect the legitimate interests of internet users and subscribers in protecting their … freedom of speech”.

Graham Reynolds is an Assistant Professor at the Schulich School of Law at Dalhousie University in Halifax, Nova Scotia, Canada. He teaches and researches in the areas of copyright law, intellectual property law, property law, and the intersection of intellectual property and human rights.

No country has taken to memory laws more than France, for whom the business of legislating on the past has been described as a national sport. It began with the 1990 Gayssot Act, which punished Holocaust denial with fines and imprisonment. A decade later legislation came thick and fast: a 2001 law recognised the Armenian genocide, while another law that year defined the slave trade and slavery as crimes against humanity. A 2005 law recognised the positive role played by French colonialism, with a provision prohibiting criticism of, or minimisation of crimes against, harkis (Algerians loyal to France). A 2006 bill attempted to punish denial of the Armenian genocide; though this failed to pass the issue resurged in 2011 with an Act that punished denial or minimisation of the genocide with a €45,000 fine and a year in jail.

Yet it is also in France that there has been the staunchest opposition to these laws from historians. The umbrella group Liberté pour l’Histoire formed in 2005, and over the past seven years has taken on memory laws with a vangardist temper not often seen from this traditionally demure profession. I met the head of the organisation, historian Pierre Nora, and the group’s secretary Olivier Salvatori, at the offices of Gallimard publishers in Paris where they work.

Liberté pour l’Histoire has long argued that such laws violate the French constitution and the founding principles of the modern state. Their 2008 petition, Appel de Blois, declared: ‘In a free state, no political authority has the right to define historical truth and to restrain the freedom of the historian with the threat of penal sanctions’. Nora tells me that ‘Memory laws are completely different to laws on defamation, which protect individual rights and can be derived from the constitution.’ Memory laws aim not to protect rights but to lay down historical truths, under threat of penal sanctions.

The implications for historical investigation are profound. ‘What if somebody writes a book saying that 10 million rather than 12 million Africans were taken by the slave trade – are they guilty of a crime?’, asks Nora. The state is ‘prescribing limits’ for historians, telling them ‘what they should research and what they should find’. The group launched a petition in 2005 in response to the prosecution of historian Olivier Pétré-Grenouilleau for ‘denial of a crime against humanity’, after he said in an interview that in his view the slave trade was ‘not a genocide’ since ‘it didn’t have the goal of exterminating a people’. 

The last time European states prescribed historical truths under threat of penal sanction was under blasphemy and heresy laws. Yet contemporary memory laws are quite distinct from these old state-ordained truths. The striking feature of French memory laws is their lack of any overriding logic: one law is pro-colonialist, two are apologetic (though for events several centuries apart), and one (the Armenian genocide law) deals with an event that didn’t involve France at all and which many French people would not have heard of.

It’s not clear why a French president would be suddenly gripped with an urgent need to legislate on the 1915 massacre of Armenians, such that he would rush this law through –against opposition from his advisers – to be passed by an unprecedented hand-vote by a mere 50 deputies. ‘We don’t understand very well why they did it’, said Nora, ‘There are lots of hypotheses’. Some suggest that the drive could be geopolitical, putting off Turkey’s entrance to the European Union. A bigger factor is electoral: Armenians are an important voting bloc in key areas such as Marseille and Lyon, and it is no coincidence that the Armenian law initiatives appeared in election years. The 2011 law was adopted by the deputy for Marseille, who was also vice-president of the Armenia-France Friendship Group.

The precondition for memory laws is the moralisation of history – or more specifically, a shift from victory-history, whereby nations exaggerated their past heroics, to victim-history, where groups emphasise their past sufferings. The demand for recognition of historic suffering is implicitly a claim made through the state; it is ultimately a demand for compensation for wrongs suffered, whether in the form of monies or ideological protection.

