00:00:09 LAMBSDORFF Let me start by introducing myself, Alexander Lambsdorff, I’m the deputy leader of the liberal group of the European parliament. As you know freedom of expression is a topic that is extremely important to liberals around the world, which is why we have decided to prioritize the subject, to make it an important subject for our work in this 7th European parliament. Im very happy that we could gather today a group of people who have experienced personally limitations of freedom of expression. Because, while we may take it for granted, it is not given that freedom of expression is safe and sound unabated all around Europe. Let me also make a short technical remark – my native language is German. Und wenn ich jetzt Deutsch spreche, that means that you will have to grab your earphones here, these things, and if you want to listen to interventions in German or French in the English language, you would have to go to channel 2, if you want to listen to everything in German you go to channel 1, and for French, it’s channel 3. I also welcome everybody who’s watching us online. This event is webstreamed and we will try to make it as interactive as possible. Also, everybody in this room, please feel to ask questions later on, once we reached the substance of the discussion.

00:01:32 I introduce to you my colleague, Marietje Schaake from D66, the Dutch liberals – I hope I pronounced that remotely correctly – whose brainchild the seminar is. And I will give the floor to her right away to introduce our panelists and the subject of today’s debate. Thank you very much and I’m looking forward to a very interesting debate with all of you.

00:01:56 SCHAAKE Thank you, Alexander. And I would also like to welcome everybody. Thank you for being here. We really look forward to a lively discussion, ‘cause freedom of expression is under thread in Europe. And this is not sth to be taken lightly. Journalists, cartoonists, but also scientists and people who speak out can be and are under increasing scrutiny. There’s censorship, but there are also people who apply self-censorship. And in the worst cases individuals cannot live freely anymore, and this is unacceptable in Europe. We’re hosting this seminar, as we want to have an interactive discussion with you. As Alexander mentioned the meeting is live-streamed and we’ll also take some questions through Twitter. We’ve heard [of] a lot of people who couldn’t be here today but who participate and we will include their questions in the discussion.

00:02:45 We would like to learn from the examples given by our distinguished panel. We have the first panel with two guests that are present here. The first one is Naema Tahir here on the right side. She is an author of British-Dutch origin, but also human rights lawyer. She was born in Pakistan. And she worked as a lawyer advising and working with several organizations, ministries, in the Netherlands, but also the UNHCR. And she worked as a lawyer at the Council of Europe in Strassbourg. She then started writing books and has authored several ones focusing on the empowerment of Muslim women, their human rights and reproductive rights, issues of identity, migration and integration, which have been published in the Netherlands. Her latest book is due to come out later this year, which is a novel about forced marriages. So we look forward to hearing from her.

00:03:46 First we’ll hear from Lars Vilks who’s on my left-hand side who is an artist. He has a PhD in the history of art and teaches art theory at Bergen art academy in Norway. He was involved in a controversy when he portrayed the prophet Mohammed as a roundabout dog. But he is an artist without a political agenda, and that’s the focus of his work. So his personal experiences will be of great interest to us as well. Then we will have a video presentation that Fleming Rose taped for us. Fleming Rose is the opinion & culture editor of Jyllands-Posten, which is Denmark’s largest newspaper. He’s been with the paper since 2004 and he commissioned the cartoons of the prophet Mohammed that sparked the riots across the Muslim world in 2005. So he will share his personal experiences with freedom of expression.

00:04:43 After the short presentations of our speakers there will be a discussion. And then we’ll take a short brake to switch to the second panel which will focus on legal and political implications of freedom of expression in Europe. And I announce the speakers more extensively when we reach that point. But our second panel will have Julian Assange of WikiLeaks, and Birgitta Jonsdottir of the Icelandic parliament, and Prof. Alistair Mullis from the United Kingdom. So, we get back to those. And without (unverständlich) let us begin. And I would like to give the floor to Lars Vilks. Thank you.

00:05:25 VILKS Thank you. It was back in 2007 when I was participating in an exhibition called “Dog in Art”. And at that point I was very interested in how openness in the art world functioned. And it was said that everything had been done, there is no borders, there’s nothing more… everything is possible in art. And I didn’t believe that at all. And I knew, for example, that there was one example of a taboo you never touch, and that is to go into sth concerning Islam. And for that sake I made the prophet as a traffic roundabout dog, which is a Swedish phenomenon – I don’t have time to explain it here – but it’s quite a positive thing. So it was kind of a joky thing I made about this. And I was invited to do this exhibition, and everyone was happy with it until the very last moment the exhibition was hanging, and suddenly in the last moment they took it down. I wasn’t there. But there was a, just by random, there was a journalist in the room and he saw that they took it down, and suddenly they feared that this could be dangerous to have a drawing of that kind hanging in the gallery. Even this was a small gallery far away in the Swedish forests.

00:07:02 So the thing moved on, and after a while a Swedish newspaper wrote an editorial article about principles on defaming a religion. It was a very concise and interesting article. But it actually led to a formal[?] disaster. Because there was a Muslim community in this place where it was published, and they started protesting. They were not interested in the text, but only saw the picture. That is one of the thing that I’m most concerned with – how to context things. Things are taken out of context. We just see one thing and believe that you can just look at one thing and then you have the understanding. So this spread. A few weeks later the president of the Iran made a statement because they have been informing Iran about this. And they burned a Swedish flag in Pakistan. And it ended up with I got a fatwa [?] from Al Qaida. And (so thing stirred up?) that moment. So I got into experience of receiving daily death threads and things like that. Now I’ve been dealing with this for many years, so I’m taking it rather easy these days, because I can see differences.

00:08:24 This year things turned back again, because turned back again because the same… The drawing is actually here, I will make a very short showing of it, because… so no one will be offended. (unverständlich)

00:08:35 This is the one. [shows paper] So.

00:08:38 So we have done the freedom of expression “short version”.

00:08:42 AUDIENCE [laughters]

00:08:42 VILK And this year suddenly[?] it came there was a murder complot found in Ireland, of all places, connected to United States, and they were planning to murder me. I found this being like a soap opera, but actually probably was some sort of serious case. And it’s brought up a lot of attention to this. And I also had interested in the idea of freedom of expression. I was invited to a Swedish University to have a lecture on freedom of expression. And suddenly, one day before the lecture, it was canceled. Because there were foreign students that protested against this lecture. So actually, one censored a lecture on freedom of expression. Luckily enough, I had another occasion, and that was in the Swedish very well known University of Uppsala, where I was going to give a lecture on freedom of expression and especially then in the art world. And I was also going to present my own prodigen[?] what all this was about. This was a very good occasion for me to actually explain what I was dealing with. Because, as I said, my point of view is the principle matters, and I have the idea about what do the arts do in the field of freedom of expression?

00:10:09 So I started this lecture. I just came 6,7 minutes into this lecture. I’ve been showing different examples of well-known artists dealing with certain issues in, for example, religious matters. I was showing clashes with Christianity. And then I was showing just one example, it was an Iranian artist who made a video about Islam and homosexuality. And when I was just showing this, there was an outburst in the room, because there was a Muslim mob among the spectators there. And they stormed the lecture room. And I was actually saved by bodyguards who had a battle. There was a battle going on for half an hour in the room after that. I mean… you came to conclusion that there is some problems. If you come to a university and you give a decent lecture, I mean, I’m an art historian and all that, and the lecture can be stalked (stopped?). This was then followed up with a more serious case a couple of weeks later. Two Muslim guys tried to burn down my house. They crashed the windows and set fire at the inside. And luckily enough for me, they poured… by some reason they got gas on themselves so they burnt… one of them was burnt… So they panicked and didn’t fulfill their thing.

00:11:40 So that is a few things here that I think is important when you do some things on a, let’s say, working on a higher level. Because, when you make a work with art, you certainly have a context. And as I have no political agenda, which is very important because I belong to no political party and I have not been very concerned about the Islam question – it’s something I’ve been dranged (meint wohl: pushed?!) into during these years – but at least, I mean, if you go into that question, you find that the conditions are very difficult. And what I would see as the worst thing is that the debaters – there were several debaters who said that after the Uppsala incident, when the mob stormed the room – they said that I had to be aware, that was my own fault. Because when you show matters of this kind you have to understand that these people, they are a weak group and they want to protest in their way., and we have to understand that we have different cultural attitudes. So far you could go in defending such a situation. I think that this leads up to some sort of discussion about what borders and limits we should have for expressing this. Which I think is a quite (unverständlich/ an ordinary??) thing. Defaming a religion should be possible with all religions. We have no problems with any other religion, just this one. So let’s say, that is my personal experience. Thank you.

00:13:26 SCHAAKE Thank you very much. I think that was [a] very powerful story. Thank you for sharing it with us. We’re now going to ask Naema Tahir to share her view and experience with freedom of expression. Thank you.

00:13:42 TAHIR Thank you very much Marietje. I’d like to thank you for the invitation to speak on the topic of freedom of expression. I’ve been a writer for five years now, and I started writing about the human rights of Muslim women. And I found myself speaking a lot on the freedom of expression. But two years ago I had a very difficult experience with this very idea of the freedom of expression. I’d like to pose to you the question I posed myself, and the dilemma I had through this question. I wanted to write a book of fairy tales. And I wanted to use the fairy tales the European countries already have, the fairy tales of Grimm, and the fairy tales of Andersen. And rewrite them and pose the question – let’s say, you have ‘Little Red Riding Hood” – I wanted to make her a Muslim, and I wanted to see how the fairy tale would then end. Who would be the big bad wolf? Would her red scarf she wears be a green headscarf, an Islamic headscarf? I wanted to explore the question of morality through Muslim fairy tales. But I wanted to use the name Mohammed for all my characters. So the big bad wolf was named Mohammed. In ‘Sleeping Beauty’ the prince who had to kiss the princess was named Mohammed, and so on, and so forth.

00:15:08 This question I’d like to pose to you: Can you use the name Mohammed for a character in a novel? And can you do it repetitively? … People asked me, why particularly did I want to use (/choose?) the name Mohammed? I think in these days, when I started writing about Muslims, it’s quite a catchy name. It already introduces you to… if someone opens a book, and there is a name Mohammed, you already are introduced to an Islamic setting, without naming Islam itself. So I thought it was a quite friendly way of introducing the reader to a more, you know, fiction, and a fictionized character, and a fictionized setting. To introduce the reader to then see, how Muslims deal with the question of morality. And I think I like the name Mohammed. It’s a very romantic name. I think these days it’s become a very difficult name to hear. When the name Mohammed falls in a room, I experience that people become very uneasy. And that is a shame. So I wanted to romanticize this name and kind of put it in my own context and make it more friendly.

00:16:27 Now. My stories about these fairy tales made Mohammed a very busy person. In this book he lies, he cheats, he has many girlfriends, he has many wives. But he is also honest, he is a very honorable man, he’s actually a human being. Now, what happened when I completed the book? I kind of started struggling – the book was really complete, there had been thousands and thousands of copies printed out by my editor, but there wasn’t a cover on it yet. So I had a few weeks to kind of revise the text, but in principle the book had been finished. And then I suddenly started struggling. I live in the Netherlands. I’ve been involved and engaged in the debate on Muslims since 9/11 – that sounds like a cliché but that was the time I started engaging myself in the debate, and it’s a heated debate. There is a lot of speech, but it’s a quite heated debate. And a lot of attention is given to provocation. A lot of attention is given to hate speech. I struggled with the question can I use the name Mohammed? Which of course refers to the prophet of Islam. It also refers to millions’ of boys first name. But it primarily refers to the prophet. People think about the prophet primarily if the name Mohammed falls.

00:17:55 I asked my friends and my advisors, what shall I do? And funnily enough, there were two sets of opinions: The first group said, please go ahead and use the name Mohammed. Muslims need to get used to free speech, they need to become more comfortable with even ridiculizing of their holy prophet, even the holy Koran, god, etcetera, as it is the case for other religions. And another group of friends said, no, don’t use it. Because it might be dangerous. Look at all the examples, and of course the Rushdie affair is one of the primary examples people use and say, they said: well if you use it, there is this danger. So I struggled again. Because there was not a unanimous opinion with my friends and advisors. I struggled again. I’d like you to struggle with me, and just imagine you’re writing this book, and would you put in that name, or would you take out the name? Now, I took it out. I called my publisher and said, look, is it possible to just destroy these thousands and thousands of copies of my book? And, well, we talked about finance, of course. And we discussed about the … whose bank balance this would disrupt more. But that was just as a side… that was a secondary issue.

00:19:21 I cut it out. I cut all the names Mohammed out of the novel. They were about fifteen. I cut all the names Aisha, because the girls were all called Aisha, I wanted to keep it simple. I cut their names out. I used… I took out the word Koran and used The Holy Scripture as a word, and I took out the word Allah, which is the god of Muslims, and used god. Which is a more neutral term.

00:19:50 Now, ladies and gentlemen, is this near censorship? And is this near censorship, or whatever it is, is it something which had to do with fear? It’s not easy, that question. Again, I will answer that question in two-fold. Part of me did, of course, take out the name Mohammed because of fear. We do unfortunately live in a society, where one cannot express what one wants to. For me, even just writing about human rights of Muslim women, is a dangerous profession. I have to be careful. So, there was this type of fear, that I didn’t want to become a threatened Muslim writer. I didn’t want to go into hiding. So, there was this fear. But I think there was sth equally important. And that is … that weighed a bit heavier. I applied this censorship because of sth I would call civilization. I took out the name Mohammed because I knew that if I left it in, the probability would have been very high, that my book would have been considered a provocation. And for that reason, for the wrong reason, it would have gotten a certain media attention. It would have insulted Muslims for certain reasons. And I didn’t want that. I’m not a politician. I’m not an agent provocateur. I’m a novelist. And I want to be judged on my novels. On the literary content. On the literary quality.

00:21:33 By taking out the name Mohammed, I hoped that the press would focus on what the book was about. The question of morality – how do Muslims deal with questions of good and bad, good and evil, within their families, within their small communities? I think that’s a good thing. I think when someone applies censorship to lift the quality of one’s work, it’s a good thing. I think it’s civilized to show some restrain. I think it’ s civilized to sometimes be prudent. But still I’m not happy about it. I still feel that it is necessary for some people to provoke. So I would still advocate that. But I think the way I chose – and I’m not complimenting myself – I think the civilized way of speaking about sensitive issues is the better way. It is the better way because it’s going to be more effective to invite Muslims, who are a sensitive group, to actually read a text without being offended.

00:22:49 When I was a young child, I couldn’t read – or not a young child, I was … younger than now – I couldn’t read ‘Satanic Verses’. I had to put it at a distance, and sometimes I would just open it up. I couldn’t read it. Cause I felt offended as a Muslim. Once I grew older, that type of feeling offended just left me, because my mind got opened, and I could read it. I think many Muslims have that. They would easily read a book, if they know, this will not offend us. And I think we have to look for means where we do speak of sensitive issues – I think it’s going to be quite controversial, I’ll be very interested in your reaction to this […?], but also to the rest of the issues I’ve raised. Thank you very much.

00:23:41 SCHAAKE Thank you very much, that was wonderful. Very thought provoking. We will end with a short video clip before I start the discussion. So have your questions ready, we have Flemming Rose virtually present here today. So – I don’t know who I should ask to start, but… yes..

