Internet censorship

The Serious Organised Crime Agency have put forward a proposal to Nominet, the quasi-private body which administers internet domains with the .uk suffix, for an issue group to be established to consider enabling SOCA to cause nominet and its UK ISP members to take down any internet domain on request of "an identified UK Law Enforcement Agency", that is, the police. The proposal can be found here. The proposal would set out the grounds for UK internet service providers to do this without breaching their contracts with their customers, or as the SOCA draftsperson puts it:

"Nominet does not currently have any clear obligation in its registrant Terms and Conditions that a domain name should not be used in connection with any activity that would constitute an offence under UK Criminal law. The group will discuss whether proposals should be put forward to change Nominet’s Terms and Conditions to give a contractual basis to suspend domains where Nominet has reasonable grounds to believe they are being used to commit a crime (e.g. a request from an identified UK Law Enforcement Agency)."

This is a classic misdirection attack. It is hard to argue with the initial proposition that criminally operated internet domains should be taken down where there are "reasonable grounds to believe they are being used to commit a crime", at least where the crimes are serious ones, although the really obnoxious and nasty ones set up masquerading as, say, bank sites which proceed to extract login details for online bank accounts and then loot them, will not operate from a domain formally allocated to the criminals anyway.

But this outwardly reasonable introductory proposition is then followed by the remarkable suggestion that any request from the police for a take-down would, ipso facto, comprise such reasonable grounds: so, no need for any inconvenient independent supervision or validation of such requests by, say, an independent tribunal or court warrant. It could be used to circumvent, for example, what limited protections there are in the previous government's yet-to-be-implemented "three strikes and you are out" copyright infringement proposals for those running a personalised internet domain, since such copyright infringements will often also comprise offences. A letter or telephone call from the police would be enough to get the domain removed from the internet, unless the ISP concerned decides to stand up to the police.

It is highly unlikely that this suggestion will be accepted in the terms in which it is put. It would put UK internet domain purchasers on a similar footing with respect to the police and internet censorship as those in the People's Republic of China. What is surprising is that SOCA thought it appropriate to make this suggestion, and it shows what myopic vision organisations such as this possess.

This illustrates the aphorism that if a state allows the police to dictate public policy, it will end up as a police state.

The link above tells you how to make your views know to Nominet, should you wish to do so.

Don't blink

This article strays a little off the normal topic of this blog, but the current turmoils of the Eurozone require some comment.

These are worrying times both for those at the younger end looking for employment, and those at the older end who are not employed in the public sector and who hope to retire on pension policy savings which actually still have some value when they come to retire. From that point of view the question for those in the UK is whether there will be another global meltdown similar to the one of two years' ago, or whether it will be confined to the weaker Eurozone members. Who knows?

However, the current issue concerning Ireland is interesting as well as (in that wider context) alarming. I am reminded of the adage that if you owe your bank manager £100 you call him Sir, but when you owe him £1m, he calls you Sir. So it is with the Ireland: from the negotiating point of view the Irish government is in a strong position, possibly made even stronger by the doubt about whether it can actually pass its austerity budget at the beginning of next month. It seems difficult to believe even Eurozone ministers think the proposed bail-out package for Ireland will deal with the current situation faced by Ireland, notwithstanding what those ministers say, and certainly the markets don't believe it. The problem with Ireland is not an inadequately performing economy, but the fact that the Irish government has guaranteed the debts of the Irish banks which are in turn so large that the Irish economy cannot finance them. The flagrantly imprudent behaviour of the two Irish banks concerned, left uncontrolled by the Irish government, has brought the Irish economy to its knees.

Any further loans are just not repayable. Ireland either needs real rather than pretend capital to refinance its banks, that is gifts and/or equity stakes not loans (no private investor is going to put equity in), or for creditors to take a discount or 'haircut' on the banks' repayment obligations, by perhaps as much as 50%.

I would be surprised if the Irish government doesn't manage to achieve this in due course: that depends on whether other Eurozone ministers place a higher price on keeping the Eurozone in its present form intact, or on saving their own taxpayers' money, and in particular at what point German ministers lose their nerve when faced with a forthcoming election and electors unhappy with financing the deficits of Ireland, Portugal and Spain. We will probably have a combination in a year or two of both these new loans being written off or turned into notional equity, and compulsory creditor discounts.

