08Secrecy

We must be empowered to challenge all limits to freedom of information justified on such grounds as national security.

We must be free to challenge all limits to free expression. But the three grounds we mention as examples – national security, public order and morality – are not chosen at random. They are among those that governments, both democratic and undemocratic, invoke most frequently to justify restrictions on freedom of expression. At the same time, they are three grounds that Article 19 of the International Covenant on Civil and Political Rights explicitly mentions (along with “public health”, which has rarely been invoked, and “rights or reputations of others”, see our Principle 7) as justifying restrictions – so long as these “are provided by law and are necessary”. But who decides what is “necessary”?

Even governments that have signed and ratified the Covenant (see our map) often use one of these as an elastic, catch-all ground for restricting freedom of expression. There are innumerable and notorious examples of this under totalitarian, authoritarian and what political scientists call “hybrid” regimes (those with a mix of democratic and authoritarian elements). In fact, the catch-all use of such grounds to curb informed criticism of government policies, and the lack of legal or other effective challenges to those restrictions, is a hallmark of such regimes. In Egypt, after the toppling of Hosni Mubarak, bloggers were imprisoned just for criticising the military.

Sedition, Secrecy, Terror

There are also many examples in democratic countries. The largest democracy in the world, India, curbs dissent using the capacious anti-sedition article 124A of its penal code, inherited from the British colonial era. (Back then, Gandhi called it “the prince of the political sections of the IPC suppressing the liberties of a citizen.”) It has been used against writers and activists such as Arundhati Roy, who talks about it here. In 2011, an official secrecy bill was proposed in South Africa, which suggested draconian penalties of up to 25 years for disclosing classified information (read our case study here).

In several leading western democracies, the response to the terrorist attacks of 11 September 2001, and the subsequent bombings of Madrid and London, saw curbs to freedom of expression in the name of national security and public safety. In the US, these were informed by the idea – or metaphor – of the “war on terror”. “War” or “national emergency” has, in many times and places, been held to justify restrictions that would not be acceptable in peacetime. But who decides what is a war, what an emergency? Swaziland has, at this writing, had a “state of emergency” for more than 38 years. Egypt had a “state of emergency” from 1981 until 2011. It was partially, but by no means completely lifted by the country’s military rulers in early 2012.

In his book Perilous Times: Free Speech in Wartime, the American scholar Geoffrey Stone argues that first amendment protections of anti-war speech held even under the administration of George W Bush. But the so-called US Patriot Act and other measures were used to enable both long-term incarceration of terrorist suspects without trial and the comprehensive gathering of electronic data.

In Britain, Samina Malik, a 23-year-old shop assistant at Heathrow airport – who wrote some bloodthirsty doggerel, described herself as “lyrical terrorist” and downloaded inflammatory jihadist material – was convicted under anti-terrorism legislation. (The conviction was overturned on appeal.) The 2006 Terrorism Act even suggested that the glorification of terrorism should be criminalised. Critics noted that, had he still been alive, the poet W B Yeats could have been prosecuted under this law for his verses glorifying the leaders of Ireland’s 1916 Easter Rising against British rule – terrorists in the eyes of the then British government. (“MacDonagh and MacBride / And Connolly and Pearse / Now and in time to be, / Wherever green is worn, / Are changed, changed utterly: / A terrible beauty is born.”)

Public order and morality

Freedom of expression has often been limited in the name of “public order”. In Britain, as we document elsewhere on this site, provisions of the Public Order Act have been used to curb forms of expression that should arguably be allowed. The 1986 version of this act criminalises threatening, abusive or insulting words or behaviour, or disorderly behaviour “within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”. Just “likely to be”; the intention to cause such distress does not need to proved. Even if a prosecution does not result, police invoke these broadly worded powers to make arrests, or threaten to do so. And that’s just in Britain. Elsewhere, “public order” can mean whatever the current powerholders want it to mean.

Morality, sometimes called public morality or morals, is even more difficult to pin down. Norms on things like obscenity, dress or sexual conduct vary enormously, with both time and place. They are not even the same across one country at the same time. In relation to pornography, the US supreme court has consistently emphasised that the average person must find the material offensive under “contemporary community standards”. But it further insists that this depends on the community in question. What may be tame in the Castro district of San Francisco is outrageous in a religious, conservative small town in Iowa. The court therefore suggests that individual states should make these calls. Yet the effect of the internet is to knock holes through all those traditional frontiers between communities, generations and states. So who decides? On what basis?

What is to be done?

The otherwise excellent General Comment of the UN Human Rights Committee struggles to make anything more than very general comments on these elusive areas. It is most specific on national security, warning against the use of laws to “suppress or withhold from the public information of legitimate public interest that does not harm national security or to prosecute journalists, researchers, environmental activists, human rights defenders or others, for having disseminated such information”. On public order, it merely says that “it may be permissible in certain circumstances to regulate speech-making in a particular public place”. On morality, it almost throws up its hands. It refers to another General Comment (number 22) which observed that “the concept of morals derives from many social, philosophical and religious traditions: consequently, limitations … for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition”. Meaning what in practice?