00:24:03 FLEMMING ROSE (VIDEO INSERT) In a democracy you have many rights. You have the right to vote, you have the right to freedom of expression, you have the right to religion, the right to freedom of assembly, and the right to freedom of movement. And even more rights. But I believe that the only right you do not have, is the right not to be offended. You don’t have a special right not to be offended, and I think it is crucial when we talk about freedom of expression and the limits of freedom of expression in a world that is more and more globalized. Basically this debate about freedom of expression and its limits is about how we live together in a world that is getting more complex in terms of culture, in terms of religion, and in terms of ethnicity. It is due to two facts: one is migration. People are moving across borders at an extend and in numbers that we have never experienced before in the history of mankind. And it will not stop. It’s going to continue. And the second fact has to do with communications technology. That what is being published in the Netherlands and in Denmark, is immediately being published everywhere when it exists on the internet. It means, that context disappears. The context for a specific expression can be moved to another culture and be read and interpreted in a very different way.

00:25:41 So, then the question is: what do we do in this new world when it comes to freedom of expression and its limits? And I think basically that there are two ways to go. One is to say, if you respect my taboo, I respect yours. If it’s a criminal offense to publish cartoons of the prophet, it may also be a criminal offense to deny the holocaust. And this is one of the reasons why I am in favor of getting rid of holocaust denial laws in Europe. Not because I think there is any similarity between offending a religious figure and offending the memory of six million people who were killed in Europe. But because people do have different thresholds of offense, and if we expect or accept the notion ‘If you respect my taboo, I respect yours’, then everybody will have the chance of playing their taboo card and ask people to shut up if they say sth they don’t like. But the other way to go is to say okay, we need as few limitations on speech as possible. And I think the only defendable limitation of speech should be incitement to violence. There are a few others maybe, libel, the right to privacy and so on, but very important is incitement to violence. And I think there is a growing trend in Europe where you raise the barrier for what is not allowed to being said. And it has to do with the fact that there is an increasing separation between liberty and freedom on the one side, and the right not to be discriminated against (an equality on the other?).

00:27:36 What people say that is offensive is increasingly being interpreted as non-discrimination. And I think we have to accept that there is a difference between words saying sth that might be perceived as in discrimination, and deeds doing sth that is discrimination. And we have to fight the latter, and defend the right to say the (former one?). Thank you.

00:28:15 SCHAAKE Well. Those were three very thought-provoking introductions. And I’ve seen some of our fellow Members of European Parliament colleagues coming in, so I’d like to welcome Mr. Ancu[?], Miss Wallace and maybe I’m missing out someone, but pls. make yourselves known. Mr. Ancu[?] did you also want to say sth first, or…?

00:28:41 ANCU[?] [from audience] I don’t know … at the moment that people start the debate…

00:28:46 SCHAAKE Start the debate now, with the first panel – So..?

00:28:50 ANCU[?] Ok. I would like to refer myself to the issue of self-censorship and I would like to give you a few examples of the cases, and to ask a question to our [invitees] about how they are thinking that we can act in the future, do not use anymore of this self-censorship. And self-censorship can occur at the level of expression when it comes to relation between EU member state even if the honor of interest of one of them is harmed by the actions of another state. For example – I give you some real example: When the French invited so-called Romanian Gypsies[?] – I don’t know if you know about it – when Romanians from center’s[?] communities like Spain and Italy have been called Gypsie Romanian – and I’m referring here to the authority’s politicians – and even journalists have adopted a self-censorship policy and had a limited reaction to xenophobic manifestation. Common sense must be applied in cases when the state authorities are not involved, or when they haven’t worked accordingly. Yet, this is not enough. And there are cases when the right attitude must be taken and when the proper signals must be send. Another example worth considering is us, members of European parliament, representing Romania. We apply the self-censor and stand by in situation that could harm the nation of group interests. Or, even a personal interest, so that we won’t put out [the] political family or our colleagues in a difficult position. I could provide you with various examples on this. But I won’t, for the same reasons that I just mentioned. Of course, there are exceptions to the rule. When certain colleagues have broken the good rule in the European parliament, addressing offenses to persons, political groups or even nations, these are the cases when we should remind our colleagues about common sense and self-censorship.

00:32:07 Censorship and self-censorship in the Romanian press – I (do refer?) to this as I’m involved in this issue, and as you know, I’m a member of [the] media group and also five of us have tabled[?] a written declaration to help the journalist – in the Romanian press conceding[?] the various economic problems, because everything starts from this, in working as the media trust became vulnerable to the influence of authorities, and so they apply censorship so that they won’t offend the parties in power. The president. Or certain members of the government. Example: a broadcasting TV, Realitata TV, a Romanian News Channel, is subject to a governmental institution control, which leads to opening of a dossier of Realitata TV’s patron, a fact that makes the liability and the objectiveness of the news questionable. There is also the…

00:33:29 LAMBSDORFF Mr. Ancu[?], could you please ask a question of the panel? Thanks.

00:33:33 ANCU[?] Yes. I would like to know what is the best approach in your view for censorship and self-censorship? Freedom of expression must not be constraint by any political, allegious? (legal?) or economical matters. Thank you.

00:33:52 SCHAAKE Thank you. Let’s take two more questions and then go back to the panel. And I would encourage speakers to be… a bit… to the point. Thank you.

00:34:07 SCHAAKE No one has a question? Otherwise… Oh yes – Sir?

00:34:19 AUDIENCE The art basically, and literature – to Miss Tahir – that is why these… when we write sth, we write… we have objective to write. And in my opinion, the writing should contribute to humanity, to develop it, or improve human conditions. But how much minority – because I come also from [a] minority – I’d like to ask that, how much has been written in the last ten years in Europe, when we do content analysis of European press, on the name of the freedom of speech, that my issues, which have been really (bigger magnitude?) have not been addressed. 80% of press writing literature really devoted to most of… (has stigmatized?) these communities. And no. 2 is that, while we are choosing… if you see the case of Netherlands – Netherlands translation almost 80% about let’s say Pakistan – have been targeting most of the time these controversial issues. But the best poetry, literature what that country produces, we hardly see [a] single translation of that literature. We choose the writers from those countries also which are very controversial. And the name of… these are historical academic debates we should do, and nobody should be prevented. But are we doing services by writing like this? Thank you.

00:36:12 AUDIENCE My name is Hajo Friedrich, I’m a freelance journalist from Germany. I must say I’m a little bit astonished, not to say shocked from a party who strongly advocates civil rights to hear a plaedoyer? (pleading!) not to use these civil rights. Because Mrs. Tahir, what you said, that sensitive issues should be dealt without provocation – everything is sensitive, from a certain point of view. This is a worst case thinking, this is a disqualification and self-disqualification of basic Western rights, and I’m really astonished that the European parliament and the Liberals are the party to advocate such positions. So let’s really discuss about it in a way, and not delegate the free speech to artists, or to comedians. This is the end of a free press.

00:37:24 SCHAAKE Shall we take these three questions and then take a new round of questions.

00:37:30 LAMBSDORFF Ja. Let me answer the last point first. I believe – and I’m not going to speak for Miss Tahir because she can speak for herself, but let me be very clear – as liberals we clearly defend the right to offend. But we also defend the right to choose not to offend. So, in my view, freedom of expression means you can be offensive. You can be aggressive. You can be provocative. You can say things that you know will cause trouble. But if you are consistent in your thinking about freedom and liberties, you must respect the choice of, say, a novelist, a journalist not to do this. Now I think what we have heard here – and we will here more about this in a minute – this very delicate process how do you make that choice? How is that choice made, at what time, in what context, in what literary or artistic or journalistic form to either offend, or, consciously, not to offend. I think freedom is about more than just to offend. I think freedom is about having the opportunity to do so. But it’s also about the opportunity to choose not to do so. And therefore, when you say the European parliament and specifically the Liberals are advocating a timid approach to freedom of expression I have to disagree with you – which is also an expression of our freedom to disagree in the same room. But I do so emphatically. I emphatically disagree, we do not advocate timidity, we advocate freedom both to offend and to choose not to offend.

00:39:18 VILK There is this point of view… when I did my offense, that offense was directed towards the art world, because there was actually no other audience that was actually interested in this event. And… so that was a natural thing to do as you do challenge and transgress in the art world. The thing is that when a certain context based work then leaks out into the world, and things are very different there – because there will be no refinement, there will be no discussion on that level where it was thought – so the question is then: is this good or bad? You can see that the risk that came out with the threats has caused sth which I have studied thoroughly and that is that in the art world there are made several exhibitions with every artist concerning religion, called “Gods” and “Oh my God” or, now lately, they made a blasphemy exhibition in Ireland, that was going kind of protest towards the law against blasphemy in Ireland. All these exhibitions have an insult on religions. But there is one exception in all exhibitions: they don’t touch Islam. They have the self-censorship, because, if they do, they might get a threat against the museum, and people working there will be put into a position better not to deal with these matters. And you will also have the risk of being accused of racism. So that for it’s better you push that aside. So that’s the kind of censorship you can observe in the art world.

00:41:25 TAHIR Thank you very much. I’d like to take the last question first. I’m actually glad you are shocked to hear that I censored my own work and also shocked because I probably said that I think sensitive issues need to be dealt better not through provocation but through civilized manner, manner of speech. Let me just come back to when I took out the name Mohammed in my book, I also felt the same anger and this shock. I’m living in the Netherlands. I am a human rights lawyer myself. I utilize the freedom of expression every day through using my pen. And then I pose to myself this self-censorship. But after a while I felt that it’s not just self-censorship, but of course there was this fear. There was sth broader than the fear, and that was the desire to express myself in a more restraint, and in a more sensitive way. I would defend any person who provokes, who ridiculizes and who criticizes Islam or Mohammed or the holy book or anything. I would defend that person because I believe in freedom of speech. I just think that if we want communities to be more open, communities that are sensitive, communities that are generally closed, such as some of the immigrant communities in Europe, then it’s better not just to provoke to open up minds, it’s also better to use more civilized and more advanced and more high quality speech. So I would always advocate for two things: more speech and better speech. And there is this tendency to reward provocative speech. My book didn’t sell that much, because I took out the name Mohammed probably if I left it in, probably I would have become a millionaire or sth. So, more speech and better speech, I would really defend that.

00:43:34 I’d like to refer to the person, to the gentlemen over there. Who said that literature should, the objective to write should be to contribute to humanity, to good things. I think, my objective as a writer is to seek the truth can be very ugly. I’ve encountered many Muslim women who do not get their human rights respected. And I think we should write about that. My problem with a lot of closed communities is that… mostly there are controversial- and critic-casters who come out of the community and write. Those are the most courageous. Those have a critical distance towards the community to be able to feel free to write. I think if the community would be more open, there would be more speech from coming out of the community. And of course, we should focus also on the beautiful things of Muslims, poetry, the huge amounts of nice songs, etc., there is a lot of culture out there. But I don’t think we will ever win that battle. I mean, no news is good news, or good news is no news. But we should still advocate for more speech and better speech. Thank you.

00:44:55 LAMBSDORFF Let me just come back briefly to reply to what you brought up, Mr. Ancu [?]. The idea about the seminar, or the underline premise is that we do have freedom of expression in Europe, but it is under threat. I believe that it is under threat by a number of factors. Not all of which we can address here this afternoon. But some of the factors that you just mentioned are not limited to Romania. Not at all. For example the political influence on state media. I can give you a very current example from Germany, where the editor-in-chief of one of our national broadcasters was made to leave upon political pressure – not for anything in particular or a any program, but it was a political pressure for him to leave. We have the issue of media concentration. You know, so much power in so few hands, that you actually, you know, as an editor you can pick your journalists and you will have one journalistic line presented to the public. On the national level we observe sth like this is Italy. But again, my own country, in Germany, on a local level – local newspapers usually are monopolies in their respective region, a phenomenon we also know from the United States. There are some problems here in this field, because you have only one voice in print.

00:46:13 Now, on the local level you can compensate it, I believe, by access to the internet, but for local news, regional news, it’s more difficult than that. Then, of course, there is the issue of straight forward censorship, sth we don’t have in the European Union, I hope. But in Belarus we have it, just east of Poland, we clearly have straight forward censorship, and we have pure violence in Russia. If you are an investigative journalist writing about corruption of local elites in Russia you are very likely to come under physical threat. Something that I think is completely unacceptable as well, and just to remind you, the room, in which we just held a press conference and which we regularly hold press conferences in in this parliament, is named after Anna Politkovskaya, the Russain journalist who was murdered for her investigative work. So, your premise, that freedom of expression is under threat, we fully agree with that, and I believe, it is sth that we need to address, we need to discuss, we need to improve, because I believe it is not sth that should [stand?].

00:47:16 SCHAAKE Ok. I wanted to say sth briefly to the gentlemen in the blue shirt, because you applied a connection between the speakers and the liberal group and what we stand for. What we stand for is to have an invitation for debate about this very important, very complex, very thought-provoking topic. But we, of course, speak on our own behalf, and so do the speakers. And I think this is very important also in terms of this debate, really. Because what too often happens is that the words or the expressions of one individual are connected or implied to be applicable for the entire group. Or, an alleged group of people rather. And so, I would just like to share my thoughts, and I think, the thoughts that fit very well with liberal thinking, is that individuals should be held accountable for their own expressions, and we should be very very careful with group thinking in this, in the context of this freedom of expression debate. So, if the panel doesn’t have any further additions I would like to ask if there are other questions, ’cause we couldn’t bring in all questions in the first round. Yes -

00:48:27 AUDIENCE I’m Joe McNamee[?] from European Digital Rights. I just like to mention a few things that the EU and Council of Europe are doing to support self-censorship. We have an ongoing process for draft… for recommendation of the Council of Europe on profiling. The current text of which, in my view, legitimizes state sponsored profiling of individuals. We have for the last number of years, in the most European countries, the directive on retention of communications data. In a breathtaking moment of cynicism, the European parliament managed to adopt a written declaration to protect children to have data retention extended to search engines last week. We have a proposal [of?] French net blocking on an EU level. And we already have internet blocking for gambling and intellectual property in many European states. The digi-justice of the European commission is currently working with industry to produce an agreement on take-down of unproven illegal material. And I’ll just read the current text to you in order to avoid misrepresenting it. It suggests that in cases of “notification by law enforcement authorities, a complaint hotline, or other body duly authorized or tasked on the national law to monitor internet content”, “internet service providers should take the content down, unless they consider the notified content is legal.” [see: http://www.edri.org/files/Draft_Recommendations.pdf]

So that means, whenever you’re putting anything online, it’s not a question whether it’s legal or not, it’s whether or not an authority tasked to monitor internet content, may in some moment in the future consider that it might be illegal. So the threats are coming from very close to home. Thank you.

00:50:36 SCHAAKE Let’s see if there are some other questions. I’m not sure if you want a specific answer, or if you just want to address that issue. But we’ll come back to that. So, are there any other questions directed at the panel at this point?

00:50:49 AUDIENCE / PROF. MULLIS Can I just [reply] to the last gentlemen? If you think it’s legal you can lead[?] the stuff up, apparently.