Terms such as ‘genocide’ and ‘crimes against humanity’ are now part of the everyday business of political claims-making. ‘These terms were once very precise’, says Nora. ‘A crime against humanity was a legal term applied after the Second World War, which involved the legal duty to pursue and bring to justice the authors of the Holocaust until their deaths. Genocide meant the decision to destroy a part of a population for racist reasons’. Now events including civil wars and the slave trade can be described in these terms. In Nora’s view, ‘it is a judicial absurdity to say that an event such as the slave trade was a crime against humanity’. The authors of that crime are several centuries long gone, and their intention was not to destroy a population. The more that the word ‘genocide’ is used broadly for ideological reasons, the more it becomes ‘a word that historians try to avoid’.

Nora says that historians can cope with these cultural trends, so long as they are not embodied in laws – and consequently so long as historians are free to challenge or ignore this use of the past. It is memory laws that are the problem and need to be scrapped.

In this, Liberté pour l’Histoire has been remarkably successful. Though Salvatori tells me that the group is ‘not much of an “organisation”’ – there is no office or staff – they have made their voices heard throughout the media and at the highest echelons of state. ‘Our ideas have won the battle of pubic opinion’, judges Salvatori.

To all intents and purposes, the group has managed to render France’s memory laws null and void. A 2008 parliamentary enquiry  – at which Liberté Pour l’Histoire gave the opening and closing testimonies – issued the resounding conclusion that government should refrain from legislating on history. Most importantly, the group achieved the suspension of the 2011 Armenian genocide law by the Constitutional Council, which found in a landmark decision on 28 February 2012 that the law was unconstitutional on the grounds of infringement on freedom of expression.

For now then, the threat of memory laws in France appears to have subsided. But the lesson of the past seven years is that the impulse to legislate on historical events reappears again and again, often without warning and in surprising guises. Quite soon after being elected last year, François Hollande expressed his desire to return to legislating on the Armenian issue. ‘Liberté Pour l’Histoire should remain vigilant’, the former justice minister Robert Badinter told the group’s general assembly: there could well be more memory laws. ‘We are not disbanding’, says Nora.

This informal network of historians has furnished Europe with an impressive case study of free speech campaigning. With the slogan ‘liberty for history is liberty for all’, they have defended not only the freedom of their profession but also the founding principles of the democratic state.

Josie Appleton is director of the civil liberties group the Manifesto Club. Speeches and articles about Liberté pour l’Histoire can be found on the group’s website. You can sign the 2008 Appel de Blois or subscribe as a member.

So the popular perception of data protection is woefully inaccurate. That leads to a radical underestimation of the threat this regime poses to the enjoyment of other fundamental rights and pursuit of legitimate activities.  Nowhere is this more the case than in relation to social and humanities research.  Since the advent of the EU data protection framework, researchers have witnessed dramatic restrictions on their freedom to use “sensitive” data or to resort to covert methodologies.  Coupled with the growth of sometimes intrusive “ethical” review policies, the barriers and burdens placed in the way even of ordinary, innocuous, yet socially beneficial research and on researchers have become considerable.

It might have been hoped that the proposed EU Data Protection Regulation would provide an opportunity to reverse this.   But if the European Parliament’s draft report and amendments  – published in January 2013 – are anything to go by, the converse is true.  Prepared by Jan Albrecht MEP, the Rapporteur of the Civil Liberties, Justice and Home Affairs Committee (the lead Committee for considering the Regulation), these stringent proposals would effectively outlaw almost all research in law and in contemporary history as well as a great deal of work in sociology and political science.  Now, any processing for historical, statistical or scientific research purposes would be subject to the following:

