Category: Internet Rights

Categories
Internet Rights

Saving Daphne’s Privates

privates_akkuza

Gaffarena Gate has been the black hole of news and information over the past week or so. Anything else newsworthy was sucked into the vortex of the spinning black hole of Falzon’s resignation, Muscat’s double-speak on governance and the n-th celebration of disgraced politicians by a Labour mass meeting. Patriots and pork only just made it past the all-enveloping scandal and this was probably due more  to the ridiculous stunts performed by the defenders of bigilla and zalzett than to any real newsworthiness. Even the Times descended into silly land asking the haplessly controversial question whether persons of a particular religion should be allowed to congregate and play.

Meanwhile in a law court not so far, far away a very important bit of jurisprudence was in the making. In the court presided by the impeccable Magistrate Depasquale, Minister Konrad Mizzi was desperate to prove that he had cause for grievance against blogger (for ’tis in this vest that she hath been summonsed)  Daphne Caruana Galizia. Such cause for grievance had been filed under Malta’s much maligned, misused and abused libel laws – those that have criminal consequences, so to speak. Caruana Galizia had written about some supposed/alleged fling between Minister Conrad Mizzi and one of his minions involving, among other allegations, an exchange of kisses in public. Minister Mizzi could only but cry “lie” at this serious allegation that would, if proven true,  amount to an extra-marital flirtation by said Minister. Hence the law-suit. So far so good.

We were informed, through the medium of the press, that in the sitting of January 18th, the line taken by Mizzi’s lawyers was a rather unorthodox one. Messers Mifsud Bonnici (Aaron) and Lia (Pawlu) were insisting that Caruana Galizia reveal the source of the libellous information. And here lies the problem. Not just for Mme Caruana Galizia but for every single citizen of the island of pork-guzzling patriots and martyred ex-Parliamentary Secretaries. You see, Caruana Galizia was sticking to the age old  universal protection afforded to journalists with regard to their sources. She was not obliged at law, she argued, to reveal her sources for her journalistic work. True. Very true.

The only problem was that the legal team for Minister Mizzi of the government that championed the protection of whistleblowers among many other things decided to become incredibly narrow and literal minded in their application of the law. Shylock was after his pound of flesh. The reasoning put forward by the lawyer who has been touted as the next Chief Justice of the land (pray note that this also means that he would chair the Constitutional Court, guardian of all things holy) was that since the blog in which Daphne writes can not be registered under the Press Act then surely Daphne Caruana Galizia is not acting as a journalist whenever she writes in her blog. Which would mean of course that her sources – who she has called moles, spies and other names through the lifespan of her blog – would be afforded no protection.

Which is a load of hogwash of course. A load of hogwash that would only find place in Kafka’s novels or in the best of Soviet theatres and kangaroo courts. But this is Malta in the time of Joseph Muscat and a very very weird interpretation of the law and legal rights (The government has just gone and sued itself in a case so don’t even dare challenging this assertion).

Let’s go step by step.

1. She is not a journalist

You may not agree with the woman. You may find her blog to be the result of a particularly efficient network that collates information and disseminates it in a selective Wikileaks manner. You may, like me, find her automatic negative reaction to anything Gozitan particularly distasteful. You may think all these things and more but to insist that Daphne Caruana Galizia – even when restricted to the blogging hat of Daphne Caruana Galizia – is not a journalist is complete and utter hogwash. In the year 2000, the Committee of Ministers of the Council of Europe drafted a recommendation signed by most of its member states with regard to the protection of journalists from disclosing their sources. (Full name – Recommendation No. R (2000) 7  of the Committee of Ministers to member states on the right of journalists not to disclose their sources of information). Here’s the definition section of the Recommendation:

Definitions

For the purposes of this Recommendation:

a. the term “journalist” means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication;

b. the term “information” means any statement of fact, opinion or idea in the form of text, sound and/or picture;

c. the term “source” means any person who provides information to a journalist;

d. the term “information identifying a source” means, as far as this is likely to lead to the identification of a source:

i. the name and personal data as well as voice and image of a source,

ii. the factual circumstances of acquiring information from a source by a journalist,

iii. the unpublished content of the information provided by a source to a journalist, and

iv. personal data of journalists and their employers related to their professional work.