00:51:00 AUDIENCE [Joe McNamee] If your internet service provider is certain that it’s legal, then your service provider may take the legal risk of ignoring the advice that he was given, and leave it online. […] The internet service provider isn’t the publisher. […] No …

00:51:24 SCHAAKE Ok, I’m already looking forward to the next panel, because in the next panel we’re going to have specifically more intention to the legal and political aspects of freedom of expression, and also freedom of access to information, etc. So perhaps some of those issues will be addressed. But it might be good to repeat here that the Alliance for Liberals and Democrats for Europe is in fact very active. There is of course a diversity of voices, but overall as a political group we’ve been very active to protect privacy, civil liberties, and with a specific focus on the online sphere. So we share many of the concerns that you have raised, and we are fighting for that in this house. Unfortunately not everybody agrees. And I also believe that there is a lack of information sometimes. Because it’s, you know, no one will argue against the need to fight child pornography for example, but the ways in which to do so are not always as clearly understandable or transparent. So I think, you yourself and other people who work with us in the context of European policy making are very valuable not only to inform us as law makers, but to also inform the general public about what the details of this very complex set of technical, legal, political elements that sometimes implicitly or indirectly can limit freedom of expression or access to information. So I think this is a very valuable contribution, but I do believe moreover, our political group is aware.

00:53:07 TAHIR I’d just like to – Can I just make a closing remark? I think I can – I’d just like to invite the European parliament but also the people who are interested here in this topic; we are always interested in people who apply near-censorship as a means to restrain themselves out of fear or anything. But I think we should maybe also put some attention to people who maybe show restraint or prudence just to make their work qualitatively better. And maybe we should look at that type of work. You know books on, let’s say, homosexuals or on Muslim women who struggle in family life, books which are not provocative but which do contribute to opening up minds. And there is a lot on emphasis again on near-censorship, on the shame, on the fear, on, you know, the feeling of sorry-ness we have. But we should also celebrate and put in the limelight the people who use this right in a prudent fashion. And we don’t. We don’t read enough books. We don’t invite enough people who haven’t applied self-censorship but just, you know, restrain themselves, just make beautiful prose and poetry etc. So, I’d just like to invite the European parliament to conduct such a debate, inviting the other side. People who are not scared. But people who are happy to write, and who have been able to express themselves on sensitive issues without any fear. Thank you.

00:54:45 LAMBSDORFF. Thank you very much. On this remark – I think it is a very good idea to continue this debate. Let me just say on your remark, Sir, especially considering this written declaration, No. 29 I suppose it was. It was – for those of you who were in Strassbourg last week – it was impossible, it was absolutely impossible to overlook the campaign that was there for, you know, the signature of written declaration 29 – I’ve never seen a PR campaign for any written declaration in this house beforehand. But again, the intention of those who signed was to fight against child pornography, a goal with which everybody agrees, at least everybody who is decent. The issue, however, was that the text contained references to the data retention directivities, and nobody knew what was exactly behind it. So, while doing one meritorious thing, you did sth – by signing this – that was clearly not very wise from a privacy, from a freedom of expression point of view. Which is, by the way, why our group also adviced against signing the written declaration. Thank you very much, to all of you, for the first panel. Ah – no – Mr. Vilks wanted to…

00:56:02 SCHAAKE Yeah, we are coming to some last thoughts on the first panel. And then we’ll move on to the second one. So, Mr. Vilks…

00:56:10 VILKS Two things here. When talking about pedophilia, I was just liking to give some attention to an art project (made of the subject?) that was in 2009, when Ulla Karttunen, a Finnish artist, made a project about pedophilia, and that was also how easy you can find pictures on the net. And so, she brought down to her exhibition, pictures from the net, and presented them to an audience. And this was, of course, a very critical project against pedophilia. But what happened was, that the police came. And she was taken to court and sentenced. And she tried to appeal all the way up, but actually this was illegal to do. So therefore you can easily take things out of context, even if you have a kind of urgent matter, and there is a strong reason for doing this. And I think this is a very important case, how things can be misunderstood. Another thing which I think is important on when you are offending, or not offending, and that I think is the thing about quality. Because when you use freedom of speech, the interesting freedom of speech has a certain quality. When it has no quality – I mean, there are many bad things and bad opinions that are expressed, and these, we could be without. But you have the right to say so. So, I mean, the real question you have – when you have a discussion, when you have a case – is this worth anything? Is it worth so that we can say it has a quality, not only being the principle of things.

00:58:01 The other side of this – which I have been thinking a lot about – it is that when you are avoiding the offense, saying: we should maybe be more delicate in this matter, be more careful before we do something here, because we maybe do not get it right. – I mean, this is a matter of tactics. And what you are saying in that moment when we are addressing these people, they are not ready for the level of offense. I mean, we Europeans, we are standing up to offense, we know what that is about. But we have those others, who not have that standard, so let’s be pedagogical. Let’s be tactical. And, so we present it in another way in another package. That is just one thing, but I think you should be very honest about this, that we are trying not to give the full thing, by saying, these people can’t take it. Let’s cool down and take it a little easy. Let’s be pedagogical. Let’s be tactical. But if you also go for this thing – which I have been thinking very much about, and it’s been a very big part of my project, when I was making this prophet, there was of course all this about racism and everything; and one thing that came out was that my project actually had made a difference in Swedish politics so the right wing racist side would increase in this matter, and it would kidnap this project. But actually, what has happened is that if you look at opinions about this, there has been no growth on that side. It has actually not been making any other difference than – and I think that’s important – attention to debate. There is one thing I think I learned, and I’m willing to say that, it’s better to have an open debate, than trying to deny this debate because you want to avoid the question. To debate is never wrong. Thank you.

01:00:19 SCHAAKE So I think this is a very interesting and important topic, and I thank you for your contributions, and for not shying away from thought provoking and even bordering taboos, in the eyes of some people, to bring up those topics. And we’re gonna switch panels here, so please stay for the next panel which will deal with the legal and political implications of freedom of expression and access to information. It will be one minute, and then we pick it up right again with the new panel. Thank you.

PANEL 2

01:00:54 SCHAAKE Ok, everybody has had a chance to stretch their legs? Because we’re gonna go right on, because there is a lot to be said still after the personal experiences, or some elements on a personal bases with freedom of expression. We’re now moving to the second panel which will legal and political…

01:01:00 SCHAAKE/MOD: …second panel which will deal with legal and political implication of freedom of expression and access to information in Europe.

We have 3 exceptionally interesting guests.

I will begin on the left side with Birgitta Jonsdottir, she’s a MP in Iceland, but she is also a poet, a journalist, an internet pioneer and an activist and a publisher, so, pretty much everything, every hat to put on to engage in this discussion. She’s been in the Icelandic parliament since April 2009, and she has been the leading initiator of Icelandic modern media initiative, which was voted on in the Icelandic parliament last week and was unanimously adopted for which we congratulate you, and we’re very happy to hear from you about your experiences with this initiative, because it might well be one of the most pragmatic and concrete examples of how we can guarantee stronger protection of freedom of expression, information, and the press all over Europe.

On the right hand side we welcome Julian Assange, who is the founder and director of WikiLeaks which is a multi-jurisdictional public service, designated to protect whistleblowers, journalists and activists, who have sensitive materials to communicate to the public

And last but not least on my left hand side Prof. Alistair Mullis who holds a chair in law, he is actually the dean at the Norwich Law School, the University of East Anglia, and he is also visiting Professor at the Faculté des Sciences Juristique at Tunis and holds visiting positions at the Universities of Muenster in Germany and Tamasad in Thailand. So, has been all around the world to teach research and talk about his fields of interest which are the areas of law of defamation, international commercial law and towards. And he has published widely in these areas and is also the general editor of the new edition of the Carter-Ruck on libel and privacy.

01:03:14 So, a very appropriate and diverse panel to talk about legal and political aspects of freedom of expression. Let’s begin with Birgitta, if that’s ok. And then we will go on in the order of presentation.

01:03:27 B. JONSDOTTIR When we started to work on the Icelandic modern media initiative just around the time when we first filed it into the Parliament, there was an incredible skepticism both in the Icelandic media and the international media that we would get this through, because this is quite revolutionary, to do it the way we were doing it. Not only as this proposal and this idea was written by people from all over the world that are really concerned about the issues of freedom of expression and information in our world, and as the media is moving increasingly into the field of the internet and as information basically doesn’t have any borders anymore – one person that worked with us, I never met him, happens to be here. He worked with us on an etherpad when we we’re writing up the proposal, he is sitting right there – you, who are turning your head. This person helped us write the proposal. It was so unique, I never met him before. We brought together people from all continents we could possibly find who had an experience with the erosion of the freedom of information in the world. And what struck me was that you usually think about China, you usually think about Russia and so forth when you think about these rights being taken away, from journalists in particular. But what I found when I started to research was that Europe is much worse than I thought I was. In particular because of the anti-terrorism act.

The idea behind the IMMI proposal was basically based on doing a reverse on tax havens. What tax heavens do is that they pull together all the best possible legislation from the world in order to create secrecy. What we decided to do is to pull together all the best possible legislation from around the world to create transparency and ensure freedom of information, expression and speech. And what I managed to task the Icelandic government to do is to change 13? (30?) laws in 4 different ministries in order to strengthen legislation when it comes to whistleblowers, when it comes to sources, when it comes to prevent gagging on news before they are told. When it comes to IP hosts. The list is quite extensive and I encourage you to look at that proposal on the internet at http://immi.is/. We also want to create the first international award in Iceland, the Icelandic prize for freedom of expression. We want protection from libel tourism and other extrajudicial abuses. And we want to have a legislation on virtual limited liability companies and so forth.

01:07:12 What struck me most is this profound interest in international media in this proposal which shows me that there is a need in our world to be aware of how these basics of rights, these foundations of our democracies are being eroded every day. Just like this gentlemen over there from the European Digital Rights was pointing out. These laws that limit our rights of information are being passed everyday almost. So I really appreciate this form for this discussion and I hope there’ll be many more. This is just the beginning of us awakening to reality that we have to do sth now, both on European and on worldwide level.

01:08:24 JULIAN ASSANGE My name is J.A. i spent over 30 hrs getting here on an airplane so i am a bit tired. I should just mention for those who don’t know – I was also involved with advising the IMMI; and in particular case in Iceland to involve the injunction of RUV, the national broadcaster, last year in July when we published material revealing six billion Euros worth of loans from the Kaupthing Bank. A few months ago the then CEO of Kaupthing was arrested.

Coming here I walked past the Sakharov Prize, named after Andrei Sakharov who was a nuclear physicist in Russia and a famous dissident. And we’re now, as we were before, sitting in the Anna Politkovskaya room, another modern day victim of, I will say, totalitarianism in Russia. But – it’s not just Russia. And we should understand where Andrei Sakharov came from in an ideological sense and why he is there. Of course the man is a genuine hero. However, during the cold war an uneasy alliance between liberals and war hawks. Between liberals trying to keep the best values of the European enlightenment and between the press who wanted liberation for their own domestic affairs. And between those people who wanted a moral stick to beat the Soviet Union. That produced, in an ideological and political sense, the poster of Andrei Sakharov in this very building. That uneasy alliance is gone now. The alliance between liberals and conservatives to push freedom is gone. And that’s why, all around the world in different ways, it’s been round back. Because authoritarianism – whether it’s institutional or whether it’s state based – is no friend of freedom of expression. It is inherently opposed to it. It was only during this brief period of the cold war where we saw it getting into bed with liberals. It is no longer in the same bed. So now we have a fight on our hands. Because that was a large source of power and political influence to hold those values up as a stick – not as sth actually held there.

01:12:00 So in 1954 the great encyclopedia of the Soviet Union was amended. Stalin had died, Beria had fallen out of favor. Beria’s entry in this great encyclopedia now was now out of political favor. And so amendment was send out to every registered holder of that encyclopedia, a copy to be pasted in, an expended version of the section of the Behring Street, which alphabetically was convenient. Behring Street is that between Vladivostok and Alaska. But all throughout the libraries all over the Soviet Union and other places in the world which had copies of that encyclopedia it was obvious what was going on. You could see where the paper had been pasted in or where the previous page had been torn out.

But that doesn’t happen anymore.

01:13:04 In fact, now what happens in the west is that central archives of newspapers like The Guardian are ripped out. Every month. Invisibly. And there is no tear lines. There are no seams anymore. There is a reduction of history that is occurring quickly and in an [?] progressive rate. So to make that concrete I was involved in a case along with Martin Bright, a former Guardian correspondent who became the political editor of the New Statesman and is now the editor of the Jewish Chronicle, about expose abuses by Nadhmi Auchi who at one stage was the fifth richest man in the UK, very well-connected politically, that resulted in… In fact Auchi was convicted of corruption in France in 2003 under the magistrate of Eva Joly by who is now a member for the Greens. That resulted in Auchi, five years after those original articles for bridges[?] in the Guardian, getting Carter Ruck – and we have someone here connected to Carter-Ruck, in inner industry we call this buddy ‘Carterfuck’ because they send so many letters where you have gotten alawed[?] and we publish them all, we abue[?] it as a bit of a free content service – in forcing The Guardian to remove that material because it was of interest to the US election cycle. Nadhmi Auchi had funded a man called Tony Resco. Tony Resco was the fund raiser for Barack Obama. So during the crucial period of the US election cycle, that material was removed from The Guardian. Even though it had been sitting there for five years. The juridical basis under which that sort of action happens is that the Human Rights Court in Strassbourg has founded that every time you read sth on the internet it’s being republished. So the liabilities for publishing occur any time someone reads sth – so Nadhmi Auchi and Carter-Ruck could go after material that we could consider as part of our cultural heritage, material that was in the Guardian archive the past 5 yrs reporting on the conviction of a billionaire for corruption in France. They could go after that material and have it removed. And it was removed. And it is still removed. And not just the Guardian but many other papers. And they are currently – it’s hard to know the exact numbers, but according to UK media lawyers there are 200-300 secret gag orders currently effect in United Kingdom.

01:16:10 These are not just injunctions so you can’t talk about sth. These are injunctions to say that you cannot talk about whatever the subject is together with the fact you cannot talk about the fact you cannot talk about it. So that to me seems to be some progressive realization of the ideal Orwellian horror in 1984, where we don’t just have a ministry of truth that would go through archives slowly pasting over things, but in fact we have centralized archives that are being removed. The stories that were removed from the UK papers were also removed from the indexes of those papers. If you go to the URLs concerned for those articles, you will see “Page not found”. You won’t see “this story has been removed after legal thread”. And the reason being the argument is if you see that it has been removed as a result of legal thread that will encourage you to go to the library where you might be able to find the things still in that antiquated old form of paper. And that would only encourage people to read whatever the libelous or alleged libelous claim was.

01:17:32 So there is a serious problem in the way legislation is moving. Now – sea law derives from ships colliding in the night and maybe is[?] colliding in the day. It derives from the interaction between states. International law is created as a result. There is a new form of interaction that is occurring between states, it’s an interaction of bits mediated by the internet. So there is a great push by harmonization about when you can transmit bits and what sort of bits you can transmit and how long they are able to stay there before being attacked. So we have a question [which] is: to which way the law is gonna go? Because the pressure to harmonization is immense. Are we going to go the way of China?

This is actually a disturbing an serious question because the German government has passed a mandatory state censorship system into law. The Australian government tried to do it, and it has gone through one house, through the Lower House, hasn’t gone through the Upper House. And there is a pan-european attempt to get a European wide, instantaneous, real-time, secret censorship system into place on the internet. If there is such a system in place, it will interpose itself between every reader and every newspaper. Because all newspapers are going into the internet. It will interpose itself between every human rights organization and everyone of their readers. Because all of the human rights organization publish on the internet. It will interpose itself between every political party and its audience, because political parties are moving their correspondence to the internet.

01:19:35 This is a very serious issue. Once that system is in place, it can be retargeted for any issue at any time instantaneously. That´s its nature.

