Sunday, November 27, 2011

Freedom to Receive and Impart Information

The Internet is a publishing vehicle for the transmission of information and ideas to the World Wide Web. It isn't unusual that people will use the tools available to them in order to communicate or receive information.

The European Convention on Human Rights states "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." (Article 10, 1.)1

This is an open statement which does not preclude the type of publication or form the transmission of information and ideas assumes [takes]. It can be argued the Internet has no frontiers or boarders, only ones created by deliberate interference for purposes of good or ill. It would seem to deliberately interfere could be regarded as being in breach of this convention. 
[It is relevant to note that Australia though a signatory to the UN Declaration of Human rights which includes Article 1upon which the European convention is based only recognises this right in a limited form.
Australians have an implied right to freedom of speech on the basis of the UN Declaration but this comes with limitations being that this right is only recognised within the narrow ambit of political commentary. Known as: "Freedom of Political Communication".]

Within the ambit of a publishing an article to the Internet, any claim that the article might contain "defamatory" elements creates confusion in Australian law with regard to who is the publisher. Who can be blamed or held liable on the charge of defamation? The law is confused as to whether the ISP (Internet service provider), who hosts the content, is as much a "publisher" as the author uploading the content. So in Australia who transmits this content as well as who authored and uploaded the content to the Internet is jointly a "publisher". An ISP may host hundreds of thousands of sites, all with different content providers who perform their own uploads; these content providers "author" then "publish" content to the Internet. The basis for this confusion is likely due to the case of Godfrey v Demon Internet Limited2, in which anonymous comment, claimed to be false, was posted on a forum. As the originating author could not be established the court reasonably held the ISP responsible. However, to view all activities surrounding the actions of a known author as complicit in the claimed publication of false comment makes a mockery of this judgement. It is without logic to consider a Host Provider of a connection to infrastructure to be a publisher.

So who is ultimately the publisher? In the case above the author was not known so it was the ISP. As this ISP did not remove the content as it would cyclically self remove anyway, they became the target of the defamation action. In Australia an ISP needs no further warning than the demand to remove claimed defamatory content even if the author and publisher is clearly identified and identifiable. It does not matter here. Even a telco like Telstra will force the removal of the content though they cannot claim to be any more than a connectivity provider, an entity that merely provides connection/transmission to the internet (as happened in our case). A telecommunication provider connects an ISP to the web via the telecommunication infrastructure. With regard to the intent of Article 10, 1 forced removal by an ISP, of claimed - not proven - defamatory content is a true hindrance to the freedom to "...receive and impart information". However, cutting off a self hosting ISP author from the telecommunications infrastructure establishes a vastly different level of "interference" on a "public authority" scale.

Internationally, the publisher of online content is the uploader of the content. Above is a screenshot of Adobe's web publishing and authoring program, Contribute. It is described as "a powerful web publishing and website management tool that integrates authoring, reviewing, and publishing in an easy-to-use WYSIWYG HTML editor". Other html editors such as SeaMonkey, freely available on the internet, include a publishing component, that includes the means by which content can be uploaded, published, to the internet. Somehow Australia's techno-dazzeled legal fraternity disregard the international definition of "publisher". 

In the USA or Sweden for instance a court order must first be obtained, in most cases, before pages or sites are ripped from the World Wide Web. Australia Law fails to protect defendants of defamation claims where the internet is the form of publication and essentially is complicit in an act of censorship on a public scale. All of which is irrelevant to the substance of what is being transmitted being true or false. No hearing or submission of evidence is required, the demand is made and the claimed defamatory information, and more, is immediately suppressed.

Australian Law (a derivative of class defined English Common Law) in prosecuting argument for a defamation case holds the Internet in an unnecessarily separate light to other forms of publication. It basically does not understand the Internet (fears it perhaps?) and views it with suspicion. The Internet is the Gutenberg Printing Press of our time. The transmission of information in terms of its rate and timeliness is extraordinary but is it any different in effect? Information is imparted and received. This discriminating lack of understanding overly complicates the defence position when embroiled in persistent, unreasonable and deliberately damaging defamation action. 