It fits nicely does it not? We have not even begun to look at the jurisprudence of the Strasbourg Court (Goodwin anyone?) or the European Charter of Rights. The recommendation is already clear enough about how far the protection should go. It is not restricted to some state defined numerus clausus such as a list of “approved journalists” under the Press Act. Any natural or legal person. Regularly engaged in the collection and dissemination of information. To the public. Via any means of mass communication. I don’t know about you but it is pretty clear to me that Daphne’s blog falls fair and square within this definition and that would make Daphne a journalist even when she is limited to blogging on the Running Commentary.

2. She has to disclose the source

What is this obsession about the source anyway? It is in fact the most dangerous part of the case being built by Mifsud Bonnici and Lia. Don’t be mistaken because there are no scruples here. We all know that Daphne Caruana Galizia is prepared to go all the way to defend her right to publish information in blog form. Blog and be damned she will. Aaron Mifsud Bonnici knows it, Pawlu Lia knows it and most of all Konrad Mizzi knows it. The very public obnoxious shake up here is not directed at Caruana Galizia but at any potential source. What after all is the use of getting the accused in the libel case to give up the source of the information? Very little really. Except that Mizzi and his team do not care about anything other than putting the fear of god into anyone who might in the future be made to think twice about whether or not to send one of those quickly snapped photos of yet another politicians’ misdemeanors.

Whether a Minister chooses to have an extra-marital fling is a debatable piece of news that can be used in various ways. As any Monica Lewinsky, Lord Boothby or John Profumo might vouch, sexual affairs and politicians rarely are just that. More often than not they have repercussions of a constitutional nature and any self-respecting journalist in his right mind would want to investigate and report.

Sources are paramount for Daphne’s kind of blog that is less pundit and more reportage thanks to a long list of willing suppliers of information that end up being a very informal but well-connected network. Muscat’s men know that the effects of this network can be lethal. Which is why in this case they are not really going for the journalist and editor of the blog. They want to get to the source. They want to put an end to the network of informants and to do so they are prepared to attempt to get the courts of the land to apply a very dangerous and literal-minded precedent.

To conclude. The journalistic profession has not had a good last two decades. When more than two-thirds of the people who get their bread and butter from some form of journalistic work are inextricably linked with the major political parties you tend to get a withering of the power of the fourth estate – one of the important pillars of a democratic society. The lack of respect towards the profession was never more blatant than in moments when journalist credentials were handed out to anybody that the parties needed for a particular stunt. Remember JPO bearing a PN press card in order to harass Alfred Sant in his crocodile tears phase?

The profession needs to win back respect and it can only do so by performing its duty of investigating and monitoring the powers of the nation without letting them interfere. It also deserves all forms of protection from any institutional assault such as this one being orchestrated by Konrad Mizzi.

It is not Daphne Caruana Galizia who is in danger. It is an important cog in the machinery of a democracy and it is the citizens of the democracy who have a right to access all forms of information and weigh it on their own account. For all our sake and for all that we stand for, Daphne’s privates must be saved.

“They’re talking about things of which they don’t have the slightest understanding, anyway. It’s only because of their stupidity that they’re able to be so sure of themselves.”
― Franz Kafka, The Trial

Categories
Internet Rights Values

World day against Cyber Censorship

The 12th of March is the World day against cyber censorship. The tools of the digital age have thrown back the frontiers of darkness and ignorance that have previously been used to keep whole populations in check. Reporters Without Borders and the Electronic Frontier Foundation (EFF) are two organisations that are active in the ongoing battle for freedom of information particularly in the battle against the use and abuse of laws to silence or block the digital (cyber) modes of expression. The Arab Spring and the continuous struggle in China both prove that digital activism can be effective especially in countries where the freedom of expression is a luxury. You may be familiar, for example, with the work of Yoani Sanchez – the Cuban dissident blogger who has become a symbol of freedom of expression in a country that was obsessed with control of information.