01:19:51 In the case in Australia where we revealed the secret state censorship blacklist for Australia, a blacklist that is meant to go into the system that the Australian government is proposing, we found – and in fact the government body responsible also agreed – that less than 32% of that list had anything to do at any stage with images of people under the age of 18. The upstanceable[?] political framing for a national censorship blacklist, including in Australia, was to prevent the spread of child pornography. But less than 32% from what actually got down to the list had anything to do with images of people under the age of 18. Similarly we have exposed the states’ censorship blacklists of China and Thailand and numerous other countries all of which were viewed initially and framed politically as mechanisms to combat child pornography. But in the case of Thailand there has been over 1000 sites blacklisted for criticizing the King when we actually get down to the list. All these proposals have secrecy embedded within them. They say the list of what is banned cannot be revealed. That means that there is no transparency in justice. And the system corrupts itself instantly and it’s not just Asian countries. It’s even countries like Australia, modern democracies that suffer this corruption instantly.

01:21:30 (pause)

01:21:40 So my perspective – I am an Australian but I have worked in Europe for some time and of course we’re all to some degrees fan and victim to American culture – i can see what is happening on Europe in Europe from an interesting perspective which is neither that from United States or Asia. It is some little Pacific Island down there that has connections to all these countries, that isn’t in fact part of any particular power group, maybe vaguely Anglo. And I see, for example in the work that i do in Africa, that libel laws in the United Kingdom, as part of common law, as part of common wealth of law, is high used to imprison journalists for writing about ministers and the corruption that ministers go through. They used it in Malaysia to imprison people. The political justification for this behaviour is the fact that – oh well, Europe does it. Europe has libel laws. And they are important. Look at the UK for a more direct connection.

01:23:11 What happens in European borders doesn’t just affect Europe. It’s used as justification for even more extreme forms of abuse around the rest of the world. The US has been slowly slipping on its champing of enlightenment ideals for the freedom of speech. For the reason that i first outlined: for the great incentive to do that, the great incentive of beating up Soviet Union is now gone and it remains to be seen if there is enough incentive to do that to China for that to be pushed. So Europe has got to take up the slag. And it’s necessary not just for Europe, it’s necessary for other countries in the world to be defended by Europe in those ideals. Because no one else is gonna do it.

01:24:04 Well, actually Iceland is not technically in Europe yet, but it is in the EA. Anyway, of course I champion this initiative that Iceland has produced. The actually interesting question is whether, if Iceland had been formally in Europe in the past year, when that proposal had been put together: could it have got it together?

It’s quite an interesting political question. And were aware of that – I remember speaking to Birgitta and other people involved – and our hope for Europe in part was that we could get it into Iceland now before Iceland enters the EU and maybe we can drag this along with Iceland into the EU, because the other way around might be quite hard. But it’s an interesting question: could Luxemburg, for a country of nearly the same size, come up with similar legislation and get it though. My feeling is probably not, I mean I’m not an expert on European political affairs, but that’s an interesting question, as to why not.

01:25:25 SCHAAKE I’ve been picking up on some responses, so i now give the floor to Professor Mullis to give his views and then we open up the debate.

01:25:34 ALASTAIR MULLIS Thank you very much. Two very difficult speakers to follow. Julian Assange will be even more difficult where what he was saying the […] about the English law be accurate. A considerable amount of what he actually said about English law was not accurate. So a bit of background first:

The last couple of years calls for a reform of the laws that restrict and prevent the media and others from publishing articles on matters of public interest have become increasingly insistent. In the UK, a very successful campaign, spareheaded by the index on censorship on English PEN in demanding reform of the English law of defamation. There’ve been parliamentary debates and government consultation on the subject and there is now a defamation bill sponsored by Lord Lester of Herne Hill, who is a member of course of the democrats, before parliament. Even more ambitious initiatives have been pursued as well, and you have already heard about the Modern Media Initiative in Iceland.

01:26:48 But the vision of campaigners in both these countries is to create a legal environment in which media, and others, can publish articles and books on matters of public interest without fear of liability.

01:27:06 Given that neither the UK nor Iceland have reputation as repressive tyrannies, what has led to the call for reform?

In the UK we’ve had a number of high profile libel cases and as I said, we’ve had this report by PEN on the index on censorship, the focused concern on English libel law. Critics have complained that the laws are archaic rules, chill free speech generally and academic debate in particular. English law has been characterized as being out of line with the rest of the world in terms of free speech. London has apparently become the libel capital of the world with droves of libel tourists, or, as the Americans would call them, ‘libel terrorists’, lining up to sue those who publish books and articles that make an important contribution to public debate.

[text partly identical with script of Mullis’ presentation at Westminster Policy Forum 15 June 2010]

01:28:02 In principal I strongly welcome the debate that has been stimulated by both the Icelandic Modern Media Initiative and the PEN in the index on censorship record. I am concerned that the potential of the misuse of laws serves to preclude investigative journalism, to stifle a scientific and medical debate, to undermine the important work of human rights organizations and other NGOs, or to invite a flood of legal tourists from abroad.

01:28:33 To the extend that the law allows powerful individuals or cooperate identities to chill important warranted comment concerning themselves, their activities, their products or their ideas, it is socially dysfunctional, and it should be reformed.

01:28:45 That said, it’s my view, the current commentary on the law, particularly in England but also elsewhere, has been particularly one-sided and in some respect dangerously over-simplified. The number of calls have been exploited on occasions with little concern for the undepending facts in order to secure superficial political impact. While the general call for reform has seemed clamorous, specific proposals are rather based on a dearth of evidence or on a partial representation of the existing law.

01:29:23 In consequence I am nervous that important societal functions performed by the law have been underplayed. When the [ill?] [floortile?] reforms may serve to unbalance the public sphere to the detourment [?] of all the modern democratic state, I am interested in freedom of speech, but not freedom of all speech. The law and other forms of regulation (come legitimately?) and indeed must be used to prevent the media from causing damage out of all proportion to the good achieved by openness.

01:30:00
In immediate context the media should not be free to publish false and damaging allegations without any fear of being put to repress. Any attempt to [go on to?] the public benefit that might be achieved by releasing investigative journalists from the striptease of libel law, risks absolving less reputable scribes of liability for naked intrusions and falseness [?]. If the law can draw or redirect the scorpion’s sting, then perhaps we’ll all make it across the river.

01:30:30 Now turning to more specific proposals –I’ll say sth about the proposals in the two countries.

A couple of general observations first: that’s why, and certainly in terms of the IMMI proposals, I don’t underestimate the potential of these proposals to change thinking and provide models for other jurisdictions wanting to make their laws more freedom-of-expression-friendly. But the practical impact, at least in the short, the medium term, is unlikely to be very great. I suppose it’s possible as a consequence to propose change in laws, that media companies from all over the world will relocate to Iceland which will become the silicon valley of the media. Such mass immigration it seems to me seems unlikely.

01:31:18 Secondly i would ask those who propose change to consider very carefully, whether adoption of an American style free speech fundamentalism is the appropriate style, appropriate model for Europe. Most countries in Europe, while having strong traditions of upholding freedom of speech, recognize there are other interests that are equally valuable that should be protected. The political and constitutional settlement in Europe is very different from that in the United States. And our histories have surely led us to value these interests differently. Exceptionalism in this respect is American flavor, not European.

01:32:05 Thirdly there is virtually nothing in the IMMI proposals or in the PEN index of censorship report that mentions the importance of reputation. Any false and defamatory statement spoken (about?) another person has the capacity to cause great harm. As a consequence throughout history a high value has been placed on the maintenance for good reputation. Its importance has been recognized by the European Court of Human Rights which treats reputation as a protected interest on the Article 8. Harmed reputation can be debilitating and perpetuating. Society has an interest in facilitating redress if harm is caused by the circulation (forces?).

01:32:55 Now it’s the specific proposals.

Both the IMMI proposals or in the PEN index of censorship report critique the English law for its laxity of the jurisdictional rules that encourage the phenomenon of so-called libel tourism.

This is characterized by Lord Lester in the House of Lords as the bringing of proceedings of people who have no connection to this country against publishers who are based abroad. Such proceedings being founded on the incidental publication in the UK of a few copies of a newspaper, book or magazine published abroad. Now the authors of the index of PEN report proposed changes of the existing law to tighten up the position, while IMMI suggested reducing legislation similar to that adopted by some states in the US. In New York it’s called the ‘libel terrorism act’ to block the enforcement of English libel judgment.

01:34:06 I appreciate the rhetorical strength of the observation that some foreign claimants used? to sue in London and not in their home jurisdiction: The implication that the regime in the UK is reconian??? is obvious. (On analysis survey?) I am not persuaded the English rules on jurisdictions that are set to permit libel tourism are in themselves at all problematic. Contrary to the rules (some time positive?) English courts do require the claimant to demonstrate first, that he has a reputation in England. And secondly the defamatory publication has occurred here. Any damages recovered in the UK will relate only to the harm caused by the publication in the UK. The courts have a discretion to strike out the claim as an abuse of process, when no real and substantial tort has been committed.

01:35:00 Secondly… public interest defense and responsible journalism marge in the IMMI report and index on PEN report, rather importance of freedom expression relation to matters of public interest: (ganzer Satz, Verb, Bedeutung???) To protect journalism on matter of public interest – the index on PEN report recommends a public interest defense – now few would disagree with such a defense. In fact there is already one in English law. Even they have [crucified?] the immediate criticism, this may lead to the sacrifice of individual reputations on the altar of the greater public good. I believe that it’s only through vigorous public debate, as here, and engagement with controversial matters that truth is likely to be revealed.

01:35:44 But if we’re talking about public interest defense beyond proof that the subject matter of the publication is in the public interest, what condition should be met?

Here we have to start a choice:

01:35:57 Do we do as the Americans do? Where we allow a defense, where the writer honestly believes that what they publish is true? Or do we do as English law currently does: require that the defendant has acted responsibly.

You will not be surprised to know that I believe the defendant should only have a defense, if they can show that they have acted responsibly. That seems to me the most appropriate standard here.

01:36:26 So far as the internet is concerned – I think we’ve listened[?] to some other people you would think they already know protection’s accorded to those people who publish on the internet. Not true. Considerable protection is given to internet publishers. There’s a European directive that accords immunity to information society services that are [access made?] conduits cash information, and in more restrictive circumstance store information for the purpose of allowing other’s access. In English law it’s been said that Google and other web search engines are not liable for defamatory material containing search snippets automatically generated by their search programs.

01:37:10 In principle I believe that most the existing restrictions placed on suing internet publishers are justified. But I would not be supportive of a proposal make the internet a law free zone.

The fact is that whilst there is a considerable amount of responsible publishing on the internet, it in many respects operates as a large lavatory wall allowing the disgruntled, angry and deliberately deceitful to publish what frequently amounts to appallingly damaging and hurtful material. Internet service providers derive a great deal of money from allowing this stuff to be published, and they should not, in my view, be given a free ride.

I could go on. I supspect I probably… I don’t often get invited to speak at liberal events so I suspect I [will never be?] asked again.

01:38:11
Conveying other matters that I could discuss – not at least the question of immunity for archives, prior restraint and such matters – I think it’s very important that we are having this debate, I congratulate IMMI for raising this debate to the level it has been raised. But critically and important is we look at the reforms they propose. I think we should … recognize that there are interests other than freedom of expression, and in particular these interests, reputation, privacy, should not be ignored, when seeking to frame new rules. Freedom of expression is not the only important right of statement. If we are to have a reform – then fine. But let us be clear on what we want to achieve, and why. Let the reform be based on a proper understanding of the law and its effects. And whether such a reform truly benefits the public in general.

Thank you very much.

01:39:22 SCHAAKE Thank you very much to all speakers in the panel. We’re indeed here to understand the full scope of this, so the judge is still out to see whether you’ll be invited again [laughs].

No. But I would like to thank everybody. Really, because this is very important to show the different perspectives. I am sure the audience is full of questions. At least on twitter there were quite a few remarks here and there. So let’s see, who would like to ask some questions to the panel?

01:39:57 QUESTION FROM AUDIENCE Hello, I am Jérémie Zimmerman, co-founder of the […?] advocacy group “La Quadrature du Net”. I would like an opinion of the panel on the disturbing trend I am seeing in EU legislation of going towards contractual censorship in the name of copyright. We saw this in the commissions, a communication of September 11 on IPR [Intellectual Property Rights] enforcements that was uploaded by the gallery port [?], as voted in the jury committee recently. That is also encouraged by the council and which the EU is now negotiating in ACTA [Anti-Counterfeiting Trade Agreement].

So, according to this, voluntary agreements shall help to – I quote the commission – “take advantage of possible alternative to coat proceedings for settling copyright disputes”. In that schemes you have operators, maybe with the use of legal liability, that will have an incentive to themselves, [to make?] what is supposed in a democracy to be in the hands of the police or the justice, to detect what is supposed in fraction and to take sanction which could take form of any kind of internet access restriction or content restriction or removal. What can you do to address this, when it is at the same time negotiating ACTA?

01:41:26 A. LAMBSDORFF Thank you very much. Right behind you we have a member of the jury committee you have indicated. […?] Replying on asking another question. Diana, please.

01:41:34FROM THE AUDIENCE: DIANA WALLIS (ALDE MEP) Thank you very much, Alexander, you [?] wanted to comment or put another question. [?]

Obviously coming from the UK, I am very much aware about what’s been said about UK law, and the use of our courts as a sort of host for so-called libel tourism. But I just want to say, we tried to deal with this problem some years ago here in the European Parliament, with a rather technical piece of legislation called Rome II. We actually wanted to legislate to attribute jurisdiction and applicable law. We were stopped doing so by a huge lobby from the media. We are now revisiting that and I should be interested to see whether second time round there’s now a greater appetite, having seen the result of not legislating. In other words, if there is a problem with jurisdiction, let’s have a debate like today and let’s try and see, if we can create a more level playing field, where each country deals with the problems of expression that occur in each country.

So, that’s one thing and also the other point I did want to make: I, too, absolutely believe in freedom of expression. But as a liberal, I also believe in the individual right to reputation and the right to privacy. And in legislating on the European level, we have to be very careful about balancing those two liberties. And I for one want to see them balanced on what I would call a European basis and not on an American basis. And there I will finish.

01:43:36 A. LAMBSDORFF Thank you very much. No, I’m not going (to shame this abusement position here???). Here, you have a third question.

01:43:42 FROM THE AUDIENCE I have a question for Mr. Mullis, I don’t know if you ever heard of the company ‘Trafigura’ and the Probo Koala. You’ve been saying that libel law is not an issue. But how can it be that this morning the Dutch district attorney asked for the highest fine ever imposed for a company for an environmental crime – and given the history of the company within British media, how can you even begin to say that there is not the beginning of an issue here?

01:44:23 A. LAMBSDORFF Excuse me – for the sake of all of us in the audience, could you explain in three words what is going on there?

01:44:30 FROM THE AUDIENCE Ok. What has been going on: that under a secret gag order that accidently got out we know that a newspaper has been barred from publishing a story. Every time a Dutch journalist at a competing media would write about it, he gets letters from lawyers, very threatening – and then here is somebody who claims that there isn’t an issue. Which is at least amazing.

01:45:02 A. LAMBSDORFF Ok, but the letters are from Dutch lawyers or from British lawyers?

01:45:05 FROM THE AUDIENCE Both.

