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Saying the Unsayable: Revisiting International Censorship

I t is by now well known that, among its other achievements, China leads the world in the development of innovative and sophisticated methods to control its citizens’ access to information. Less well known, but equally pernicious, is China’s aggressive campaign to extend its censorship system outside its borders.

Consider the case of the Melbourne film festival last fall. A few days before the festival was set to open, Richard Moore, its executive director, received a call from the local Chinese consulate. The Chinese official urged the festival to withdraw a documentary about the life of Rebiya Kadeer, an exiled activist committed to the cause of China’s Uighur minority. In a stunning display of arrogance, the consulate official told Moore that the festival needed to “justify” the inclusion of the Kadeer film. This demand was followed by threatening e-mails, ugly phone messages, and a cascade of faxes. As part of the campaign, hackers broke into the festival’s online booking site and manipulated material in order to make it appear that the Kadeer session had been sold out. Moore himself received messages threatening his family. While the Kadeer film was ultimately shown, Moore acknowledged that in the future festival organizers would think carefully about how to showcase controversial works.

The Chinese offensive against the Melbourne film festival is not, unfortunately, an isolated case. There are campaigns by a variety of groups and individuals around the world—ranging from foreign governments and business moguls to local, sometimes well-meaning, activists—to discourage journalists, scholars, NGOs, and others from addressing politically sensitive subjects.

This creeping censorship is manifesting itself in venues as unlikely as the United Nations, the judicial systems of established democracies, and even the human rights commissions of states where free expression has long been held sacred. Often, the objective is to place restrictions on what people can say or publish about Islam. But the offensive is also being carried forward by Russian oligarchs, Chinese diplomats, and the sons of African strongmen. And while struggles over free expression in the past have been waged mostly in autocratic settings, the current controversies frequently revolve around efforts to restrict information and opinions in Europe, North America, and other bastions of civil liberty.

Some observers have attributed the upsurge in free-speech controversies to the 2005 publication of cartoons depicting the Prophet Muhammad in the Danish newspaper Jyllands-Posten . In fact, the cartoons simply added fuel to an already smoldering fire. The Organization of the Islamic Conference (OIC), the driving force behind the recent anti-blasphemy resolutions at the United Nations, has been promoting similar measures since 1999. Even so, the ability of the campaign’s proponents to mobilize global support based on the actions of a newspaper in a small European country—actions that could have gone unnoticed in an earlier era—points up the unpredictable and not always positive effects of globalization.

 

T his past March, the U.N. Human Rights Council adopted a now annual resolution that essentially calls for the universal embrace of anti-blasphemy laws prescribing penalties for those who criticize particular religions. Such laws exist in a number of countries, including some European democracies, but they are more widespread and far more likely to be enforced in Muslim societies. The resolution, sponsored principally by Pakistan on behalf of the OIC, is the latest iteration of a document that has been circulating at the United Nations, with minor changes, for more than ten years. Although it refers to all religions, the only religion that is identified as a victim of discrimination and hatred is Islam. The text is suffused with the vocabulary of human rights and cross-cultural harmony. At the same time, it notes an “increasing trend in recent years of statements attacking religions, Islam and Muslims in particular, especially in human rights forums.” It deplores the use of the media to “incite acts of violence, xenophobia, or related intolerance or discrimination towards Islam or any religion.” And it calls on governments to take measures to prevent speech that, by its standards, incites hatred against Islam or Muslims.

Neither the council resolution nor a similar document passed by the General Assembly carry the weight of international law, and support for such nonbinding resolutions has been steadily waning as a result of advocacy efforts by opposing states and NGOs that recognize their pernicious nature. But the fact that the OIC continues to bring its anti-blasphemy agenda to the United Nations suggests a determination to suppress critical commentary on Islam-related themes. In a related move, the OIC has pushed through the adoption of a measure that instructs the U.N. special rapporteur on freedom of expression to include in his reports “abuses of the right of freedom of expression”—in other words, criticism of Muslims or Islam. Furthermore, the OIC and its allies are pressing, with some chance of success, to enshrine anti-blasphemy language in a protocol that would be added to an international covenant on racism and xenophobia, an agreement that carries the weight of international law.

