Friday 30 March 2012

Privacy and injunctions

On 27 March 2012, the House of Lords and House of Commons Joint Committee on Privacy and Injunctions published a report, "Privacy and injunctions". The report and the published evidence (published on 16 March 2012) are available from this page:

(My comments here are very critical of the report, so it is worth noting that not every member of the Committee agreed to everything in the report. Some were greater friends of freedom than others. A record of voting on particular parts of the text is given on pages 88 to 103 of the report.)

The Committee really does not understand the importance of free expression. There are warm words about its importance, but the Committee regards a right to privacy as being of equal importance. On page 5, we find:

"The fundamental right to freedom of expression lies at the heart of this debate. The right to privacy is equally important. It is universal and can only be breached if there is a public interest in doing so."

Equality of importance of these rights simply cannot work, if the latter means a right of privacy as against publication in the media, rather than a right to keep one's affairs private from the state (and a right not to be the object of state snooping is arguably that right that Article 8 of the European Convention really confers). Free expression, and privacy as against media publication, are bound to come into conflict, all the time. And free expression must be accorded the higher status, if we are not to become an utterly oppressed people.

One reason to accord the right to privacy the lower status is that if someone does something shameful and it appears in the newspapers, he or she has only himself or herself to blame. Another reason is that those who are most likely to take advantage of a right to privacy are those who already exercise significant influence through their wealth, fame or political position. The reality of such people's personalities and actions jolly well should be open to scrutiny.

The Committee's attitude to Twitter is ambiguous. There are warm words about its role in the Arab Spring in paragraph 92, but then a certain pleasure is taken in the fact that Twitter users can be identified and action can then be taken against them (paragraph 100). The Committee hesitates over the use of country-specific blocking of tweets (paragraph 108), but seems to think that disclosure of the fact of blocking would make blocking acceptable.

The degree of oppression that the Committee calmly contemplates can be seen in a couple of further passages, in paragraphs 109 and 115.

Paragraph 109: "We recommend that, when granting an injunction, courts should be proactive in directing the claimant to serve notice on internet content platforms, such as Twitter and Facebook. Beyond that, claimants in privacy cases should make full use of notice and take-down procedures operated by responsible internet service and social media providers, who should also seek to disseminate best practice and discourage illegality amongst users and other providers."

Extract from paragraph 115: "Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology. We recommend that if legislation is necessary to require them to do so it should be introduced."

The message of paragraph 109 is that it is responsible to kowtow to the judges who dictate what we can write, and what we can read, and whose reasons we cannot inspect because, by the nature of the case, they have to act in secret. And it would be quite wrong for anyone to stand up and say "It is a very great evil for any arm of the state secretly to regulate expression, so I reject that regulation".

The Committee's belief that we should kowtow is set out on page 5: "The rule of law in protecting the right to privacy should be upheld by all. If a judge has made a decision, based on hearing the full evidence in a case, that decision should be respected by those who have not heard all the evidence". The judge might be better informed than the rest of us about the circumstances of the particular case, and about the relevant precedents. There would be no reason to think that the judge had an ethically respectable position on freedom.

It might be different if the proceedings were public. Then it would be reasonable to say "I disagree, but I can see that the decision is one that one could reasonably reach, and that, plus my respect for the rule of law, is enough to lead me to respect the decision". But it would be an abnegation of one's own rationality meekly to accept a judge's deicision, when one had no idea what the grounds for the decision were. The fact that privacy is the point of the proceedings, so that they have to be secret, makes no difference to this point. If the only way to enforce a right is to ask us to take secret justice on trust, the right should not be enforced.

Paragraph 115 says that search engines, in whatever country they are based, should apply British law to hide information from British users. I hope they ignore this request, even if legislation to put it into effect is enacted. In particular, American search engines have the noble First Amendment to uphold. There is no reason why people or companies in nations with greater freedom of expression should respect the laws which govern that freedom of nations with lesser freedom of expression, even if the freedom is only a little bit less.

Finally, in chapter 5, the Committee proposes a press regulator, the jurisdiction of which would extend to all major publishers of newspapers, whether they liked it or not. That would amount to the requirement to obtain a licence to publish, however it was dressed up as non-statutory or semi-statutory. It is, like much else in the report, an oppressive proposal.

