Tag Archives: freedom of expression

Jacob Rowbottom: McCutcheon and the US campaign finance laws: Responsiveness to money or people?

jacob-rowbottom-photoThe decision of the US Supreme Court in McCutcheon v Federal Election Commission represents another judicial gutting of American campaign finance laws. Following Citizens Unitedv Federal Election Commission (2010), the ruling makes another inroad into the law, with a 5-4 majority by finding a cap on the aggregate level of political donations to violate the First Amendment. The decision is of interest to those of us outside the US in highlighting different views about the role of free speech in the political system and the threats that money can pose to the integrity of that system.

Under American law, the amount that any person can donate to a candidate is capped at $2,600 per election (which means a maximum of $5,200 per candidate that is standing in a primary and general election). That limit remains in place. The decision concerned a law that capped the aggregate amount a person can contribute to multiple federal candidates at $48,000 and to other campaigning organisations (such as political action committees and party committees) at $74,600. This meant that individuals could donate a maximum of $123,200 to candidates and other campaign groups.

In the plurality opinion given by Chief Justice Roberts, the aggregate limits were found to violate the First Amendment. Part of his reasoning turned on the definition of corruption. In the case of Buckley v Valeo (1976), the Supreme Court had famously ruled that campaign finance laws cannot restrict speech rights in order to promote equal opportunities to influence elections. The definition of corruption in the US therefore became a high stakes question – if a broad definition is taken, then a wider range of campaign regulations can be justified.

The different views of corruption can be seen in the plurality and dissenting opinions. Justice Roberts followed a narrow view, which had been mentioned in Citizens United, which viewed corruption primarily as about quid pro quos and the appearance of such deals. By contrast, he thought corruption does not extend to ‘mere influence or access’ secured by large donations. Taking this position, Roberts argued that donating money is an important form of political participation, which ensures politicians remain responsive to the public. At the end of the opinion, he stressed this point after quoting Edmund Burke:

 

‘Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.’

On this view, representatives should listen to those that have expressed their support through a donation, just as he or she would listen to and meet volunteers on a campaign. Roberts reasoning seems to compare donations to other forms of participation that the First Amendment protects – though he does not challenge the distinction between contributions and expenditures drawn in Buckley v Valeo, and does not require a strict scrutiny standard for contributions controls (on which see the opinion of Justice Thomas). Roberts did not have to determine the standard of review for his conclusion, but the logic of the reasoning and emphasis on donations as participation suggests the issue may be revisited in the future. While the government has an interest in preventing corruption, Roberts argued that this should not be defined so broadly as to compromise this type of responsiveness.

In the dissenting opinion, Justice Breyer also stressed the role of political communications to make elected representatives responsive to the people. This, he argued, is the central reason why the First Amendment protects expression:

‘the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.’

Corruption, he argued, breaks this ‘chain of communication’ as elected representatives are diverted from considering the views of the people. The prevention of corruption is, therefore, not simply another countervailing factor to be weighed up against speech rights, but is ‘rooted in the First Amendment’. Unlike Roberts, Breyer thought the concern with responsiveness requires a view of corruption beyond quid pro quos. Even if no backroom deals are made, large donations can undermine this responsiveness if they ‘drown out the voices of the many’. In taking this view, Breyer treats donations as distinct from other types of participation. A representative should be responsive to the views of the people, and not direct their attention to those with the most economic resources.

Both Breyer and Roberts used the language of responsiveness, but they hold very different views about the role of political donations in the system. For Roberts, the election finance laws are the threat to responsiveness, while for Breyer it is the presence of big political spenders. Of the two, I find Breyer most convincing. Giving access and influence to donors is not simply a matter of showing gratitude to supporters – it allows the well resourced to buy themselves a seat at the table and secure a politician’s ear. The potential for corruption can occur in more subtle ways than direct deals. There is no reason to risk these more subtle types of threat to protect a form of participation that is available only to the very wealthy. Ultimately, what should politicians be responsive to: people or dollars?

Aside from this issue, the other major area of disagreement was whether the aggregate limits were necessary to prevent corruption even in the narrow sense – for example, can large donations to party committees generate a danger of a quid pro quo, and can large aggregate donations provide a loophole to circumvent the low contribution limits to individual candidates. In defending their positions, both the plurality and dissenters considered a number of complex arrangements that could be used to channel donations to an individual candidate in a system without aggregate limits. Roberts found the aggregate limit was not necessary and that other rules are effective in preventing circumvention. The dissenters took a more skeptical view of such controls. Again, I found Breyer to be more persuasive. The experience of campaign finance laws shows that loopholes are fully exploited, and there is no reason to expect any exception here.

What should we make of this decision in the UK? It underlines the radical difference in the free speech jurisprudence over the Atlantic. As I have shown earlier on this blog, the Article 10 ECHR jurisprudence accepts that expression can be restricted to promote equality of opportunity in political communication and prevent distortion, as well as to deal with corruption. The fierce debate about the rationale and the definition of corruption is therefore sidestepped under the ECHR, which is more permissive in relation to campaign finance. The case also underlines the different system of election regulation in the two countries. In the UK, there is not even a base limit on donations to candidates or parties, so the question of aggregate limits does not arise. While the US judges discussed the fear of very large donations going to candidates, that is has always been permissible in the UK.

Will this decision unleash even more money into future US elections? As many commentators have noted, there has been no shortage of funds in recent campaigns. Instead, some have wondered whether this decision means that more of the money will now flow to parties, rather than unregulated independent organisations. It is hard to know whether it will have such an effect. One certain effect of the decision is that it makes regulating money in American politics harder than ever. The question is which remaining parts of the system will be next to come under the Court’s scrutiny? One leading scholar believes that McCutcheon paves the way for a challenge to the controls on soft money contributions. Unless there is a fairly dramatic change to the composition of the court, more inroads into the law seem likely.

 

Jacob Rowbottom is a Fellow of University College and Associate Professor at the Faculty of Law, University of Oxford.  He is the author of Democracy Distorted (CUP 2010).

Suggested citation: J. Rowbottom, ‘McCutcheon  and the US Campaign Finance Laws: Responsiveness to Money or People?’ U.K. Const. L. Blog (9th April 2014) (available at  http://ukconstitutionallaw.org/).

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Jacob Rowbottom: Laws, Miranda and the Democratic Justification for Expression

jacob-rowbottom-photoThe Divisional Court’s decision in the David Miranda case has provoked much controversy and debate about freedom of the press and national security issues. About halfway through his judgment, Laws LJ makes a number of comments about the justifications for freedom of expression and media freedom. While these may not be the most pressing or immediately important issues raised by this particular case, it is worth noting what Laws LJ says at paras [41-46] as he seems to move away from what has been something of an orthodoxy in the British and European jurisprudence – the importance placed on the democratic justification for expression.

Laws LJ takes this step away from the democratic justification only in relation to individual freedom of expression, and not media freedom. On his view, media freedom is justified ‘to serve the public at large’ – in other words to scrutinize government and provide useful information to the public. These are classic features of the democratic justification. In this, Laws (correctly in my opinion) takes an instrumental account of media freedom, an approach that is reflected in many of the cases and in the Leveson Report. By contrast, he states that freedom of expression ‘belongs to every individual for his own sake’. Here Laws LJ states that ‘the promotion or betterment of democratic government’ is not the ‘essential justification of free expression’. Instead, individual freedom of expression ‘is a condition of every man’s flourishing’.

The implication of this distinction is that when applying the proportionality test in the case of media freedom, the courts are balancing ‘two aspects of the public interest’. By contrast, freedom of speech is about balancing the rights of the individual with the interests of the community. This should not, however, be taken to mean that media freedom rights are more easily outweighed. There may be instances where the public interest in expression serving the needs of the audience is stronger than the interest held by the individual. There will be cases where the audience-focused public interest justification makes a very strong case for heightened protection.