Pakistan’s co-sponsors on the “defamation of religions” resolutions have included Belarus and Venezuela, both of whose governments have earned reputations as resolute adversaries of free speech and press freedom. Other frequent opponents of free expression in such bodies include China—whose oppression of its ethnic Uighur population is focused precisely on the pillars of their Muslim faith, such as the observance of Ramadan and participation in the hajj—and Cuba, which has by far the largest number per capita of prisoners of conscience charged with crimes stemming from their ideology or expression.

As for the OIC countries themselves, a number have been cited for the persecution of religious minorities—including and especially Islamic sects or offshoots—on blasphemy grounds. The Pakistani government regards blasphemy as a capital offense and enforces its laws selectively, mainly against Christians and members of the Ahmadiyya sect. In Iran, meanwhile, followers of the Baha’i faith have been jailed and executed for their beliefs, while Muslims who dissent from the official Shiite orthodoxy have been repressed. In Saudi Arabia and other Sunni Muslim countries, it is the Shiites who have been targeted. Indeed, recent history is replete with cases of dissenters who have been jailed, exiled, flogged, or executed in certain Muslim countries for either questioning tenets of the dominant faith or insisting on basic rights for their own minority faith.

 

J ust as the Human Rights Council has been a battleground for opponents and defenders of free expression, a related controversy has been fought out in Canada’s human rights commissions.

In the two most prominent cases, local Muslim activists brought complaints against magazines that had published material deemed offensive to the country’s Islamic community. The first case involved the Western Standard , a now online-only news magazine published by an outspoken conservative, Ezra Levant, that had republished the Danish cartoons in February 2006, near the peak of the global uproar over the images. Levant also ran a sampling of anti-Semitic cartoons from the Arab media, with images of hook-nosed Jews committing atrocities against defenseless Arab victims. Canadian Muslim activists mounted a quick response, and Syed Soharwardy, president of the Islamic Supreme Council of Canada, filed a complaint with the human rights commission in Alberta, where the case was eventually heard in 2008.

The second case involved Maclean’s  magazine, a venerable mainstream publication that is often referred to as Canada’s version of Time . In October 2006, Maclean’s published an article by Mark Steyn, a prominent conservative writer, that was a distillation of his book America Alone . It argued that, due to low fertility rates, Europe would eventually be overrun by immigrants from the Muslim world, placing its liberal values in jeopardy. The article drew an angry response from a number of readers; Maclean’s ultimately published twenty-seven letters, many of them quite critical of Steyn’s views. The magazine’s editor, however, rejected a demand by the Canadian Islamic Congress for a rebuttal article. This triggered legal action that was eventually to be heard by the human rights commissions in Ontario and British Columbia, as well as the federal commission.

Ultimately, the Canadian cases were either dropped by the complainants or decided in the defendants’ favor. This outcome, however, is not entirely reassuring. In Canada, human rights commissions do not function like legal tribunals; the normal rules of evidence do not apply, and those who preside over the proceedings do not necessarily have legal training. In a sense, the process itself is punishment, since defendants can spend tens of thousands of dollars on legal fees and are held up to the opprobrium of those who believe them to be bigots, racists, or extremists. Plaintiffs can level charges that no serious court of law would entertain; thus Levant was accused of publishing material that was “likely to expose a person or persons to hatred or contempt,” a sweeping formulation that amounts to a “thought crime.” The commissions often press their cases quite aggressively, calling on witnesses who are deemed authorities on the psychology of racial bias and related subjects. They can levy fines, ban defendants from speaking publicly or writing on certain subjects, and force statements of contrition.

 

U .S. law, which features important First Amendment protections, makes it difficult to sue authors for libel. To get around these protections, plaintiffs have been suing American writers in Britain, whose defamation standards essentially assume that any offending speech is false, and the author must prove the contrary to fend off the suit.

As a result, Britain has earned the dubious distinction of being the “libel capital of the world,” the destination of choice for Russian oligarchs, Saudi sheiks, and others interested in muzzling free expression. Already, authors and publishers who deal with controversial subjects are refusing to have their works published in Britain, a disturbing development given the country’s reputation as a leading source of scholarship on history and current affairs.