My overall conclusion is that a right to privacy (as against media publication, rather than as against state snooping) can no longer be enforced, save by oppressive means. That means we must give up trying to enforce the right, and rejoice in our right to free expression instead.

Saturday 24 March 2012

Summer time and referenda

It is time for our regular twice-yearly debate over what the UK's time zone (or zones) should be, and over whether the clocks should be changed twice a year.

A piece on NDR Radio this morning explained what has been going on in Russia. Since the move to summer time in March 2011, the clocks have not been changed in Russia, on the orders of President Medvedev. Summer time lasts all year. He was reported as thinking that repeated change disturbed the biorhythms of people and animals, particularly milking cows. (The claim should clearly be restricted to animals that have some interaction with people. Bears deep in the taiga are unlikely to read or hear that the clocks have changed. But many animals could be affected, including wild animals that get used to crossing roads by a certain light, and suddenly find that at the appropriate time by the Sun, the roads are busy with rush-hour commuters instead of empty.) It seems that some political parties want to go back to a twice-yearly change, and that Vladimir Putin is likely to implement this.

The claim that biorhythms are disturbed by a twice-yearly change smacks of pseudo-science, although I acknowledge that the alignment of the light with the clock does strike me as odd for a couple of days after each change. If there is to be sensible argument about this question, it is likely to be about such things as energy consumption, accident rates, the moods of people when their hours of work limit their enjoyment of sunshine, and the needs of businesses to have time zones as closely aligned as possible with those of their trading partners. The latter point came up in connection with Russia. Businesses in Moscow find it awkward to be three hours ahead of Germany, rather than two, in the winter.

A noteworthy feature of debates over time zones and whether to change the clocks twice a year is that the factors to consider are both numerous and disparate. There is no obvious way to weigh them all in a single balance. Only the most convinced utilitarian could think that there was.

Another feature is that one of the factors is how people feel. Psychologists can advise us on how access to daylight influences our moods, but the relevant notion of how people feel is broader than that. It involves sentimental attachment to traditions and to habits of life, and the special joy that some feel at witnessing the dawn and others at witnessing the dusk.

A third feature is that how people feel is central to the process of weighing the factors. Some people think that accident rates are the most important thing, others that energy-saving matters most, and others that business efficiency is of the first importance.

All of this leads me to conclude that the question of how we should set our clocks would be an ideal question to put to a referendum. The relevant features of the question are these.

1. We need a single answer. We do not need to agree on hours of work. Different people can work at different times. But we do need to be able to say "meet me at noon", or "the train leaves at 1832", and all mean the same thing.

2. While there are experts on different aspects of the question, there is no expert on how to combine the conclusions on specific aspects to arrive at an overall answer.

3. If we were to hold a referendum, we could draw on the wisdom of crowds. Lots of non-experts, voting independently, can produce just as good an answer as a committee of experts, and sometimes a better answer. The difficulty would be to get people to vote independently. Clever propaganda, crafted be special interest groups and disseminated through the media, would persuade people to try to sway their friends.

There would be a challenging question of how to divide the territory into areas, the inhabitants of each of which would vote for conclusions that would apply within their areas. For example, should Scotland, England, Wales and Northern Ireland hold separate votes?

On the one hand, it would seem right to divide the territory into the smallest areas that could sensibly have their own time zones, so that local circumstances could be reflected in decisions. On the other hand, one of the considerations that may influence people is the desire to have the same time zone as prevails in neighbouring areas. Someone, every 15 degrees of longitude or so (or 30 degrees with two-hour jumps), must live near a time zone boundary, but each of us would rather it was someone else. That desire would lead people not to take so much account of local circumstances. Differences of latitude can give rise to the same problem. One of the objections to the UK's aligning its time zone with France and Germany (UTC + 1 in the winter and UTC + 2 in the summer) is that the Sun would not rise until very late in Scotland in winter. One solution would be for Scotland to have its own time zone, but life around the border would then get more complicated.

Perhaps the answer is to have two or three rounds of voting. After the first round, people could see how much tendency to difference there was, and could change their votes accordingly in the second round if differences mattered enough to them, and if they saw that the only likely way to remove the difference was for them to change. Just for once, tactical voting could be a good thing.