It is not just the standard totalitarian regimes who have trouble with information. Even the healthiest of democracies might suffer bouts of allergic intolerance to the independent minded expression of ideas. Again, a combination of ignorance that is nurtured by the establishment and abuse of freedoms based on a misunderstanding of their value  would contribute to the fouling of an atmosphere of open expression and intellectual engagement.

On a more local level the recent events on the day of silence might be misconstrued as a formal attempt to gag the new participants in the social discourse. That would be mistaken. The rule of silence (or reflection) might be an archaic rule but is a law of the land just the same. It is not a blanket censorship that exists eternally but a particular moment of silence imposed with what might be a misguided motivation but is a rational motivation just the same. Whether or not the day of silence can still serve its purpose in the digital age of facebook and twitter (or whether it should be extended to such means) is not really a matter of censorship with political ends but really a obvious example of a law that needs updating to take into consideration the modern circumstances. This is all the more necessary in the absence of objective interpretations that could per se have sufficed to fill such a lacuna.

A dangerous situation is created when rules such as the rule of reflection are abused of by parts of the political establishment in order to make whatever political capital they might deem fit. Such a danger is aggravated if members of the executive forces (whose duty it is to protect and serve) and members of the fourth estate (journalists whose duty would be to objectively investigate) become witting or unwitting co-conspirators in such an abuse of the legal provisions.

On this World Day Against Cyber Censorship J’accuse would like to reiterate a fundamental disagreement with the current laws affecting expression during election campaigns in Malta. This includes the rules appertaining to silence on the day before and on the day of elections, the rules covering the “balancing of opinions” on public broadcasting, the rules regulating the funding of political party campaigns and the lack of rules (or lack of application thereof) covering the blatant abuse and violation of digital rights with regards to the collection and reuse of personal digital data.

Happy World Day Against Cyber Censorship.

Blog… and be damned!

 

(illustration is an adaptation of the Reporters Without Frontiers cover to their report on Cyber Censorship)

Categories
Internet Rights

Internet Civil Rights – Dr Antonio Ghio replies

Regular readers of J’accuse will know that we are always glad when a post of ours provokes more discussion. We mentioned Dr Ghio’s short quip in the Times interview in our earlier post (The Emperor’s New “Internet Civil Rights”) and Dr Ghio chose to reply with his own thoughts that will surely help to generate more discussion. I gladly reproduce his full comment here in the hope that more of you feel might join in with your two cents’ worth. So here is Antonio’s full reply :

Dear all. I read these posts with interest. Unfortunately TOM published only a few lines from the 800 plus word comment I sent them so I’d take the opportunity to share some of those thoughts with you (respectfully of course :) ) with the hope that this can generate some discussion:

Last year’s events in North Africa highlighted the importance that social media and ICT plays in today’s world. Many falling regimes decided that by cutting off their citizen’s access to information tools they could control the uprisings. They were very wrong.

Only recently the discussion of looking at the internet and all that it stands for as a civil right has emerged. Within this evolving discussion, one needs to distinguish between fundamental human rights and civil rights even though they go hand in hand. This distinction was clearly made by Vint Cerf, one of the founding fathers of the internet as we know it, in his open letter to the New York Times only a few weeks ago.

A civil right is a tool to attain your fundamental human rights enshrined in our constitution and international treaties. In this sense, the internet can be seen as just a tool but a very important one. The recognition of a right to a networked society and to informational self-determination is a reflection that the principles on which societies are built are not static and the ways in which we can enjoy our fundamental human rights is in constant flux and depends on the appreciation that our society has of the very same tools which enable us to enjoy such fundamental rights as freedom of expression and our right to private life.

