Australia leads the Western world on media restrictions: UN rapporteur

London: It’s getting to be quite the list.

Federal police raids at the offices of the ABC and the home of a News Corp reporter. Police trawling metadata from journalists’ phone and internet records 58 times in a year. Police scouring the Qantas flight records of an ABC reporter who had published top-secret government material that revealed allegations of serious misconduct by Australian troops in Afghanistan.

Journalist Annika Smethurst, whose home was raided by the Australian Federal Police, listens on as media bosses call for greater press freedom.Credit: Dominic Lorrimer

Police – and Home Affairs Minister Peter Dutton - refusing to rule out laying charges over the act of publishing leaked information, the latter insisting on Friday that possession of top-secret documents by journalists is a crime that must be investigated.

Is Australia an outlier?

Or is this happening all over the world, in so-called liberal democracies where national security fears and the allure of the billowing clouds of data that surround journalists are tempting governments and law enforcement down an intrusive, authoritarian path?

Australia on a 'dangerous path'

I asked David Kaye, the United Nations rapporteur tasked by the Human Rights Council with monitoring the state of freedom of opinion and expression in the world today.

Yes, and yes, replied Kaye.

“We are seeing a lot of backsliding around the world in democratic societies around basic protections, and a lot of it has been digital interference [with press freedoms],” he said, citing newly intrusive laws in France and Britain.

“Australia is following that line. But I think it’s also gone a lot further.”

He added two other Orwellian Australian innovations to my list.

There’s our new broad, vague encryption law, rushed through Parliament in December, allowing the government to compel companies such as social media firms, telecoms or even wifi providers to cooperate in secret surveillance of their users.

“That gives your government extraordinary authority to undermine digital security, which goes well beyond what other states have done,” Kaye said.

And he cites the new “abhorrent video” streaming law, bustled through the Parliament in the wake of the Christchurch massacre this year, which threatens tech company employees with criminal sanctions if they fail to quickly take down videos depicting terrorist acts, murder or violence.

In Australia, technologists and media groups warned it was flawed legislation that hung a jail term over the head of anyone working with user-generated online content: news sites, social media sites, dating sites, job sites and more.

“In principle, governments should be able to regulate that kind of space but [the bill] was presented [to Parliament] on a Tuesday and adopted on a Thursday,” Kaye said. “It’s not what we expect from the considered, democratic evaluation of legislation.

“These two examples are really concerning. And they’re outliers.”

In other words, Australia is going down a dangerous path.

Trumped up charges

Kaye was at this week’s inaugural Global Conference for Media Freedom, dreamed up by the foreign ministers of Britain and Canada and attended by 1000 journalists, policymakers, politicians and activists from around the world.

It was held in the cavernous Printworks in east London, which once housed the Daily Mail’s printing presses and now regularly hosts dance parties (from ravers to raves, in other words).

Human rights lawyer Amal Clooney speaks at the Media Freedom conference.Credit: AP

Amal Clooney held court: the elegant and eloquent London human rights lawyer, barrister at Geoffrey Robertson’s Doughty Street Chambers, whom the British government has appointed its first Special Envoy on Media Freedom.

Clooney has taken up the cases of journalists in dire straits under oppressive regimes: she recently joined a team of lawyers counselling Maria Ressa, editor of Rappler in the Philippines, who reported on human rights abuses under the Duterte administration and in retaliation was targeted with arrests, criminal charges and an attempt to shut down her entire operation.

Clooney also fought for Reuters journalists Wa Lone and Kyaw Soe Oo, eventually released from a long imprisonment in Myanmar on trumped-up charges after investigating the persecution of Rohingyas.

Reuters journalists Kyaw Soe Oo, left, and Wa Lone are handcuffed as they are escorted by police out of a court in Yangon, Myanmar, last year.Credit: AP

The conference hosted other journalists from countries where they are regularly attacked, even killed, and those murders are never properly investigated.

Mimi Mefo from Cameroon was thrown in jail last year for reporting allegations of military involvement in the death of an American missionary. The government, Mefo said, used an incredibly broad anti-terror law to try journalists in military courts. Another of her colleagues was attacked with knives before he was imprisoned.

In the face of stories like this, Australia’s situation sounds like a case of "First World problems".

But Clooney made the case that when countries like Australia slip down an authoritarian path, they hurt not only their own citizens but potentially journalists in places like Cameroon.

The security card is going to be used by repressive regimes all over the world.

British foreign secretary Jeremy Hunt

“What happens in a country like Australia, or the UK or the US will be looked at by every other leader in the world and potentially used as an excuse to clamp down even further on journalists,” Clooney said.

“I think journalists all over the world are less safe if the rhetoric or even policies or laws in states that are supposed to be free are actually a threat to journalism in that country.”

Her comments were supported by the conference’s co-hosts, British Foreign Secretary Jeremy Hunt and his Canadian counterpart Chrystia Freeland.

Prompted to reflect on Australia’s situation (which Clooney had touched on in her opening speech to the conference), they were cautious not to directly offend - not least because Australian Foreign Minister Marise Payne was sitting in the front row of the audience.

Marise Payne, Australia's Foreign Minister, at the Media Freedom conference.Credit: Bloomberg

But they didn’t defend Australia, either.

Hunt said the “big battle in the 21st century is going to be between open and closed societies” and “the security card is going to be used by repressive regimes all over the world, so it’s absolutely essentially that we draw that line in the right place”.

And Freeland said governments needed to be strict with themselves to avoid “the terrible temptations of power” when irked by probing, needling journalists.

She urged politicians to realise that “journalists make us better than we would otherwise be”.

'In the free speech faction of free speech'

Another Canadian at the conference, however, had a very different view of what was going on – and what liberal governments were trying to do under the guise of supporting press freedom.

