THE UK FREEDOM OF EXPRESSION SCORECARD

This is a crucial moment for free speech in the United Kingdom. For a country that prides itself on a long tradition of defending a free press and free speech, there are a number of laws and proposed laws that now place security and order above an open society. In the UK Freedom of Expression Scorecard, Index sets out its assessment of the state of free speech and press freedom in the UK and the current outlook. Overall, it is a worrying and critical moment. For Media Freedom we see an uncertain outlook: in the next few weeks, Lord Justice Leveson will announce his proposals for the future of the press in the UK. Many including Index on Censorship are opposed to government interference in the workings of the press. Even light regulation opens up the possibility of the government curtailing the medias ability to stand up to power and hold government and politicians to account a vital component of our democracy. On a more positive note on Media Freedom, the government has brought forward welcome legislation to reform our libel laws. However, uncertainty remains as to whether the Defamation Bill will extend media freedom as it still lacks a crucial public interest defence to protect scientists, medics, whistle-blowers and others. It isnt just press freedom under threat; we also see an uncertain outlook for Digital Freedom. A parliamentary committee is looking at proposals in the draft Communications Bill (aka Snoopers charter) that will bring in the possibility of state surveillance unparalleled in any western country and on par with Kazakhstan, China and Iran. If your emails are stored by the state, people will self-censor. The possibility the government will significantly curtail freedom of expression with an ill-considered law in the UK is real. The criminalisation of online speech with high-profile cases brought against Facebook and Twitter users is also of growing concern. More positively, the UK actively takes down less content than other countries like Germany. Elsewhere, the picture is more mixed. On Access and Security, the Freedom of Information laws are strong and effective but the proposals in the Justice and Security Bill as drafted means Government wrong-doing is less likely to be exposed. The UK continues to produce challenging art but Artistic Freedom is worryingly chilled by self-censorship in the face of social pressure, concern over offending religions and the use of public order laws by the police to remove art. While the Freedom to protest is well-established, the use of kettling to deter protestors and the prosecution of offensive protest whether poppy burning or homophobic street preaching shows people are less tolerant towards views they dislike. The scores are in the manner of a school report they reflect our evidence-based analysis but in themselves are subjective: a score of 10 would signal a perfect, fully-democratic scenario, 0 would be a totally restrictive scenario with no freedom whatsoever. In this way, we highlight where there are real concerns over free speech and where there is reason to be cheerful. In no category does the UK score highly. The UK is an open society but challenges to free speech can quickly cause citizens to self-censor and bad laws can lead to state censorship we must avoid this. The UK comes in with an overall score of 7 when a leading democracy ought to be at 9 or 10.

DIGITAL FREEDOM
The UK is one of the most connected democracies on earth, with high take-up of social media and internet access. However, access is still not universal with exclusion from the internet for marginalised individuals a barrier to free speech. The draft Communications Data Bill and the increasing criminalisation of social media both pose a very significant threat to free expression, hence the negative outlook. The law and the internet The Digital Economy Act and the draft Communications Data Bill present challenges that could take the UK to a position where it has some of the harshest laws governing online free expression in the Western world. The draft Communications Data Bill is particularly draconian, as it would make the surveillance and storage of UK citizens communications data the norm. The collection and filtering of communications data from the whole British population would enable the government to get a detailed picture of the populations habits, activities, interests, and opinions. It would represent a reversal of the presumption of innocence and an unwarranted intrusion into the privacy of British citizens which would be very chilling to free expression. No other democracy has gone as far as these proposals do for widespread informationcollection and storage of data from the whole population. These are aims normally found only in authoritarian and totalitarian states, such as Iran and China. This bill, if it became law, would be a direct encouragement and justification for authoritarian regimes to monitor their entire populations online as well as off. It would make it difficult for the UK to challenge these regimes. Blocking and takedowns, corporate snooping The Digital Economy Act passed under the last government contains a number of provisions including the ability for the government to sanction Ofcom to order internet service providers (ISPs) to block websites and suspend accounts for customers accused of downloading copyrighted material. This will not be subject to judicial oversight. As yet, these provisions have not been enacted. Judges in the UK remove relatively little online content through rulings in comparison with other democracies, but on the other hand, the police and executive bodies make more takedown requests than other comparable democracies. According to the latest Google transparency report, the UK removes relatively little online content after rulings by judges (often Youtube, or the search engine) with only 18 requests in its last report, especially in comparison with Germany (180), Brazil (143) and the US (209). However, more executive and police takedown requests were made than in Italy, France or relative to population than the US, India and Brazil. The government requested information on Twitter users 11 times according to the companys last transparency report, neither Brazil, Germany, France nor Italy made more than 10 requests in comparison. Social media The UK population has embraced social media with 52% of the population (65% of the online population) on Facebook and 23% of the UKs online population using Twitter. With more people than ever before using social media, users are increasingly complaining to the police over online content they find offensive. Section 5 of the Public Order Act criminalises insulting