• A complete ban on publishing even the most innocuous personal data in identified form unless the individual in question either has himself or herself put it into the public domain or has freely given, specific, informed and rescindable consent (Amendment 339, p. 201).  This would deny a historical researcher the right to publish information from a newspaper article accurately reporting the public activities of a public official (e.g. Tony Blair’s involvement in the decision to go to war in Iraq).  It would also prohibit the citation and publication of analyses of already published court judgments since these are full of identifying details which the justice system rather than the individuals concerned have put into the public domain.
• If the details in question reveal any “special” categories of information (see above), then the restrictions would be even greater.  In the absence of freely given, specific, informed and rescindable consent, all such research would be banned unless Member States, on a purely optional basis, allow their Data Protection Authority to issue permits for this.  These could however only be granted if the information “be anonymized, or if that is not possible for the research purposes, pseudonymised under the highest technical standards, and all necessary measures…taken to prevent re-identification of the data subjects”.  The research must also serve “exceptionally high public interests” and be something that “cannot possibly be carried out otherwise” (Amendment 337, p. 200).  Not even information previously published by the individual in question would be exempt.   Thus, for example, a historian would have no right to report that Emma Nicholson, now a Liberal Democrat Peer, used to be a Conservative MP, despite this being public knowledge freely available on Wikipedia. According to the  Information Commissioner’s Office the political affiliation of an MP is “sensitive” personal data (p. 8).
• We are also told that in all cases “data enabling the attribution of information to an identified or identifiable data subject” must be “kept separately from the other information” (Amendment 335, p. 199).  This would prevent a researcher from saving a court judgment or a newspaper report on a laptop without having first replaced all personal identifiers (such as “David Cameron” or “Lord Hutton”) with a pseudonymised (as above) code, the key to which would then have to be stored elsewhere.
• Finally, the clause allowing the European Commission to propose delegated legislation to allow for covert research has simply been deleted (Amendment 341, p. 202).  But, subject to suitable safeguards, such research has often been essential in bringing to light important facts including illegal police practices and discriminatory attitudes on the grounds of sex, ethnicity or race.  People are obviously not going to be willing to give consent to their wrongdoing being researched.

Albrecht is candid about the restrictions on research freedom which are being proposed.  Thus we are told baldy that “[r]esearch purposes should not override the interests of the data subject in not having his or her personal data published” (at p. 201).  If the word “journalistic” were substituted for “research”, then it would be obvious to everyone, including of course the Press, just how onerous this censorship is. Ironically, alongside these harsh restrictions on research, Albrecht proposes broadening the protections set out in Article 80 as regards journalism, literature and arts so as to protect freedom of expression per se (Amendment, 324, p. 193).  This is to ensure that “freedom of expression is protected in general, not just for journalists, artists or writers” (p. 52).

Freedom of expression is defined by reference to the EU Charter which includes freedom to “receive and impart information and ideas without interference” (Art. 11), a right similarly protected in Art. 10 of the European Convention on Human Rights.  In creating and disseminating new knowledge, social and humanities research intrinsically instantiates such freedom of expression.  Moreover, the special concern of research to investigate genuinely important issues whilst upholding the qualities of rigour, culmination and precision ensures that social and humanities research will usually constitute ‘high-value’ publicly interested speech which the European Court of Human Rights has correctly stated should generally be free from legal restriction. As Brian Harrison has also correctly argued “there is no distinction in principle between the journalist and the historian:  the historians simply have more time for research and reflection”.  However, the one type of actor whose freedom of expression is not protected by this proposed revision to Article 80 is researchers (historical or otherwise).  This is because, whilst Article 80 does allow for (balanced) derogations from most of the Regulation, Article 83’s stipulations on historical, statistical and scientific research are excluded from this.  Freedom of expression is turned “on its head”!

It is vital that the draft Data Protection Regulation be amended.  We need to ensure that social and humanities research is unequivocally included within Article 80’s freedom of expression protections.  This should also prompt a wider rethink of the over-regulation of research compared with other, often less socially valuable, activities.  The proposals are still being considered by both the European Parliament and the Council of Ministers.  It is not too late to press for the necessary changes.  All who care about the future vitality of academic inquiry need to wake up to the realities of Data Protection.  Universities and other research organizations need to be forthright and assertive in opposing these unjustified and unworkable proposals.  Everyone acknowledges that, in some contexts, genuinely sensitive personal data needs protection.  But when this balloons into wide, and wild, overreaction we find ourselves able to know less and less about the societies we live in – including, paradoxically, about the nature of privacy and about the effects of Data Protection regulation itself.

David Erdos is principal investigator of the Data Protection and the Open Society project and a research fellow at the Centre for Socio-Legal Studies and Balliol College, University of Oxford.  A version of this article was originally published in Times Higher Education (“Mustn’t ask, mustn’t tell”, 14 February 2013).

The ‘open access’ movement in the scholarly literature can offer promising possibilities for stimulating scientific work, by: a) providing access to research; b) speeding up scholarly communication and scientific dialog between researchers; and c) offering greater visibility and impact opportunities.

