Tagged: law

The nature of a hate crime: Google thinks that incitement to racial hatred passes its tests

In the Home Affairs Committee last week, a baffled Yvette Cooper politely and repeatedly asked Peter Barron, a spokesman for Google in Europe, ‘In  what  circumstances  is “Jews  admit  organising  white  genocide” not  a statement of hate speech? ‘  The response from Google was as follows:

Peter  Barron:  There  is no  clear  definition  of  hate speech  in  British  law. We  have  our  own  guidelines  around  hate  speech.  The  guideline  that  we follow, which is very close to the law, is that a general expression against a  country,  for  example,  wouldn’t  qualify  as  hate  speech,  but  if  you  are promoting or advocating violence against a particular group based on their race or ethnicity, that would constitute hate speech. … I am not going to defend the content of the video; I found it abhorrent and offensive. However, the important question, which relates to wider issues of freedom of expression, is whether that content is illegal and whether it breaks our guidelines. Our policy and legal experts arrived at the conclusion that it didn’t. I think everyone in this room would agree that it was deeply distasteful.
Chair:  But  your  own  guidelines  say  that  it  is  “not  acceptable  to  post malicious,  hateful  comments  about  a group  of  people  solely  based  on their race” or religion or so on. How on earth is the phrase, “Jews admit organising white genocide”, as well as being clearly false, not a statement that  is  a  malicious  or  hateful  comment  about  a  group  of  people  solely based  on  race,  religion  or  the  other  protected  characteristics  that  your own guidelines and community standards say are unacceptable?
Peter Barron: The test that our legal and policy experts are looking at is whether  there  is  an  incitement  to  violence  against  a  particular  identified group.  I  accept  that  these  are  borderline  cases;  we  often  see  debate among our teams. The conclusion in this case was that it didn’t break our policy guidelines.

The response from Google seems to have divided commentators. One one hand, there are those who defend the principles of free speech – among them Spiked Online, which calls Yvette Cooper the ‘Witchfinder General’, and the editor of the Jewish Chronicle.  On the other, there are many, most obviously the members of the Home Affairs Committee, who find this difficult to take.

Barron’s assertions that there is no definition of hate speech, and the argument that the content is not illegal, are mistakes.  The expression “hate speech” may not be used in UK law, but ”incitement to racial hatred” is, and incitement to hatred  is criminal.  There are many things that people are not allowed to say in the  UK – among them laws of public and private libel, incitement, conspiracy and sedition.  Even in the USA,  ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.’   (That comes from Schenck v. United States, 1919.)  There is a common confusion about the nature of free speech; it is not the freedom to say whatever one pleases, any more than freedom of movement means an unlimited freedom to swing your fist.

Google’s misreading of the law comes about because it has referred to the laws relating to racial hatred in the USA rather than laws in Europe.  Hate speech in the USA is protected by the First Amendment; to be criminal it has to be coupled with the threat of violence, and in general it will be charged only when it occurs in tandem with another offence.  As the threat of violence is already an offence, that reduces the status of hate crime to an aggravating factor, rather than a cause of action in its own right.  That’s why the Internet hosts other material, much worse than the example discussed in the Home Affairs Committee,  which more or less says, get these people before they get you (and no, I’m not going to post the links to the examples I’m thinking of, or even to identify the three words in Google that will bring them up).   It seems that Google is able to take down links and caches of sites questionably accused of infringing copyright, but not of sites that openly breach European laws on racial hatred.

A review of sharia law in Britain: why should we assume it’s being ‘misused’?

An independent review for the Home Office has appealed for evidence about the application of sharia law in the UK.  While Muslims may reasonably expect a balanced report from the Chair, Mona Siddiqui,  and the inquiry is beginning with evidence from people with experience of sharia in practice, the terms in which the inquiry is framed are extraordinary.  It does not begin by asking how sharia law or how the courts work, but whether sharia law isn’t  dangerous and liable to misuse.

“Individuals with experience of sharia law are being urged to take part in an independent review examining whether the religious code is being misused within Britain.  The government-commissioned sharia law review is exploring whether the application of sharia is incompatible with the law in England and Wales.  It will also examine the ways in which the practice may be being misused, or exploited, in a way that may discriminate against certain groups, undermine shared values or cause social harms.”