One approach is to work towards giving more specificity and rigour to such very general principles. This is what a group of experts convened by Article 19 did in their 1995 Johannesburg Principles on National Security, Freedom of Expression and Access to Information. An ongoing exercise, coordinated by theJustice Initiative of the Open Society Foundations, attempts further to update and refine these principles, emphasising particularly the public right to information – which Sandra Coliver argues on this site should be included in our ten draft principles. The latest iteration can be read here. It seems unlikely that one could achieve even this level of clarity for curbs justified by public order – let alone, for those in the name of morality.

Precisely because of the difficulty of establishing firm, universal and trans-cultural standards in these and some other areas, the meta-principle of the freedom to challenge becomes crucial. If someone knowingly breaks the law in order to widen the boundaries of free speech in a given country, he or she may reasonably expect to be subject to a proportionate fine or civil penalty. But no one should ever – anywhere, under any circumstances – be prosecuted or persecuted for challenging the principle of a law or regulation restricting freedom of expression, or for questioning its application in a particular case.


Comments (12)

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  1. The link abowe, in the text “here” (“There’s a useful discussion of what the public interest does mean here”), it doesn’t run.
    Thanks!

  2. Once again we are given the opportunity to read a wonderful, enlightening, thought provoking and educating article; and all the subsequent comments. This subject has been of some interest to me for some time. Please forgive me if my comments seem more than a little incredulous, and perhaps somewhat crazy. I do agree with all that is conveyed within the article. This seems to be an immensely complex subject and I am far form being anything of a writer; with no education, as you have probably gathered by now. We live in changing times, technology is advancing and making it easier to collect information of all types and also to distribute information. All this information technology has multiple uses and can be mixed with other ingredients of generic day to day life to make many byproducts. If we use Facebook we willingly give some personal details out towards strangers and whoever. We also enter a world in which we are well liked and very popular because it is the nature of Facebook to bring us smiling loyal friends and remove any who grumble or disagree with our comments. This does not require any direct action by Facebook staff or anyone else; it’s a natural process. It appears to me there are many aspects of if issue that are completely, or almost unknown to the public; but known to the rare breed of specialists. The poorly educated are helped greatly by modern information technology; but the whole mass of the general public are open to manipulation on a massive scale. If we move form one web site to another and do the same with news outlets we can find on the popular “high hit rate” sites radicalization on a large scale, people with angry opinion but no, or very little knowledge of what their anger is about. I am not very good explaining these things; but I really do believe we must beware. Terrorism and pedophiles are subjects that are genuinely profoundly disturbing; but are we being whipped into hysteria to make us proud to give up our privacy to those with surreptitious agendas. Our TV pumps out lots of propaganda which adds to the mix and sometimes encourages the giving up of more privacy. We also have a problem that all those ‘little guys’ who don’t have any real fire power and capacity to do violence; will be dealt with severely; others , state actors, private contractors and so forth are OK and will get away with anything. Much of the data collecting paraphernalia is owned and used by multiple organisations, business, civil public sector, military, intelligence gathering and so on, one way or another. We sometimes read sensational stories that make “conspiracy theories” of secret Intelligence gathering; when it’s just some day to day mundane operation. The really important issue here is should we be happy for more of our personal information to be stored, and more of our privacy given up. In my limited, but considered opinion definitely not, we cannot trust those in power, if we consider terrorism there are scandals of torture, lies and massive fraud. Look deeper and we find much more of the same going back many years.

  3. First of all, congratulations for the project. It’s quite interesting.

    I agree with most of the comments above. The definition of public interest online is a very shady business, in particular because the perpetual memory of the internet can, in my view, constrain the usual definitions of the concept, mostly because anything can become of public interest at any time. You can go back years and years on end and find anything related to someone who’s suddently under the spotlight and anything that is unrelated, but still damaging comes up again, even if not in the public’s interest.

    There’s a two-fold approach to this, in my view: there’s a need for an education for privacy, in which people are taught how to behave online (and I’m not just referring to social media). We focus a lot on companies privacy policies, but we seldom talk about how the people use the internet, something which, I am sorry to say, the majority seems to know very little about. Then there’s also a need for a regulated approach to privacy, which applies to companies, but also individuals, by which one can enforce not a right to be forgotten, which is technically unfeasible so far, but a right not to be found (see for instance the recent EU Court of Justice referral regarding Google). As Prof. Schoenberg wrote in his book (“Delete”), online abstinence is not a good approach anymore, but neither is online binging, especially involving personal data.

    Finally, I strongly feel that, as difficult as it may be, a limit should be set as to how the internet – and internet-linked technologies – should enter our daily lives. This of course involves a serious reflexion on big data, profiling, data retention and so on and so forth.