Whilst a handful of countries recognized the right to internet access or a broadband right, the proposed bill goes much beyond that. It is not just the recognition of universal service or the setting of some minimum level of service. It is the legal crystallization of a reality we live in and without which we cannot reach our potential as individuals but also as a society. Published figures relating to internet penetration rates in Maltese households and the utilization of social networks all point towards the importance that Maltese society gives to these technologies. The proposed rights should go beyond a mere right of access to the internet but should serve as guiding principles relating to internet censorship, free flow of information and privacy.

There is already a myriad of laws relating to issues such as privacy on the internet, the use of the internet as an important tool for commerce. These new rights will not re-invent this but should elevate the importance that we now give to these legal provisions, making them available and easily accessible to everyone without the need of being a lawyer or academic to establish where these legal provisions are contained. The new rights should endeavour to highlight the importance that laws relating to technology that have emerged during the past years have in today’s connected world, a clear statement that our fundamental human rights also apply to our online existence.

Last year Malta experienced the introduction of the civil right to divorce but very few of our community will end up using this right. We are here faced with something much larger. We are now talking about a civil right which will not affect a minority but all of us, from my nanna in Gozo using skype to chat with my cousin in Poland to my 8 month old son who is already chewing my iPad.

The proposed digital civil rights should set the bar of how we value the role of technology and our right to privacy and information today. These new principles should serve as a litmus test against
which we measure any new law which would be perceived as invading our private lives, our right to be part of a digital community, our right to express ourselves freely on the net.

I think this is more the realization of how dear the internet has become to all of us and to the fact that we do not want anyone to mess with our internet and with our online experience. This does not mean that these rights are not already there.
But what wrong in enshriningg those rights in a constitution? After all, we have tons of laws relating to employment. Does that mean that any reference to the right to work and protection from forced labour in our constitution is futile? So I guess rather than a legal crystallisation this should be a constitutional crystallisation.

Is that wrong?

Categories
Internet Rights

The Emperor’s New “Internet Civil Rights”

There seems to be “all-round support for the internet as a civil right” if we are to believe the Times, and we have no reason not to. Lawyer Antonio Ghio described it as “the legal crystallisation of a reality we live in”, which is an interesting statement for many a reason. Ever since PM Gonzi announced “four new civil rights related to online behaviour” there seems to have been much clapping and jumping with enthusiasm. J’accuse has a problem with this enthusiasm – yes we’re going to be the usual wet blanket but we feel duty bound to point at the herd of elephants presently occupying the centre of the debate.

Elephants, might I add, that seem to have escaped everybody’s attention. So here are the questions in short: What exactly are these rights and if we do not know what they are how can we be so bloody enthusiastic about them?

The pseudo-psychological analysis of the situation is simple. “The people” were pissed off about ACTA – all that yada yada about lack of consultation and infringement of rights without actually looking into the darn agreement still gathered momentum. Enter Castille Office’s new technique of tackling complaints yesterday and we get the impromptu promise of “new civil rights”. Which brings us to the first problem… does anybody know what these rights are… and more importantly do we need them?

Mysterious rights you (probably) already have

So what actual facts do we have about these new rights? Well we have a DOI press release (PR0293 – thank you Fausto for the split second research). The rights are mentioned in the introductory paragraph:

Il-Prim Ministru Lawrence Gonzi jemmen li l-aċċess mingħajr xkiel ta’ persuna għall-Internet; id-dritt għall-informazzjoni u l-libertà tal-espressjoni permezz tal-internet; u d-dritt li jiddeċiedi x’informazzjoni jikkomunika huma drittijiet ċivili ġodda li għandhom jidħlu fil-liġijiet ta’ pajjiżna. Għalhekk il-Prim Ministru se jressaq liġi fil-Parlament li tiggarantixxi dawn id-drittijiet ċivili ġodda f’pajjiżna.

There you have it we find a generally worded reference to the four “rights”:

1) a right of unobstructed access to the internet;

2) a right to receive information via the internet;

3) a right to freely express oneself on the internet;

4) a right to decide what information to communicate.