In his discussion of the democratic justification, Laws LJ describes Alexander Meiklejohn’s view that free speech is ‘a collective, not an individual, interest’ and a ‘servant of democracy’. We can see the collective approach to free speech reflected in Meiklejohn’s famous comment that ‘What is essential is not that everyone shall speak, but that everything worth saying shall be said’. According to this approach, the key is that all the relevant viewpoints get a hearing and are considered. The goal is to ensure that the audience is well informed. This thinking suggests that if every person were to speak in a debate, then similar views would be likely to be repeated – while this might make speakers feel better about themselves, it does not give the audience new information (except indicating strength of feeling). Laws LJ argues that this justification, while relevant to the media, does not provide a foundation for individual freedom of expression.  In short Laws LJ seems to take the following approach: the collective Meiklejohnian justification for the media, and a liberty theory for individual speakers.

One of the main criticisms of the democratic justification/collective interest advanced by Laws is that it tends ‘to devalue non-political speech and justify the prohibition or abridgement of speech advocating undemocratic government’. It is certainly true that the democratic justification, as advanced under Article 10, has led to a hierarchy in which political speech is given strongest protection. If what Laws LJ means is that the democratic justification is not the sole justification and needs supplementing in some instances to give broader protection, then this is a valid point. I have argued elsewhere that in some cases more protection is needed for the non-political speech of individuals. But the democratic justification still plays an important role in relation to individual expression and there are strong arguments to support the robust protection of political speech. Furthermore, some hierarchy among categories of speech may be practically necessary – not every utterance can be given exactly the same intensity of protection. If all types of expression were treated as a single category then it might weaken the protection of expression overall (ie treating all speech types equally might lead to a leveling down of protection rather than a leveling up).

Laws LJ’s concern that the democracy argument justifies ‘the prohibition or abridgement of speech advocating undemocratic government ‘ is less persuasive. An account of speech that focuses on the collective democratic interest does not necessarily lead to a conclusion that prohibitions on undemocratic speech are to be permitted. The audience interest in hearing diverse views can extend to those that challenge democratic values. One can still oppose restrictions on ‘extreme speech’ while staying within the framework of the classic democratic justification for expression rights. Furthermore, if Laws LJ’s maintains the collective/democratic justification in the case of media freedom, then why doesn’t his objection to the justification apply in this context as well as to individual speakers?

None of this is dismiss the important distinction drawn between individual speech rights and media freedom (with which I strongly agree). However, we can support that distinction for reasons that still connect free speech with democracy. Meiklejohn provides a powerful argument that captures one very important role for free speech in a democracy. But there are other additional reasons why free speech is necessary in a democracy. When thinking about the free speech rights of individuals, we also need to consider the perspective of the speaker.  While this seems to be what Laws LJ is getting at, the speaker-based perspective can fit within a democratic justification. Expression can be a form of participation in the political process. To speak out in a democracy is valuable not solely as a means of informing the public, but also as a way of having your say and engaging with collective decision-making. For example, protests are important not just to publicize a cause, but in allowing people to publicly register their thoughts.

My point is that we need not marginalize the democratic justification for expression to go beyond an audience-focused approach. Instead, some of the classic theory’s shortcomings can be addressed by developing the understanding of democracy that underpins the justification for free speech rights.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘Laws, Miranda and the Democratic Justification for Expression’  U.K. Const. L. Blog (22nd February 2014) (available at : http://ukconstitutionallaw.org/)

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Jeff King: Deference, Dialogue and Animal Defenders International

jeff2In Animal Defenders International, the European Court of Human Rights upheld the British ban on political advertising in the broadcast media (s.321 Communications Act 2003), consistently with the judgments of the UK House of Lords and High Court, but in an apparent departure from its previous caselaw in the VgT (Verein gegen Tierfabrik v. Switzerland, no. 24699/94 ECHR 2001‑VI) case.  The key issue in the case was whether a blanket ban (or ‘general measure’) was a proportionate restriction of the freedom of expression, or whether some class of exception (a ‘case-by-case’ approach) for groups such as the NGO in this case ought to be recognized. I am in complete agreement with Jacob Rowbottom’s view on the correctness of the Court’s judgment and the desirability of a general ban.  In brief, the problem with making case-by-case or category-based exceptions for advocacy groups is that there is a risk of profusion of ‘non-profit’ groups that are in fact created and backed by well-monied interests, the unveiling of which becomes an impossible regulatory task in the shadow of constant litigation.  The focus of the present comment is on three further matters raised by the case that are of importance for British constitutionalism: the role of judicial restraint; the merit of rigorous human rights-based parliamentary scrutiny of legislative proposals; and the value of UK-Strasbourg dialogue.

Many academics have stepped into what is often called ‘the deference-debate.’ [*] One group, in which we find Murray Hunt, Aileen Kavanagh, Alison Young, myself, and I think to a more subtle extent Alan Brady, believe that there is a role for both the practice of judicial restraint, and also for a specific doctrine of judicial restraint, though none of us is generally skeptical of the judicial protection of human rights. On the other hand, we find Trevor Allan arguing a cogent case that a doctrine (e.g. a set of overtly recognized principles) of judicial restraint would be pernicious, that it will lead to excessive deference, and that any proper role for judicial restraint is already comprehended within the legal standards themselves – in legal concepts such as proportionality, Wednesbury reasonableness, fairness and so on.  For the unanimous judgment of the House of Lords in Huang v SSHD [2007] UKHL 11, Lord Bingham made the following finding, after summarizing a range of immigration-specific factors for consideration:

 The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.

 Who needs a doctrine, in other words? This largely agrees with the views of both Trevor Allan and Tom Hickman.  The problem though is that this view depends entirely on the judge having Lord Bingham’s intuitions about ‘appropriate weight,’ which are not as widely shared as we all would wish.  In Animal Defenders International, the Court split 9/8 and Rowbottom, the country’s leading legal expert on the matter, was himself convinced that Strasbourg would decide against the ban. The safe bet was on losing.

The substance of the majority’s decision gave enormous weight to the comprehensive examination of the issue within the legislative process (and in court thereafter):

 114. […] The Government, through the DCMS [the Department], played an important part in that debate explaining frequently and in detail their reasons for retaining the prohibition and for considering it to be proportionate and going so far as to disclose their legal advice on the subject (paragraphs 50-53 above). The 2003 Act containing the prohibition was then enacted with cross-party support and without any dissenting vote. The prohibition was therefore the culmination of an exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition as part of the broader regulatory system governing broadcasted public interest expression in the United Kingdom and all bodies found the prohibition to have been a necessary interference with Article 10 rights.

115. It was this particular competence of Parliament and the extensive pre-legislative consultation on the Convention compatibility of the prohibition which explained the degree of deference shown by the domestic courts to Parliament’s decision to adopt the prohibition (in particular, paragraphs 15 and 24 above). The proportionality of the prohibition was, nonetheless, debated in some detail before the High Court and the House of Lords. Both courts analysed the relevant Convention case-law and principles, addressed the relevance of the above-cited VgT judgment and carefully applied that jurisprudence to the prohibition. Each judge at both levels endorsed the objective of the prohibition as well as the rationale of the legislative choices which defined its particular scope and each concluded that it was a necessary and proportionate interference with the applicant’s rights under Article 10 of the Convention.

116. The Court, for its part, attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process.

The Court here effectively endorses a notion of judicial restraint in deference to the substance and process by which the decisions were undertaken in this situation.  The very issue of the viability of an exception as an alternative to a blanket ban had been batted back and forth by several bodies during the legislative process (and insufficiently so by the Strasbourg court in previous cases, as the UK argued in this case). The majority judgment showed respect for that process and awareness of their own limitations in second-guessing it in a complex context, when the stakes are high.  (The concurring judgment of Sir Nicholas Bratza was even better on this and other points, but I pass over it here for a variety of reasons).