behaviour which gives the police the power to arrest people for posting offensive content; while section 127 of the Communications Act criminalises grossly offensive comments. As a result there have been an increasing number of arrests and prosecutions for offensive comments on social media. Recently, Azhar Ahmed was given a community order for writing on Facebook that All soldiers should DIE & go to HELL!, and Matthew Woods was jailed for 12 weeks for posting offensive comments about missing five-year-old April Jones. Twitter users have been arrested, though not prosecuted, for Tweeting offensive comments at celebrities such as Bolton footballer Fabrice Muamba and Olympic swimmer Tom Daley. The law has failed to recognise the difference between jokes, satirical comment and intent to cause disorder with lawyer Paul Chambers facing a two year legal battle for jokily tweeting he would blow an airport sky high. The Crown Prosecution Service is consulting on creating guidelines which could potentially help to reduce the over-prosecution of these cases. Index is also concerned by suggestions for an increased role for ISPs in policing content. Beyond the excessive application of the law, there is also an apparently increasing societal belief that public authorities ought to police offensive speech. SCORE 6.5 OUTLOOK NEGATIVE

MEDIA FREEDOM
Media freedom in the UK is relatively free but continues to be constrained by restrictive laws. The Economist1 and Reporters Without Borders rank the UK 27th and 28th globally for press freedom, below comparable western European countries like Ireland and Germany but also developing countries such as Mali and Jamaica. The overall outlook for media freedom is uncertain prior to publication of the findings of Lord Justice Levesons Inquiry and the Prime Ministers response to it. Whether the final Defamation Bill is truly the reform the government promised will also have a big impact on media freedom. The UK remains home to a highly pluralistic media environment strengthening the overall score. Defamation reform The law of libel has the greatest impact on press freedom, but also chills scientists, bloggers and citizen critics. Reform of English libel law has been long-awaited by the British media and campaigners. It's hard to overstate how chilling to free speech the current law is. In 2010, President Obama signed into law the US Speech Act to protect Americans from libel judgements made in the High Court in London. John Whittingdale MP, the chair of the Culture, Media and Sport select committee described this as a "national humiliation". According to Oxford University, defamation cases in England and Wales cost over 100 times the European average. After a concerted campaign by Index on Censorship, English PEN and Sense About Science, the government committed to libel reform with its Defamation Bill currently passing through parliament. The Bill is a step forward in many respects with restrictions on libel tourism,
1