01:45:05 A. LAMBSDORFF Thank you. Ok, there we have the question.

I have a question also, and that is to Birgitta: How did the discussion in Iceland deal with this issue of reputation and privacy? Which is a legitimate issue of course. Because I hear that it’s not mentioned in IMMI. Did you deal with it, did it come up, how did you address it? And with that we have a number of very interesting question: contractual censorship, alternative dispute resolution, privacy and reputation, and the discussion in Iceland, and of course the question of libel law in the UK.

Birgitta, do you want to start?

01:45:46 B. JONSDOTTIR Yes. The issue of reputation and child pornography was not covered in IMMI because there was already existing legislation for that, so we did not feel we were suggesting to make anything legal that is illegal with IMMI. And I think it is actually – I’m astonished listening to Mr. Mullis’ speech, because while researching for IMMI and during various interview and various dialogues, actually no country has given me as much information about them being gagged as in the UK. And the journalists there – I hear horror stories all time I talk to a UK journalist that is a serious investigative journalist. So I am just astonished to hear this dialogue that there is not a problem.

01:46:55
And the same thing with liable tourism. It’s an incredibly serious issue that has to be addressed now. It is just not something we can just close our eyes to and ask with this debate about we should not become or base our legislation culture on the US culture. Let’s just face it’s all mixed. And let’s just lift this above that and try to draw the best from the laws in the US and in Europe and elsewhere if there is. So that is basically the attitude that we put into IMMI: Let’s find the best possible law to ensure these rights. And move beyond this US/EU debate because we’re all influenced by each other. And media doesn’t have any borders anymore.

01:46:48
So, and also with censorship I am very much… I am actually quite upset the way things are evolving with censorship. I think but we are going in the opposite direction of what most artists themselves want to go. And it seems to be focused on assuring rights of publishers and other people… Everyone is getting money in their pocket except for maybe the artist. And now artists finally have the chance to make the world available to the entire… I mean there is a reason why artists, in particular music artists, have decided to have people donate money, instead of charging. And a lot of people who have decided to have it in a more free way, in a sort of fashion where [they are] dealing with the reality of the internet, have actually ended up selling more.

So I think we just have to focus… I feel there is sort of a clash between the old world and the new world, the old reality and the new reality. And in some aspects it looks like the old reality is winning in a lot of ways, and people are just not acknowledging the fact where we are as humanity today.

01:49:23 A. MULLIS 01:49:26 I guess there is a few points Interviewer: ought to response to. This [?] that newspapers are gagged in England is by and large complete nonsense. If they publish something that is true, they have a defense. If they act responsibly, they have a defense. Seems to me that, if the common rights stuff is true, if they cannot act responsibly, they ought not to have a defense, in their circumstances. Libel tourism, again: how many cases do we… what are we talking about? Floods of tourists with suitcases coming to England, waterproof, as [if?] it were, coming to sue in court? Were talking tiny numbers, and most of these cases are struck out on the basis of abuse of process. I think the point has been made already – English law, and certainly in relation to European claimants and defendants, applies European law. Outside that, if there hasn’t been a substantial talk committed in the UK, the case is going to be struck out. Thirdly, again sth Julian Assange said I think earlier, there’s a suggestion that Africa is essentially taking on some of the UK law – were actually one of a few jurisdictions in Europe that doesn’t have criminal defamation law. Many European countries continue to have criminal defamation law. We don’t in England. So I think there is a real danger of English law being demonized. The fact’s [?] very considerable work has been done over the last fifteen years be the court to develop the law, so that strikes a proper balance between these two interests: the Art.8 right to reputation and the Art.10 right to freedom of expression. Pushed to far, and essentially in the United States, for a public figure, a public official you can’t sue. The media can write pretty much whatever they like about you. That doesn’t seem to me necessarily the sort of situation we want to get ourselves into in Europe.

01:52:10 A. LAMBSDORFF So de Winter [?] wanted to comment again.

01:52:11 AUDIENCE Yes. I started out by pointing out a case where libel law was enacted. And now apparently a district attorney comes to inference that a crime has been committed. So sth was wrong. So libel law apparently in the UK did not work. The company Trafigura has paid huge sums of money to victims. So apparently sth was happening, there was poison, the story was true. Though the story was taken away from the newspaper where the facts were basically in favor of the journalist. And again, two this day, a Dutch journalist still gets – after each and every article – a threatening letter. Out of the UK. With compliments.

01:53:11 A. LAMBSDORFF Can you comment on that case, do you know it?

01:53:11 MULLIS A bit of that. I just do want to make clear: Although I am the general editor of a book on Carter-Ruck, on liable libel premises, I have nothing to do with Carter-Ruck law firm, I am certainly not a party or a member of that law firm. I don’t know the full details of the Trafigura case, I’m not sure if anybody does. But a number of news organizations have got the facts wrong. The BBC for example suggested that in fact Trafigura had killed people. That’s not true.

01:53:55 ASSANGE How do you know that it’s not?

01:53:55 MULLIS Because they paid damages. Why would they pay damages if they could proof it?

01:53:58 ASSANGE Because they settle that off court for tactical reasons. You say that’s not true.

01:54:05 MULLIS But the BBC is an organization that certainly has…

01:54:07 ASSANGE […?]

01:54:13 MULLIS And?

01:54:13 ASSANGE We published the BBC’s defense, which was suppressed. Their entire legal defense. Ok, Carter-Ruck send me letters about this case. The original leaked emails we […?] through the Guardian. So how do know its not true? According to UN report in September 108.000 people were driven to seek medical attention in the Ivory Coast. The allegation was – that the BBC had produced – that perhaps 14 of those people died as a result. Now Interviewer: say to you: 108.000 people go to hospital – all different types, children, old women, etcetera – even just going to hospital, is it unreasonable that 14 of them died, on the way, in Ivory Coast in Africa, in the middle of the night? Of course you expect 14 people to die, if they are driven to hospital. And here you are saying that it is not true. What are your facts, Sir?

01:55:21 MULLIS All that I’m saying is that the [BBC channel is not defended]??.

01:55:22 ASSANGE No, that’s not what you said.

01:55:31 MULLIS [makes noise/gesture]

01:55:31 ASSANGE Is it?

01:55:31 MULLIS I can’t remember.

01:55:31 ASSANGE I can. Anyone else remember what he said?

01:55:36 FROM AUDIENCE […?]

01:55:36 ASSANGE Right.

01:55:37 MULLIS Right. And why did the BBC choose not to remember, uhm, to defend it?

01:55:40 ASSANGE Because they viewed it might take 2 million pounds in the UK system to defend it. And could just drop that case and start reporting on a new case instead on that 2 million pounds. In the UK the bulletin of proof is on the publisher. Have you stopped beating your wife yet? Proof it to me. See you in court.

01:56:03 MULLIS The alternative is if you choose me being a pedophile I have to proof that I’m not.

01:56:05 ASSANGE No that is not the alternative…

01:56:13 MULLIS Of course its that…

01:56:13 ASSANGE …and the reason that the UK jurisdiction is abused so much is because the burden of proof is on the writer to proof everything. If you’re an Ukrainian investigative journalist, and I know some, that write about the electricity oligarchy in the Ukraine in Ukraine in a Ukrainian newspaper, who was sued in London by that Ukrainian oligarch and couldn’t afford or choose not to spend money briefing lawyers in the UK paying for that whole case – they instantly lost because they did not establish the proof burden. Furthermore libel cases in the UK on average are a 100 times the expense of libel cases in continental Europe. Now the strategy used by Carter-Ruck and other liable firms working that sector is to do what? It is to make publishers bleed. Publishers don’t have much money. If you’re working for a Billionaire like Nadhmi Auchi all you have to do is keep the publisher in court, keep them bleeding with legal costs. Eventually the publisher will say, we cannot sustain this legal cost anymore, therefore were just gonna pull out of the case. At the moment you pull out of your case, you haven’t established your proof burden. Under UK system you are then liable for all your opponents costs, the result of which is you have to pay all your opponent’s cost – you spoke of damages, but you deliberately avoided cost-costs and [?] damages. That’s how the whole trick works. Don’t think that people like me don’t know a back and a forward [?] cause we do.

01:57:53 AUDIENCE: [applause]

01:57:54 Very well. You have very considerable experience of that. I would concede – and I would [?] concede, indeed if you read what I have written – you will see, that one of the things that Interviewer: do think is very scandalizing in England is the costs. You’ve made that accusation. The burden lies on you to substantiate. And not the other way around.

01:58:33 LAMBSDORFF Would you agree with that?

01:58:33 ASSANGE We can look at how things actually work in practice. Rather then going to platonic hypotheticals. So how things actually work in practice, let’s…What’s our first question? Which country is suffering from too much freedom of speech?

01:58:51 AUDIENCE: [laughters]

01:58:51 ASSANGE: Name it. Is there one? Suffering, from too much freedom of speech? Come on.

01:58:56 AUDIENCE: [Finland?]?

01:58:56 AUDIENCE: America.

01:58:56 ASSANGE [laughs] I only wish that were true, the United States. Well, in the United States, celebrities can’t function? There’s no politics in the United States? I am continually (vilified?) in the United States. In all sorts of ways and its very annoying. But ok, so I just respond. And there are processes for responding to libels. And libel law is actually important. There is an example: if we had no libel laws, we would see Coke saying that Pepsi was full of cyanide. So there are strong reasons, which are politically sustainable for there to be libel laws dealing with malicious libel. But the case is in the UK that these are just extraordinary. And extraordinary abuses. And in a way it is not the law at the end that is the problem. It is the law at the beginning that is the problem. It is the process that is the problem, and it is (in aqueous?) access to justice that is the problem. That is why in the IMMI process protections are so strong, and why California has introduced anti-SLAPP [strategic law suit against public participation] legislation to stop the process itself of being abused. For example Time Magazine, in writing its exposé of scientology in 1991 – a country where you suggested there is maybe too much freedom of speech – Time Magazine had to pay eight million dollars in current terms to get that case to the supreme court. Eight million dollars which they did not get back. So that is an effect. An eight million dollar fine against Time Magazine for investigative journalism exposing the abuses of a cult.

02:00:59 Now it won in the end, so what? The first amendment [that] is strong in the end. But what about all the process protections? What about the abuse of process. And that’s what we see happening in the UK: the abuse of process. It is not that people should have no redress for scandalous accusation made about them. But rather, if only billionaires have access to justice, a particular form of justice, then is it right? That they have access to that form of justice? Either billionaires and other such cashed-up groups have to have their access to that form of justice, [?] level of the playing field. Or there must be better access to justice for everyone.

02:01:54 MULLIS You know you can’t you get [?] disagreement from me on that. I think you are absolutely right about libel law costing too much. Again, one of the things that I’ve written suggesting is anti-SLAPP suits. I suspect rather bizarrely we’re properly closer in terms of some of our thinking on this than you might think, or perhaps that I have characterized.

02:02:20 ASSANGE When you made the statement that you didn’t actually work for Carter-Ruck, that was a good first move. Because my next line was a statement by the partner of Carter-Ruck about the founder of Carter-Ruck, that he did for freedom of speech what the Boston strangler did for door-to-door-salesmen.

02:02:34 AUDIENCE: LAUGHTERS

02:02:34 LAMBSDORFF Thank you very much. I have one question back there; I recognize you afterwards. […] please.

02:02:46 AUDIENCE I am entering here and I have been researching this in the context of the recast of Rome II [?]. They couldn’t find a conflict of law rule for violations of privacy and personalia [?] by the mass media. Because nobody could agree on it. Now, from what I’ve seen over the last hour – and the kind of debate what is happening here, is very characteristic of the that happens generally speaking. Now what I mean with that is: there are right across the spectrum here horror stories on each side. What all we need to remember is: it is a spectrum. But for instance New York Times v. Sullivan – there are constitutional exemptions which means basically you need to write something which is absolute lunacy to follow a file of US defamation law if the subject is a public official. That has given rights to what I would go on record as saying US republican style politics. Which is dirty politics. If we don’t calibrate this right it affects the quality of our democracy. There’s so many different rights at play. There have been, I am sure, instances of Russian oligarchs using their economic strength to silence truth about them. There have also been… I know one case that happened up in Newcastle, like two people that were working in a public institution…

02:04:18 FROM THE PANEL: Lilian Reed […?]

02:04:18 AUDIENCE …Lilian Reed […?] who had their lives destroyed by what (…) was a false allegation with pedophilia. I would just ask the panel: that instead of what I suppose (take a socio-antagonistic approach to this?), ultimately these are laws that regulate our society and have a very real effect on our democracy. So, do you think for instance that in regulation, in legislating for this thing, there should be more specific laws? Because ultimately, however a law is framed, either substantively, or the procedure through which it is applied, will affect upon the balance (appearer?). It will always have an internal bias. In terms of the balance (appearer?). And as you can see, tere are instances where the balance (appearer?) is either on the side of the Russian oligarch, or on the poor little publisher, or the international media cooperation, and the person who is working for a public authority in Newcastle. How do you think we should legislate better on this, on the European level?

02:05:18 LAMBSDORFF Thank you very much. Please, Sir.

02:05:18 AUDIENCE Andrew [Colin?] from New Europe Newsspaper. I didn’t think it would take too long before we go on to Peter Carter-Ruck really. I am just wondering if part of the problem with the process has to do with some of the institutions, right? For example, in some of these cases and troubling cases, I keep hearing Carter-Ruck. I keep hearings chillings. And I keep hearing of judgments by a justice Eady. Is this a coincide?

02:05:56 ASSANGE I’d love to answer the first question first. You spoke about that you heard certain stories about this and the other and important emulations how we balance democratic interactions. So my first question is: How do you know? Did someone tell you that? Because if they told you, they were using words. So you can see, even in the debate about whether people have privacy rights, people are using the right to speech, to communicate their need for privacy rights. In fact, every piece of legislation, every constitution is grounded on nothing but speech. And so, to some very real and important sense, the right to communicate knowledge, and the ability to communicate knowledge is above most other rights. Because most other rights derive from those communications. So we must take great care when we abridge to right to freedom of speech, because if doing so we abridge all other rights which themselves can not draw attention to their plight without speech.

02:07:27 So I think it’s important to keep that frame of understanding whenever we consider abridging the rights of speech or creating regimes that produce incentives for people to self-censor. But in relation – as example, I spoke about this case where, if you don’t have the right for redress to malicious libel, then you instantly see Coke saying Pepsi has cyanide in it. So that is, those forms of abuses lead very quickly to libel laws of particular types. I am extremely hesitant about saying that there is this US exceptionalism. There is an ideal in the Untied States which derives from the French Revolution, which was coincidently in time with the US revolution. That is in fact a European ideal, born out of the French experience, and born out of the experience of pamphleteers and the US revolutionaries in dealing with the British.

02:08:45 What was the second question? Ah yes: How to legislate on this on this on European level. Well, I mean I gave my ideas to this IMMI proposal. And I think that is in fact a pretty good balance not to offend any power group in particular, but instead to provide a supportive framework for the ideas that all of us want to get out, you know, respective sectors. All of us have a need to communicate what is hurting us and what we hope for. And we should be very cautious about any manoeuvre which abridges that ability to communicate to each other, to the public, and most importantly in some degree to history itself. When a historical record is no longer accurate, doesn’t have integrity, then really we are all adrift as a civilization. And that is something that is happening in the United Kingdom, but is also happening elsewhere in Europe.

02:09:54 LAMBSDORFF Thank you. The question also about the institutions: Do we have the right institutions to deal with this?