Today, bibliometric techniques are increasingly used as an intrinsic component of a wide range of evaluation exercises. However, the current tendency is for institutions to be graded more on the visibility of their products than on their long-term reputation or resources. The past few decades have seen a large number of citation analysis studies being undertaken in research fields from natural to social sciences and the humanities. Citation analysis results have also been used widely in scientific evaluation for considering the granting of tenure and the promotion of academics, amongst other purposes.

Citation indices offer a new mode of analysis of the popularity and impact of specific articles, authors, and publications. The introduction of the Journal Citation Reports (JCR) from Thomson Reuters had given bibliometrics a great methodological push. Science indicator research has also been instrumental for the development of measuring and analysing science since the 1970s.

A number of academic journal databases exist today, offering indices of citations between publications and mechanisms to establish which documents cite which other ones. They differ widely in cost to the user. Scopus and the JCR are major citation indexes that limit their records to those journals deemed by experts to be scholarly and significant to the journal’s given discipline. Both are subscription based, and therefore generally restricted to libraries. Other, free, citation indices include CiteBase, CiteSeerX, Google Scholar and Microsoft Academic Search.

The JCR’s citation indices have been used as the data source for most of the citation analysis studies reported in the literature to date. They have contributed significantly to the wide application of a citation analysis approach in various studies and in scientific evaluation, but have also drawn considerable criticism, especially when determine tenure decisions.

JCR is considered to be one of the largest and most influential academic citation databases, containing over 46 million records relating to 11,261 high impact journals including 1,400 journals that are open access. As Zhao acknowledges, it is well known that JCR citation indices are still the main data source for citation-based science evaluation, pushing scholars to publish in journals indexed there. Scopus is also regarded to be large, with 46 million records (Delasalle, 2012) relating to 18,500 peer-reviewed journals 1,800 of them open access. It is noteworthy that between them these two databases register about 10% of the open journals indexed in their respective databases.

According to the Directory of Open Access Journals (DOAJ), an authoritative listing of peer-reviewed scholarly open access journals, the volume of high quality peer-review journals is growing quickly, as is the number of authors who want to publish in open access journals.

DOAJ represents a great opportunity particularly for “hybrid open-access journals” where only some of the articles require payment and the rest are open access. ‘Gold’ and ‘Green’ open access journals also suggest new funding models according to Houghton & Oppenheim). Authors can use the Joint Information Systems Committee (JISC)-funded RoMEO, a searchable database of publishers’ policies with simple guidelines for publishing self-archiving journal articles.

JCR citation indices suggest a direct correlation between the number of times a particular article is downloaded and the number of citations it has in other indexed journals. Then again, the relationship may be more complex, since one study has posited a circular relationship, with downloads affecting citations, and citations in turn affecting downloads (Moed, 2005). Interesting studies on the relationship between citations and downloads can also be found for Citebase, an impact-ranked search service that indexes open access papers in ArXiv.

Other research indicates that free access to scientific articles increases the number of resulting citations; open access academic articles are cited by peers more quickly than articles published in non-open access journals. Studies indicate that open publications are therefore likely to benefit science by accelerating the uptake of research findings and by maximising the impact of scientific work, as (Eysenbach, 2006; Piwowar, 2010; Wagner 2010; Borgman 2011, Norris, Oppenheim, & Rowland, 2008) explain. However, it would be unfair not to mention that other authors have expressed skepticism about whether open access articles are cited frequently.

A remarkable example of a repository of open access academic content is the Social Science Research Network (SSRN), which encourages the early distribution of research results and content, downloadable at no charge to the user. SSRN has registered 56 million downloads to date, totalling 1,000,000 per month. The SSRN eLibrary has indexed 7.7 million references and 5.2 million citations.

The slow move of journals to open access and the low participation rate of university faculties in institutional repositories indicates that simply promoting the benefits of new formats of scholarly communication is not enough. If full-text, open access scholarly publications were to be used as data sources for citation-based science evaluation, scholars might be more willing to make their work available for open access.