I have no direct interest in sharia law, but I grew up in a world where people could always go to a rabbinical court if they chose; while I have may lots to say about the unreasonable bits in my own community’s law, I can’t see any fundamental objection to a system of mediation  based in shared principles and voluntary consent.   In the febrile and sometimes toxic atmosphere surrounding the current clash of cultures,  a less tendentious brief might have been better judged.

Reforming defamation law in Scotland

The Scottish Law Commission has issued a lengthy consultation paper on the reform of defamation law in Scotland, but I’ve only just seen it and the deadline for responses is set for tomorrow.  This is not my expertise (it’s forty years since I studied torts as part of English law, and I never used it)  and I’m not proposing to make a submission, but there  are issues of concern.  I don’t share the view of the Libel Reform Campaign that “Corporate bodies do not have a private life, personal identity or psychological integrity.” Clubs, societies and charities do have identity and integrity and may well depend very heavily on their reputations.  The law privileges  financial damage over other kinds of reputational damage, and that by comparison with the protection given to commercial traders there is a relative lack of protection for smaller, non-commercial groups, such as a mosque.

The main issue affecting the academic community is the potential suppression of scientific debate or criticism, most notoriously in the action taken against Simon Singh by the British Chiropractic Association.   There is an exemption made in the 2013 Defamation Act, but it only allows for material in peer-reviewed academic journals or conference proceedings.  (For those who don’t know it, academic books are peer-reviewed too – 13 of my books have been peer reviewed anonymously, 2 others were subject to an editorial board.)  The restrictions mean that academics have to rely substantially on defences of public interest and fair comment, and they are likely to be forced to fold long before they get that far.

Does the Supreme Court know how to make sense?

I opted out of legal studies when I was still a student, choosing to a PhD in Social Administration instead, and my only legal qualification expired a long time ago, but on occasion I still like to dip a toe in the water.  I was intrigued enough by a debate reported by Mark Elliott to read a lecture by John Finnis on judicial power.   Finnis thinks the Belmarsh judgment was a ‘debacle’, comparable to the nonsense they got into when the House of Lords was reviewing attempts to do the  impossible. I agreed about the silly rule on impossible attempts, which was the law when I took the exams, so I wondered whether I might also agree about Belmarsh, and read the judgment front to back.   I don’t agree with Finnis, as it happens, but I think I can see the problem.

I’ve only read a handful of judgments like this, but all have followed the same process.  Up to nine judges offer individually written, considered arguments, most of which make sense in their own terms.  There will usually be a statement to the effect that they agree with a particular one of their number, but hardly anyone does what Lord Caswell did in Belmarsh, and stop after saying, more or less, that ‘I agree with that one’.

This process creates two immediate problems.   The first is a problem of over-inclusion. Each of the judges addresses a slightly different agenda.  The longest judgment, by Lord Bingham, addresses a long series of issues:  the statute, human rights law, international obligations, discrimination, public emergency, and proportionality.  In the eight judgements, all the judges consider human rights issues; all refer to the terms of the 2001 Act (which Finnis accuses them of not considering adequately); nearly all consider discrimination (one only indirectly); six consider the public emergency; five refer to proportionality.  The difficulty here is that even when judges are similar things in different words, it can be difficult to determine which is the best or clearest statement of the law.   When they say different things, it is impossible.

The second problem is a problem of exclusion.  Each of the Lords has arrived at an an individual judgment, and to do that they have had necessarily to select the issues that they consider to be most relevant and important.    Two judges thought it relevant to refer to the International Covenant on Civil and Political Rights; the others presumably did not.  It is much more difficult to spot the issues that no-one thought pursuing, but that is the substance of Finnis’s complaint – that there were further considerations in the statute and the Human Rights Act which ought to have been included too.

Both of these problems have a common root.  If the material was ordered thematically, instead of being argued one judge at a time, the contradictions, elisions and omissions would be evident; if there were visible gaps, they could be plugged.  The decisions of the Supreme Court are not the decisions of individual judges; they are decisions of the Court.  Unless and until they are stated collectively, they will never make sense.

 

Access to justice

Dr Donald Trump, coincidentally an honorary graduate of my university, dislikes windmills, and he is taking a case to the Supreme Court in an attempt to stop them being put up in sight of his golf course in Aberdeenshire. To get to take the case, he has been able to take advantage of a certain laxity in the rules about what is, or is not, an important point of law. The Court of Appeal has already decided that his arguments have no legal merit.