02:10:06 B. JONSDOTTIR I really don’t think that I am qualified to answer for Europe in that particular question. But Interviewer: would really like to address the question of who are the laws written for? Are there two sets of laws? This is a prominent question that we have been asking ourselves in Iceland recently because it really hurts to see the rich people that basically vacuum-cleaned the banks of Iceland getting away with not getting charged. And the first people that are charged in Iceland after the revolution: people protesting. It’ s totally outrageous. And what does it do to the why we see the law? It makes us completely lose all belief in that the law is fair for everybody. So I have to ask: Who is the law? And do we have to address this fact when we are dealing as well with the freedom of information and speech. Who has the freedom of speech? Is it all of us? Who has the freedom of access of information? Is it all of us? And who has the freedom of expression? I think this is a really serious issue we need to address. Not only here, but we need to take this further, and I think too much time has been spent in discussing sort of the micros in this, and we really have to go back and look at the braoder picture here. So that we can go back home with some hope, that there will actually be some profound change.

02:12:00 And since I decided very briefly earlier I wanted to stress the importance that all of you who are interested in strengthening this legislation in your own country and in the European Union – please use IMMI as an inspiration. As a corner stone for pushing your own governments to lobby for these rights. Because if we don’t have these, if freedom of information, speech and expression is only for a chosen few, and if we live in a reality where the historical records are taken out of the main media. Then we, as legislators, we don’t have the full scope to make enlightened decisions. And general public does not have the necessary information to be able to push the legislators into the direction they want them to go. So I think this is a very profound issue that we need to look into. And in particular I noticed and I know that it is difficult to sit here, being a lawyer from the UK and hearing all this criticism about the UK law. But it is extremely disturbing to me knowing that the historical records, in particular in the big respected media in the UK are being altered every month, every week. Because the fact is that most of the news, the entire international media, pulls news out of the UK, particular from the BBC, from the Independent and so forth, very respected media. If you’re only getting fragments of what is really happening… We’re skewing, we’re changing the way we see reality and we get a very false image of what reality is really all about because they are taking out all the serious news dealing with very serious issues, and they’re giving us medium news about medium issues. So we (can’t as a world?) tackle these serious issues. I just want to stress this.

02:14:14 SCHAAKE Maybe for my own knowledge, as we are trying to get a sense of this – I am not aware of what this and perhaps the lawyer knows it and Birgitta – or the professor, I am sorry, knows and Birgitta knows: Have there been cases against this practice of erasing of historic records of news sources? Have people challenged this practice in a court of law?

02:14:46 ASSANGE Yes, there was a case about this in the Strassbourg Human Rights Court. And it found that any time someone reads something on the internet it is publishing afresh. European states can introduce an archive protection as, if you like, a statute of limitations on when such actions can occur. But there was no European wide view as to what that was. It was left up to member states as to define their own archive protection rules. In New York it’s one year, statute of limitations for libel. In the IMMI proposal it’s two months. In France I understand it’s three months for libel. This is a very important issue. If you are The Guardian and you’re publishing every day and you’re building up a collection of material which you would normally think is a valuable – extremely valuable historic acid to all of us, that from the publisher’s perspective is an acid to readers and therefore some kind of institutional acid which it can sell and market and therefore keep its institutional integrity from. But currently it is also an ever increasing pile of undetermined liabilities. And that’s a terrible thing for publishers to be sitting on ever increasing pile of liabilities.

02:16:31 The precedent in the UK which dates back to the 19th century in relation to a liable hearing that occurred 18 years after, is that in fact there is no limit to when a case may be (brought forward?). And the problem is: you think, what is the damages 18 years after? I mean it’s just ridiculous. But remember how I told you, this is not about what the court finds in the end, this is about how you abuse the process in the interim in order to get what you want, which is the publisher default. It’s enough that someone is able to bring a case to have a suppressive effect, to have a chilling effect. Both after publication and coercing publications to redact things from their records, and also producing a general climate where people are fearful to publish certain things about certain people. After that material was removed from The Guardian about Nadhmi Auchi and several other UK newspapers in 2008 there was nothing about Nahdmi Auchi in UK papers for over a year until we managed to have the issue brought up in a hearing in Westminster in order to get parliamentary privilege to mention this individuals name.

02:18:07 LAMBSDORFF Let me just say two words about the question with the institutions, how we deal with this in an institutional way. As you know we have different national legislations, and generally speaking, this is considered a competence of all members’ states. So, however we have divergent legislation there and we also have divergent process law. The process law in the United Kingdom is very different from the law in, say, Germany, or France. The regulations for cost are different when it actually comes to a court case. In Germany for example there was a lady who had been dragged into the public arena without her knowing it, by a very well-known entertainer, because she had a particularly funny, regional dialect when she pronounced a particular German word – for those who speak German, it’s ‘Maschendrahtzaun’ – and she could get redress without having to fear excessive cost.

02:19:09 When Diana Wallis spoke about Rome II [?], that is about cross-border non-[contractual?] obligations, which is the choice of which legislation you apply, what law do you apply to your particular case. That might make things a little bit easier, but it’s still only a way to choose a national law. So at the European level, what our institutions can do is open to questions. I have just opened here the European Charta of Fundamental Rights. Which of course binds the EU institutions but it’s very clear in Art.11, freedom of expression and information, and we just read it – I am gonna read it to you cause it’s quite interesting for our discussion:

02:19:47 ‘Everyone has the right to freedom of expression. This right shall include: freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’.

02:19:59 I think that is a quite strong and interesting statement. Maybe sth is gonna flaw from this at the European level at the ECJ [note: European Court of Justice], we will have to see. But generally speaking institutionally, I think the European Union is not yet in a position, where we can say, its very easy, let’s just do a regulation and we’ll get this thing dealt with in a satisfactory manner for journalists, for bloggers, for everybody who is involved in this new space that we have here. So we have an institutional debate, we have a legal debate, we have a political debate, and we need to find the best way of how to deal with this in an institutional way in the moths and years to come.

02:20:46 MULLIS Can I just pick up? I thought what you’re saying was absolutely clear, absolutely right. There is a spectrum of views here, you’ve heard some of those views expressed today. In a sense, the balance we strike between on the one hand reputation and on the other hand freedom of expression, tell us an awful lot about the sort of society in which we want to live. I have the greatest respect, surprisingly, for everything that Julian Assange has done at WikilLeaks. But I guess on this particular [situation], his starting point, appallingly understandably, is freedom of expression. And he puts forward a very very eloquent and elegant case, saying that is essentially the prior right. I still maintain that this is about balancing, balancing right. In the sense that I think it is the choice that you have. You see this as I do in a sense, as being about balancing rights that essentially ought to be given a equal weight. – Or do you take the view that Mr Assange takes, that essentially is freedom of speech? I don’t think you’re saying that reputation has no importance? But you’re just saying that it has priors?

02:22:20 SCHAAKE I see some more questions, but I did want to bring the question to everyone in going further in this discussion. Does this have to be a zero-sum game? Because it doesn’t seem to me that it can only be either- or. Because specifically as liberals we are the strongest defenders of the right to privacy, for example. So I find it hard to begin with a starting point that this is a spectrum where there is always a loss. So I would like to look at how both can be included. – But let’s also take some other questions – the gentleman here in front.

02:22:54 AUDIENCE First of all, it is an answer to Prof. Mullis: How do we see this? We see this is one of the most important questions of our society today. We see that our society is not in touch with the true information at this moment. And our politicians are not taking decisions based on the true information. And they are not receiving the true information because the media is censoring themselves. There is a whole lot of issues that the media will not touch, where they will not go near, while it is proven 10.000 times physically to be the reality of things. So we do need the Icelandic initiative to bring out the truth and back to the media and to reform the media to actually do its job to inform the public, to inform the politicians. I think that we have – I am a medical doctor, very recently we had this H1N1, we all discussed that very much and we discussed that here at the ALDE, and I am thanking the ALDE for that. There was about 209 delegates of the European parliament who voted to analyze what had happened with this. Because the reputation of the European medical authority was actually put into question. It was actually killed, this proposition to investigate the wrong doings that were done and how this was tested on the European population. I am a Swedish medical doctor and I can tell you that colleagues of mine who teach general practice medicine in Sweden, they went out and they explained very clearly why this was an experimentation on the population. And the next day they were told to shut up. They were told that they had just the right to shut their mouth and to tell if personally they would not like to take the shots themselves. But the Swedish medical authorities – like dangerous transmission authorities – asked them to shut up. That actually led to that about 60% of the Swedish population received a dangerous and experimental shot. And here in Belgium, where we were allowed to talk about it, between 2,5 and 10% – depending on which media were talking about the issue – got this experimental and dangerous shot.

02:26:08 I think that it was a decision by the European parliament to protect reputation of the EMA that decided that we kill this issue and do not investigate it. That is just one small issue. I think that other issues are extremely important. For example why we do not discuss the issue of how did the towers come down in New York? Everyone that has a bit of physical knowledge knows that the official story that is still being pushed by the media – still nine years afterwards its still being pushed by the media – has no possibility in physics. So why is the media not talking about this? This is extremely important for our media. And I would say for my colleague, the Pakistani journalist that he was talking about: why is our media here in the West, only looking at issues of cultural differences in the Muslim population. In fact they are being completely clobbered by bombs based on lies that we continue to cover here in our media, here in Europe. And that is our closed society. Our closed society is not dealing with reality. And I am trying to have us open our society and really talk about the truth. The physical truth. Thank you.

02:27:42 SCHAAKE Question in the back.

02:27:44 AUDIENCE I am Lance […?] a researcher at [K.U.Leuven?] here in Belgium. Going back to the mention of the Chair of Human Rights and Freedom of Expression. How does the panel feel about anonymous speech? Whistleblowers… obviously there is a trade-off of between a culture that protects whistleblowers and protects anonymous speech, and the willingness for whistleblowers comes forward. A country that permits strong technological mechanisms of protecting somebody’s identity and allowing them to convey messages and ideas anonymously, is going to have less of a potentially chilling effect on one that records who says what over the internet, for instance. How does the panel feel and how do you rectify the EU data retention laws with whistleblowing protections?

02:29:05 ASSANGE Thanks, Lance, very interesting question. Well, of course, running an anonymous whistleblowing site, [laughs] [AUDIENCE: laughters] you all know what my answer is going to be: Well, of course we must protect the right to communicate anonymously to the public. Redress is important. I gave you this case before of Coke saying Pepsi is full of cyanide. In understanding that issue, we need to look at who in the process can redress be from taken from, and what chilling effects are there, if there are not abilities to communicate to the public anonymously.

02:29:57 The jurisprudence comes in the United States out of a political understanding – the juring – the US independence movement; that the pamphleteers had to publish anonymously, because they were publishing underground in response to expire the British. And those pamphlets concerned no doubt contained some elements of hyperbole and rumor as well as truth. And people, in understanding that they were receiving an anonymous product … not a mislabeled product, but an anonymous sort of a communication … understood that, because of the lack of ability to identify the author, that you would have to go on the internal facts, and you would have to treat things suspiciously until a body came forward to the authenticate the information which had a reputation.

02:31:05 So, I don’t think that anonymous communications are really a problem for people’s good reputations. Because if they are anonymous, and there is no person backing them up, people treat the information as not yet proved or… Certain spectrum in there is anonymous publications about the stuff that we do, which (is a completely complicated top to bottom?) but … other people are not concerned, they are not treated with any sort of authority until people investigate them.

02:31:55 I think your question was trying to get out the data protection aspects. That is an issue. And that issue has been dealt with to a degree in the highest .. constitutional court in Germany a few months ago, which found in fact that the European data protection initiative was in fact unconstitutional in relation to the German constitution, and the records obtained so far must be destroyed and in fact were destroyed. Germany’s view was that there could be, in theory, such a directive, but it would have to be strictly limited, and that there must be exemptions for journalists and ministers receiving confessions, and so on. Often anonymity, if you look at let’s say bank transactions, there’s no doubt that anonymity is used to further anti-social behaviour very frequently. But if we’re going to look at what sort of anonymous actions should be regulated, I would much prefer people started with how Europe routs money through the Cayman Islands every day – rather on how it communicates facts on the internet.

02:33:22 LAMBSDORFF You have a quick follow-up?

02:33:22 AUDIENCE [Lance?] I just wanted to clarify that my actual concern is the chilling effect on citizens who go to [?], or go to email their [?] and do so, knowing that for a year its possible for someone to investigate and discover that they were the one that send that email, or that they were the one who connected to that website – now there are technologies like TOR but I make my living [?] it. So, when somebody has to go through extra hoops [?] to try to substantially circumvent these laws, through all legal means, or just live with them, there’s going to some amount of a chilling effect.

02:34:17 ASSANGE It is attacks on communication. Absolutely.

02:34:19 AUDIENCE [Lance?] Yes, and my question is: should we look at the Germany decision and go: “You know, they are right – the data retention law was a bad idea. These protections were in the constitution in the first place, and the rest of Europe, look at that and say: ok, let’s back off and be less strict about logging everything everyone does?” Or should we try to weasel around it so that it fits with the German… so the Germans are gonna adopt it finally. I am obviously of the former camp, that the world hasn’t crumbled because of anonymity on the internet. We’ve had – I only mention the federal (news-?)papers as an example there – as part of Western culture anonymous pamphleeting (within?) British culture for centuries, and it’s only the internet that has given us immense power to communicate over the entire globe and reach billions of people. But it’s also given us immense surveillance power. I believe Holland still has in effect the data retention law, the Netherlands has it. So, if you know that your ISP is recording every time you go and hit WikiLeaks, are you likely to do it? That’s the concern.

02:35:44 ASSANGE Yeah, it’s a concern to me, and I think the best place to look for whether that concern is a real one is China. Because there are number of ways of evading the great firewall of China, that censorship blockade that exists around that entire nation, that blockades its citizens from what is written in the rest of the world. And now, I understand, also what sms’s are sent. We have published a number of those censorship lists including one for Badu, the Chinese version of google that also censors. In fact if you go to Badu switch your language to Chinese and search for wikileaks.org – your connection will drop and you will not be able to search for anything for 20 minutes. In speaking with Chinese citizens about whether they are trying to get around that firewall or not, it in fact became very clear that they self-censor. They’re not, to some degree, so concerned about the firewall, because if you want to, you can get around it. It’s a little bit of effort but you can actually do it. What they are concerned about is the log-in in that all the access attempts [?] to these foreign sites. Alogged [?], and their access attends the proxies or touro? – these other mechanisms to get around the censorship firewall- is combined with a surveillance system. And a surveillance system means if you’re then going for a job somewhere, your brother is going for a job somewhere, somewhere in a Chinese ministry of local bureaucracy, this information may come up and be used against you to prevent better mentoring [?] some bureaucratic fight. So yes, surveillance is a serious problem for stopping people communicating what they really think and feel.

02:37:50 AUDIENCE [Lance?] It’s potentially getting worse, too. There’s a […?] Modi – I am pronouncing that wrong – from Italy (I suppose?) – they’re content providers and search engines. Implement something similar to the data (hedge and log-in?). So, it’s foreseeable that twitter will be required to record alternatives. [?] Wikileaks, once they operate in the EU, could be required to log everyone who’s accessed that site.

02:38:22 ASSANGE We won’t do.

