CyberLaw Blog

Archive for February 16th, 2010

Worth reading this one….

Terrorism Act 2006 section 3 Internet Censorship powers have *never* been invoked: “

Back in October 2005 this Spy Blog article Terrorism Bill 2005 – part 2 of our comments asked:

Why is there any need for regulation in this area at all ? The existing Acceptable Use Policies of all UK website operators, for example, already means that there are no public ‘terrorist websites’ operating from servers within the United Kingdom.

If the intention is to somehow stop impressionable people from falling into the clutches of terrorist recruiters, then this is already as effective as it will ever be.

If people are already moving within extremist circles, then private websites, especially those hosted abroad, are beyond the competence and legal jurisdiction of the Home Office or the UK Police.

Any attempts to ‘disrupt’ these systems, such as those hosted in, say China, could easily be interpreted as ‘cyber war’, which would damage the UK economy far more than the slight, temporary effect that ‘disruption’ of such sites would have on the terrorists. It would also remove the opportunity for covert surveillance of such ‘honeypots’ for intelligence gathering purposes.

It now turns out that this inept Labour Government’s scaremongering and controversial Terrorism Act 2006 section 3 Application of ss. 1 and 2 to internet activity etc.. which relates to section 1 ‘Encouragement of terrorism’ and / or section 2. ‘Dissemination of terrorist publications’, have never actually been invoked.

HL Deb, 10 February 2010, c168W

Terrorism: Internet
House of Lords
Written answers and statements, 10 February 2010

Baroness Warsi (Shadow Minister (Community Cohesion and Social Action), Communities and Local Government; Conservative)

To ask Her Majesty’s Government how many times the police have used powers under section 3 of the Terrorism Act 2006 to seek the removal or modification of unlawful terrorist-related material from the internet in each of the last six months.

Lord West of Spithead (Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office; Labour)

The Home Office and ACPO (TAM) have set up a new unit, the Counter Terrorism Internet Referral Unit (CTIRU), which was launched in a pilot capacity on 1 February 2010. The CTIRU is responsible for the co-ordination and execution of voluntary and Section 3 take-down notices. Further details on the CTIRU, including statistics regarding take-downs, will be available in due course.

To date, the preferred route for removing potentially unlawful terrorist content is through informal contact between the police and the internet service provider. This approach has proved effective. As a result, it has not been necessary to use the formal powers given under the Terrorism Act 2006 to seek the removal or modification of unlawful terrorist-related material from the internet.

Note the creation of Yet Another Unaccountable Bureaucratic Quango, the Counter Terrorism Internet Referral Unit (CTIRU)

The legal powers under the Terrorism Act 2006, were, typically, and totally unnecessarily, made available to any Police Constable, no matter how ill trained, or ignorant of the internet or of free speech or religious freedom issues.

Why did the original legislation not restrict these legal power only to members of a properly trained unit, dedicated full time to the task, as, hopefully the CTIRU now is ?

Before the Terrorism Act 2006, UK based internet and telecommunications companies always cooperated voluntarily with the Police, and they appear to have done so since.

Before the Terrorism Act 2006, foreign based internet companies had no obligation to cooperate and neither do they now.

What was the point of it all ?

Why not simply repeal this Act, with no loss in effectiveness whatsoever against real terrorists, and thereby nullifying somewhat, the propaganda victory which these repressive powers handed to the terrorists ?

“

(Via Spy Blog – SpyBlog.org.uk.)

Aid Urged for Groups Fighting Internet Censors: “Five United States senators want the government to move ahead with plans to provide $45 million to help people in other countries evade Web restrictions.”

(Via NYT > Freedom of Speech and Expression.)

Right to Free Speech Collides With Fight Against Terror: “The Supreme Court will hear a challenge to a ban on providing ‘material support’ to terrorist groups in a test of the constitutionality of a provision of the USA Patriot Act.”

(Via NYT > Freedom of Speech and Expression.)