Predictably, the Scottish bank RBS features prominently amongst those creditors who have made some of the past loans which are now likely to have to be discounted, as also does to a lesser degree Lloyds-HBOS. This is one of the reasons why the UK government is keen to help.

We also need the European Central Bank to stop accepting Eurozone sovereign debt at face value and start including a risk element in any further loans, so as to re-establish discipline and begin transferring sovereign debt funding (and the providing of equity to the banks concerned) back to the markets. I simply don't believe those who say the Eurozone is unsustainable. It is only unsustainable in the form in which it has so far been allowed to operate: and I fully expect that the UK in future decades will, or at least should, find its home in a reformed Eurozone.

The Irish government already knows how to play this: don't blink first.

The Woolas election judgement

On Friday, an Election Court composed of two judges of the High Court found Mr Woolas guilty of illegal election practice during the May general election, contrary to section 106 of the Representation of the People Act 1983. The automatic consequence of this, under section 159(1) of that Act, is that Mr Woolas's election is void and a by-election will have to be held to fill the vacancy. In addition, under section 173 of that Act as amended by section 136 of the Political Parties, Elections and Referendums Act 2000, Mr Woolas will not be able to stand again for 3 years.

Much has been said, some of it it must be said of a self-serving nature by politicians, that this judgement will stifle honest political debate at election time. That is unlikely. Very few matters are covered by section 106 of the 1983 Act, and none of them are concerned with things that could reasonably be described as political.

The relevant parts of section 106 provide as follows:

"(1) A person who ... —

(a) before or during an election,

(b) for the purpose of affecting the return of any candidate at the election,

makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true."

The important point here is that not only must the candidate concerned have attacked a rival's personal character or conduct in order to affect the outcome of the election, but he or she must also either have not believed or had no reasonable grounds to believe the subject matter of the attack. In short, it is concerned with smearing opponents by telling lies which go to matters of fact and conduct rather than to politics and political views. The reasonable assumption behind section 106 is that we would not want to be represented by people who think that that kind of behaviour is acceptable.

The things done by or on behalf of Mr Woolas which the election court considered fitted this description were the distribution of an election leaflet called The Examiner, in which the court held Mr Woolas "made a statement of fact, the meaning of which was that the petitioner attempted to woo, that is to seek, the electoral support of Muslims who advocated violence, in particular violence to [Mr Woolas]", and the distribution of another leaflet called the Labour Rose, in which the court held that "he made a statement of fact the meaning of which was that the petitioner had refused to condemn extremists who advocated violence against [Mr Woolas]".

The election court considered that alleging that a rival candidate sought support from those who advocate violence against another candidate and refused to condemn such violence comprised an allegation concerning personal conduct and character, and that Mr Woolas neither believed these allegations nor had any reasonable grounds for believing them.

The election court also found that a third illegal statement had been made by Mr Woolas against his opponent, namely that in "an earlier election address the respondent had made a statement in fact, namely, that the petitioner had reneged on his promise to live in the constituency. ... It suggests that [the opponent] is untrustworthy. The statement was false and [Mr Woolas] had no reasonable ground for believing it to be true and did not believe it to be true."

The last matter (Mr Woolas's allegation that his opponent had reneged on a promise to live in the constituency) does not seem the most egregious of acts, even if it were to be a lie told in the heat of battle, and the first two falsehoods referred to by the election court were perhaps on the borderline of the distinction between illegal character assassination and robust political argument. Mr Woolas yesterday applied to the High Court for permission to proceed by judicial review against the election court's decision but this was rejected by the judge considering the application on the ground that the election court, constituted as it is by judges of the High Court on the election panel, was not subject to judicial review. It appears the matter will now be headed for the Court of Appeal.

However, the quashing of the election court's decision will be difficult to achieve. The findings of fact by the election court are ordinarily conclusive (section 144(1) of the 1983 Act), and the extent to which the Court of Appeal would be willing to consider this is unclear. Applying the principles of Anisminic v Foreign Compensation Commission [1969] 2 AC 147, Mr Woolas would probably have to persuade the Court of Appeal that either the election court erred on a substantial question of fact (about which it should be noted that the election court had access to the local labour party's e-mail records, so that is going to be a considerable ask) or on a substantial question of law, or that it reached a view on the facts concerning the illegal nature of the matters done by or on behalf of Mr Woolas that no reasonable election court could reach. This is going to be hard to do.