P. 92, The Economist, Pocket World in Figures 2013 Edition, 2012

a new hurdle to prevent vexatious claims and updating the provisions on internet publication to reduce intermediary liability. However, the Bill also presents a missed opportunity with no bar on corporations suing individuals and no serious public interest defence even after high-profile interventions from over 60 international and domestic NGOs and leading celebrities. Leveson Inquiry The Leveson Inquiry was launched in summer 2011 to examine the culture, practices and ethics of the press in the wake of the phone-hacking scandal that engulfed the News of the world. It has exposed reprehensible press tactics and attacks on privacy in its extensive scrutiny of Fleet Street. Leveson is due to issue recommendations for a new system of press regulation this November. There is a risk (though this is also uncertain) that the government may respond positively to any proposal by Leveson for statutory regulation including statutory underpinning of an independent regulator. This would seriously endanger and undermine Britains centuries-old press freedom. Index opposes any statutory regulation or underpinning of a new press regulator, as this would compromise the independence of the media. Internationally, statutory regulation (for example Hungarys deeply chilling media law) has proved corrosive to press freedom. Tough self-regulation of the press, together with effective application of existing civil and criminal legislation, with more accountable editors and management can resolve the issues raised by the Inquiry. The inquiry is also an opportunity to create a regulator that could provide fair and rapid complaint resolution, as Index and English PEN argued in the joint Alternative Libel Project. Media pluralism The UK fares well internationally for media plurality (there are lots of competing opinions and views available in the media) with 23 independent national newspapers, as well as several hundred regional and local papers. The main TV stations are all available with every station provider. They operate under Ofcoms Broadcasting Code along with all other commercial TV channels in the UK. Although it has the ability to revoke licenses (a potential threat to free expression), it is a rarely used sanction. In the last year it has done so only twice in both times for the station license not being held by the person in general control of the TV service. While Index believes there is strong media plurality in the UK at present, the legal framework may not be sufficient to ensure plurality in the future. The only law preventing dominance by one media company over too great a share of TV, radio and print journalism is the 20/20 rule. This stops a newspaper group with over 20% market share from getting, or taking a stake in, a Channel 3 licence (the type currently held by ITV) with over 20% market share. This law alone would not have provided legal protection against Rupert Murdochs News Corporation bid to take over the 60.9% of BSkyB it does not already own. Murdochs takeover bid was widely criticised for its potential to undermine media plurality - while his print newspapers account for about one third of the UK market. SCORE 7.0 OUTLOOK UNCERTAIN

ACCESS AND SECURITY

The UK government allows citizens a great deal of access to information through strong freedom of information laws but this is counter-balanced by an overly restrictive approach to information pertaining to national security and anti-terrorism. Of particular concern is the Justice and Security Bill which gives this section an uncertain outlook. Openness of Government The UK scores highly on the openness of its government. The Freedom of Information (FOI) Act 2000 opened up the government and public bodies to greater scrutiny which was extended by the Protection of Freedoms Act 2012 which extended the number of public bodies subject to information requests. A parliamentary inquiry into the working of the law rejected claims that our freedom of information law creates too much work and expense. Information requests are on the whole free (public bodies in Hong Kong, Ireland and US routinely charge). In the second quarter of 2012, 11,634 requests were received and over 90% received a response on time. However, challenges remain. The Constitutional Reform and Governance Act of 2010 strengthened the Royal Familys existing exemption from FOI laws, making them less accountable, a move condemned by Index. Redactions remain problematic, the Ministry of Justice estimate that of resolvable requests, 43% were withheld in part or in full. The UK can be proud of its political participation online. The recently launched Web Index report shows that the UK leads in the use of online citizen e-petitioning, and exercises comparatively high levels of influence through this avenue. Along with 60 other governments the UK recently signed up to the Open Government Partnership, a new initiative aiming to promote government transparency, fight corruption and empower citizens. Security While the UK fares well for the openness of the government, current proposals present serious challenges to freedom of expression. The Justice and Security Bill passing through parliament would significantly impact on the medias ability to hold the government to account for human rights violations committed abroad. Former Index trustee, Lord Ken Macdonald QC has said the Bill will mean that Government wrongdoing in the area of national security is going to be less likely to see the light of day. Under the Bill, the media would be totally excluded from hearings to consider whether to use a secret evidence procedure. The University of Reading attempted to identify cases likely to be affected, they include cases where claimants have been subjected to extra-judicial detention, torture and extraordinary rendition all breaches of human rights. On 21 November, the Lords tabled a series of amendments to reduce the scope of the Bill. Its now urgent the government amends this Bill to protect freedom of expression. Other pre-existing security legislation including the Regulation of Investigatory Powers Act 2000 (RIPA) and the Terrorism Act 2000 have proven too broad in scope and detrimental towards freedom of expression. Section 57 of the Terrorism Act possessing an article for a purpose connected with terrorism criminalises the study of extremist or terrorist ideology. In 2008, Rizwaan Sabir, a student was arrested on suspicion of possessing extremist material. As preparation for a PhD on radical Islamic groups, Sabir had downloaded the freely available al-