Student Suspended for Facebook Page Can Sue: “Katherine Evans did not like her English teacher. She created a Facebook page to say so. Now the matter is in court.”

(Via NYT > Freedom of Speech and Expression.)

129

16.02.2010

Press release issued by the Registrar

Chamber judgment1

Akdas v. Turkey (no 41056/04)

SEIZURE OF THE NOVEL Les ONZE MILLE verges BY Guillaume Apollinaire and conviction of the publisher hindered public access to a work belonging to the european literary heritage

Unanimously:

Violation of Article 10 (freedom of expression)

of the European Convention on Human Rights

Principal facts

The applicant, Mr Rahmi Akdaş, was born in 1958 and lives in Bandırma. He is a publisher and in 1999 published the Turkish translation of the erotic novel Les onze mille verges by the French writer Guillaume Apollinaire (“The Eleven Thousand Rods” – On Bir Bin Kırbaç in Turkish), which contains graphic descriptions of scenes of sexual intercourse, with various practices such as sadomasochism or vampirism.

Mr Akdaş was convicted under the Criminal Code for publishing obscene or immoral material liable to arouse and exploit sexual desire among the population. The applicant argued that the book was a work of fiction, using literary techniques such as exaggeration or metaphor, and that the postface to the edition in question was written by specialists in literary analysis. He added that the book did not contain any violent overtones and that the humorous and exaggerated nature of the text was more likely to extinguish sexual desire.

The seizure and destruction of all copies of the book was ordered and the applicant was given a “heavy” fine – a fine that may be converted into days of imprisonment – of 684,000,000 Turkish liras (equivalent to approximately 1,100 euros). In a final judgment of 11 March 2004 the Court of Cassation quashed the part of the judgment concerning the order to destroy copies of the book, in view of a 2003 legislative amendment. It upheld the remainder of the judgment.

Mr Akdaş paid the fine in full in November 2004.

Complaints, procedure and composition of the Court

Relying on Article 10, the applicant complained about his conviction as publisher of the novel Les onze mille verges by Guillaume Apollinaire and about the seizure of the book.

The application was lodged with the European Court of Human Rights on 2 September 2004.

Judgment was given by a Chamber of seven judges, composed as follows:

Françoise Tulkens (Belgium), President,
Ireneu Cabral Barreto (Portugal),
Vladimiro Zagrebelsky (Italy),
Danutė Jočienė (Lithuania),
Dragoljub Popović (Serbia),
András Sajó (Hungary),
Işıl Karakaş (Turkey), Judges,

and also Françoise Elens-Passos, Deputy Section Registrar.

Decision of the Court

It was not disputed that there had been an interference, that the interference had been prescribed by law and that it had pursued a legitimate aim, namely the protection of morals. The Court further reiterated that those who promoted artistic works also had “duties and responsibilities”, the scope of which depended on the situation and the means used.

The requirements of morals varied from time to time and from place to place, even within the same State. The national authorities were therefore in a better position than the international judge to give an opinion on the exact content of those requirements, as well as on the “necessity” of a “restriction” intended to satisfy them.

Nevertheless, the Court had regard in the present case to the fact that more then a century had elapsed since the book had first been published in France (in 1907), to its publication in various languages in a large number of countries and to the recognition it had gained through publication in the prestigious “La Pléiade” series. Acknowledgment of the cultural, historical and religious particularities of the Council of Europe’s member States could not go so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging to the European literary heritage.

Accordingly, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need. In addition, the heavy fine imposed and the seizure of copies of the book had not been proportionate to the legitimate aim pursued and had thus not been necessary in a democratic society, within the meaning of Article 10. There had therefore been a violation of that provision.

The Court considered that it was not necessary to examine the applicant’s other complaints.

Since the applicant did not submit a claim for just satisfaction within the time allowed, there was no need to make any award on that account.

***

The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website (http://www.echr.coe.int).

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

1 Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.