Friday, 14 February 2014

Free Speech in Jersey

While States members are protected by Privilege, they may not mention by name, anyone who is not a States member, or if they do so, it is ordered to be expunged from Hansard - this has also been done retrospectively. So you would have to refer to the person by title, i.e., the Chief Officer at Education, and not Mario Lundy (taking a case in point which occurred).

It was permitted in one debate (because it would have been daft beyond reason), which was citing previous Home Affairs Ministers, and as there were two in a short period - Wendy Kinnard, Andrew Lewis, common sense actually just prevailed (although the question was raised!)

For a jurisdiction which often looks to the "Mother Parliament" in Westminster, this seems an anomaly. The UK Hansard has never had this kind of rule, and in fact, various spies have been "outed" in parliament precisely because they could be mentioned, and put into the written records - Sir Anthony Blunt being a case in point. Once that is done, the press can report on it. No one would ever dare to suggest that the UK's Hansard should be tampered with.

Free speech in the States is muzzled in this way, but with no good precedent from elsewhere. It seems strange that rules regarding the need for members to wear jackets is strictly adhered to, on the grounds that it follows the UK, and yet the far more important freedoms are not.

Part of this change goes back to Stuart Syvret, who had a habit of naming individuals in questions, simply to get them into the record. What should have been a matter for complaints to PPC and action taken if the questions were deemed arbitrary and malicious (which some thought they were), became instead enshrined in legislation to ensure that it could not happen.

There really was no other reason for this, other than to silence Stuart Syvret, otherwise the UK would long have set an antecedent. The reason given was that the individuals named did not have the right to reply, or to counter the use of Parliamentary privilege, but if the same had been the case, Kim Philby and Anthony Blunt would have escaped the public gaze, and those questioning their part in spying might well have suffered prosecution. Instead, Anthony Blunt was rightly stripped of his Knighthood.

Cases have come up, for instance from Geoffrey Dickens, where an individual has been named, but the Attorney General afterwards confirmed in a press release that there was not a case for prosecution by the DPP. So there are avenues open to counter accusations made if they seem groundless.

What is even worse with the Jersey law, was that the record was expunged retrospectively from Hansard, which set a precedent of effectively being able to rewrite history. While it is true that the office of the individual replaced the name, it nevertheless constitutes censorship of what was said in the States, something which would not be tolerated in the UK. As someone who values historical records, this is a matter of concern. Future historians will not, as far as I am aware, have the original documents restored.

In fact, while the Data Protection Law became effectively an alternative (and States funded) means of avoiding a defamation case, but achieving the same end, the four individuals who brought the order for Stuart Syvret to remove the names were mentioned by John Hemmings MP, and are now part of the UK's Hansard transcripts, viewable online.

The increasing adoption of Data Protection Law for use in which should be a defamation case is a matter I have dealt with in detail in another blog; needless to say, it is becoming more common in the UK as lawyers seize upon it as a cheaper alternative.

The email received by Stuart Syvret from Google suggests that the Court Order to remove information on his blog because it was defamatory.

"Blogger has been notified that content in your blog: contains allegedly defamatory content that may violate the rights of others and the laws of their country and violates the terms of a court order."

And yet the Court order was to remove information on Data Protection grounds on the basis that it was illegal processing of "sensitive personal data", and the law which allows a notice to be issued "to stop processing that causes distress or damage". Did Google simply issue a standard "round robin" email, or were they misled as to the nature of the offence?

For the Court Order was NOT in regard to defamation - but to a breach of Data Protection (Jersey) Law. The Court Order was for Stuart Syvret to remove names and the allegations he has made about those he named because they constituted unlawful processing, not defamation. Of those indidvuals, the names are now in the public domain (Hansard) and defamation has not only not been proved but no civil action has been taken.

Google themselves have published a report of requests to remove material, pictures, videos or blogs.

"Like other technology and communications companies, Google regularly receives requests from government agencies and courts around the world to remove content from our services or to review such content to determine if it should be removed for inconsistency with a product's community policies.."

"Governments ask companies to remove or review content for many different reasons. For example, some content removals are requested due to allegations of defamation, while others are due to allegations that the content violates local laws prohibiting hate speech or adult content. Laws surrounding these issues vary by country, and the requests reflect the legal context of a given jurisdiction.."