The former Soviet states, which are among the world’s most inhospitable to free expression, have become a breeding ground for libel tourists. Alisher Usmanov, a Kremlin-friendly, Uzbek-born metals magnate, used English law to silence Craig Murray, the former British ambassador to Uzbekistan, who wrote in his memoirs about Usmanov’s alleged corrupt activity. Usmanov, whose net worth is estimated in the billions, hired Schillings, one of London’s most feared defamation firms, which convinced the Internet service provider that hosted Murray’s blog to shut it down.

Similar suits have originated in the Middle East and North Africa. Among the most active of these litigants was Sheik Khalid bin Mahfouz, a Saudi billionaire. The former chairman of Saudi Arabia’s largest bank, bin Mahfouz, who died in August 2009, filed more than thirty suits in London against authors and publishers in the United States and Europe, and threatened a raft of others with legal action. In a case that has earned significant notoriety, bin Mahfouz sued Rachel Ehrenfeld, author of Funding Evil: How Terrorism Is Financed —and How to Stop It . The English courts accepted the case—although only twenty-three copies of the book had been purchased online in Britain—and ordered Ehrenfeld to pay substantial damages and legal costs to bin Mahfouz. Ehrenfeld decided not to defend the suit, which essentially vindicated bin Mahfouz by default.

Bin Mahfouz also convinced Cambridge University Press to destroy its copies of Alms for Jihad: Charity and Terrorism in the Islamic World , by J. Millard Burr and Robert O. Collins, simply by threatening a suit.

London-based defense attorney Mark Stephens, who represents Ehrenfeld and other high-profile libel tourism defendants, points out that “the lawsuits—and threats of suits—are silencing important voices and protecting the powerful from public scrutiny.” He also notes that his ability to defend his clients is severely hampered by obstacles he confronts in many libel tourists’ authoritarian home countries. There’s little equal footing when defense attorneys are denied travel visas or find that their requests for essential evidence are impeded or ignored.

As with all self-censorship scenarios, the chilling effect of libel tourism is difficult to quantify. This is because the very sort of journalism one would expect to examine such a problem may be one of its casualties.

Journalists and book publishers are not the only potential victims of libel tourism. In recent years, a series of cases has been brought against NGOs that reported on the shady dealings of dictators or major corporations operating in authoritarian settings. Such well-known organizations as Human Rights Watch, Global Witness, and Index on Censorship have all been threatened.

Consider the case of Index on Censorship, a British NGO that publishes a highly respected journal on freedom of expression. In 2007, it spiked an article it had commissioned on libel tourism after the author shared information he had gathered with a subject of the story. This individual threatened to sue, and the organization decided to shelve the article, concluding that the potential legal costs were prohibitive.

Even for large NGOs with deeper pockets than the Index on Censorship’s, the possibility of libel suits in Britain is a serious problem. Wealthy autocrats or oligarchs have learned the lesson that in the legal systems of some democracies, the act of bringing a lawsuit counts more than any victory would. A dictator or tycoon with access to billions can overwhelm an adversary in cases without legal merit by forcing the defense to expend thousands in legal fees, inducing what has been referred to as a blackmail effect. For the billionaire plaintiff, the amounts involved remain trivial, just part of the cost of doing business. For the NGO, they threaten the survival of the organization.

 

F or years, Chinese diplomats have steadfastly refused to engage in discussions of their country’s policies of internal repression and control. Recently, Chinese authorities have gone a big step further by trying to squelch discussion of its treatment of minority groups, censorship of the media and artistic works, and other human rights issues in venues outside its borders.

In September 2009, two Chinese writers had their invitations to the Frankfurt Book Fair revoked by German event organizers after Chinese officials complained and threatened to boycott the event, at which China was the “guest of honor.” While the two writers ultimately participated in the book fair due to action by the German PEN club of independent writers, the incident proved a vivid example of China’s willingness to exert influence abroad to silence critics of the regime.

Also in September of last year, China pressured organizers of a film festival in Taiwan to shelve the documentary about Rebiya Kadeer referred to at the opening of this article. As was the case at the Melbourne festival, the effort at cross-border censorship failed. By contrast, however, South Korea banned a Uighur activist with German citizenship from participating in a conference on democracy.