Outside the defences for defamation, Truth, Duty to Inform and Fair Comment, a defendant must additionally justify (against what measure?) the transmission of the claimed Defamation over the World Wide Web. In the context of publishing one format is essentially as public as another, Internet or not. Because the Law misunderstands the Internet as being something other than another publication tool this aspect is then exploited as a weakness by plaintiffs to then be used to delay, suppress, or legally slow the process to trial causing higher and higher expense for a defendant. In the case of a defendant with less financial means than a plaintiff has this ability to legally harass with the aim to delay trial if not make it impossible to get to trial creates an imbalance for equivalent engagement in the legal system by both parties. Where truth is not a problem for the defence and where a  "...claimant is incapable of further defamation..."3 this tactic is utilised.

In Australia, unlike the EU, we do not have the right to freedom of expression as defined by the EU Convention nor a right to freedom of speech as enshrined by the US Constitution. Neither of these jurisdictions encourage or support a citizen's right to publish lies about another and there are stringent laws protecting an individual or entity with mechanisms and rights for the defence of their true fame. My co-defendant* calls this "natural fame". It is the fame one has developed and earned from their own actions and deeds. Publishing the "natural fame" of another is hardly defamation, the reputation earned and won by their actions has already affected the perceptions of others as to their character and person. Particularly if these actions and behaviours have had years of repetitious airing across countless public forums. The truth will confirm already held opinions rather than form them.

Defamation Laws favour the privileged with an interest in maintaining false reputation. The laws are wielded as a useful weapon against the less privileged whether by a corporate Goliath like McDonald's4 or a well off individual. Both have the financial means to manipulate process via intentional delay5 and censorship in order to affect an opponent's financial or motivational resolve before a complaint ever sees the inside of a court room

Apart from the freedom to do so truth is an essential component of any quest to receive or impart information. Truth is the responsibility of those imparting the information, in fact or by establishing grounds for honest opinion whilst ensuring the receiver has an interest in receiving the information and the freedom to check its validity. If a defendant can tick these boxes then they should simply hang on as "natural fame" will rise to the top.

1Article 10 of the European Convention on Human Rights
3Wikipedia on Defamation
5The Mickelberg Stitch

*Demetrios Vakras

Wednesday, November 9, 2011

Humanist Transhumanist - Is it Racist to Critique Religion?
Is it Racist to Critique Religion?
Humanist Transhumanist the exhibition was declared racist by Guildford Lane Gallery Director Robert Cripps for doing so.

This 2009 show-case exhibition of artworks with accompanying Catalogue - Manifesto produced by myself and Demetrios Vakras was intended to take advantage of a Dali Exhibition held at the same time at the National Gallery of Victoria. Our further intention was to counter the 'modern' surreal-lite interpretation and presentation of surrealism. With such a focus upon Surrealism in our home city it represented a one time opportunity to take advantage of enthusiasm for the genre and generate further interest in living, local artists of the surreal and fantastic.

Months in planning, countless hours at the easel and computer producing the works, publication and promotional material all culminated in high costs financially and it all come to naught.

Our presentation and execution was characteristically professional, on time, content rich and efficiently delivered for viewing.

Robert Cripps, the Director of Guildford Lane Gallery created a scene towards the end of the opening night event, publicly declaring us and our exhibition racist and demanded we leave his gallery. We had another encounter like this when we returned to attempt to properly document our show and examine the posting of disclaimer notices throughout and leading into our exhibition. He rushed towards us  demanding we leave, yelling at us the exhibition was racist and that Demetrios intimidated him (this was new). We offered to remove it for a refund and re-stated our right to attend our show in the hired space during gallery hours and according to the contractual agreement. I attempted to ascertain from him what was racist whilst Demetrios backed away (to avoid appearing "intimidating"). Turns out any critical reference to the religion of Islam was the racist part though he brandished the full show incomprehensible and vaguely with a sweep of his arm all of it racist. He had fixated though on the criticism of Islam from what we could ascertain. Other religions were similarly critiqued within the content and context of the show but this was not racist, this was okay because, according to him, those religions deserve it. So it is okay to critique Christianity, Judaism, Hinduism and Zoastrianism.