Finally, it seems necessary to bring open access and new publication formats into the tenure evaluation system. Doing this could not only contribute to the tenure process, but may also serve to promote open access and more efficient knowledge dissemination. As many other times in history, the required mechanisms and technology to promote the change are already available, but cultural and institutional constraints make the transition to open particularly slow.

Cristobal Cobo is a research fellow at the Oxford Internet Institute. He works on the K-Network project, focused on creating a knowledge sharing and dissemination network to promote the exchange of good practices and implementation strategies for building a 21st Century Knowledge and Information Society.

India has urged social network companies including Facebook, Twitter and Google to remove offensive material, unleashing a storm of criticism from Internet users complaining of censorship in the world’s largest democracy. (REUTERS/Parivartan Sharma)

We highlight here only some of the main points made by the Indian Speakers. Click on the link to watch the video.

http://www.iicdelhi.in/webcasts/play_webcast/is-freedom-of-expression-under-threat-in-the-digital-age-/

Shri Sunil Abraham, Executive Director of the Centre for Internet and Society in Bangalore, presents a critique of the idea of internet freedom. (12:00) Internet freedom, Abraham argues, is a term promoted by Hilary Clinton and corporations like Google, defined as ‘hands off the internet’ – which really means hands off Google. This is a technology-specific civil liberties agenda, which includes the internet but does not extend to other communication technologies such as TV. (13:00)

In the last ten years a war upon consumers ensued on part of rights holders such as the Motion Pictures Association of America and the Recording Industry Association of America, resulting in notices sent to and charges pressed against thousands of American youngsters. This action of censorship if one’s definition of internet freedom includes access to knowledge, Abraham explains, resulted in young Americans adopting virtual private networks and encryption wholesale. What advocacy had failed to do for years, the associations managed through these acts of censorship in no time. Something similar could be seen in India. (20:00) Abraham concludes that when the government adopts censorship, it must do it as a last resort because usually regulation of speech has the opposite effect, amplifying speech and teaching ordinary citizens tricks to avoid monitoring and regulation of speech.

Founder and CEO of Rediff.com, Shri Ajit Balakrishnan, raises the issues India has been facing recently, including pictures distributed via Facebook in India, and (41:00) the case of the two girls arrested over a Facebook post. (41:30) The big underlying issues, Balakrishna says, include a degree of helplessness on the part of the law makers in the nation state, who are not sure how to deal with the new situations. The nation state itself is challenged by the transnational nature of the arising issues. (43:45) The second issue concerns the information intermediary, which is the key to producing productivity and needs to be protected. (45:00) the third is phrasing challenges.

Ramanjit Sigh Chima of Google India agrees that internet freedom is not about absolute freedom but about what is appropriate. (60:00) The other question is whether something that is appropriate is also lawful and constitutional. (1:02:45) The example of a Google document posted on Twitter to find missing friends in India and within hours developed into a document with information on transit, travel, landmarks, police etc. This sharing of information, Singh Chima says, would not have been possible previously. (1:04:45) Debates about absolute freedom v what is appropriate has been going on for decades. (1:06:00) US judges said that any regulation needs to be appropriate for the medium. (1:07:00) This is held to be one of the most important regulations for the internet, because it means providers are not held responsible for the content they make available on the net unless they have an editorial role in it. (1:08:00) Singh Chima reiterates the point that this is a global debate that has been happening in many places.

Those freedoms were as hard won here as elsewhere. But there is a danger that we are beginning to take them for granted. Disillusion with our democratic institutions, preoccupation with our aspirant lifestyles and the seduction of social media mean that today we spend less time discussing each other’s ideas and opinions face to face. This erosion of traditional forms of relationship can in turn make it more difficult both to build common cause and to win respect for alternative opinions.

Speakers’ Corner Trust believes that the engagement of citizens with each other as well as with decision-makers is a key to rebuilding active communities at home and to the development of robust civil society in emerging democracies.

We seek to create new opportunities for more open, public debate and, in doing so, remind people that – as the ancient Greeks understood – citizenship is a challenge: democracy is only as good as we collectively make it; rights, like muscles, must be exercised if they are not to become weak and flabby.

Our approach is distinguished by our emphasis on face-to-face debate.