Let us assume that rights two to four overlap insofar as they can be generally summed up as the right to exchange information (send/receive, upload/download) using this technology. That leaves us with the right to access the internet and the right to use it to exchange information. Can someone in their right mind who has been unaffected by this civil right frenzy stand up and tell me which of these rights does not already exist today?

As somebody put it (rightly) – why not introduce the basic civil right to read books, to watch TV and to listen to radio? Do you know why? Because it is already there – in the fundamental rights and freedoms that even our supposedly faulty and archaic laws include. So what is Castille selling?

Well, the people at Castille are not that stupid. If I can get you to believe that I am giving you the right to the air that you breathe and that for that you will be extremely grateful then why not? So who is being a silly ninny then?

Ignorance of the law is no excuse

We’ve said it before and we say it again. All too often nowadays we are being besieged by an army of supposed experts wanting to tinker with our legislation. The Franco Debono Reform is fast becoming an example of that. What could start off as a well meaning change ends up becoming a sweeping bungling exercise by the uninformed. And that is dangerous.

The anti-ACTAvists had us all in a twist about strip-searches at the border and Big Brother and Corporate intrusion into our private lives. What almost every indignant ACTAvist missed was the simple point that even if the strip-search myth turned out to be true it would be conducted in order to discover and prosecute an illegality. Downloading bootleg copies is a crime with or without ACTA. Illegal use of the instrument called internet is just as illegal as the illegal use of a book, radio or TV.

The Gonzi Civil Rights are stating the obvious. What they do not do is tell you that you have the right to use the internet illegally. Downloading your favourite Lana Del Ray album from Pirate Bay remains a technical illegality. Caveat pirata. Expression? You have always had the right to express yourself on the internet.. you did not need Gonzi’s 4 rights to do so. Is it clear? For example if you have decided to publish something like “Li Tkisser Sewwi” (or any other literary essay) on your blog you are just as likely to be sued under Maltese laws as you would be if you printed it in pamphlet form.

We should not be confusing the medium with the content. Sure we all want the right to the internet and soon we’ll be claiming for the right to wifi and fast-speed access. But the basic rules of society that have evolved since Socrates and Plato need not change. You have a right to express yourself – from graffitti on a wall to pamphlets to a blog – whether your use of that right impinges on the rights of others is a choice you make and that right has consequences you that you must also consider. I shall never stop repeating it: we are servants of the law so that we may be free (Cicero).

Those who should know

So if Fr Joe Borg is the communications expert he claims he is I expect him to be more clear about this ploy and not call it a “noble and laudable” measure. As for Antonio Ghio, with all due respect, the whole point of the “legal crystallisation of a reality” is that the very crystallisation is futile. You don’t need to be given a right that you already have – unless you mistakenly believe that these new rights will give you something extra.

Which brings me to the masked men and women at MAAG. Here’s Ingram Bondin from MAAG speaking about the rights that aren’t new:

Ingram Bondin, from the Malta Anti-Acta Group, which staged the protest on Saturday, welcomed the initiative, saying the rights were a “step forward for Maltese society”. However, he cautioned that the proposals would not stop opposition to Acta, which was driven by a host of other issues.

A host eh? I’m still waiting for an answer about the Convention on Cybercrime. It’s the kind of convention that shows you the limits of internet rights – particularly because crimes are crimes no matter what the medium. The Convention is a perfect example of the limits to the freedoms (that you already have) on the internet. More particularly take a look at the Protocol on Racism and Xenophobia. Yes, you can express yourself on the internet but that does not mean you can do so illegally.

Same goes with downloading, uploading etc. J’accuse’s conclusion remains the same: if it ain’t broke don’t fix it.

Gonzi’s new “Four Civil Rights for the Internet” are nothing more than a marketing ploy of appeasement. We can afford to say it here because we don’t need to pander to the people for a vote or two. Our spineless opposition is so lost in the knee-jerk pandering to the “civil rights on internet” that it has forfeit any possibility of exposing the Emperor’s latest set of clothes.