[We left, hounded by him to do so, or he'd call the police.
As the gallery contract instructs if disputes arise the dispute must be raised, communicated and a process followed to produce a mutually agreed resolution. We had attempted to raise our objections in person, this failed so we outlined our objections to his behaviour towards us and to his continual public misrepresentation of our art and character by email. He skirted around our complaints in a reply email, which appears to be drafted by someone else, making the further written claim that both he and his staff were uncomfortable in our presence and that we were to only attend the gallery when he was there and to always make prior arrangement to do so. This libel by him and a further unilateral change to the contract affected our accessing our own exhibition. We could only have attended again if together, not as individuals, as we could not trust what he might do, or might claim we did do, if we each went in alone. We had to forewarn the gallery as he would have to be there whilst we were. Which made us attending at all untenable.]

Our exhibition was from that point on abandoned, unmanaged, misrepresented by his posted disclaimers and his public declarations it was racist. For all we know potentially an ongoing slander of us was conducted in our absence. Not one of his volunteers or staff came forward to correct what he claimed, that he and they were all intimidated and made "uncomfortable" by our art and presence. We gave them opportunity to do so and the opportunity to do so remains available to them. Since none yet have had anything to say we have to assume therefore they were/are in agreement with Cripps claims made on their behalf. 

[For writing about our experience we are being sued and chased around the internet in his attempts to use whatever means and legal threats he can to have us hound us off the WWW. The truth may hurt but it remains what it is - some prefer to be defined by the truth whilst others prefer to suppress or ignore it because of what it can expose in us.]

So where has this "populist"and in some cases media supported moratorium on any criticism of Islam come from? It does seem to be the case that generally you are accepted to be a racist if you critique Islam.

Australia, purportedly, is a secular democracy as enshrined within The Australian Constitution Act (Chapter V. The States. 116.) Australia can be popularly defined in a number of other ways in addition, which have little to do with politics or religion; beer, sport and beach themes come immediately to mind. Australians (some or most?) like to foster this image and take pride in being considered as characteristically laid-back and even laconic. Citizens may openly critique the government and social systems which includes religions but the permission to do so is awarded conditionally. Laws regarding complaint or dissent limit our ability to publicly complain without fear of litigation, legal persecution and authoritarian intervention. In our adventures with Mr Cripps we've suffered all three in various forms and ultimately for exercising our right to critique all religions which includes Islam. When viewed with a critical eye this not only exposes the sensitivities of Islam to criticism of it but how successfully it has been transmitted that Islam is exempted. As those who do critique it are all labelled racist. That there are serious contradictions in this logic are obvious. Obvious or not it remains the case a tipping point has been reached with regard to public opinion on this matter. If you speak to anyone regarding a criticism of Islam they will clam up, prefer not to discuss it, become faintly horrified or outright state "isn't that racist?" or something to that effect. Why is it racist? The conclusion by many, that it is somehow racist, is not one arrived at by reason but more by absorption. It is a repetitiously received and accepted absorption through the media, through political and religious commentary and opinion, through popular commentators, through a desire to counter negative attitudes (fair or unfair ones), all coloured and shadowed by the not so vague sense of it all being a taboo subject.

Publicly others have already suffered the racism charge and other worse stigma, they are accused of having far-right political leanings and a racist agenda and/or have suffered in some cases much worse persecutions.

In a press-release by Maryam Namazi who opened the 2011 One Law For All's "Passion for Freedom" exhibition she mentions us amongst other artist and free thinkers fighting a much harder battle than we could ever imagine. We hold these people in high esteem and send them our respectful support. They are surviving much worse treatment than we are.

As a citizen of a free secular democracy I am compelled to offer more than a laconic, laid-back acceptance of what prevails on popular winds. Tolerance does not require we decline to critique a human rights abuse or systemic failing because it emanates from a particular religion, religious practice, culture or politic. It does follow that we as citizens and artists must continue to defend human rights even when we are in trouble for doing so and are persecuted for it.

About Leeanneart

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Melbourne, Victoria, Australia
We are first and foremost human with a responsibility to the humanity within us and not to any faith, political, apolitical, social or societal group, union or faction. We are responsible for our own reputation, and for what deeds we do and what achievements or otherwise in life we enjoy. The rest is nonsense.