The internet is an invaluable resource. It has given us unparalleled access to information and to each other. It can educate, enlighten and enfranchise. But it has limitations too. As well as engaging people in genuine interaction, it can also detach them from it. It offers a wide diversity of information and opinion but cannot guarantee that we will seek or find it or that, if we do, it will be true. It provides opportunities to debate but online anonymity can also undermine the quality and accountability of the opinions we encounter or express. Activity on the internet can look like the democratic process but in fact be a substitute for it.

In contrast, our local Speakers’ Corner projects seek to encourage people back down the garden path to discuss with their neighbours the issues which really matter to them. Several are already under way in UK towns and a national initiative was launched in Nigeria in November 2012.

Their success has been based on their capacity to harness the ideas, energy, goodwill and voluntary commitment which can be found, often untapped, in every community. Encouragingly, we have encountered extraordinary enthusiasm for our very simple proposition and no shortage of volunteers to join the Speakers’ Corner Committees which own and manage the projects.

Their work often includes establishing Speakers’ Corners as physical platforms for expression and engagement. Creating a genuinely public space in the heart of our city centres conveys a potent symbolism. Knowing that when we stand there we are the equal of anyone else in our community can be hugely empowering.

But at the heart of each initiative lies a programme of events designed to appeal to every sector of the local community. Some may take place at the Speakers’ Corner; others in a range of venues, from Council Chambers to community centres, schools and workplaces.

They might include debates led by voluntary groups, consultations mounted by public services or discussions stimulated by academics, campaigners or enthusiasts on subjects from the global to the parochial.

Some may lead to greater public influence on local decision-making and increased confidence in the democratic process; some may inspire practical community action; others may help improve understanding between or within communities. Some may simply be personally enriching.

In our experience, when participants feel that they rather than powerful and usually unpopular institutions genuinely own the platform and the agenda, they express their ideas and opinions far more willingly, creatively and constructively than could otherwise be expected.

Of course, we also embrace the power and reach of the internet. Indeed, within the last few months, we’ve launched Youth Amplified  an innovative website developed with Professor Stephen Coleman and his team at Leeds University to help young people acquire essential speaking and listening skills.

Moreover, our Forum for Debate has become the most visited page on our website. It provides protagonists on either side of an issue (including think tanks, commentators, academics and campaigners) with an opportunity to match well-considered, rational arguments on sometimes complex and controversial issues, including the cases for and against assisted dying, GM food technology, the legalisation of drugs, humanitarian intervention, animal experimentation and electoral reform. Appropriately, the next debate, to be published in early March, focuses on the impact of new media on human behaviour.

These debates are designed not to begin and end on the screen but to encourage readers, guided by bibliographies provided by the British Library, to seek out further information and perhaps engage in face-to-face debate themselves.

Long may the internet flourish as a modern marketplace for ideas and opinions! But may it be a supplement to rather than a substitute for the humanising, civilising experience of face to face deliberation and debate.

Peter Bradley is the director of the Speakers’ Corner Trust.

The UK government has also set up a working group to discuss open access research solutions. There is particular motivation for change here because research—especially in the sciences—is often publicly funded yet unavailable to the public. The working group’s report advises against this but how would journals be funded if not by their readership?

There are two options for guaranteeing open access to research: going green or going gold. Green access is where researchers deposit their papers and articles in online databases usually run by university libraries that offer free access to the public. Although this is a swift and transparent service, it does not cover the costs of editing or peer reviewing papers. It therefore opens access only to research papers that are works in progress or that have been previously published in peer-reviewed journals and then embargoed before being released to depositories.

The UK working group’s report pushes for the gold access model, where existing journals make their published material publicly available through open access online. Who foots the bill for the editorial process? Gold access would require authors who want their articles reviewed to pay a fee to the journal. David Willets, UK minister for universities and science, has endorsed this proposal, arguing that removing paywalls will “allow academics and businesses to develop and commercialise their research more easily and herald a new era of academic discovery”.

The problem with switching to a gold access model is that it would benefit publicly funded research in the sciences at the expense of academia’s other disciplines. Whereas the cost of submitting to journals can be incorporated into a project’s initial budget for most scientific research, there is no clear procedure for self-funded or partially funded researchers in the arts, humanities and social sciences.