"There are many reasons we may not have removed content in response to a request. Some requests may not be specific enough for us to know what the government wanted us to remove (for example, no URL is listed in the request), and others involve allegations of defamation through informal letters from government agencies, rather than court orders. We generally rely on courts to decide if a statement is defamatory according to local law."

In this case, they are clearly relying on the contents of a letter, which may or may not be accurate in what it claims, but may well muddy the waters by mention a Court case ordering the removal of data, and that the data was seen as defamatory; it would be interesting to know if they state the Court decision was based on Data Protection rather than libel.

And the number of requests in general to Google has been increasing rapidly:

"Washington (AFP) - Google said Thursday it saw a big jump in early 2013 in the number of requests from governments around the world to remove online content, in many cases for political reasons. Officials "often cite defamation, privacy and even copyright laws in attempts to remove political speech from our services." Overall, Google said it removed content in 36 percent of cases, including 54 percent in response to court orders. In an update to its "transparency report" for the first half of the year, Google said it saw a 68 percent jump in the number of requests from the prior six-month period, led by big increases from Turkey and Russia."

So to put the suspension of the blog in context, it is not something singular to Jersey, although the suspension of Stuart Syvret's blog has to be a first for Jersey Bloggers.

Another blog, the "Farce Blog" had contravened the Data Protection Law by publishing sensitive personal data about Deputy Carolyn Labey, but this was removed voluntarily, and was clearly a breach of Data Protection - there was no case for defamation, only publication of a leaked document.

So what happens now? If particular postings need to be redacted or removed, Stuart Syvret can still save the substantial part of his blog. At present, the message is a holding one, which I believe is in force for a period of around 60 days:

"This blog is under review due to possible Blogger Terms of Service violations and is open to authors only"

Rather than the more final message when a blog is gone for good:

"Sorry, the blog at has been removed. This address is not available for new blogs."

So what do you do when it is under review. You can either sit back and complain loudly, or you can be proactive. These are the steps needed to proceed:

"When requesting review, blog owners need to cooperate with the helpers in Blogger Help Forums.  A successfully conducted abuse review is reasonably simple."

1 Blog Owner: "My blog was spuriously locked.  What do I do to get it restored?".
2 Helper: (Guidelines quoted) + "Please read the Guidelines".
3 Blog Owner: "I have read the Guidelines, and my blog is not abusive."
4 (Helper escalates blog review to Blogger Support).
5 Helper: "Your review request has been submitted.".
6 (Helper receives successful review escalation from Blogger Support, and verifies blog restore).
7 Helper: "Your blog has been restored.".

In Stuart Syvret's case, step (3) would involve removing just the offending postings, and submitting the blog for review again, perhaps with a copy of the Court case. That is why the notification of "under review" tells you that the blog "is only open to authors only". It can be edited and reviewed again. Once that is done, the remainder of the blog could be restored to active use.

Freedom of speech is important, and the remedy for abuse should be to take civil action for defamation. However, if the accuser has no means of support, and the accused has limited financial resources, this may not be viable. In that case, the best option is probably to go online, and put your case there. Then when the search engines pick up the other blog, the counter-blog will also be visible, putting the other side of the story.

There's an interesting study of defamation and the internet at:

And what is especially interesting is that it does not mention using Data Protection Laws instead of Defamation laws. While not unique to Jersey, the use of them locally has highlighted concerns about whether this is, in fact, taking the law outside of the realm that it was intended to cover, when there was not the explosion in social media that there is now. Case law has been setting precedents, both in Jersey and the UK, for this kind of action, but it does seem rather like a tax loophole, co-opting and abusing legislation for purposes for which it was not intended.

The judgement in the Court Case against Mr Syvret had an ominous paragraph:

"I understand that in the present case the Data Protection Commissioner has indicated that she considers it to be likely that similar cases to the present may arise in future and that guidance from the Court as to the approach to be adopted would be welcome."

If we see any further cases against other well known bloggers (such as Rico Sorda or Mike Dun or Neil MacMurray, or even myself), we will have cause to be uneasy about the way in which freedom of speech is being eroded in Jersey.


I hear on the grapevine that an attempt is being made by some Jersey Churchgoers to revise history by having the Korris report removed from the Winchester Diocese website, and presumably hidden away under a bushel.

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