02:38:22 [AUDIENCE: laughters]

02:38:27 LAMBSDORFF Thank you very much. Any other questions on this particular issue? If not, I have a question perhaps also to ask for the panel. – Is there one? Ah, sorry, yes, please! Go ahead.

02:38:36 AUDIENCE: I was wanting to move on to another issue if I may, which was trailed in the first part by Flemming Rose in his video interview. But it’s an area of law which we haven’t touched on so far, which is the area of anti-discrimination law. And the deadening effect that it can have on freedom of speech, particularly the hate speech and the harassment (provisions?) that quite often go with it. We’re now at a stage where we’re seeing coming through in case-law the effects of this invarious [?] northern European jurisdiction, where national laws are in force [false?], and in Julian’s fair island in the Pacific as well. And we have to be aware of it and reflect on it, as you, many will know, there is a proposal currently to carry these sort of principals into law, right across the EU in what’s known as equal treatment directive.

02:39:27 I would like to refer just to a couple of cases, 2 or 3 cases, to show you what’s potentially going to happen, if these sort of laws are enforced elsewhere. And not limit it, as Fleming recommended, just to incitement to violence [?]. One concerns a hotel in Liverpool, in England, where the couple running the hotel were engaged in a conversation with their guest one evening, who was a Muslim and opened up the conversation saying, well, Jesus couldn’t possibly be the son of God, and gave the reasons. They happened to be Christians, explained their particular beliefs, and gave their reasons and thought no more of it. But in fact a police investigation followed. A court case was brought against them on hate speech grounds. As a result of that publicity their takings of the hotel went down by 80%. They eventually won their case, but they’re losing their business.

02:40:20 In Australia, a couple of Christian pastors, who were in fact refugees from prosecution in a Moslem country, made some statements in a church meeting about Islam sometimes having an aggressive face, which ended up with proceedings being taken against them and of being subject to a quite substantial fine. In his summing up one the judges, in his remarks, made the statement to the effect that the mere facts, that a statement is true, is no defense. That’s the sort of problem with other religions, if you like. The cartoonist’s problem. There is also a problem with comedians. And a lot of you will know a of guy called Rowan Atkinson who is well known for his portrayal of ‘Mr. Bean’. He has been actively campaigning in the UK against new laws on hate speech and on homophobia, for these very reasons of the deadening effect of freedom of speech and artistic creativity.

02:41:27 And when I’m mentioning him, I really would want to mention – and it’s been the touchdown briefly – the jurisprudence of a Strassbourg court on freedom of speech, where they say very clearly, freedom of speech has to include freedom to offend. I’m just quoting from particular [?]? here: “Freedom of speech rights in Art. 10 is applicable not only to information or ideas that are a favorably received or regarded as an offensive, or as a matter of indifference. But also to those that offend, shock, or disturb the state, or any other sector of the population. Such are the demands of pluralism, tolerance and broad-mindedness, without which there is no democratic society.” And yet many of these non-discrimination laws that are coming in include provisions against offending particular groups. And give a burden to proof against the person who is making the statements or is doing the actions.

02:42:26 And just lastly, briefly, a […?] ministers of religion – we had a case in the UK with a Church of England bishop, being subject to investigation by the police for remarks he made about sexual morality in Sweden. Many of you will know the case of a protestant pastor, who was taken to court for a sermon he made in church about what the bible had to say about a particular form of sexual conducts, which was altered? in the conviction which was – eventually I am happy to say – overturned on appeal. But these are just a few of many many cases, where non-discrimination laws are having the effect of very seriously chilling the freedom of speech. And while, with Flemming Rose I would say that where there is incitement to violence, yes, we must be tough on that. But beyond that. There must be freedoms to express opinions. Thank you.

02:43:19 LAMBSDORFF Thank you very much. [AUDIENCE: applause.]

02:43:24 JONSDOTTIR Well, I just totally agree with you. And I think that when I was discussing the IMMI proposal both to journalists and to people that care about these things in Iceland and abroad, I was always asked to draw the line. And I answered: it is not my responsibility to draw this line, I do not… I refuse to draw this line. And that is my answer: I refuse to draw this line. We do have a right to offend. We do have a right. You know, once I will start to put into a paper what is suitable and what is not suitable, I will make myself the supreme judge of what is right and what is wrong. And that is not my responsibility. That’s all I have to say about that.

02:44:25 MULLIS I wouldn’t descend for one moment from what both of you have just said. But I guess I was very struck by something the Mr. here said earlier – that although we have a right to offend, we of course also have a right to choose not to offend. And there is a sort of sense in which it seems to me, if we can engage in dialogue those people who do not share our views, in a way by which we do not immediately start by offending, we perhaps are more likely to come to an agreement at the end of the day. Perhaps that’s wishful thinking. But…

02:45:08 SCHAAKE I just wanted to say briefly that I do believe that fighting discrimination is very very important. But it all depends on by which measures. For example let’s say, unequal pay for equal job, that’s discrimination, could be based on gender, which we see very frequently in Europe. Or it’s unequal treatment. Those are objective or measurable standards. And I think the challenge with being offended, feeling offended or offending as such is that it’s so incredibly subjective. Because what is an offense to one person could be a compliment to another. And that’s not even exaggerated. So this is a very murky territory. And I believe it was either Julian or someone else that in the introduction raised the issue that out of fear to be called racist or discriminating, there can already be a hesitant to express. And laws, in this respect, are only the last resort. They’re of course fundamental, because they shape the frame. But I do think as politicians and opinion makers and as citizens, we have a huge responsibility to give space to as open a debate, and to make people capable and resilient to take part in a critical, but open debate. Because the law should really only be the last resort. And until that I think we should create as much space as possible to address differences, senses of humour, pieces of art, pieces of opinion, information, [?] – without having to go to court. But if we do, it needs to be objectively measurable points. And indeed discrimination needs to be fought based on those, but not based on some sort of subjective conception of what words or other expression should be interpreted as.

02:47:03 LAMBSDORFF On this I am not going to comment, because I agree. But Philip Roth’s book in “The Human Stain” is quite instructive. It’s not as strong as a literary work, but I think it’s a very good discussion of this particular topic. There is a question back there.

02:47:20 AUDIENCE I wanted to raise a question that kind of arises out of some of the things that Prof. Mullis had said so far. A lot of the remarks had to do with the law as a sort of upholder of balance, which surprises me, because… As a question of legal philosophy, this is interesting to me. The point of a law is not to insure balance, it’s to insure justice. A question I really have to ask is, in whose interest is it for the media to suppress itself. In whose interest is it for the media to be suppressed at all. My Latin is pretty awful, but there is a rather well-known legal principle whose name translates to ‘Who benefits?’. So I have to ask: is it just when governments and powerful people are able to manipulate the media at the expense of everyone else, ‘who benefits’? Is it just when people are able to claim that criticism is the same as hate speech and therefore suppress any criticism in the public dialogue of their actions, ‘who benefits’? Is it just when whistleblowers are denied their anonymity, ‘who benefits’?

02:48:58 MULLIS Of course you expect me to disagree with any of the things you have just said. And I guess if we get back to the original question, when you posed the question ‘What is justice’? It seems to me in this particular case, we have a very difficult question to answer. Which is on the one hand, we have the rights of individuals to their reputation. And we have on the other hand the right to freedom of expression. And in a sense, achieving justice in that, does require as to achieve justice between these two rights, it seems to me. I don’t see how there’s a problem with that.

02:49:48 AUDIENCE [same young woman] It seems… ok. You’re couching this in terms of the right of one’s reputation vs. the right of freedom of expression. But it seems to me at least, that a lot of the instances we see of suppression of the media have to do with maintaining a reputation which has not been rightfully earned.

02:50:15 MULLIS Then fine, that’s a different issue. We’re talking… When I talk about reputation, I’m talking about reputation that one deserved.

02:50:25 AUDIENCE [that woman] Ok.

02:50:27 MULLIS […] There are undoubtedly people, Julian Assange has mentioned this, in England who have protected reputations they did not deserve. And I would concede, without question, [?] we need to look very seriously at the process we’ve got in place. But it seems to me that the law of defamation is all about protecting – it should be all about protecting – deserved reputation. But of course there is also this other very very powerful interest, very powerful interest, of freedom of expression. And there is a trade-off between the two.

02:51:06 AUDIENCE [that woman] So I think again, this is where it gets back to the ‘Who benefits?’ question. When Julian brought up the Ukrainian journalist who wrote the article critical of a Ukrainian oligarch, the oligarch files a defamation suit, because the oligarch wants to preserve a reputation which is no longer earned, and the law is enabling him to benefit – I think you and I would both agree that he ought not to.

02:51:39 MULLIS No, absolutely. And I think, I come back to… If you look at the substantive law in England, I think it does maintain a proper balance. But – and this is I think where you and I would agree completely – that in terms of the procedure, in terms of the cost regime, no, it is weighted and can be weighted against defendants. Although I have to say, of course, a lot of these defendants are large media companies. And to describe them as sort of impecunious defendants doesn’t [?] entirely. [?] the sums of money at stake are huge.

02:52:24 AUDIENCE [that woman] Well you can run anyone out if you wait long enough, but…

02:52:27 ASSANGE [I just] follow up on the large media companies, because that is true. Although most of those large media companies are going broke. And someone like The Guardian and non-profit organizations, and non-profit trusts. One of the reasons that there are large media companies, is because if you are a small media company, you just cant survive. And if you are an individual you cannot survive. You cannot write serious journalism about powerful figures. It’s just impossible. Your internet host will immediately take down your content, because you did not control it yourself, because you’re not large enough to be an internet service provider yourself. Whereas The Guardian is its own internet service provider and has lawyers to defend itself. So that is something that we had have to do. We had, in order to publish our material, become a multi-national company, ringed by lawyers, using the law of different states for protection. And using the political process for our protection. Now, that is something that we specialized in from the very beginning, so we’re a specialized niche-publisher to do just that. And we spend an enormous amount of resources in doing that. And if we were a for-profit company we would not be competitive with other media companies – if we were wholly a media company – because we’d be spending so many of our resources, our potential profits, on simply defending ourselves and structuring our operation so we can publish freely.

02:54:13 So, initiatives like IMMI are very important to shake up the centralization of media control, the centralization of media ownership which is [?] for other reasons. So anyway, that’s sort of an unintended consequence – well, maybe it is an intended consequence – of access to courts that are expensive – and most court actions are expensive - as it filters out all small publishers. And what we’re really seeing now in the United Kingdom, is that it’s now starting to filter out the big publishers as well. It’s become so adverse.

02:55:02 [noise]

02:55:11 AUDIENCE I don’t know if anyone else already posed this question…

02:55:14 LAMBSDORFF Could you shortly introduce yourself, please?

02:55:15 AUDIENCE I am Victor Varras [?], I am here an MEP in the civil liberties committee. I don’t know if anyone has posed the question of incitements to violence and genocide, for instance. Which is really a difficult question, a dilemma for many of us. I think that many people would agree that for instance the radio that does incite those people to commit genocide In Ruanda, would be as guilty of genocide, or at least would be also guilty of genocide, as well as the people who were holding the machetes. There is a clear league between creating an environment and in making hateful speech and telling people to go ahead and kill the other tribe or ethnic group and [?] do it. And since many people would agree that they are also guilty, many people will agree that they should be trialed [?] for it, post facto. Then the question arises, if we should have provisions on law against incitements to violence and incitements to genocide pre facto – because for genocide that’s the kind of thing that we would like to act before it happens. So it creates a very kind of difficult dilemma to answer from the libertarian point of view on freedom of speech which I myself share with many of us in this room.

02:56:38 The second art will be just a common complaint on part of the parliament. I am jealous of the Icelandic parliament for having the possibility for having such an initiative. And we might as well – if we are speaking about freedom of expression and censorship – remember everybody in the room, that the European parliament lives under what we could call a political version of censorship since we are elected by 500 million inhabitants of this continent. And we do not have legislative initiative. We could – if we have to do sth like you in Iceland and that I congratulate you for. So, when the next change of treaty happens – and I’m sure that […?] and others here have many good ideas how to come around this and still protect freedom of speech at the European Union level. But of course that we should have a legislative initiative at the very list for everything that is cross-border or trans-european issues as we have here in the UK libel law. So in the next [?] of treaties, which will be done sooner than most people think, I hope the citizens will push for this, because it will be an important tool in order to protect freedom of expression in Europe.

02:58:05 LAMBSDORFF Thank you. On incitement to violence, I sense there was a large degree of agreement on the panel actually.

02:58:17 ASSANGE You raised this interesting issue about Ruanda and incitement and violence in Ruanda. Now, I think it’s interesting that you raised it. It’s not so interesting in practice. I find it interesting that we are talking about freedom of speech and you’re raising a real extra-ordinary outlier in this case. In fact let’s imagine, had there been a law to prevent incitement to genocide – well, let’s look the other incitement to genocide that occurred in 2003 in the United States by FOX News. Now, can we imagine that a law, if it had been in existence in the United States, preventing incitement to genocide, would have stopped that war? Would have stopped FOX News broadcasting in the way that it did? And the other publications, including the BBC? Championing that war? Well, of course not. No, genocides happen because the powerful group in the state wants a genocide to happen for domestic reasons to centralize its power. And so, no national law is going to be of any assistance of whatsoever in that case, but presumably will be used by the majority who controls the cohesive force – that is the majority who’s able to carry out punishments and [?] the law – will be used against minorities. But you will never have a genocide that is the minorities that is pushing a genocide, because the majority protects itself. So I think such a law would be very dangerous.

03:00:08 Now, if you want to talk about a law against genocides at a pan-european level, trying to stop genocides within European countries, that’s perhaps a little it more interesting. But then you bring into, how would you carry out such a law, if the majority of people in a state and the majority of power in a state was intent on doing sth, how would you deal with that? [Bureaucracy? cannot know the real answer to that.] It depends on what the political will is within European nation states on the day. So that’s the real answer, the political will.

03:00:51 SCHAAKE I would also like to add something, because I think it is one of those far borders of freedom of expression and it is actually up to a judge, I think, to decide on a case-by-case bases. Because it will often not be one person who stands up and calls for genocide, but there is usually an apparatus in place of communications, of incitement. That’s not just an individual saying something, but it’s a whole mechanism that touches upon a whole number of other issues of indoctrination, influencing large numbers of people. At least as important is to make people a resilient society where people don’t blindly follow any kind of incitement to do whatever. Cause I think, that’s the real risk. You know, how come, or how is it possible that people even feel interested in blindly following – or not blindly but at least following – such extreme calls for violence? I think that is at least as important. And also the slippery slope leading up to that. But when it comes to prohibiting any kind of speech – I often think of the label that exists in the United States on records, on CDs – when they were still more in fashion than they are today with online music – where it said ‘Parental Guidance advised. Explicit language on CD’. I don’t think there could have been a better marketing tool for CDs, because how cool is it to have, you know, vulgar language on your CD? So I think sometimes banning something actually makes it much bigger than it would be if it would have just found its proportionate place in a resilient society in an open debate. So I just wanted to add that.

