Iceland aims to become the Caymans of journalism

A group of Icelandic MPs have launched an exiting new collaboration to turn the country into a haven of investigative journalism. The MPs are collaborating with Wikileaks to amend laws to grant protection for journalists, sources and whistleblowers. The plan would also provide data storage facilities as well as combating “libel tourism”, the practice of bringing defamation charges wherever the law is most attractive for the plaintiff. The intention is to provide a comprehensive Freedom of Information Act, whistleblower and source protections, limited prior restraint, protection for ISPs and protection from the insidious act of “libel tourism”.

The proposal submitted to the Althing (Icelandic Parliament) yesterday asks the government to find ways to strengthen freedoms of expression and information freedom in Iceland, as well as providing strong protections for sources and whistleblowers. The proposal requests changes to law, and an examination of the legal environments of other countries to get a “best of breed” law in freedoms of expression and information. It also recommends the establishment of an international prize to be called The Icelandic Freedom of Expression Award.

The aim is to turn the island nation of 350,000 people into the world's first "offshore publishing centre." According to Mother Jones, the proposals could turn Iceland into the Cayman Islands of journalism. It says the proposal is based on the business model of offshore financial centres like Switzerland, which attracts investors with an enticing combination of low taxes and strict bank secrecy laws. Iceland could be the equivalent for investigative journalists if, as expected, it passes what would be the strongest source protection and freedom of speech laws in the world.

The proposal is the brainchild of the Icelandic Modern Media Initiative which addresses the key issues for freedom of expression in the digital age. The IMMI say Iceland is “at a unique crossroads”. The IMMI is feeding of the sense of change in the electorate as a result of the economic meltdown in the banking sector, in order to prevent it from taking place again. It also quotes Reporters Sans Frontiers who say Iceland dropped from first in the world for freedom of expression in 2007) to 9th last year. “It is time,” say IMMI’s founders, “this trend was rectified”.

The IMMI was drafted with help from Julian Assange and Daniel Schmitt, two of the founders of Wikileaks. WikiLeaks editor Julian Assange has been in Iceland for the past two months, consulting parliamentarians on the project. Assange says Wikileaks has fought off more than 100 legal attacks over the past three years by spreading assets assets, encrypting everything, and moving telecommunications and people around the world. He says the Iceland will adopt the strongest press and source protection laws from around the world.

Assange said the move was driven by Icelandic people who have just suffered the largest economic meltdown of any country per capita in the GFC. He said Icelanders believe fundamental change was needed in order to prevent such events from taking place again including better bank regulation and better media oversight of dirty deals between banks and politicians. He quotes the “libel tourism” of Iceland’s largest bank Kaupthing which brought a successful suit against a Danish tabloid, Ekstra Bladet, in London where the costs of fighting libel is prohibitive. Iceland’s second largest bank Landsbanki also sued a Danish media outlet over its Russian mafia connections. http://icelandtalks.net/?p=471

Icelandic writer and blogger Alda Sigmundsdottir says the aim of the proposed legislation is not to allow people to publish freely any old rubbish and get away with it. “The point is not to make Iceland a haven for tabloids, paedophiles or similar low-level activities,” she said. Sigmundsdottir said the idea was to create a framework wherein investigative journalism and free speech can flourish. “Anything that is illegal will still be illegal,” she said. “The amendments will not change that.

However the Citizen Media Law Project says that while the laws are well-intentioned, they probably won’t achieve much because of the principle that publication happens at the point of download, not the point of upload. It quotes the famous (or more correctly infamous) case of Dow Jones v Gutnick where Melbourne tycoon Joe Gutnick sued Barron's Online for publishing a supposedly defamatory article about him. Gutnick applied the writ in Victoria where only a handful of people read the article but the Australian High Court ruled this was where Gutnick’s reputation was and ruled against Barron’s.