Another troubling scenario with the gold access model would be journals charging researchers exorbitant prices to submit articles for peer review, meaning only the work of well-funded researchers and institutions would be taken seriously at the highest levels. As Paul Ayris, director of library services at University College London, comments, university departments will be required to pay “whatever amount key publishers choose to charge”. Under the gold access proposal, the right to read will be won at the expense of journals no longer taking submissions from poorer universities or poorer researchers.

In supporting the move to open access, other options that would not create dependence on governments or external funders should be considered. Governments should stop allowing publishing companies to group their subscription deals monopolistically. Splitting up the subscription monoliths would inject competition back into the publishing world and reward those journals using the internet to reduce their costs or gain a greater non-academic audience. One of the most important trailblazers using the internet has been eLife, a journal created by the Wellcome Trust and other supporters to “look beyond the status quo” in terms of how scientific research is communicated. eLife came from the academic community itself and provides complete open access alongside top-tier expertise. This kind of model would be more likely to set in motion an open access trend if existing publishers were not allowed such an anti-competitive grip on the industry.

Academic journals play such a fundamental role for society’s success that any changes must be carefully considered. Although there are clear benefits to making research publications open access, proposed changes the UK government supports would benefit only the scientific community. This reflects the government’s trend of supporting higher education only insofar as it provides direct, material results that benefit the political agenda. Since the time of Socrates, academic inquiry has made space for dissenting views regardless of wealth or status. Indeed, academic journals only began in the 17^th century when the Royal Society’s proceedings were published in journal form out of a firm conviction that research could only progress through the open exchange of ideas. The freedom to submit to a journal without paying for the privilege is central to this belief. But perhaps that is just history and not a discipline worth supporting.

Dominic Burbidge is associate editor of Free Speech Debate. He is currently pursuing a doctorate in the politics of Kenya and Tanzania at Oriel College, Oxford, and writes a blog on African affairs.

L. B. Sullivan, the Montgomery public safety commissioner, argued that the advertisement was an instance of illegal “libel” – published falsehoods about a person that harm his or her reputation. While Sullivan’s name was not mentioned in the New York Times appeal, he argued that his status as leader of the Montgomery police meant the letter was, by implication, defaming him. While an Alabama court awarded Sullivan $500,000, the U.S. Supreme Court unanimously reversed the decision on 9 March, 1964, arguing that Sullivan’s status as a public official triggered a higher standard of proof than were he a private citizen. Public policy debate must be allowed to be “uninhibited, robust and wide-open”. Specifically, the Court argued that anyone found guilty of committing libel or defamation of a public official must be guilty of “actual malice” – of knowingly choosing to lie and do harm – and King’s supporters were not. The decision fortified the freedom of the press in the U.S., making it extremely difficult for government officials to punish citizens for making even false claims about them.

On taking office, the new Information and Broadcasting Minister, Manish Tewari, declared that the present government does not intend to regulate the media, but a Private Member’s Bill sought to be introduced by his party colleague Meenakshi Natarajan earlier in the year suggests otherwise. Voices within the media world have sharply diverged on the proper course for regulation. Some, such as Siddharth Varadarajan, the Editor of The Hindu, have advocated more effective self-regulation. Others, such as Prannoy Roy, CEO of New Delhi Television, speaking recently in Oxford, support the idea of independent external regulation.

These statements, taken together, lead to the twin impressions of an acknowledged need for a regulator of some kind to ensure a higher degree of accountability than what exists currently, and a deadlock on how best to implement such a regulatory regime. (Perhaps this sounds familiar to British readers.)

The starting point for a discussion on regulatory reform is inevitably the possibility of more efficacious self-regulation. However two trends have rendered such a possibility remote in India. First, the growing allegations of ‘paid news’, i.e. sponsored articles masquerading as journalistic pieces, demonstrate the shocking non-enforcement of internal codes of conduct and basic ethical norms by media houses. In a recent seminar the former Chief Election Commissioner, SY Quraishi, revealed that the Election Commissioner had identified 371 cases of paid news in the lead-up to the recent state elections in Bihar, Tamil Nadu, West Bengal, Assam, Kerala and Puducherry, the magnitude being serious enough for him to recommend making paying for news and publishing it a punishable offence. Confronted with such grim numbers, reflecting the growing corrosion of ethical standards in a vast array of media, to expect them to set their own houses in order would be overly optimistic.