In January 2010, the Palm Springs film festival joined the list of venues to come under pressure from the Chinese authorities when the government in Beijing withdrew two films in protest of the festival’s screening of The Sun behind the Clouds: Tibet’s Struggle for Freedom . The festival in Los Angeles refused to cancel the screenings. In response, China told festival organizers that two Chinese films, City of Life and Death and Quick, Quick Slow , were being withdrawn from its program.

But economic coercion, rather than cultural pressure, has become China’s principal tactic for supressing sensitive issues abroad. Government representatives will typically wait until an event has already been planned, or even already begun, then pressure organizers or local authorities with explicit or implicit threats of boycotts, trade sanctions, or withdrawals of government funding in order to suppress activities deemed undesirable by the Chinese Communist Party. The Frankfurt Book Fair gambit fits this model, given the financial implications of the Chinese government’s $15 million investment in the event.

More insidious has been an indirect form of economic intimidation, whereby publications, event organizers, or governments engage in self-censorship on topics deemed sensitive to the mainland, a dynamic some have dubbed “preemptive kowtowing.” Given their small size and their proximity to and relationship with the mainland, Hong Kong and Taiwan are particularly vulnerable to this phenomenon.

Last June, the Hong Kong edition of Esquire , published by South China Media, pulled a feature story by journalist Daisy Chu on the Tiananmen Square massacre slated to run on the twentieth anniversary. In 2008, a prominent legal journal in Hong Kong made a last-minute decision not to publish an article on Tibetan self-determination. A blackout on independent coverage of the Falun Gong is believed to be practiced among certain Hong Kong and Taiwanese outlets whose owners have close ties to Beijing or significant business interests on the mainland.

 

T here has always been a debate between those who believe that freedom of expression is a fundamental democratic value and those who, for various reasons, are either hostile to the free exchange of ideas or ambivalent about its importance. But the free speech debate has traditionally focused on societies whose freedom was lacking: Members of the democratic opposition in authoritarian states protested against restrictions on thought and speech, and took risks to publish dissenting views, while their allies in the democratic world drew attention to their plight. In a sense, dissidents and their democratic supporters abroad operated from positions of weakness, as the offending governments were often able to crush or ignore protests and international condemnation.

By contrast, democracies themselves clearly have the authority to prevent domestic human rights commissions from placing journalists in the dock or poring over their writings in a search of evidence of insensitivity. Democratic states can adjust their libel laws to prevent wealthy litigants from using the courts as an instrument of transnational censorship. Indeed, some positive adjustments may already be in the works. In Britain, politicians across the spectrum have spoken of the need to refashion the country’s libel standards, while in Canada recent court decisions may have limited the censorship powers of the human rights commission. Even at the U.N. Human Rights Council, the democracies have demonstrated an uncommon unity in pushing back against the Organization of the Islamic Conference’s initiatives against free speech.

At its core, this struggle is not about the “excesses” of free speech but the nature of modern authoritarianism, which has found ways to update traditional forms of repression and apply them in a variety of foreign and international arenas. If democrats are to mount a truly successful defense against the adversaries of free speech, it will require a recognition that all political factions have a stake in the outcome. Historically, liberals and the democratic left have been on the front lines of free speech campaigns, from the imprisonment of American Socialist Party leader Eugene V. Debs for speaking out against World War I and the drive for labor union recognition, to the McCarthyite persecutions of the 1950s. More recently, freedom of expression struggles have often been led by conservatives, while liberals, and even some civil liberties organizations, sit on the sidelines, as they did in the Danish cartoon debate.

Whatever the stakes for established democracies in the campaign to limit free expression, however, they are dwarfed by the risks for those who already live under the thumb of the campaign’s proponents. Even as they berate democracies for publishing “hate literature,” these regimes are engaged in the systematic muzzling of independent voices on their own territory. And as they use human rights bodies to demand international censorship, they engage in ruthless human rights abuses at home, silencing editors, bloggers, women’s rights advocates, and champions of religious freedom. It is essential that the free world defeat the enemies of free expression on its own turf if it is to have any chance of checking the spread of repression on the authoritarians’ own terrain.

Arch Puddington is the director of research at Freedom House. Christopher Walker is Freedom House’s director of studies.

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