By contrast, the two dissenting judgments had no time for this.  The first group of dissenters quote the notorious court-sceptic JAG Griffith as authority for the implied point that the British courts defer too much to Parliament (Joint Dissenting Opinion of Judges Ziemele et.al., para.2), and then chastise the majority in the following terms:

“Nor does the fact that a particular topic is debated (possibly repeatedly) by the legislature necessarily mean that the conclusion reached by that legislature is Convention compliant; and nor does such (repeated) debate alter the margin of appreciation accorded to the State. Of course, a thorough parliamentary debate may help the Court to understand the pressing social need for the interference in a given society. In the spirit of subsidiarity, such explanation is a matter for honest consideration. In the present judgment, however, excessive importance has been attributed to the process generating the general measure, which has resulted in the overruling, at least in substance, of VgT, a judgment which inspired a number of member States to repeal their general ban -a change that was effected without major difficulties.”

 Both parts of this quote are misguided in my view. Dismissing the outcome because such a process can yield wrong results (obvious) is to miss the point that this process, on this issue, did deserve considerable weight for a range of substantive reasons. They include the fact that the interlocutors in that process had special knowledge of British politics, commercial media, and consumer habits, and studied the phenomenon at great length and in good faith. The second part of this quote states a claim that could be a highly material point – surely if the revoked ban had not led to problems elsewhere, then that supports the view that the blanket ban isn’t necessary.  But how do they know whether the ban has not in fact been pernicious there?  No evidence is given on this point, and we cannot assume no news is good news when we haven’t looked.  We do know that the impact of the Citizens United v Federal Communications Commission 558 U.S. 310 case in America, which struck down a not entirely dissimilar ban on ‘electioneering communications’ funded by corporations, has been terrible.   One study determined that the case accounted for 78% of campaign spending in the 2012 Presidential election.  (For a more nuanced view of its impact, see here).

The other dissenting judgment, of Justices Tulkens, joined by Judges Spielmann and Laffranque, at least addressed this issue:

 “17. The references to other systems in the context of that examination were brief and selective. The system most frequently referred to, as an example to be avoided, was that of the United States (paragraphs 37-54 of the judgment), but the latter country’s regulatory system is so different to that in issue here that the comparison strikes me as barely relevant.”

In this hubristic gesture, Judge Tulkens sweeps aside the virtually unanimous domestic agreement that it is both relevant and indeed persuasive.  What is brushed aside in the dissenting judgments more broadly include the views of the Neill Committee on Standards on Public Life, which visited several countries and reported at length to Parliament; the Joint Committee on Human Rights; the Independent Television Commission; the Joint Committee on the Draft Communications Bill; the Electoral Commission; and the unanimous opinion of the UK Parliament.  These bodies not only know local dynamics, but had greater subject-matter expertise and took more time for consideration. To offer only one illustration, the Neill Committee Report was 262 pages, and the Committee undertook visits to five countries, considered over 400 written submissions, and spent seventeen days taking evidence from 120 individual experts representing 75 organisations in public hearings held around Britain.  It also commissioned two relevant research studies, one of them analyzing freedom of expression jurisprudence.

I will not delve into the UK literature on judicial restraint here to show how the various factors adduced in that literature would counsel the right outcome here.  In brief, the relative expertise was greatly skewed towards the British institutions, both political and judicial; the exact human rights issue was the subject of protracted debate and litigation; the claimant group was not clearly politically marginalized or vulnerable to begin with (a point which is anyway not decisive here); and the cost of getting the issue wrong could be immense and irreversible (hence an impediment to much needed flexibility).  The principles of restraint and deference alluded to by the authors above all draw attention to these items and above all warn judges to resist the temptation to think that once human rights are in play, the judge decides in splendid isolation from policy or considerations of competence.   To those who think this is all obvious, the near miss in Animal Defenders International reminds us that it isn’t.

Having explored this much, I can deal briefly with my second and third points. The second concerns the value of parliamentary consideration of human rights issues.   I am presently engaged in research that examines parliamentary responses to section 4 declarations of incompatibility, and am struck by the incredible professionalism and rigour that is often (not always) found in this process. The JCHR in particular draws the direct attention of both houses to significant human rights implications of bills. It does so on the basis of advice from its legal advisor (presently Mr. Murray Hunt) and always in due consideration of the domestic and international law, as well as considerations of policy. It considers evidence submitted by a variety of NGOs and engages in extended correspondence with the Government on particular bills.  It is the interaction between this Committee, Government and Parliament, where the normative guidance set out in the jurisprudence of the courts unites with the participatory advantages and working flexibility of the legislative process. It may look revolutionary in the human rights context, but it is in fact a workaday illustration of a more widely acknowledged truth -  that pre-legislative scrutiny, as well as legislative scrutiny, is extremely valuable for helping to identify key issues before views ossify and legislative change becomes impeded by inertia and competition.  It can also potentially play a constructive role in litigation afterwards, either helping or harming a legal challenge to the Convention-compatibility of legislation (pace Article 9 of the Bill of Rights 1689 – on which see further the AHRC Report by Hunt, Hooper and Yowell, Parliament and Human Rights, pp.49-50).

The last point is that this case does represent precisely the merits of UK judges scrutinizing the state’s arguments in UK courts, in Convention-rights terms and with due consideration of Strasbourg jurisprudence, before the issue travels to Strasbourg for consideration there. The Strasbourg Court not only essentially adopted the reasoning of the UK courts, but in doing so it explicitly rowed back from its own jurisprudence (i.e. the VgT case). This is an entirely appropriate form of institutional dialogue, and shows maturity of judgment, the flip side of the much-maligned UK courts’ own willingness to apply rules laid down in Strasbourg.  The upshot of this is plain: a British Bill of Rights that acted as a substitute for the Human Rights Act 1998 would have destroyed that dialogue, and made the wrong outcome in Animal Defenders International more likely.

Jeff King is Senior Lecturer in Law at The  Faculty of Laws, UCL.

Suggested citation:  J. King, ‘Deference, Dialogue and Animal Defenders International’ U.K. Const. L. Blog (25th April 2013) (available at http://ukconstitutionallaw.org).


[*] Some important works in this vein include M. Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law Needs a Concept of Due Deference’ in Bamforth and Leyland, Public Law in a Multi-Layered Constitution (Hart 2003); A. Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 Law Quarterly Review 222 (see also her book Constitutional   Review under the UK Human Rights Act (CUP 2009) Part II; A. Young, ‘In Defence of Due Deference’ (2009) 72 The Modern Law Review 554; J. King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 Oxford Journal of Legal Studies 409, and Judging Social Rights (CUP 2012) Part II (elaborating four principles of restraint).  For the earliest statement of the best critique, see TRS Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’ (2006) 65 The Cambridge Law Journal 671, a position refined and enhanced in Professor Allan’s more recent (and forthcoming) work.  See also the nuanced position of Dr. Tom Hickman, Public Law after the Human Rights Act (Hart  2010) (accepting and outlining a role for ‘weight’ and guiding principles, but rejecting the idea of a doctrine).  Alan Brady’s Proportionality and Deference under the UK Human Rights Act (CUP 2012) integrates deference into the proportionality analysis in a manner that I believe has more in common with the doctrinalists than with Allan’s approach. Leadings treatise writers such as Paul Craig, Timothy Endicott and Jeffrey Jowell all recognize the role for judicial restraint but have largely steered clear of the question of whether any doctrine is necessary.

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Jacob Rowbottom: A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio

jacob-rowbottom-photoThe European Court of Human Rights has given its decision in Animal Defenders International , holding that the ban on political advertising on the broadcast media does not violate Article 10. I had been convinced that the Strasbourg Court, following earlier decisions in Switzerland and Norway, would come to the opposite conclusion – but I am relieved that they did not. The ban on political ads has been a crucial measure that has helped to keep the cost of politics down in the UK.  That said, it was a close shave. The ban was upheld by a majority of 9, with 8 dissenting. The decision was published earlier this morning, so what follows are my initial thoughts.