For better or worse, says the CMLP, the poorly thought-out Australian ruling has set the precedent in similar cases around the world since. So while Iceland’s protections will suit Wikileaks they will not be useful for multi-national media companies. Harvard law professor Jonathan Zittrain believes it was unclear how broadly the laws could be applied should they pass. "Unless the executives behind a particular media company are themselves prepared to move to Iceland, I'm not sure how substantial the protections can be," he said. "A state can still demand that someone on its territory answer questions or turn over information on pain of fines or imprisonment."

Good NightJack: a legal blow to whistleblowing

Australia devolves much of its law from Britain. The news that a court has forced a policeman there to reveal his identity as a blogger will eventually have profound consequences for Australia too. The case was an ironic clash of rights between the privacy of the individual writer to preserve their anonymity as a whistleblower, against the right of a newspaper publisher to name the individual under a pretext of outing their bad behaviour. The judge sided with the newspaper.

On Tuesday British High Court Justice David Eady ruled that anonymous bloggers have no right to keep their identity secret. The case was brought by Richard Horton, a 45 year old detective with the Lancashire Constabulary. Horton sought an injunction to prevent The Times from naming him as the author of the revealing police insider blog NightJack. The anonymous hard-hitting blog attracted a readership of half a million people. His advice to readers was: get your complaint in first ("racism and homophobia are your friends"); never explain to the police, because they'll use it against you; claim suicidal thoughts.

Horton may or may not have had suicidal thoughts of his own when Eady rejected his plea that his anonymity be preserved "in the public interest". The judge said Horton knew he risked disciplinary action if his bosses found out. “The public was entitled to know how police officers behaved and the newspaper's readers were entitled to come to their own conclusions about whether it was desirable for officers to communicate such matters publicly,” said his Lordship. He concluded Horton did not have a reasonable expectation of privacy, because “blogging is essentially a public rather than a private activity.” And so the thirst of the Times to tell a story destroyed the blog.

On Tuesday Lancashire Constabulary issued Horton a written warning and announced he had accepted “that parts of his public commentary have fallen short of the standards of professional behaviour we expect of our police officers.” Horton was silenced and all we got was a comment from his lawyer: "He is keeping his head down and won't be making any comment.” The blog itself was expunged. Now when you log on to Nightjack, you get a terse message from Word Press saying “The authors have deleted this blog. The content is no longer available”.

But there are some cached versions around of some of his posts. For instance the 27 November 2008 entry shows some of his difficulties of being a policeman. “For this and a few other reasons, I am now pretty sure that although I did not join the Stasi, we are in fact being used as such by politicians looking to settle grudges just like the Evil Poor on the Cannonrail Estate.” Provocative perhaps, but where in any of this is the necessity to know his name?

Even The Times admits the blog “gave a behind-the-scenes insight into frontline policing, included strong views on social and political issues.” So this case was not about the right to know – Horton was already making sure the audience had that right. It was simply an act of petulance by The Times. The paper had praised the anonymous blogger profusely in April when he won the Orwell Prize for political blogging.

But a Times journalist named Patrick Foster was determined to find out who he was. Foster played the despicable “child offender” card in order to scramble to the high moral ground. As he explained it, “what the Orwell Prize judges did not know is that he was also using the blog to disclose detailed information about cases he had investigated, which could be traced back to real-life prosecutions.” Next, the killer line from Foster, “each involved sex offences, often committed against children.” This long bow was carte blanche enough for Foster to out him.

The final lines of Foster’s article noted the blog was now closed and Horton’s “superiors are now aware of further allegations that he was also using the blog to disclose information gained during his investigations.” And with that Foster signed off, smugly happy that he had closed off a route of truth talking to power all in the name of perpetrating a moral panic. Journalists of all people should know the value of anonymity and have gone to jail rather than reveal their anonymous sources to judges. The Times will have plenty of time to regret their stupidity of getting a High Court to override this. In one stroke of a judicial pen, whistleblowing just got a lot more difficult.