03:02:48 LAMBSDORFF Can I just add something on the genocide dimension. I believe we don’t need a pan-european regulation against genocide, because we have it in a form of a statute of the international criminal court. I mean it’s very clear, it’s one of the crimes that is being banned. There is a convention in the United Nations concerning genocide. I happen to disagree also on FOX News and the BBC here. FOX News was certainly unpleasant, but the Iraq war, whatever you may think about, it was not genocidal. And the BBC actually at that time had the nickname ‘the Bagdad Broadcasting Cooperation’ because they were perceived to be broadcasting the Iraqi perspective. Anyway – I believe that incitement to violence is something on which there is consensus in terms of that it should be outlawed. It’s very difficult, even in the United States. I surfed in my previous life at the German Embassy in Washington D.C. and I was supposed to go after websites in the USA that denied the holocaust. And of course, I mean you can imagine how enthusiastic my American [?] allocators were, when I came to them and told them, well actually we don’t like that, could you take it down. And they said, well, sorry, no. So we had to look for incitement to violence as a kind of way around, which is extremely hard to define. There is some legal definition on sharing knowledge and actually conspiring to commit violence. But conspiracy, to commit such an act, is usually not found on publicly accessible websites. So I had a bit of a difficult task there, you can imagine, trying to achieve anything there. But when it becomes specific, I think it should be – and that is your question also – it should be ex ante, of course, that action is taken, and I think that is an issue for our authorities to really deal with this upfront. I mean this is… You mentioned Radio Milcoline from Ruanda, we’ve had something in Bosnia, much closer to home not long ago, which the Dutch are sadly familiar with, of course. It’s something that we should all be out on the watch. But I think, Machietje’s point about resilient societies, that’s really key[?].

03:05:01 SCHAAKE Our colleague Christian Engstroem has been wishing to ask a question.

03:05:10 JONSDOTTIR Just because you were saying that you and we – Iceland for being small and being able this sort of proposal — The way I saw this passing of this proposal was not only a victory, in a sense, for creating a debate and creating, hopefully, having all the laws passed the way asked the government to pass them. But it was also an incredible victory for democracy, in a sense that it has never ever happened in the Icelandic parliament that a proposal or bill by a parliamentarian was such an incredibly – what do you call it – decision making or defining, where we’re heading into the future, has been passed. I mean there was one party that had been in opposition or ten years, that only have one minority bill passed. For me – I started to look and had a big debate about who controls and who makes laws? It is certainly not us, the legislators in the parliament. It is some other entities, which are the ministries. And often it is not even the ministers that define the little, the small texts in the legislations. And often laws are passed that nobody has any idea about what they are voting for. So I think it is really time for the legislators, not just in Iceland I would say. I hope that they use IMMI as an example for other parliamentarians from other parties to bring more power to the parliament itself. And to take away the power from those who should have to be tasked to do the stuff we asked them to do. Because we are indeed representing the people. It’s not some lawyers in ministries that should be taking the course for nations. We should reverse it again. I don’t like that trend at all. I had no idea that it was so bad until I stumbled into parliament one year ago. So I encourage all MPs or MEPs to use IMMI, as an example, on how the parliaments and parliamentarians should have much more weight in decision making and defining what course we are heading into.

03:07:40 AUDIENCE I’m Christian Engstroem. I’m a member of the European parliament for the Swedish pirate party. I sit in the green group here. Question for Mrs. Jonsdottir – I think you partially answered it – what happens next? I mean this law was passed a couple of weeks ago. Do you see anything more happening in Iceland? What’s next?

03:08:08 JONSDOTTIR Alright, just to clarify some misunderstanding: This was actually passed at 3 o’clock in the morning of the 16th this month [July 2010]. The law has not been written, because we had a long debate and decision making on should we make a bill, or propose to task the government to do this? And we decided instead of making a bill – because we would have had to make many bills, because we were asking four ministries or tending [?] them to change laws, about thirteen laws – so we were advised from the lawyers on the committee level of the parliament that it would be more efficient, and more likely to push it through, if we would do this as a proposal. And then we asked the minister of culture to be supervisory and looking after that the other ministries also do what they have been tasked to do. The beautiful thing about all of this is that – certainly it had wind in its sails the entire time – like I said earlier, nobody really believed that this could actually ever pass – I mean usually they kill parliamentary proposals and connect these and go into long [coma?] and then maybe 20 years later somebody discovers it and tries to push it through again. So from my discussions with the minister of culture, it is all my understanding that the (seal?) is already on it, and the timeframe would be somewhat between a year and a year and a half for all the laws to have passed. This is not gonna happen in one day. So we have to celebrate each and every step. And also keep our eyes open that they are not changing what we have tasked them to do in making it softer. Because we want to have the best possible laws. For each and every section of this proposal. Thank you.

03:10:12 SCHAAKE Are there any other questions? Because this might just be the opportunity. – While you’re considering any other questions, let me just say the following: we’ve had a number of people asking through Twitter whether we could provide a video of this whole event – we will. The ALDE group will. We will do so in the course of this week or next week and we cannot be quicker – but if anyone wishes to leak another version, please do. We do want to welcome you to a reception outside to continue talking in a more informal manner. So I’m just gonna ask again, if there is another question? Yes, in the back, go ahead.

03:10:58 AUDIENCE I just wanted to make one correction regarding FOX News and incitement of genocide. [May not have been?] FOX News itself, but I believe if you review Ann Coulthard’s quotes, there will be things that could be argued to be incitement to genocide.

03:11:14 LAMBSDORFF Ann Coulthard?

03:11:15 AUDIENCE [same male voice] A prominent FOX News commentator. That’s the woman I’m talking about. The commentators on FOX News have said things which, at least under European understanding of incitement to violence, would qualify. So, I don’t know if you can blame FOX News for what their commentators say, but… [?]

03:11:47 LAMBSDORFF You […?] it very quickly – make no mistake about it – I don’t agree with what was broadcasted on FOX News in 2003. And I think, as you mentioned Ann Coulthard - I have a book in my bookshelf that says, of which is the title “How to talk to a Liberal, if you must?” So you’ve just experienced that [laughs] for a couple of hours…

03:12:08 AUDIENCE [same male voice] She at one point, I believe, if I remember correctly, called for force to conversion to Christianity – or death.

03:12:17 AUDIENCE [other male voice] I think her words were: “Bomb the country until it’s a parking lot” or something.

03:12:22 AUDIENCE [first male voice] “Bomb the country until it’s a parking lot” – is that? – If that’s not incitement to genocide, what is?

03:12:27 AUDIENCE [other male voice] Of ocurse, but Julian is right in the answer, where only grosse incitements to genocide would be spotted by a judge. And more subtle kinds of incitement to genocide will be able to pass, because you cannot pinpoint where it really starts. But there is still a point that extreme and grosse incitement to genocide should be prohibited, and then you have a point where freedom of expression is not absolute. And you have to make all the arguments for freedom of expression in all other fields much stronger, because you’ve already admitted that one.

03:13:08 JULIAN ASSANGE To further a comment that was made here about resilient societies – but I think that needs to be unpacked a bit what a resilient society is, so what, I believe it was, in [?] is, that resilient sphere of ideas – when you have bad speech including the way ‘you should all go out and kill another group’, so that speech can be counteracted and shown to be dangerous or false or misleading. If there is a healthy media sector and people can communicate freely. You know it is actually interesting that Sweden and the United States for the past 200 years or in Australia have not suffered Totalitarianism. Now in the case of the United States, and perhaps of Australia as well, we can talk about the geographic diversity perhaps playing a role. But perhaps also it is this climate of some degree of free speech in those countries that has prevented them from becoming dictatorships. The Swedish situation is a little more interesting because of the involvement of the Royalty over time. But I mean, the Swedish freedom of information act is now over 200 years old and a really quite progressive idea. And [?] legislation that has been a country which has managed to preserve itself against the grosser forms of dictatorship for a long time. So we only see genocides when everyone in a country is being sort of swept up into the same directions that the power groups in the country have. And if there is a healthy vibrant opportunity to communicate the opinions of minorities into the majority, then were less likely to see that and that is part of what being a resilient society is all about.

03:15:23 LAMBSDORFF Thank you, there is one question over here.

03:15:25 AUDIENCE Well, speaking of Sweden – I’m from Sweden and advisor to the European group […?] - this is getting late now… I just wanted to connect to first comments or questions by Joe McNamee from EDREAN [?] and Jérémie Zimmerman from La Quadrature, regarding ACTA. We see in that proposal clearly that liability of intermediaries, ISPs, are increased. So new liabilities, new forms of liabilities, created by criminal language, inciting and abetting corporate infringement for example, and also weakening of the current protection from liability that ISPs have… now we have not talked that much about the infrastructure layer here. But actually I think WikiLeaks is on the internet – and the great firewall of China has been mentioned, encryption has been mentioned… Maybe this is not a question but I would like to draw attention to that liability on intermediaries can profoundly change the circumstances where free speech is happening. And I think the European Parliament resolution on ACTA mentions that, too, that there should be impact assessments on ACTA also, when it comes to consequences on this increased liability on free speech. Maybe that’s more a question or a comment that the MEPs in the panel could comment on. Particularly Mr. Lambsdorff who mentioned the Charta where it said to import and receive information without the interference of a public authority, that’s all fine, but when that interference could be made by a private party, if… since ISPs are private companies, can their liability be extended, so that we can see maybe even defamation cases be brought into a filtering regime? As we already see that copyright is sometimes used to stifle freedom of speech and is used to repress opinions. Thanks.

03:18:01 SCHAAKE Thank you for the comments. I think your comments need to be addressed to many people in this parliament but not necessarily our group. I wanna say sth funny which is, you know, also listen to our expressions freely expressed. Because we’ve really addressed this issue actively, we’re engaging it, we share your concerns. So I could talk about this for a very long time, but I don’t know if this is necessary. Now we have one other person who wants to ask a question that has to be the last question because I think we could talk for a long time, but let’s do so outside. But yes ACTA has been a great concern for us. Who is responsible for cutting off flows of information or can be made responsible for cutting of flows of information? Where does it leave the right to access to information? I’m with a political party but I’m speaking on behalf of the Dutch political party I belong to, called D66, which has said that access to information in the internet is a fundamental right. So I mean that sort of shows you where we come from. So I think that is a discussion that we need to have in a vigorous manner, where again information needs to be more broadly shared also by people in the European Parliament. Because if fake medicine and batteries that can explode or that can jeopardize our security or safety, are put in one pile with downloading, then we’re not having the right kind of discussion in my opinion. And then within that avenue of a discussion there are all kinds of remarks be made, but I do think that there would be a lot to say to change the entire scope and perspective and outline of the whole discussion. So that we are actually talking about the right kind of problems and suitable solutions. So if – sorry … Julian? Yes, go ahead…

03:19:56 ASSANGE So I would like to ground this argument a bit by an example that I have dealt with, too. The first is that ACTA first came to public awareness, because we leaked a copy of the draft bill. So once again, I hearken back to that all rights and democratic debate comes out of the ability to communicate knowledge, and that’s an example with ACTA itself. That it was someone communicating knowledge against strictures in the EU to us that then allowed that debate to happen. In relation to attacks on intermediaries, that is a very serious issue. The internet does not give anyone freedom of speech. The internet makes publishing cheap. And that allows more publishers to exist on the internet. Have a freedom of speech, and freedom of communication, is sth that people bring to the internet through their behaviour.

03:21:00 So, we dealt with a case in the Turks and Caicos Islands, which is a tourism tax haven in the Carribean, with about 30.000 people. And the premier was alleged to be selling off crown land to Turkish and other multi-millionaire property developers for 1 cent on a Dollar following bribes, including a 500.000 Dollar cash payment to him, and multi-million Dollar free loans to other members of cabinet. A investigation was then set up, campaigned for and pushed for politically by a journal called the Turks and Caicos Islands journal that published on the Internet, very small journal, non profit, and also including other groups. Eventually that was brought to the attention of the FCO, the Foreign Commonwealth Office in the UK who has a defense and constitutional protection relationship with the Turks and Caicos Islands – legally it’s technically a British overseas territory, it’s internally independent, has its own parliament, but has a defense relationship like Bermuda. A report was then produced, legal action was taken by the property developers to suppress the most important contents of that report. It was done so, it was injuncted, a redacted version was released; we published the unredacted version. And eventually uniting with others managed to defeat that injunction.

03:22:34 But the journal concerned – that little publishing journal, the best use case of the internet, little group of investigative journalists and civil society activists, publishing a Turks and Caicos Islands journal – they were hounded from one end of the earth to the other by attacks on intermediaries. So they were hounded out of Turks and Caicos Islands and they went to India to publish from servers in India. Correspondent lawyers from [Schillings??] were hired in the UK who hounded them out of that internet service provider through legal threats, which meant that they were no longer profitable client to the internet service provider; then they went to Malaysia. Same thing happened in Malaysia, then they went to Japan. From Japan they went to the United States. The United States Internet Service Provider held up a bit longer, but they were using gmail for their editor’s address – and this harkens back to anonymity that while most the writers for that journal were named, the editor was unnamed, presumably for legal reasons, but their email-address at google’s gmail was named – a suit was then [stockpiled?] in California, based on defamation, [that] was the allegation. However, the suit was just used to then launch a subpoena on google to get hold of the editor’s correspondents. And that’s [how] we became involved legally and managed to defeat that. But that goes on. So that’s what happens when you’re a little publisher. A best use case of the internet, you try and write about sth serious – you’re hounded from one end of the earth to the other, [?] attacks on intermediaries. The first four cases attacks on the server intermediaries that are helping publish, and the last attack on google, an intermediary that provides email access. So a serious business.

03:24:30 AUDIENCE Thank you. I don’t have a question, it’s just the same suggestion I made earlier in the panel I feel strongly about. I think the European parliament might do good if they created [a] debate where examples are shown and examples are exposed of people of people who do express themselves, but in a fearless manner. They do express themselves on sensitive issues but are not afraid of society or other retaliation attacks. I think I’d also like to emphasize what Marietje said on resilience – there’s a lot of resilience out there. There’s also a call for resilience. Freedom of speech is not just protected by the law, or by writers who utilize the freedom of speech, but a lot of people in society are resilient. Just to give an example: in Holland I put up a book club for Muslim women to get them reading and writing, and they read just normal literature. Not literature which is provocative, but just normal literature, which opens their minds and which makes them resilient. And they communicate that resilience back to their communities. Now these women say that they are never hurt, they just… whenever some Muslim feels provoked, is angered, that Muslim is hurt, but they are never hurt. But they are never hurt. So I think we should expose also these elements of resilience in society, and examples in society where people have been able to express without fear. Thank you.

03:26:09 SCHAAKE I am sorry about last questions, but I think we should really end. The official part…

03:26:15 AUDIENCE? Here is still one.

03:26:16 SCHAAKE Oh, ok. Well, then.

03:26:18 JONSDOTTIR The answer might be long.

03:26:22 AUDIENCE I’m [Pete Blaine Warner?] UK freelance journalist. This is for Prof. Mullis. You seem determined to deny that libel tourism is a problem in London. Can you provide figures of the cases that would qualify as [for end up at?] the UK [courts?] . Or were they injuncted?

03:26:45 MULLIS Can I provide figures, the accurate figures? No. Secondly, you will not get an injunction to prevent a threatened libel. Because it’s impossible. No court will issue one…

03:26:59 AUDIENCE Thank you.

03:27:00 MULLIS …Preposy [?], yes.

03:27:02 SCHAAKE So, very quickly I would once again like to thank all the speakers for their courage to be here, to be confronted with difficult questions, to share their personal stories – and to participate in a long, active, but for us very enlightening and informative and inspiring debate too look for best practices, create a resilience, but also a legal framework which covers and makes Europe, which is my ambition, a safe haven for the free word and the press also online. So, once again thank you and please be invited outside for a reception to have informal talks. Thanks.