Second, there simply is no widely respected, autonomous and effective industry-wide self-regulatory body with the power to impose sanctions on erring media and have its decisions complied with. In India’s version of the ‘Richard Desmond problem’, India TV withdrew its membership of the News Broadcasters Association (NBA), an industry-wide association, after being fined by its dispute redressal authority. The Association was helpless in backing up the authority’s decision with sanctions, thereby severely delegitimising itself. The subsequent failure of the NBA and other existing industry-wide associations to fashion themselves into efficacious self-regulators, commanding compliance from their members, has meant that self-regulation, while attractive in principle, has proved unworkable in practice.

In the absence of effective self-regulation, statutory regulation has been mooted as a possible alternative. However, much of the debate regarding regulating the media by statute is overshadowed by the ominous history of the period known as the Emergency in India, between 1975 and 1977 when the free press was ruthlessly censored. While the Emergency was certainly the darkest hour for free speech in India, harking back to it to argue against statutory regulation of the media is flawed logic. The Emergency was legally brought about through a constitutionally permissible order, suspending, amongst other things, the right to free speech. Should a government choose to do this again, they would not need the help of any law regulating the media. Even the argument that acquiescing to such a law now would be ‘crossing the Rubicon’ in terms of sanctioning statutory regulation of the media, though rhetorically appealing, is fallacious. Several statutory laws currently govern the media, ranging from defamation laws to those prescribing working conditions for journalists. The mere presence of a law to regulate the operations of the media, as proposed, would only add to this list rather than represent a departure into wholly uncharted territory.

The key issue concerning a statutory regulator is not so much the possibility of egregious governmental interference but rather its independence from all extraneous threats, irrespective of their source. The concept of an independent regulator, widely recommended in India and found to be the most popular choice amongst respondents in a Press Gazette Poll in Britain, is difficult to argue against in principle. It conjures up idealistic images of a fair, wise and efficient decision-maker. But experience tells us the improbability of having that in reality. While this does not suggest the impossibility of having an independent regulator, it points to the fact that securing independence in practice is a matter of detail rather than high-sounding rhetoric. Specifically, whose independence, from whom, regarding what, how it is to be safeguarded and how such independence can be secured without making the institution completely unaccountable, are fundamental questions that need to be asked. A wide-ranging inquiry of this nature ought to be undertaken, as the vast power wielded by media in India today means that independence cannot, and should not, mean insulation from the government alone.

At the same time, it must be recognised that a regulator, however independent, cannot be a panacea for all ills. There is the problem of paid news. There are the close personal connections between journalists, politicians and corporations exposed by the Radia tapes, conversations recorded by revenue authorities between corporate lobbyist Niira Radia and a number of senior journalists and leading politicians, leaked to the public. There are numerous allegations of irresponsible journalism. Most recently, the External Affairs Minister Salman Khurshid accused Aaj Tak news channel of airing an inaccurate story about purported embezzlement of funds by an NGO headed by himself and his wife. All these demonstrate, to different degrees, the decline of journalistic ethics, the lack of transparency in the functioning of Indian media, especially their financial dealings, and a poorly enforced regime of defamation law.

While certainly an appropriately structured regulator can enforce a degree of accountability rendering such practices less likely, it will not be a magic wand that will rescue the Indian media from all its current travails. That will necessarily be a long-drawn out exercise requiring new ideas, multiple interventions and reforms of a kind not adequately contemplated to date. Perusing the recommendations of the Leveson Report and assessing their usefulness for India is the best starting point possible for such an exercise, with real potential to inject new life into a currently deadlocked debate.  And then perhaps India should have its own version of a Leveson inquiry.

Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at Pembroke College, University of Oxford and the founder of the Vidhi Centre for Legal Policy, a New-Delhi based legal think-tank.

This article was republished by Inforrm.

The panelists deliberated over the norms of propriety in the media and the viability of self-regulation in ensuring an Indian media that is fair, responsible and democratic.