While this is going on, I’ve been trying to get information to back up the case to allow benefit claimants better access to judicial review in the Scottish Courts. Poor people are subject, in the UK, to arbitrary and secret decision making with no effective redress. Justice delayed is justice denied, and the effect of mandatory delays, failures to make decisions and taking actions on decisions without informing people even that the decision has been made has had a devastating effect on people’s welfare. The primary obstacles to access are the requirements to fund senior lawyers, the complexity of the law and the length of time needed to act.

Unfortunately it seems that, regardless of the merits of the respective cases, access to law is still the prerogative of the very rich.

Kiss and tell

This is, admittedly, just a little out of my usual field.  However, I cover issues relating to human rights as part of work on principles in social policy, and privacy is also a vexed issue in social research, so the recent furore about privacy injunctions has piqued my interest. The central issue concerns a footballer who had obtained a “superinjunction” preventing a girl from revealing secrets about an affair, or even the name of the footballer from being revealed. There are two striking issues. The first is the issue of secret justice, which is no justice at all; the prospect of anonymous, unreported enforcement and legal sanction is repellent, and John Hemming MP was absolutely right to raise it in Parliament. The other issue is the interpretation of privacy by the courts.

Privacy is usually understood in one of two senses. The first, which is the interpretation given to privacy in legal cases in the USA, is that people have an intimate sphere of life which other people are not able legitimately to intrude on. The second, which is more prominent in social science, gives people control over information that relates to them. In the context of social research, the Australian National Health and Medical Research Council explains:

“Individuals have a sphere of life from which they should be able to exclude any intrusion … A major application of the concept of privacy is information privacy: the interest of a person in controlling access to and use of any information personal to that person.”

The idea of consent in research is based on the idea that information is private, and that it needs the consent of the person who reveals it – the research participant. It’s not usually the case, however, that researchers are asked to get the consent of everyone mentioned in research. That, by contrast, is what journalists are now being asked to do.

Let me offer a little scenario: a man’s girlfriend goes to his wife and says, “I am having an affair with your husband”. If the husband has an intimate sphere which no-one can impose on without permission, the girlfriend has breached it – admitting the girlfriend to intimacies is not a licence to reveal those intimacies later. If he has a human right to control the information, the girlfriend has breached it. I find it hard to believe that either outcome is what the advocates of privacy laws intend; privacy may be a right, but it does not follow that secrecy is. An individual may retain control over information only in so far as that information relates solely to his private actions. A couple, a group, an association, may control aspects of information that relate to that couple – but they exercise that control jointly, not severally, and if they do not agree, neither retains the right. If one partner in a couple wishes to reveal all, the right does not pass to the control of the other person. The attempt to curb revelations by those who want to “kiss and tell” may be many unpleasant things, but it is not a breach of human rights. The courts have got it wrong.

The law of rape

The Scottish Government have announced legislative proposals to reform the law of rape. In particular, they intend to make it inadmissible in court to raise the issue of whether a women was drunk. The problem with rape trials is that they often become trials of the victims rather than of the perpetrators; this proposal is a small step to help with that problem.

It is only, however, a very small step. The central problem with the law of rape is that the definition of the offence depends on the issue of consent, and so on the state of mind of the victim, rather than the actions of the perpetrator. As long as that remains true, it is inevitable that the victims will be put on trial. And the recent proposals to investigate rape as if it was murder will only make things worse: a more extended, detailed, thoroughgoing investigation and legal process will bend most victims until they crack.

There is an alternative. Rape is only part of a general class of serious sexual assaults. Many are at least as bad as rape. (This comment is likely to surprise people who think that rape means “very bad”, but some of these other actions are much worse, even if they typically carry a lesser sentence than rape itself. Unfortunately, I cannot explain the comment fully in a public forum – they are so appalling that I am not prepared to describe them explicitly. I can only suggest that people consult a law book and see what sort of thing is classed as “indecent assault”.) If the nature of the offence was redefined in terms of the general class of assaults, the issue to be considered in court should be whether or not the actions of the perpetrator (male or female) fell into that class – and, regardless of consent, physical evidence of force would stand as evidence of such assault.