 

Categories
Internet Rights

What laws would you sign? International law by plebiscite?

One of the interesting spin-offs of the ACTA controversy is the newly discovered devotion that national representatives have towards what they deem to be “public opinion”. There are undoubtedly a number of factors  that have precipitated this state of affairs. Primary among these is the general feeling of misrepresentation that has increasingly gripped the European demos following the economic crisis. Austerity measures are seen as a direct consequence of mismanagement and decisions taken in the name of the people without their consent. When government start using your money to pay for other people’s (bad) debts then you are bound to explode.

Then came PIPA and SOPA – the US’s attempt at controlling the net as we know it. ACTA “went public” soon after – too soon – and the governments of many countries like Poland and Malta found out that they were signatories of – to put it mildly – not too popular an international agreement. Following the recent fad of playing to the public tune governments such as those in Poland and Malta swiftly backtracked and opened the way for public consultation. Of what? For what? And that is the question. This is an international instrument and agreement that facilitates the cooperation between already existing laws and jurisdictions. And yet, and yet we are suddenly bemused by the whole process of signature and ratification.

How dare Dr Gonzi sign ACTA without consultation? How dare they sign an agreement negotiated in secrecy? Yes how dare the government sign an international agreement without consulting the people?

Excuse me but what the hell is ratification if not the process of obtaining the consent of the people via a parliamentary vote? This is not the first time that our nation becomes signatory to another convention without so much of a squeak from the community. In actual fact were it not for the fuss kicked up about “international corporations and their agenda” we would probably never have heard of ACTA or its signing. Instead now we have the anti-ACTAvists forcing parliament to become an open house of consultation in order to get to the  point where we will have a unanimous show of anti-ACTA hands pandering to public perception. If only all laws were passed in this manner we’d legalise marijuana tomorrow.

Then again how about an example of hypocrisy from the pro-internet freedom crowd. I do not see anyone calling for a public consultation on the Council of Europe Convention on Cybercrime. It’s now 10 years and more since it was originally signed and includes protocols on “hate crime in cyberspace”. On the 17th January 2012 10 years had passed since Malta put its signature on the Convention. For some reason I do not know Malta has not ratified the convention yet but that’s not my point. Here’s article 10 from this convention:

Article 10 – Offences related to infringements of copyright and related rights

1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the infringement of copyright, as defined under the law of that Party, pursuant to the obligations it has undertaken under the Paris Act of 24 July 1971 revising the Bern Convention for the Protection of Literary and Artistic Works, the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Copyright Treaty, with the exception of any moral rights conferred by such conventions, where such acts are committed wilfully, on a commercial scale and by means of a computer system.

2 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the infringement of related rights, as defined under the law of that Party, pursuant to the obligations it has undertaken under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention), the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Performances and Phonograms Treaty, with the exception of any moral rights conferred by such conventions, where such acts are committed wilfully, on a commercial scale and by means of a computer system.

3 A Party may reserve the right not to impose criminal liability under paragraphs 1 and 2 of this article in limited circumstances, provided that other effective remedies are available and that such reservation does not derogate from the Party’s international obligations set forth in the international instruments referred to in paragraphs 1 and 2 of this article.

I’d love to hear what the eager legal beavers of the Anti-ACTAvist camp have to say about this particular article. Not to mention the fact that a sufficiently creative mind might even construe the provisions on corporate liability to be a vague attempt at putting the onus of criminal acts on ISP providers. Whoaaaaa… I’ve just read Article 18 and I think you should read it too…

Article 18 – Production order

1 Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order:

a a person in its territory to submit specified computer data in that person’s possession or control, which is stored in a computer system or a computer-data storage medium; and

b a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider’s possession or control.