Ezra Levant is the founder and CEO of Rebel Media, a Breitbart-north-of-the-border that plays a Trumpist tune of anti-Muslim, anti-immigrant nationalism.

His little team had come to the conference determined to find the leftists and troll them. Levant strolled up to a “press freedom mural” being painted by conference-goers and daubed “Free Tommy Robinson” in a speech bubble.

Robinson - real name Stephen Yaxley-Lennon - is a far-right figure who used to lead the English Defence League. He reinvented himself as a blogger and social media figure, and allied himself with the Generation Identity group in Europe who promote the “Great Replacement” conspiracy theory that allegedly inspired Christchurch shooter Brenton Tarrant.

We have red lines for which we are not apologetic. Genocide ideology, genocide denial, genocide revisionism.

Rwandan Foreign Minister Richard Sezibera

Robinson was jailed this week for contempt of court after ignoring a court order and streaming a provocative Facebook video outside the trial of a sexual grooming gang.

Levant used to employ Robinson as a contributor and still heavily promotes him - and ran a big fundraising campaign to pay Robinson’s legal fees.

“Nobody [at the conference] really seems concerned that across town a citizen journalist is about to be imprisoned for the crime of doing journalism,” Levant told his audience.

Rebel has been close to the alt-right movement for years. In 2017 Levant had a small crisis of confidence, claiming “the politically incorrect right” had been taken over by white nationalists and white supremacists – but even so said he would “still report on what the alt-right says and does [and] stand up for their freedom of speech”.

Tommy Robinson, former leader of the far-right English Defence League, has been banned by various social media platforms.Credit: AP

“I’m in the freedom of speech faction of freedom of speech,” he told me at the conference. “Other people are ‘freedom of speech but’ – ‘but’ don’t hurt feelings, ‘but’ we don’t want to be mean to sensitive interest groups, ‘but’ don’t talk about Islam.”

Far-right media are furious at the moment because – under pressure from governments – social media giants such as YouTube, Twitter and Facebook are starting to take down (or strip advertising and revenue from) posts, videos and entire accounts that are deemed to be spreading hate speech or fake news.

Fake news was mentioned repeatedly at the conference as a threat to press freedom, as it undermines public trust in both mainstream media and democratic institutions.

But Levant believes when conference-goers said they were angry about fake news “they mean conservative opinions or populist opinions or nationalist opinions”.

“It’s just a rebranding of censorship,” he said. “In the future there will be two kinds of journalists left – those sanctioned, approved and regulated by the government, and everyone else [who] will be called fake news or hate speech.”

Administrators of expression

Kaye says Levant may have a point. “Too often the regulation of content turns into over-regulation,” he says.

A few companies now have enormous power to dominate freedom of expression in the public space, he said. Their terms of service govern who can say what and often set restrictive rules that deny proper freedom of expression.

The problem of balancing the regulation of hate speech with freedom of speech is one that no one at the conference seemed to have a solution to.

“If [social media rules] were drafted by governments you’d probably be concerned about them,” he said. “They’re open-ended, they’re broad, they leave a lot of room for discretion and there’s a lot of opacity about their enforcement.”

These companies operate not with public interest in mind but as “ATMs for shareholders”, Kaye said – yet they are now de facto administrators of our right to free speech.

The problem of balancing the regulation of hate speech with freedom of speech is one that no one at the conference seemed to have a solution to.

And another participant suggested there may not be a universal answer.

Rwandan Foreign Minister Richard Sezibera said his country was making great strides towards press freedom and free speech: choosing a “culture of life” after the appalling genocide of 1994, allowing the self-regulation of journalism and decriminalising libel.

“But we have red lines for which we are not apologetic,” he says. “Genocide ideology, genocide denial, genocide revisionism: we don’t believe [these] are an expression of free speech.”

More than 800,00 Rwandans were killed in the inter-tribal genocide of 1994, under Annan's watch.Credit: AP

Hate speech has had a “devastating effect” on Rwanda, Sezibera says, and others who assess press freedom from the outside perhaps don’t fully understand the implications.

His society is “still healing” and the government must protect people from hatred, xenophobia, exclusion and violence.

Levant’s was perhaps the most extreme challenge to the narrative at the conference, but not the only one.

Australian journalist Peter Greste used the forum to challenge politicians, including Hunt, to think about national security in a different way.

Journalist Peter Greste in the dock of an Egyptian courtroom in 2014.Credit: AP

“National security must surely be about protecting press freedom,” he said. “The idea there is a binary choice between the two is spurious.”

Hunt responded by arguing that governments commonly have a range of competing objectives – justice and mercy, for example.

By creating the conference he was not saying press freedom trumps everything, but rather “to point out that freedom has to be one of our central objectives”.

'A cycle of non-answers'

Special rapporteur Kaye said it was obviously true there were other rights that freedom of expression sometimes comes into conflict with – the right to a fair trial is one of many examples (cf Tommy Robinson).

“But governments constantly fail to demonstrate the necessity of any particular restriction,” he said. “They are constantly asserting some other value like a national security interest … but they can’t tell you why. It’s a cycle of non-answers. As a government you are under an obligation to demonstrate why your restrictions are necessary.”

Governments need to concede that journalism is “special”, Kaye said, because protecting journalists is protecting the public’s right to information.

“We are in a golden age of surveillance: all these digital tools of convenience [we use] have given governments enormous technological power to get access to everything we do and everything we say,” he said.

“There is this deeply unfortunate confluence of post-9/11 and the rise of the digital age that made it close to impossible to protect the privacy of [journalistic] work.

“People could care less about journalists. But they should care about the possibility in the future to have adequate and accurate information about what their governments are doing.”