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UK: Government promises defamation reform but backslides on expression and surveillance

ARTICLE 19 welcomes the promise of defamation reform in this week’s Queen’s Speech. However, we are concerned that a number of other bills included will unduly restrict freedom of expression in the UK.

The Queen’s Speech, in which the Queen reads the government’s legislative agenda for the next parliamentary period in front of both Houses of Parliament, was this year delivered on 9 May and included a long awaited Defamation Bill as well as:
  • a Crimes and Courts Bill
  • a Justice and Security Bill
  • a Communication Bill.
The other bills have the potential to interfere with the rights to freedom of expression, information and privacy.
This Bill will make it more difficult for dubious defamation and libel suits to go forward and to succeed. Under the proposed legislation, applicants will have to prove that they have sustained serious harm: currently, it is enough just to demonstrate the potential for substantial harm.
 Other measures include:
  • limiting “libel tourism”
  • increasing protection of the media for any publication in the public interest
  • providing better safeguards for operators of websites hosting third-party content
  • offering greater protection from defamation and libel suits to researchers and academic authors.

ARTICLE 19 endorses these proposed reforms to the current defamation laws:
  • the public will have greater freedom of expression
  • those who prove that they have sustained harm will receive adequate protection and compensation
  • the media will be able to operate more efficiently and with more scrutiny on issues in the public interest
  • officials and authorities will be more accountable
  • website operators will received better protections for content created by their users and other 3rd parties. Their inclusion is an important step towards taking the changing media landscape into account.
ARTICLE 19 calls for this Bill to be carefully reviewed. It proposes allowing TV cameras into the courtroom under certain circumstances in order to increase transparency in the judicial system. It will be crucial to ensure that the ways of deciding which proceedings can be filmed and broadcast balance carefully the need to protect witnesses and fair trials against open justice principles.
The Bill also proposes the creation of a National Crime Agency (NCA). ARTICLE 19 recommends that:
  • the NCA should be transparent and subject to the Freedom of Information Act (FOIA) 2000
  • any exemptions from the FOIA should be fully justifiable through an independent process. Currently, the Serious Organised Crime Agency has been exempted from FOIA, but the NCA has a wider remit covering many traditional policing agencies.
ARTICLE 19 welcomes the reform of the selection process of judges and the overhaul of processes within reform courts and tribunals. These changes aim at:
  • greater efficiency, diversity and transparency
  • a greater understanding of the judicial processes
They should be implemented throughout the UK.
Under this Bill, courts will be given extended powers to hold closed proceedings when considering sensitive information related to national security. This evidence will be shared only with:
  • the government
  • the judge
  • the security agencies
  • a state-appointed special advocate.
ARTICLE 19 is concerned that:
  • the use of these closed proceedings undermines defendants’ right to a fair trial
  • the proceedings pose a serious threat to open justice
  • the processes for deciding if information could be deemed sensitive are poorly defined
  • there is a likelihood of closed proceedings being used to shield the government from public scrutiny.
Such closed legal proceedings constitute a serious interference with the public’s right to freedom of information and undermines the principles of open justice and fair trials.
ARTICLE 19 considers this piece of legislation to be highly problematic because it orders all Communications Service Providers (including Internet Service Providers and mobile phone operators) to save and store for one year details of all communications made by all persons in the UK..
Although communications surveillance has a role to play in combating crime, it should only be used:
  • with a court warrant
  • when strictly necessary.
ARTICLE 19 is concerned that:
  • the stockpiling of information from every person in the UK without any suspicion constitutes an invasion of privacy which is neither proportionate nor necessary.
this proposal is more reminiscent of an authoritarian government that rejects human rights than a democracy that is subject to the European Convention on Human Rights.
  • the proposal will substantially affect the right to free expression, as it discourages people from visiting controversial sites and makes it possible to identity confidential sources of journalists
  • the proposed safeguards  do not justify the initial surveillance and  stockpiling of data, particularly as data security is poor among police agencies and private companies such as mobile phone operators, as the current Leveson Inquiry has revealed.
ARTICLE 19 therefore calls on the government and parliament to reject this bill, as was done in the last Parliament. 

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