  4. Privacy sounds like a nice thing. If I could have a right to privacy without this interfering with free speech, then I’d be tempted. But what are we supposed to do? If I do tell someone an intimate secret, can I really be given a right to force them never to reveal this information? That sounds an awful lot like limiting free speech.

    Attempts to enforce a right to privacy can easily interfere with free speech – and free speech is more important than privacy. It shouldn’t be a question of trying to ‘balance’ a ‘right to privacy’ against ‘the public interest.’ It is not in the public interest to compromise on free speech without an extraordinarily good reason – and preventing people being embarrassed is not an extraordinarily good reason for limiting free speech. Are we really going to argue – without any trace of irony – that, in order to protect free speech, we have to force people to keep quiet about things that might embarrass other people? Very often, this embarrassment results from people being two-faced and deceitful. They want to present one image of themselves to certain people whilst the truth lies elsewhere. Should we compromise free speech in order to protect liars from being discovered?

    I am also concerned to challenge the central argument that privacy is a condition of free speech – as expressed in the top paragraph. Providing we don’t have a police state – which obviously wouldn’t have free speech anyway – the argument about a lack of privacy preventing free speech doesn’t hold water. It is true that, even without a police state, most people will still limit what they say if they think their words will not remain private. That, however, is their choice. They are not being forced to keep quiet. Their right to free speech has not been taken away. They are choosing not to share their views – usually because it doesn’t suit them for certain other people to know the truth about what they think.

    There are legitimate ways in which we can seek to protect our rights to privacy. Mainly, however, these should focus on restricting some of the more intrusive methods that people might use to gain information about us rather than on restricting how they can disseminate information they have obtained legitimately. Limiting free speech in order to protect people’s privacy, however, is another matter.

    We shouldn’t be compromising our free speech principles. When people have concerns about such things as privacy, instead of pandering to any demands they might have that free speech should be limited, we should stand by our principles and argue our case that, however much we might enjoy our privacy, free speech is far, far more important.

    • The problem is not so much that you can’t force someone to reveal your intimate secret, is the fact that it can be revealed potentially to four billion people and that it will stay there forever. You can change jobs, city, country and it will stay there. And this can have horrible consequences. That’s the main issue. The public space changes when it becomes a virtual (online) public space.

      The same goes for the concept of free speech. If you apply self-censorship (which in some cases could just be called “common sense”), then you’re restraining your freedom of speech, because you know that the perpetual and open nature of the internet can have consequences in the future. I’m all for making people responsible for their comments, but I also know that people don’t really understand how the internet works and that often they may make comments for a specific group in a specific situation which can then spilled by others and can become potentially harmful. I’m talking about hate speech as much as political, religious or any other views. I don’t agree with the balance metaphor either, but I do think that these two fundamental rights are equally important.

  5. I couldn’t agree more with the opinion concerning the importance of freedom of speech, but freedom of speech doesn’t mean public interest, at least not anytime. The right of private life, the public interest and freedom of speech are three legal concepts which are interconnected but different, and obviously, should not exclude each other. Moreover any right involves a correlative duty. Freedom of speech is not incompatible with the right to privacy as long as it is used without breaching the other’s rights, as they are ruled by the relevant statutes.

  6. This principle is always going to be a difficult one to juggle. I agree that ‘public interest’ is very vague and could be used to justify either immense amounts of press intrusion or very little depending on where the bar is placed. But as a free speech principle enshrining the right to privacy without some way around it in the statement would seem to be doing the opposite of what much of the project is promoting. A principle of privacy would present a block on freedom of speech rather than an attempt to break down such barriers as most of the other principles do. Indeed I am slightly surprised that the principle was not more radical the other way towards there not being much right to privacy. Principle 8 seems to turn what might otherwise have been quite a radical manifesto for free speech into a much more status quo idea.

  7. The second part of the principle 8 is too vague to be accepted as such, without a precise definition of ‘public interest’. This is the reason why I would maintain only the first part of the principle, namely: ‘we are entitled to our private life’, as one of the fundamental human rights enshrined by the European Convention of Human Rights and the ECHR’s judgments delivered according to this.
    Any infringement of this right should be justified only either on the legal grounds concerning criminal investigations (including those relating to terrorism and more), and/or the public interest relating to public servants’ activities (public activities and private activities which could make these individuals vulnerably as regards their public status).

  8. People shouldn’t be entitled to a private life if it means that they can use their privacy to cause harm to other people. What if someone used their privacy to build a terrorist following?

  9. The public interest is far too fickle to consider encroachment onto privacy tolerable. Allowing it to be cherry-picked allows far too much room for abuse.

  10. I don’t necessarily agree with this statement as we don’t currently have an accurate way of measuring what’s in the public interest. As a result people believe they are interested in the topics which are in the media, but these might not have been the interests they would have formed left to their own devices.

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