Dare I show you article 19? Sit down. Take a deep breath. We’re entering the territory of vague references to strip searching you for that USB key you keep tightly hidden up your anus…

 

Article 19 – Search and seizure of stored computer data

1 Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to search or similarly access:

(a) a computer system or part of it and computer data stored therein; and

(b) a computer-data storage medium in which computer data may be stored in its territory.

Hmm. I wonder if those scheming corporations have taken over the Council of Europe too? I’ll let you discover the other interesting questions such as “interception of data” or the juicy bit about “extradition” (I wonder if you could get interned into Guantanamo). That’s nothing. Look at the  …

ADDITIONAL PROTOCOL TO THE CONVENTION ON CYBERCRIME, CONCERNING THE CRIMINALISATION OF ACTS OF A RACIST AND XENOPHOBIC NATURE COMMITTED THROUGH COMPUTER SYSTEMS

….  Malta signed this protocol too (28th January 2003) but it has also failed to ratify it. The aim of the protocol is to criminalise acts of racist and xenophobic nature committed through computer systems (duh). Quite topical no? Here is a sample article (Article 5):

Article 5 – Racist and xenophobic motivated insult

1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:

insulting publicly, through a computer system, (i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or (ii) a group of persons which is distinguished by any of these characteristics.

2 A Party may either:

(a) require that the offence referred to in paragraph 1 of this article has the effect that the person or group of persons referred to in paragraph 1 is exposed to hatred, contempt or ridicule; or

(b) reserve the right not to apply, in whole or in part, paragraph 1 of this article.

It’s quite a useful instrument especially in this day and age when we seem to be feeling the need for defining such “aggravated” crimes.

Unfortunately Malta has neither ratified the Convention nor of the Protocol. I doubt whether ten years down the line somebody will start yelling about the lack of consultation when Dr Fenech Adami’s government put its signature at the end of both. Why we have delayed ratifying both is a question I’d love to find an answer to. What I’d also like to know is why all the newly discovered legal experts who have summarily judged ACTA’s content have not also been barking and warning about the dangers of some of the provisions in this convention… you never know when it will become law do you! Nor whose behind it (right Mr Scicluna?)

How come this MAAG and other similar groups are suddenly awakened in their V for Vendetta guise challenging this particular agreement and not others? How come nobody has warned against the much more intrusive Convention on Cybercrime?

 

Categories
Internet Rights Politics Values

Fighting the law and winning – Censorship

University Rector Juanito Camilleri has  indicated that he would not have reported an undergraduate to police for publishing an explicit story in a student newspaper had the law been clearer, though he sees no reason to apologise. Now that’s interesting. Here is the rector:

“Whether it is a fictional story or not is beside the point as far as I am concerned. I was not acting from a moral standpoint, nor as a literary critic… I acted with prudence and referred the matter to the police for their consideration because it was not at all clear whether the text, the way it was presented without disclaimer, and the way it was being distributed, even to minors, was in breach of the law or not.”

It’s hard to get this straight. The rector was, by his own admission, acting on legal advice – as he should in such cases. It should be safe to assume that the legal advisor was a little more clear about the import of the law than that and yet he or she still advised a referral to the police. In this particular case (hereafter referred to as the Realtà Case) we had a case that dragged two persons (author and editor) and that involved a police prosecution as well as an AG appeal. At stake, according to many was our “freedom of expression”.

“People say graffiti is ugly, irresponsible and childish… but that’s only if it’s done properly.”  – Banksy

If it ain’t broke…

What really was at stake was a definition of our laws on obscenity in accordance to the mores of the day. In simpler terms – we have a law intended to protect citizens (especially those who are unable to protect themselves) from obscenity and pornography. The basic assumption in our law is that you can publish and be damned. What you cannot do is publish something that can be deemed to be obscene (I’ll stick to one out of the two). IF there is a suspicion of obscenity you still have exceptional circumstances that would protect the publication from attack: one of these is generally (and vaguely -as Anti-Acta campaigners would have it) is art.