The approach of the majority stands in stark contrast to that in the US. While the US Supreme Court in Citizens United rejected arguments that corporate spending can distort the electoral process, the Strasbourg Court accepted the argument that ‘powerful financial groups’ can ‘obtain competitive advantages in the area of paid advertising and thereby curtail a free and pluralist debate’. Not only that, concerns about distortion are not limited to the electoral period:

‘While the risk to pluralist public debates, elections and the democratic process would evidently be more acute during an electoral period, the Bowman judgment does not suggest that that risk is confined to such periods since the democrafic process is a continuing one to be nurtured at all times by a free and pluralist public debate.’

This is an important element of the ruling, as it allows the state to take measures to tackle concerns about money in politics generally while staying within the requirements of Article 10.

The key area of debate was not the rationale of the measure, but the proportionality of the ban. The Court found that a partial ban on political advertising – for example allowing some issue advocacy – was unlikely to be workable, noting that such avenues were likely to be abused by ‘wealthy bodies with agendas’. Furthermore, the ban only applied to one type of media, and thereby leaving opportunities for alternative means to communicate, such as newspapers or social media.

Also significant was the fact that the ban had been considered by the UK on several different occasions, such as the Neill Report, in pre-legislative scrutiny and in court. This distinguishes it from cases such as Hirst, where a ban on prisoner voting rights had been maintained without any discussion. The Court thereby attached ‘considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies’.

But what about the previous decisions of the Strasbourg Court in relation to Switzerland and Norway? This I think was the biggest challenge facing the UK government when they were arguing their case. Most interesting here are comments from Judge Bratza who commented that the Court’s decision in VgT Verein:

‘did not do full justice to the purpose of the general prohibition in the legislation, which was to avoid leaving to individual judgment questions such as the wealth or influence of the individual, political party or association or the worthiness or morality of the polifical cause in question, with the attendant risks of discriminatory treatment.’

Consequently, he confessed ‘to entertaining certain doubts about the Chamber’s judgment in the case.’

By contrast, the dissenting opinion of Judges Ziemele, Sajo, Kalaydjiyeva, Vucinic and De Gaetano described the contrast with the Court’s earlier decisions as a ‘double standard within the context of a Convention whose minimum standards should be equally applicable throughout all the States parties to it.’ However, rather than being a double standard, the majority’s approach maybe an example of the way that dialogue with the UK shaped the ECtHR’s jurisprudence – or more cynically how the Court was influenced by the existing political tensions between the UK and Strasbourg.

The reasoning of that group of dissenting judges also shows a divide in the Court concerning its Article 10 jurisprudence. While the majority stressed the need for the ban to address distortion in public debate, those dissenters called it ‘well-intentioned paternalism’. Ziemele, et al emphasized Article 10 as primarily a negative right against state measures:

‘Promoting a right where it cannot be effective without additional State action is, according to our jurisprudence, appropriate, but is not a generally accepted primary ground for rights restriction. There is a risk that by developing the notion of positive obligations to protect the rights under Articles 8 to 11, and especially in the context of Articles 9 to 11, one can lose sight of the fundamental negative obligation of the State to abstain from interfering. The very initiative to legislate on the exercise of freedom in the name of broadcasting freedom, and in order to promote democracy in general terms, and for aims which may not necessarily fully conform to one or more of the legitimate aims of Article 10 § 2, remains problematic. The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all. It is one thing to level a pitch; it is another to lock the gates to the cricket field.’

The final sentences attacks what it sees as a ‘level-down’ approach to political equality. Similarly, they went on to say:

‘Freedom of expression is based on the assumption that the speakers, not the Government, know best what they want to say and how to say it. Ideas can compete only where the speaker is in a position to determine, within the limits recognized by the Convention, which form of imparting ideas serves best the message.’

I think these criticisms are misplaced. TV is not a politics free zone, so I don’t think the gates are locked. It is just one type of transaction that is blocked. I think the state plays an important role in ensuring that the opportunities for communication are not skewed in favour of those with the deepest pockets. The case for the ban is not that people cannot decide for themselves, but that different groups should have equal opportunities to persuade people of the merits of their position.

The decision in Animal Defenders International has come as a surprise to me, but – and many will disagree with me on this point – it is a pleasant surprise. It is one in which the Strasbourg Court has moved away from its earlier jurisprudence and emphasized the importance of insulating political debate from the inequalities in wealth.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio’  UK Const. L. Blog (22nd April 2013) (available at http://ukconstitutionallaw.org)

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David Erdos: Mustn’t Ask, Mustn’t Tell: Could New EU Data Laws Ban Historical and Legal Research?

david.erdosEven with the advent of Web 2.0, data protection law is still often seen as technical and only narrowly applicable.  Technical abstruseness aside (and data protection’s reputation here is certainly deserved!), this understanding couldn’t be more wrong.  The existing European data protection framework actually has a breath-taking scope.  It applies to anything done electronically with any information about an identified or identifiable person (possibly even the dead).  According to the EU, even innocuous details already in the public domain are protected (perhaps even the title of an author’s book).  Moreover, if the information reveals in any way, for example, race/ethnic origin, political opinions, religious belief, trade union membership, health or criminality, then it is classed as “sensitive” information and subject to even tighter regulation.  A number of European courts have ruled that all colour images are covered by this as they display racial information.  The European data protection framework (Directive 95/46/EC) is not only broad but often onerous.  Barring a specific exception (including a liberal one (Art. 9) which can be invoked for journalism, literature and the arts), there is a presumption that individuals will be informed about the processing of data about them (Arts. 10-11) and given a right to object (Art. 14), that the processing of “sensitive” personal information will be banned (Art. 8.1) and that no personal information will be transferred outside the European Economic Area without “adequate protection” (Art. 25.1).

So the popular perception of data protection is woefully inaccurate – which 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 just published draft report and amendments 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 themselves 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 optionally 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 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.

A version of this article was originally published in Times Higher Education (“Mustn’t ask, mustn’t tell”, 14 February 2013, p. 30).

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.

Suggested citation: D. Erdos, ‘Mustn’t Ask, Mustn’t Tell:  Could New EU Data Laws Ban Historical and Legal Research?’ UK Const. L. Blog (14th February 2013) (available at http://ukconstitutionallaw.org)

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Paul Bernal: Internet Anonymity: A Very British Dilemma

Andy Smith, a senior security official at the Cabinet Office, caused quite a stir at the Parliament and Internet Conference last month, when he suggested that people should use false names and provide false information on the internet – and in particular, when using social networking sites. Reaction was explosive in both directions: Labour MP Helen Goodman called his comments ‘totally outrageous’, while security expert Alec Muffett, in a wonderfully strident blog, expressed strong support, calling Smith an ‘epic hero’.  Both sides have strong reasons for their beliefs – and the disagreement is one that has been echoed over the years. It reflects an issue that seems to have particular interest for the British: when, how, and where to we have the right to anonymity – and who, when and where do people have the right to demand from us our real names and details.

Do we have a right to anonymity online?

There is a famous cartoon from the New Yorker back in 1993, with the caption ‘On the Internet, nobody knows you’re a dog’. It reflected the idea that your online ‘persona’ could be something you create, something that has no real connection to your ‘real world’ identity. In those seemingly long-lost days, the internet was a bit of a wilderness – a kind of ‘wild west’ where there was no place for law or governments. John Perry Barlow’s famous ‘Declaration of the Independence of Cyberspace’ in 1996 included the suggestion that ‘Your legal concepts of property, expression, identity, movement, and context do not apply to us.’ The inclusion of the word ‘identity’ was crucial. Identity, and the ability and right to either determine it or conceal it – to mask it – was fundamental to way that the pioneers of the internet saw their world. The adoption of the Guy Fawkes mask as the symbol of the current hacker group ‘Anonymous’, and indeed their very name, shows how that ideal has continued as a key part of what is considered to be ‘freedom’ on the internet.

