Freedom of expression Briefing

1. Freedom of expressionBriefing 4thOctober 2013 Hugh Tuckfield BEc LLB MHRDVisiting Prof. Kathmandu School of Law hst.ktm@gmail.com

2. My story • Australia…1838-1850 • Indigenous Australians • True History vs. Revised History • Education systems vs. Political Interests

3. Today… • Freedom of expression… • Limitations • Human Rights perspective • Two cases to look at…Pussy Riot & Nabeel Rajab • Norms • What are they? • Norm entrepreneurs • Norm cascades • Censorship in Australia • Classification • Definitions • Case Studies

4. Pussy Riot band members convicted and sentenced to 2 years jail

5. Human Rights Leader Jailed • Prominent Bahraini human rights activist Nabeel Rajab has been jailed for three years for taking part in "illegal gatherings".New York Times Wednesday 16th August 2012BBC News Wednesday 16th August 2012

6. Who Is Nabeel Rajab? • President of the Bahrain Human Rights Center • Member of the Advisory Committee for Human Rights Watch Middle East Division • Deputy Secretary General for the International Federation for Human Rights • President of the Gulf Center for Human Rights

7. Who Is Nabeel Rajab? • In the 2011-2012 Bahrain uprising Nabeel led many protests and openly criticized the government • …“unofficial leader of the 14th February movement” - the Pearl Uprising • On 9th July 2012 – sentenced to 3 months detention for a Tweet found by the court to have “insulted Bahrainis” - he criticized the Prime Minister • Nabeel has 170,000 followers on Twitter (as at 12th August 2012)

8. What did Nabeel Rajab do? • Call to protest against the Government for pro-democracy reforms • Tweeted - calling for a protest/rally against the Prime Minister

9. Freedom of Expression • "Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated."1946 First Session of the General Assembly • Access to information a central function of democracy • Violations of freedom of expression frequently take place with violations of freedom of assembly and freedom of association

10. Limitations on Free Speech • Free speech may sometimes threaten other human rights that need to be protected • “Hate” speech • Inciting hatred, violence, intolerance… • What is the balance? • Where do you draw the line? • Can this be used as a ploy to stifle free speech/assembly?

11. The Issues…Freedom of Expression vs other Human Rights • Freedom of expression/assembly/association at risk of being restricted…limited…to oppress opposition to the government and the monarch • Do other human rights have primacy over free speech? • "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” John Stuart Mill, “On Liberty” 1859

12. Minister of State for Information Affairs Sameera Rajab, comments: • The ruling was legitimate and the action of police when arresting him was according to the law – Nabeel had legal representation…and has a right to appeal… • Evidence clearly showed Rajab had incited violence and planned to rally in the capital to cripple the country's economy • “This is someone who wants to cripple the economy and yet calls himself a human rights activist.”

13. And there’s more… • Nabeel was also accused of delivering a speech urging people to stage a march, confront authorities and use violence against the security forces even if it killed them • 'These acts have had a direct negative impact on economic and commercial activity in those areas of the capital which have prompted proprietors and business owners to request intervention from the Interior Ministry to protect their interests and immediate safety.”

14. Norms & Norm Development • What are norms? • They are what ‘should be’… • Examples in Nepal: ……?

15. Norm Entrepreneurs • Those interested in promoting and creatingsocial change • They create a NORMATIVE SHIFT • Essentially a change in consciousness or awareness

16. Norm cascade… • You reach a tipping point – totally unpredictable when this happens • And there is a shift – in thinking/consciousness/awareness • Example?

17. Freedom in Australia • Australian Andrew Quilty had 30 of his photographs removed before the public launch on May 25. His photographic essays document the aftermath of recent natural disasters – the Victorian bushfires, the Queensland floods and Cyclone Yasi. • None of the photographs show deceased or wounded people, yet have been included among the images deemed too distressing.

18. Freedom in Australia • ABC Arts Destination NSW are contractually entitled through their agreement with Vivid and the Reportage Festival to have final say over which images are projected. • Those excluded from the public display are on show at Customs House. Andrew Quilty’s images were omitted because of the potential to cause distress to members of the public affected by natural disasters.

19. What is offensive? • “What is considered offensive is based on contemporary community standards and is a highly subjective assessment according to the Arts Law Centre of Australia. • The determination is made by looking at the content and context of the potentially offensive material.” • - Vivid creative director Ignatius Jones

20. Freedom in Australia • South African photographer Jodi Bieber, whose work was featured on the cover of Time magazine in 2010, told ABC News that after one of her photos of a bare-breasted woman was removed from the exhibition she decided to withdraw her feature in protest."If I look at all the photographs that are not allowed to be shown, I feel that there's a huge censorship," she says. • See: http://www.abc.net.au/arts/stories/s3767547.htm

21. Classification principles • adults should be able to read, hear and see what they want; • minors should be protected from material likely to harm or disturb them; • everyone should be protected from exposure to unsolicited material that they find offensive; and • community concerns about depictions that incite or condone violence, especially sexual violence, or that portray people in a demeaning manner, should be taken into account.

22. Film& publications- refusal to classify if: • describes or depicts sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that it offends the standards of morality, decency and propriety generally accepted by reasonable adults; • describes or depicts a minor who is, or appears to be under 18 in a way likely to offend a reasonable adult; promotes, incites or instructs in matters of crime or violence; or • advocates terroristacts.

23. Visual Art • Visual artworks that are publicly displayed, and which are arguably obscene, indecent or blasphemous, risk infringing common laws and/or the relevant State's or Territory's criminal legislation – • See more at: http://www.artslaw.com.au/info-sheets/info-sheet/classification-and-censorship/#headingh28

24. The test of obscene: • Works will be considered to be obscene, and therefore unlawful, where they are offensive to contemporary community standards. • It can be extremely difficult to predict with any degree of certainty whether a particular work will be considered obscene. • Determination of what is offensive and what are contemporary community standards involves highly subjective assessments.

25. Factors to consider: • the content of the performance or work; • the context of any potentially offensive material; • the location of the performance or work; • the target audience; • the manner in which the performance or work is promoted; and • the extent to which prospective audience members or prospective visitors are warned of possibly offensive elements

26. Radio - • are likely to incite, encourage or present for its own sake violence or brutality; • simulate news or events in such a way as to mislead or alarm listeners; • present as desirable the misuse of alcohol; • present as desirable the use of narcotics, tobacco or any illegal drug; • depict suicidefavourably or presents suicide as a means of achieving a desired result; or • are likely to incite or perpetuate hatred against or vilify any person or group on the basis of age, ethnicity, nationality, race, gender, sexual preference, religion or physical or mental disability;

27. Publications • depictions or descriptions of sexualmatters • drugs • nudityor violence that are unsuitable for a minor to see or read or • likely to cause offence to a reasonable adult if sold as an unrestricted publication

28. Sydney University Magazine • http://www.dailylife.com.au/news-and-views/dl-opinion/honi-soits-censored-cover-20130822-2scnq.html • http://www.theguardian.com/commentisfree/2013/aug/22/honi-soit-vulvas-censorship?commentpage=1

29. Art or Pornography?

30. In closing Let him not speak what is true but unkind Let him speak what is kind but not untrue ……………………..

31. Thank you!