There lies the crux of the matter. In order for this law to work you need to define a piece of work as “art”. Away from the philosophical world of “what is art?” you still need a qualification in order to have a law that works and, ironically, that is not intrusive. The issue with this kind of law is that it is time-sensitive. It needs to be tested time and time again as mores and attitude changes. Let’s exaggerate for the sake of example. Imagine one exception to obscenity is if it was a piece of “music”. I love to use the example of Igor Stravinsky’s Rites of Spring. At it’s premier, the piece of “music” was violently criticised as being anything but.  Here’s good old Wikipedia describing the goings on in Paris that night in May 1913:

The première involved one of the most famous classical music riots in history. The intensely rhythmic score and primitive scenario and choreography shocked the audience that was accustomed to the elegant conventions of classical ballet. The evening’s program began with another Stravinsky piece entitled “Les Sylphides.” This was followed by, “The Rite of Spring”. The complex music and violent dance steps depicting fertility rites first drew catcalls and whistles from the crowd. At the start, some members of the audience began to boo loudly. There were loud arguments in the audience between supporters and opponents of the work. These were soon followed by shouts and fistfights in the aisles. The unrest in the audience eventually degenerated into a riot. The Paris police arrived by intermission, but they restored only limited order. Chaos reigned for the remainder of the performance.

To add to the intrigue various historians allege that Stravinsky actually invented the stories of the riots to spice up the reception to his new music but that is not my point. Discussions on art and its nature can be highly controversial and many would agree that the place to discuss this would not be the straightjacket chamber of a law court. The point is though that the rules of society that allow us to coexist need take into consideration the right of an artist to express himself conjointly with the right of weaker members of society not to be harmed. Having an exception to obscenity laws which is based on a legal definition of art carries baggage with it.

So yes, Alex Vella Gera and Mark Camilleri were inconvenienced by the immediate need to “update” the definition of art. The law is not unclear though. It is a necessary law that need not be tampered with. All you need to do is imagine the law prohibiting obscenity without qualifying exceptional circumstances such as art. Can you imagine that? I hear you now yelling “self-censorship” as though it is only now that we discovered such a maravilious concept. Self-censorship is obviously one of the basic implied precepts of most of our freedoms at law. Not just in our law but in basic Human Rights texts. Fighting the law to obtain “better” definitions of what can or cannot be published or produced is counter-productive. It is a naive invitation to the dabblers in law to create faulty legislation by attempting to define the undefineable.

“Policemen and security guards wear hats with a peak that comes down low over their eyes. Apparently this is for psychological reasons. Eyebrows are very expressive and you appear a lot more authoritative if you keep them covered up. The advantage of this is that it makes a lot harder for cops to see anything more than six foot off the ground. Which is why painting rooftops and bridges is so easy.”  – banksy

A certificate to rebel?

I am angrier at the local art community than at Juanito Camilleri. They seem to have been waiting for an official certificate for them to be able to write or paint about vaginas, sexual lust and urges. Not all of them mind you. Alex Vella Gera has gone on record more than once that he would have preferred avoiding this mess. Others like Immanuel Mifsud have been quietly publishing thought provoking explicit stories without so much as a whimper. The impression from the “Front Kontra c-Censura” front is that of others who almost abet the nanny state concept. Artists don’t wait for their expression to be legal before expressing it. They express. The logic of it all – even within our supposedly archaic constrained legal order – is that if it’s art then it’s good.

That’s not how some of our artists seem to think. They are caught up in this anti-ism of Big Brother, Censorship Laws, etc and suddenly become all preoccupied about what is legal and what is not. Their primary concern is not art but legal art – and they themselves have wrought an ugly mental cage from which it is hard to get free. What do they want? Do they want a public list of dos and donts? The rules of the land are there to protect the weak. Art should be pushing the boundaries, provoking thought and ideas not waiting for the nihil obstat from society. Sure there’s a few risks involved especially if you get misunderstood but as the Realtà case showed… it’s common sense that magically and historically prevails. More often than not.

 

“Think outside the box, collapse the box, and take a fucking sharp knife to it.” – Banksy