Bringing in the law

As time has passed, however, things have changed online. Businesses have come in, and turned the place into a substantially commercial environment. Governments have come in, and tried to take a grip – to bring some kind of law and order to the online world. Both businesses and governments have seen the anonymity that characterised the internet in the early days as something threatening – and have sought to deal with it. From a government perspective, if we are to enforce law we need real names – to catch terrorist and paedophiles, to stop cyber-bullying and nasty anonymous commentators we need real names, which is why Helen Goodman found Andy Smith’s comments so outrageous.

From a business perspective, if they want to have a grip on their customers, the more information they can find out the better – and ‘real names’ and ‘real’ information is the best of all. That’s why the sharpest intakes of breath when Andy Smith made his remarks at the Parliament and Internet conference were from the Facebook delegation. Facebook’s policy is that we should all only use our real names on Facebook. Anonymity and pseudonymity are not only frowned upon but actually against their terms and conditions. Without real names, Facebook’s data – what they gather from us – would be far less valuable, and hence Facebook itself would be far less valuable.

An honourable British tradition?

There is, however, an honourable British tradition in our right to withhold our name and identity even from the authorities.  Looked at from the perspective of our European neighbours, Britain does not have a particularly good record in terms of privacy – our loving embrace of CCTV cameras is considered quite extreme, and we were the drivers of the Data Retention Directive, considered by Peter Hustinx, the European Data Protection Supervisor to be ‘the most privacy-invasive instrument ever adopted by the EU’ – and yet when it comes to Identity Cards, we are firmly opposed. Most European nations, even those keenest on privacy in other ways, accept identity cards without much complaint. We don’t – and have not, since the famous case of Willcock vs Muckle ([1951] 2 KB 844) where the whole idea of identity cards in peacetime was considered almost un-British.

The National Registration Act, 1939, had allowed the police to ask for identity cards, for security purposes during the Second World War. The police continued to use it, and Willcock, a noted liberal, had refused to produce it when asked by police constable Muckle, and was prosecuted under the Act. Willock appealed, and still lost, but Lord Goddard commented that:

“From what Mr. Gattie [a prosecution lawyer] has told the court it is obvious that the police now, as a matter of routine, demand the production of national registration cards whenever they stop or interrogate a motorist for whatever cause. Of course if they are looking for a stolen car or have reason to believe that a particular motorist is engaged in committing crime, that is one thing: but to demand production of the card from all and sundry, for instance, from a woman who has left her car outside a shop longer than she should, or on some trivial occasion of that sort, is wholly unreasonable. This Act was passed for security purposes; it was never passed for the purposes for which it is now apparently being used.”

 The inference is clear: that regular and trivial requirement for proof of identity is ‘wholly unreasonable’. Lord Goddard went on to say that relations between people and the police was something that we in this country are proud of – and that for police to regularly demand that people prove their identity would damage that relationship. Peoples identities are their own business, unless there is a drastic or emergency need for that identity to be revealed.

This is a tradition that has continued. Jacob Rees-Mogg MP, commenting on the potential expansion of police powers to demand identities contemplated in theLondon Local Authorities Bill, in December 2011, evoked another very British source: P.G. Wodehouse.

“Members will remember that Bertie Wooster, when arrested for pinching a policeman’s helmet on boat race night—I think wines had been taken—gave a false name when arrested. I cannot remember what name he gave, but I think he said that he lived in Acacia avenue. It might be a good address to give if you are ever caught doing things you should not do. There was no additional fine for giving a false name and Bertie Wooster paid the fine handed down at the magistrates court in London—five guineas, which was a lot of money in those days—but got away with giving a false name. There is a great tradition, from Odysseus to Bertie Wooster, of being allowed to hide one’s name from people who do not necessarily have the full authority to request it.”

There are current politicians who are known for using ‘false’ names: Conservative Party Chairman Grant Schapps is believed to have used at least three in addition to his own (Michael Green, Sebastian Fox and Chuck Champion), and the revelations of his use of those identities, whilst it has been criticised, has not been suggested to be illegal, and his party has not chosen to discipline him in any way.

There is of course a difference between anonymity and pseudonymity. Withholding your name and details, as Willcock did, is different from assuming a ‘false’ name, as Grant Schapps did and as Andy Smith advocated. However, in a practical sense, when operating on the internet, simply withholding your name is not an option. Online services require usernames and other user information – so to get the protection and rights that anonymity would provide can only be done by following Bertie Wooster’s approach and adopting a false name. Where anonymity is impossible, pseudonymity is the next best thing.

Rights to anonymity and pseudonymity?

The feeling in the Parliament and Internet Conference when Andy Smith made his statement may have been mixed, but there were sufficient numbers of people in the room who supported him – some just as vehemently as Alec Muffett – for it to be something that needs to be taken seriously. There are risks attached to the approach, and Helen Goodman’s concerns do have a real basis, but those risks are neither as great nor as insoluble as they might seem. Even when a pseudonym is used, where damage is caused it can be ‘broken’ – and the use of Norwich Pharmacal orders can help to reveal the person behind the problem. The respective rights can be held in some kind of balance. For most of us, for ordinary people, as Andy Smith suggested, pseudonymity can provide protection and reduce the risk of our data being misused, being hacked or lost. What is more, in suggesting that we should all use false names when needed, or not disclose our names at all, he seems to have been tapping into a long-standing British tradition, one supported not only in convention but in law.

Perhaps, if the Bill of Rights Commission really wants to look at specifically British rights, a right to use whatever name or details you choose unless there is a genuine, urgent and important reason not to, should be one of the rights that they consider. If they do, they would be facing considerable opposition, both from people like Helen Goodman who are concerned about the risks and dangers of crime online and from lobby groups from the likes of Facebook, whose business models might seem to be under threat. Whether the words – and the spirit – of P.G. Wodehouse and of Lord Goddard are strong enough to defend against them is another matter. I would like to think so.

Dr. Paul Bernal is a lecturer in the UEA Law School and a member of media@UEA. He blogs at: http://paulbernal.wordpress.com/ and tweets as @paulbernalUK.

Suggested citation: P. Bernal, ‘Internet Anonymity: A Very British Dilemma’ UK Const. L. Blog (6th November 2012) (available at http://ukconstitutionallaw.org).

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Filed under Constitutional reform, Human rights

Jacob Rowbottom: Campaign Lies and the First Amendment

It is now a tradition that during an America presidential election year, commentators shall declare the campaigns to be the ‘nastiest’ and ‘dirtiest’ ever. It is difficult to know whether such a claim is true of the 2012 election, as tough campaigning has a long history in the USA (as a NY Times article from last month explains). There is, however, no doubt that candidates at all levels of the American system have engaged in and been subject to some fierce attack messages (a recent Campaigns and Elections article provides some notable examples). Yet negative messages do not breach campaign ethics. Strong criticism of parties and candidates is part of the cut and thrust of elections. The real problem arises when electoral messages turn out to be false – and a quick viewing of websites such as FactCheck.org show the doubts about the truth of some campaign messages in the current American election.

Given the seemingly free exchange of robust (and sometimes brutal) campaign communications, it may surprise some readers that several US states have laws that prohibit certain false statements about candidates during an election campaign. These are the American equivalents of British law that led to Phil Woolas being forced out of his seat following the 2010 general election (s.106 of the Representation of the People Act 1983). For example, the key state of Ohio has laws prohibiting knowingly or recklessly false statements being published about a candidate. It employs a combination of administrative remedies (through an Election Commission finding or a fine) and criminal penalties (as a last resort). Despite the presence of such a law, a recent article in the Cleveland Plain Dealer casts doubt on the effectiveness of these measures.  Much the same can be said about its British counterpart.