Qaeda handbook from a US government website. He was arrested and detained for 6 days and subsequently released without charge. The RIPA Act has been used for intrusive surveillance with over 3 million granted authorisations for personal data and contains no public interest defence. Only 10 people (5 from the same family) have had a complaint upheld for misuse of their data. In 2010 the new government pledged to end the storage of internet and email records without good reason, but little has been done to reduce the use of RIPA and the draft Communications Data Bill will extend security legislation. While internationally the UK government remains highly open, the possible creep of security legislation means the outlook is uncertain. SCORE 7.5 OUTLOOK UNCERTAIN

ARTISTIC FREEDOM
Artistic freedom in the UK maintains strong though with worrying trends. There is uncertainty around the law, an increasing belief there is a right not to be offended and increased sensitivity to offence, inconsistent policing and a culture of self-censorship created by unnecessary caution. While the Human Rights Act has helped create a clearer framework for artistic freedom of expression, the police have cited a number of criminal laws to constrain artistic freedom including the Public Order Act, child protection legislation, the Obscene Publications Act, the Equality Act and anti-terrorism legislation. English libel law can also limit arts and culture. The lack of guidance on the policing of culture is significant problem. The premier performance in Coventry of Behud Beyond Belief by Gurpreet Kaur Bhatti was treated as a potential threat to public order due to demonstrations by Sikhs outside her previous play Behzti Shameless in 2004. The Coventry police asked for a fee of 10,000 per night to guarantee the safety of the theatre for the production of Behud. Although the fee was later waived, research revealed that ACPO guidance on culture only relates to music festivals. Penny Woolcocks award winning film One Mile Away about reconciliation in the ganglands of Birmingham, encountered consistent obstacles from the police, including a production order on her rushes, which was overturned by the courts. Earlier this year when a police officer told a Mayfair art gallery to remove a photo-montaged image of ancient myth Leda and the Swan from its window, despite the fact no one had complained. The officer said it condoned bestiality. The gallerys manager told the press she was not aware of her rights in this situation. The fear of causing offence is particularly potent. The fatwa issued against Salman Rushdie for the Satanic Verses led to the belief it is unacceptable to cause offence and that to do so could subject you to violence. UK publisher Gibson Squares offices were fire-bombed following the publication of The Jewel of Medina. Though this case was a stark warning to publishers, it contrasts favourably with the behaviour of the US publisher Random House who believed the book would cause violent protest and so decided not to publish it. While once this centred on

religion, this has now become a widespread claim to the right not to be offended. This claim now extends to political parties as seen in the cancellation of the production of Moonfleece by Philip Ridley, a play dealing with homophobia in a right wing political party. There is a tendency to silence challenging art rather than use it to trigger debate. Both publicly-funded cultural institutions and corporate events self-censor to avoid controversial programming. This year the British Council collaborated with the Chinese authorities in the choices of featured writers at the London Book Fair to significant criticism. While challenging work continues to be produced, support for freedom of expression must be more robust if it is not going to continue to lose ground to other concerns. SCORE 8.0 OUTLOOK STABLE

FREEDOM TO PROTEST
The UK has a mixed approach towards the freedom to protest with the long-standing tradition of allowing peaceful protest tempered in recent years by a new law in Scotland and highly restrictive provisions for the Olympics, alongside the criminalisation of offensive protest. Scotland recently created anti-sectarian laws that were criticised by Index, aimed at curbing offensive speech such as abusive language and chanting at and around football matches. There has been an emergence of prosecutions for offensive protests, whether that be Koran burning, poppy burning or homophobic Christian street preaching, such as Shawn Holes, a Christian fined 1,000 for saying gay people would go to hell. The right to peaceful protest was consolidated with the introduction of the Human Rights Act in 2000. However, recent restrictions on protest near the Houses of Parliament have led many to believe this right is now under threat. The police tactic of kettling, in which large numbers of protesters are kept tightly packed within a police cordon for hours on end, has been criticised as a deliberate attempt to discourage political protest. Index also criticised the government for restrictions on protest during the 2012 Olympic Games, in particular new draconian provisions introduced under the Olympics Act of 2006 allowing the police to shut down legitimate protest near Olympic sites, as well as confiscate advertising of a non-commercial nature. SCORE 6.5 OUTLOOK STABLE

The Index on Censorship UK Freedom of Expression Scorecard was authored by Mike Harris and Milana Knezevic