A bigger constitutional question is whether such laws are consistent with the right to freedom of speech under the First Amendment. This is something I considered briefly in an article for OJLS published over the summer. On my reading, the US case law was ambiguous. The US Supreme Court has not addressed the issue directly. Previous statements from the Supreme Court point in different directions, with some emphasizing the importance of political expression and others stressing that knowingly false statements have no value. Since my article was finalized, the Supreme Court’s decision in June in US v Alvarez sheds more light on this issue and drops some hints as to how the Court might approach false campaign statement laws.

Alvarez did not concern campaign communications, but a statute called the Stolen Valor Act, which made it a criminal offence to falsely claim to have been awarded ‘any decoration or medal authorized by Congress for the Armed Forces of the United States’. The issue for the Court was whether the First Amendment protected false statements. A majority of the court decided that while lies can be prohibited in some circumstances, falsity alone does not preclude First Amendment protection. In his plurality opinion, Justice Kennedy thought the system of free speech is self-correcting and that the normal ‘remedy for speech that is false is speech that is true.’ Applying strict scrutiny, he found the Stolen Valor Act to be unconstitutional. In a concurring opinion, Justice Breyer reached the same conclusion, but applied a less intense standard of intermediate scrutiny.

The government relied on a number of cases, including New York Times v Sullivan (1964) to support the Stolen Valor Act. The ruling in Sullivan famously protects those making statements about public figures from defamation actions. However, the Sullivan ruling still allows defamation actions to be brought when malicious (ie knowingly or recklessly false) defamatory statements are made about public figures. One reading of Sullivan is therefore that knowingly or recklessly false statements can be restricted – even on political matters – without raising First Amendment concerns. The argument is of interest as many of the American campaign speech laws have been drafted to conform to this reading of Sullivan, prohibiting only those false statements about candidates that are made with ‘actual malice’.

The Supreme Court in Alvarez, however, rejected this reading. The basic thrust of Justice Kennedy’s reasoning is that defamatory statements normally fall outside the First Amendment. The public figure defence in Sullivan is a way of softening that exclusion to give breathing space for political speech. On this view, Sullivan merely deprives the malicious speaker of the public figure defence and in such cases restores the normal position that defamatory statements fall outside the First Amendment. While I am still thinking through the implications of this reasoning, it means that the Supreme Court now treats the Sullivan rule on malicious statements as specific to defamation and does not deal with false statements more generally.

Alvarez also provides some indication of how campaign speech laws might be treated. In a recent analysis of the decision, Prof Rick Hasen, a leading US election lawyer, notes that there is ‘unanimous skepticism of laws targeting false speech about issues of public concern.’ For example, Justice Breyer, in a concurring opinion, said that controls on ‘false statements about philosophy, religion, history, the social sciences, the arts, and the like’ would risk suppressing true as well as false statements, and that such controls could call for strict scrutiny. He went on to say:

‘In the political arena a false statement is more likely to make a behavioral difference (say, by leading the listeners to vote for the speaker) but at the same time criminal prosecution is particularly dangerous (say, by radically changing a potential election result) and consequently can more easily result in censorship of speakers and their ideas.’

Breyer’s remarks suggest that it would be difficult to tailor a control on false campaign speech in a way that would not chill some true expression and that such controls could also be open to abuse by prosecutors and adjudicators.

Justice Alito offered a dissenting opinion, stating ‘false statements of fact merit no First Amendment protection in their own right’. While he thought the Stolen Valor Act should be upheld, he too hinted that laws prohibiting false campaign speech might fall foul of the First Amendment. Even though false statements have no intrinsic value, Alito reasoned that this should not be the end of the question. Restrictions on false statements of fact can still have a chilling effect. For this reason, restrictions on certain types of false speech may still be afforded some ‘instrumental constitutional protection’. Like Breyer, Alito thought that in relation to ‘philosophy, religion, history, the social sciences, the arts, and other matters of public concern’ it would be ‘perilous to permit the state to be the arbiter of truth.’ The dissenters also argued that such a power ‘opens the door for the state to use its power for political ends’.

These statements are only indications of where the Court might go and do not address the campaign speech issue directly. These initial sentiments of the US Supreme Court stand in contrast to the position of the British courts following Woolas, which concerned the British law on false electoral statements. In that case, Thomas LJ stated that Article 10 of the European Convention ‘does not extend to a right to be dishonest and tell lies’ and that this is applies to lies about the ‘political position of a candidate’ as well as those about a candidate’s ‘personal character’. Thomas LJ argued that dishonest statements in an election campaign ‘are aimed at the destruction of the rights of the public to free elections’ and thereby relied on Article 17 to exclude any protection under the European Convention. The British approach appears to give the government a free hand in restricting dishonest campaign messages.

Ultimately, the issue is a difficult one and the British and the emerging American approaches show two different paths. My feelings on this are mixed, as I think the campaign lies do pose a substantial harm to the electoral process and in some cases it cannot be remedied with ‘more speech’. At the same time, I have serious reservations about allowing courts or agencies to determine the truth of campaign messages. In any event, I think false statement laws have limited effect and can only ever be enforced in a small number of cases.

It remains to be seen what will happen in the USA. Prof Hasen concludes in his paper that following Alvarez ‘we are likely to see more false campaign speech in elections, including some brazen lies.’ Just as Citizens United unleashed new channels for money to enter politics, Alvarez could open the door for more lies to enter campaign debate. Yet you may ask whether protecting dishonest campaign speech would really make such a difference. Given the limited enforcement of the existing state laws, the removal of the campaign speech laws may not in practice be such a great change from the status quo. If campaigners under the current rules feel free to mislead and lie, what difference will it make if those laws are struck down? The significant development would be the recognition of constitutional right to tell lies in elections, which might be taken as a signal for people to eschew certain campaign ethics. If that happens, then maybe the next election cycle really will be nastiest and dirtiest ever.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘Campaign Lies and the First Amendment’  UK Const. L. Blog (30th October 2012) (available at http://ukconstitutionallaw.org)

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Bradley W. Miller: The repeal of hate speech legislation in Canada

It is not uncommon for legislatures to amend and rework human rights legislation.  Nevertheless, the bald repeal of a human rights provision is unusual.  The Canadian Parliament’s move to repeal human rights legislation related to ‘hate messages’ is extraordinary.  Bill C-304 has received third reading in the House of Commons and is now before the Senate.  But even with the repeal of s. 13 of the Canadian Human Rights Act, much of the law related to human rights commissions and freedom of expression will remain unsettled.

The human rights system – an overview

In the 1960s and 70s, federal and provincial human rights statutes were enacted to prohibit discrimination on enumerated grounds.  At the same time, human rights commissions were created to promote human rights, exercise discretion whether to refer disputes to human rights tribunals, and (in some cases) prosecute claims before the tribunal.

All of the provincial human rights acts address discrimination in employment and the provision of goods and services, but the Canadian Human Rights Act and some provincial acts also prohibit expression that – intentionally or otherwise – is ‘likely to expose’ others to ‘hatred or contempt’ on the basis of one or more of the a prohibited grounds of discrimination.  These human rights statutes supplement a provision of the federal Criminal Code (s. 319(2)), which prohibits the inciting of hatred against an identifiable group, which is a full mens rea offence.

Although most human rights commissions have broad discretion about which cases to send to tribunals for adjudication, private complainants play a directive role. Typically, commissions facilitate private complaints by having commission staff arguing claims on claimants’ behalf, while insulating them from costs they would otherwise incur.  Notably, there is no requirement of standing to bring a complaint. The complainant need not have suffered discrimination.  In fact, no one needs to have suffered discrimination; it is sufficient to allege a ‘discriminatory practice.’

Defendants, though, must pay the costs of their defence.  Even if they are entirely successful, they have no recourse to reimbursement through an award of costs.  There is thus a powerful incentive for defendants to settle quickly and quietly with the commission.  On the alternative course, exoneration from the tribunal is uncertain, the legal bill is not.

Hate speech and the human rights commissions

The hate speech provisions of the human rights statutes have never been a mainstay.  And those complaints that are made, according to the Acting Chief Commissioner of the Canadian Human Rights Commission, tend to be brought against ‘individuals at the extreme margins of society.’  Until recently, that demographic was occupied almost exclusively by white supremacists.  Then, complainants began to utilize the hate speech provisions more broadly.  The new target groups were persons voicing opinions (through letters to the editor, opinion columns, or paid advertisements) about human sexuality and sexual practices, often in the context of public debate about same-sex marriage and the appropriateness of teaching school children about homosexual practices.

The Steyn/Maclean’s affair

These new targets tended to be uneducated, unresourced, and unable to attract public attention.  Like the white supremacists, they were easy pickings.  But with a ‘notable exception’, the ground shifted dramatically.  In 2007, in a spectacular overreach, three simultaneous complaints before the federal and two provincial human rights commissions were orchestrated against Maclean’s, the Canadian equivalent of The Spectator or Time magazine.  The subject matter was Maclean’s republication of excerpts from Steyn’s best-selling book, America Alone, in a column entitled ‘The Future Belongs to Islam’.  At about the same time, a complaint was brought against Ezra Levant for publishing the Mohammed cartoons in another news magazine, the Western Standard.

Steyn, in particular, proved to be a formidable opponent.  Unlike the unknown defendants of the previous generation of human rights complaints, he commanded considerable financial and non-financial resources.  He had a large, international audience and held every misstep of the commissions before the public eye.  Eventually, the Canadian Human Rights Commissioner complained that commission supporters felt afraid to speak up in public defence of the commissions because of a ‘reverse chill’ generated by Steyn and others, drawing a bizarre symmetry between the social embarrassment faced by commission supporters, and the court-ordered silence, loss of employment, and financial ruin faced by many human rights defendants.

After the British Columbia Human Rights Tribunal dismissed the complaint after a five-day hearing, Steyn attributed the decision to the Tribunal’s loss of nerve.  The Canadian Human Rights Commission dismissed the complaint before it without referring it to its tribunal, and the Ontario Human Rights Commission dismissed its complaint on the grounds of jurisdiction.  The end result, apart from the hundreds of thousands of dollars spent by Maclean’s for legal fees, was a popular movement to curb the human rights commissions’ and tribunals’ powers over speech.

The change in the legal landscape

As momentous as the Maclean’s proceedings were for galvanizing public opinion, the proceedings themselves did not result in any changes in the law.  But thereafter, the tribunals and reviewing courts began looking more critically at commission practices and at the empowering legislation.  And significantly, an internal report commissioned by the Canadian Human Rights Commission recommended that s.13 of the Canadian Human Rights Act be repealed, or in the alternative, that complaints no longer be ‘complainant driven.’

The most important development in the law occurred in Warman v. Lemire [2009] CHRT 26, a white supremacist case in which the Canadian Human Rights Tribunal ruled for the first time that s. 13 violated the right to freedom of expression and was unconstitutional.  Judicial review of the decision was sought before the Federal Court of Canada, and judgment has been under reserve since late 2011.  Effectively, s.13 has been treated as a dead-letter since that time.

Other courts and tribunals that have declined to strike down hate speech provisions, have nevertheless demonstrated increasing reluctance to allow the claims. Several of these cases remain on appeal, where constitutional challenges continue.  In Lund v. Boissoin, 2009 ABQB 592, the Court of Queen’s Bench of Alberta left the relevant statute intact, but quashed a finding by the Alberta Human Rights Panel that statements about homosexuality made by a Christian minister in a newspaper exposed persons to contempt and hatred, and quashed all of the remedies ordered as illegal and unconstitutional.  That decision was appealed to the Alberta Court of Appeal, and has also been under reserve since late 2011.

In Saskatchewan, the Human Rights Board of Inquiry in Whatcott v. Saskatchewan Human Rights Commission found a defendant to have violated the hate speech provision for letters to the editor addressing homosexuality and education.  That decision as well was overturned on judicial review, which finding was upheld by the Court of Appeal, 2010 SKCA 26.  Late last year, a final appeal was argued before the Supreme Court of Canada, which has reserved judgment not only on the question of whether Whatcott engaged in a discriminatory act, but also on the more fundamental question of whether the Saskatchewan hate speech legislation is constitutional.

Much now depends on the Supreme Court of Canada and its long-awaited reasons for judgment in Whatcott.  Until this judgment is delivered, it is reasonable to expect that the remainder of the cases to remain on reserve.

In the meantime, what will be the effect of the repeal of s. 13 of the Canadian Human Rights Act?  The repeal will obviously have no legal bearing on the human rights laws of the provinces, and no direct application to Whatcott.  But it is some evidence – both to the courts and to the provincial legislatures – of a significant body of opinion that (at least in contemporary Canada) complainant-driven hate speech laws are worse than the evils they seek to address.  It now falls to the provinces and the Supreme Court of Canada to determine whether they are similarly persuaded.

 Bradley W. Miller is an Associate Professor in the Faculty of Law at the University of Western Ontario, and  in 2012-13  is the Ann and Herbert W. Vaughan Visiting Professor, James Madison Program in American Ideals and Institutions, Princeton University. 

 Suggested citation: B. Miller, ‘The Repeal of Hate Speech Legislation in Canada’  UK Const. L. Blog (1st October 2012) (available at http://ukconstitutionallaw.org

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Tom Hickman: Freedom of expression and the Olympics

One may question whether “the practice of sport is a human right”, as stated in the Olympic Charter. But it cannot be doubted that it is not as important as the right of freedom of expression, which is regarded as fundamental to democracy.

Yet this right seems often to be trammeled in the name of the Olympics.

At the Beijing Olympics demonstrations were prohibited save with a permit in three “demonstration areas”. In fact, would-be demonstrators were deterred from applying and those that did were not granted permits anyway. The Chinese authorities were scorned and mocked around the world.

But in the run up to the London Games questions must be asked about whether freedom of expression is being respected here.

The London Olympic and Paralympic Games Act 2006 prohibits businesses from any promotion linked to the games. It would catch, for example, a bed and breakfast offering a discount on rooms to anyone attending the games, or a pub that gets in a big screen to show the Games and publicises the fact on a sign outside.

Businesses are on very risky ground if they make any use of a combination of any two of the protected words “Games”, “2012” or “twenty twelve”, or combination including other secondary protected words, including “gold”, “London” or even “summer”.

Furthermore, commercial use of the words “Olympics”, “Olympian”, “Para-Olympics” (etc.) is effectively banned by the Olympic Symbol etc. (protection) Act 1995.

The result was highlighted by the Newham Recorder in an article that received coverage on Have I Got News for You, that a local greasy spoon called Café Olympic had been forced to paint over the “O” on its shop sign.

Such prohibitions appear to go clearly beyond the justification that Locog itself advances for them: protecting the official sponsors—who fund the Games—from unofficial competition.

It is doubtful that a reasonable person would consider Café Olympic to be an official sponsor of the Games, and it is unfortunate that commercial participation in the cultural experience of the Games is being sterilized. It may significantly reduce the cultural footprint left by the Games on the city of London if local shops and enterprises cannot refer to it.

Last week newspapers were reporting that the quango responsible for enforcement of the Act, Locog, would also be cracking down on Facebook and Youtube postings during the games.

The invasion of freedom of expression also ratcheted up last week with the service of the first Olympic ASBO.

It followed the efforts of three protesters to prevent the erection of a temporary basketball court by the Olympic Delivery Authority on Leyton Marsh in Hackney. The protesters claimed that workmen were unlawfully digging through topsoil into the protected marsh. They were convicted in the Magistrates Court for breach of the Public Order Act and upon refusing to pay a  £200 fine were imprisoned for five days. Upon leaving prison, one of the three, Mr Simon Moore, was served with what has been reported as an “Olympic ASBO”.

The ASBO reportedly makes it a criminal offence for Mr Moore to enter within 100 yards of any Olympic competition or practice venue or within 100 yards of any road being used for Olympic activities.

The ASBO also prevents Mr Moore from trespassing on any building or land, taking part in “any activity that disrupts the intended” activities at the Olympics or (for good measure) at any Diamond Jubilee celebrations, or which “obstructs” the passage of any Olympic participant (including officials and spectators) at any time.

The use of ASBOs to prevent individuals engaging in offensive and valueless anti-social conduct is one thing. But their use to impose prior restrains on the genuine exercise of freedom or expression, as well as the exercise of other rights such ordinary use of the highway or attending an event for which one has tickets, is much more questionable and goes beyond the (already questionable) current authority on the use of such powers: Singh [2006] EWCA Civ 1118.

Even accepting that the detailed facts have not been reported, it is difficult to conceive how a protest against the digging up of protected marshland could justify prior-restraints on association and expression in other contexts.

That this has been done in the name of the Olympic games—and indirectly at least the ‘human right’ to engage in sport—is a regrettable further manifestation of the tension between the Olympics and one of the the most venerated democratic rights.

 Tom Hickman is a barrister in Blackstone Chambers.

A shorter version of this blog was published in The Lawyer on 30 April 2012.

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Paul Bernal: Between a European Rock and an American Hard Place?

Europe and the US have had very different approaches to privacy – and in particular data privacy – for a very long time. Data protection, the centrepiece of European data privacy law, is currently undergoing a reform – and that reform is highlighting the differences in attitude, approach and understanding of privacy and its place in the delicate balance with free expression and business.

The issue that is causing the most contention is the much discussed ‘right to be forgotten’, one of the central planks of the suggested new Data Protection Regulation. It’s being strongly pushed by Commissioner Viviane Reding – but isn’t exactly getting a good press in the US. Apocalyptic pronouncements like “the right to be forgotten could close the internet” and that it is the “biggest threat to free speech on the internet” have appeared in such august journals as the Stanford Law Review.

What is perhaps just as interesting to UK people is the distress that the whole affair is causing to the UK government. They don’t seem to know what to do, or where they stand.

The right to be forgotten

The central thrust of the so called ‘right to be forgotten’ is the idea that people should be able to delete information about them held on the internet. One of the key reasons for its development was the difficulty that people have had in deleting their accounts from social networking sites like Facebook – and the sense that the data being held about people is in some senses ‘theirs’, and that as a consequence they should have the right to delete it. Exactly what the right would mean in practice is somewhat unclear. What kind of data would be covered by the right, and who the right could be enforced against – and how it would or could be enforced in practice – still seems very much up for discussion, and will probably remain so for some time.

From the perspective of the proponents of the right, it is a logical extension of the existing principles of data protection. People already have rights to access information held about them and to correct it when it is erroneous – and to ask for it to be removed if it is being held inappropriately. The ‘right to be forgotten’ takes this a step further – changing the balance so that unless there is a ‘good’ reason for data to be held, the data subject should have the right to delete it. Looked at from this perspective, it is a right that empowers people against the ‘big players’ of the data world – challenging the establishment, and helping to shift the balance of power back towards the individual.

The US perspective

From the US perspective there’s something very different going on: the right to be forgotten seems to be seen primarily as a threat to free speech. The very name ‘the right to be forgotten’ raises a spectre of censorship, or of the rewriting of history – and when Americans look across the Atlantic and back into history and see figures from Stalin and Hitler to the likes of Berlusconi, that impression might be reinforced. It’s for that reason that I’ve been arguing for a while that it would be better to call it the ‘right to delete’ rather than the right to be forgotten – but the latter seems to be what we’re stuck with.

Does the right to be forgotten really threaten free speech? European Commissioner Viviane Reding has done her best to reassure audiences both sides of the pond that it doesn’t. There are exemptions, she has said, for the media, and for free expression:

“It is clear that the right to be forgotten cannot amount to a right of the total erasure of history. Neither must the right to be forgotten take precedence over freedom of expression or freedom of the media.”

Those words haven’t reassured many American writers. Jeffrey Rosen in the Stanford Law Review is one of the most often quoted: he has gone into the detail of what has been presented about the right so far, and found enough ammunition to be able to suggest that it might be used precisely as a tool of censorship. Is he right? Well, the way it looks at the moment, at the very least we are in for some protracted arguments from both sides.

What about business?

All of this, however, may well be somewhat beside the point. Some of the more cynical of privacy advocates – myself included – suspect that the US position isn’t quite as principled as it might appear. Free speech is of course fundamental to the US constitution, and prioritised over almost everything else – but free enterprise is in some ways every bit as fundamental to the US, and when looked at in detail the right to be forgotten is far more challenging to free enterprise than it is to free speech. Businesses all over the world – but in the US in particular – have been building business models relying upon the gathering, holding and using of vast quantities of personal data. It is those business models that are under threat. Not only might they have to build in mechanisms to allow people to see and then delete the data held about them but the potential they have for exploiting this data might be much reduced. Those businesses are not likely to be unhappy to have the much-respected advocates of free expression do the hard work of opposing the right to be forgotten for them…

And the UK?

The UK seems to have neither Europe’s enthusiasm for privacy nor the US’s passion for free speech. What it does have is a desire to support business – and not to let anything else get in the way of the freedom for businesses to find ways to make money.  Back when the proposal for the right to be forgotten first started doing the rounds, UK politicians were doing their best to oppose it.

In May 2011 Justice Secretary Ken Clarke gave a speech to the British Chamber of Commerce in Belgium, counselling against too much data protection. He suggested that the right to be forgotten was effectively unworkable, and implied that it should be abandoned. His words weren’t heeded – Viviane Reding in particular has continued to push and push for the right to be forgotten – and the UK government looks as though it’s been squirming ever since.

It’s not the first time that the UK Government has been put in a position of confusion over digital issues, trying to ‘support business’. Back in November 2010, Ed Vaizey came out first against the idea of net neutrality, thinking he was supporting business, and then almost immediately in favour of it when he saw the reactions his first statements produced. In a similar vein, the confusion shown by the Information Commissioner’s Office over the notorious ‘cookies’ directive has been rumbling on for many months and shows no sign of real resolution.

This time, though, the UK Government has taken it a step further. It appears that the UK Government would much rather the ‘right to be forgotten’ disappeared. The Ministry of Justice is undertaking a consultation, ostensibly a ‘Call for Evidence on EU Data Protection Proposals’. The language used is nicely neutral, but the purpose appears clear.  In Hawktalk, the blog of the Amberhawk, the leading information law training providers, headlined their report on the consultation:

“MoJ asks for arguments to oppose the European Commission’s Data Protection Regulation”

Amberhawk suggested that by the nature of their call for evidence – the questions asked, the information provided, and the groups to which the call for evidence was sent – the MoJ was setting up a ‘numbers game’, wanting to say that the vast majority of respondents are opposed to the changes.

Will it work? Will the UK be able to block the regulation, or at least water it down in such a way as to neuter it? Given the persistence with which Commissioner Reding has pushed for the right so far, it seems unlikely. US opposition appears more likely to have an effect, not just because of the power of the US in the internet as a whole, but because their stance is more consistent and principled. Even that, however, cannot be taken for granted, as the US is now taking baby steps towards recognising the importance of privacy on the internet, with Obama putting forward his new  ‘Consumer Bill of Rights’ for privacy on the net.

The UK looks distinctly out of step – seemingly unable to influence Europe and unwilling to accept the views that are coming out of Brussels. For this author at least, the European view is distinctly more palatable, putting the rights of individuals at the heart of their proposals. It would be good if the UK Government began to do the same – and they might find their way out of the awkward position they now find themselves in.

Paul Bernal is a lecturer in the UEA Law School and a member of media@UEA. He blogs at The Symbiotic Web Blog (link tohttp://symbioticweb.blogspot.com/) and tweets as @paulbernalUK.

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