25 January 2010

To forbid or not to forbid books is still a question



Index Librorum Prohibitorum ("Index of Prohibited Books" ou "List of Prohibited Books", in English) was a list of publications that were forbidden by the Roman Catholic Church, of "immoral books", 1564/1559

«In democratic and globalised societies, it becomes increasingly difficult to create and to keep an index of prohibited books»

To forbid or not to forbid books is still a question

by Francisco Teixeira da Mota

The European Court of Human Rights has pronounced itself several times already about the prohibition of books, issued in countries that are members of the European Convention on Human Rights, and it is worthwhile to learn about its decisions.

The first case that anyone can remember was the famous case of the Little Red School Book which was forbidden in England in 1971, after having already been published in several other countries. The English courts decided that statements like “Maybe you smoke hashish or lie down with your boyfriend or girlfriend without telling your parents nor your teachers because you don’t dare to, or simply because you don’t feel like talking about it. When you do things that you really feel like doing and enjoy them, don’t feel guilty or ashamed just because your parents or your teachers may disapprove of them. Many of them will be more important to you in life than those that are approved”, or “Pornography is a harmless pleasure as long as it is not taken seriously and as long as one does not think it matches real life. Whomever mixes it up with reality will be deeply disappointed. But it is also quite possible that you get good ideas (from pornography) and that you discover things that look interesting and that you haven’t tried yet”, fell under the scope of the Obscene Publications Act . In 1976, the European Court of Human Rights considered that said prohibition did not violate freedom of expression as it is consecrated in article 10 of the European Convention on Human Rights, taking into account the argument that was invoked by English authorities: moral protection, namely of young people.

In 2005, in the case of I. A. against Turkey, in a very split decision (4 votes in favour and three against, one of them by Portuguese judge Irineu Cabral Barreto), the European Court of Human Rights once more considered that it is acceptable, under the exceptions that are consecrated in the European Convention on Human Rights, for Turkey to prohibit a romance, and to condemn its author to a prison sentence that could be changed into a fine, because it considered the book to be blasphemous.

According to the opinion of a majority of the judges, the prohibition of the book was justified because the expressions used in the book were not merely offensive, shocking or provocative, but rather constituted “an abusive attack against Islam’s Prophet”. Thus the prohibition sought to prevent “offensive attacks against matters that are considered to be sacred by Muslims”, taking into account that the European Court of Human Rights had also previously accepted restrictions on freedom of expression in the defence of religious views, in these cases to protect Christian populations, in the cases of Otto-Preminger-Institut (1994) v. Austria and Wingrove v. the United Kingdom (1996).

On the other hand, in the case of Plon versus France, in 2004, the European Court of Human Rights considered that France had violated freedom of expression as it is consecrated in the European Convention on Human Rights, by forbidding the distribution of the book The Big Secret, written by a journalist and by the personal physician of president Miterrand, published after his death, which revealed the cancerous disease that he suffered from shortly after his re-election in 1981, which had been carefully hidden despite the half-yearly publication of health bulletins. The family had managed, first within the scope of an injunction, and later in a common action, to prohibit and to maintain the prohibition over the book’s distribution. For the European Court of Human Rights, the provisory prohibition, following the book’s publication ten days after Mitterrand’s death, was justified, taking into account the violation of medical secrecy and the damage that had been inflicted on the deceased’s reputation and the suffering that had been inflicted on the family by exposing him as someone who had lied to the people that had elected him.

Nonetheless, the European Court of Human Rights did not consider that it was legitimate to maintain said prohibition, when the court decided to uphold it nine months after Miterrand’s death: the doctor’s civil and professional responsibility had already been investigated, thousands of copies of the book had already been seized and copies of the book were circulating on the internet, hence the matter of medical secrecy had been surpassed and there was no “imperious social need” to uphold the prohibition. Therefore, the European Court of Human Rights considered that France had violated freedom of expression.

In the cases of The Observer & Guardian Newspapers Ltd. versus the United Kingdom (1991), in which the publication of excerpts from the book Spycatcher, written by Peter Wright, an MI5 spy, the European Court of Human Rights made a similar disctinction, because its publication put national security at stake. The Court considered that the injunction that had been issued by the English courts, between July 1986 and July 1987, did not represent a violation of article 10 of the European Constitution for Human Rights, but from that date onwards, with the book being published in the United States, it considered that the maintenance of the prohibition was no longer justified, and declared that the United Kingdom had violated article 10 of the European Constitution for Human Rights.

In 2001, in the case of Ekin Association versus France, the European Court of Human Rights considered that the Home Ministry's prohibition against the circulation of a book that, according to French authorities, promoted Basque separatism and defended the use of violence, thus representing a threat against public order, was not justified under the Eurpoean Constitution for Human Rights, and was an excessive measure.

In democratic and globalised information societies like, to a greater or lesser degree, the societies of the countries that are members of the European Counsel, it becomes increasingly difficult, both in terms of legitimacy and in terms of effectiveness, to create and to keep and index of forbidden books.



Published in Público Newspaper on 16/01/10 - from A Torto e a Direito

also recommended: Segredos da Justiça e o TEDH


24 comments:

  1. The fact that Madeleine is still missing should make every opinion on the case, including that of Goncalo Amaral, a reason to be read and discussed in detail. The situation we have now is the victims in this terrible affair are seen to be the McCanns themselves, rather than their daughter Madeleine.

    ReplyDelete
  2. your article comes just on the day that i read that details about the death of dr.kelly will be kept secret for a lot longer than the usual restricted length of time

    ReplyDelete
  3. @ Post 2

    SNAP! Me too. I just read this on Alex Jones' channel:

    infowars.com

    ReplyDelete
  4. Was dr. kelly that man who committed suicide at the beginning of the last war in Irak?

    ReplyDelete
  5. It seems hardly credible that Amarals book should be banned. It matters little in any case as most of us have read it and it will of course continue to be available - and available via the internet it is unstoppable except in countries like China (no doubt the McCanns and the UK Government wish we operated like China - indeed the UK is moving increasingly toward such a system, arguably is already there!).

    The thing that most sticks in my throat is the fact that freedom of expression seems to be freedom of the press to say what it wants, yet the press is increasingly the very limited views of a few people, primarily the owners (editorial freedom being totally tied to the opinions and directives of the owners). Where is the alternate views to those of Clarence Mitchell? Such alternate views get no airtime in the UK and even the BBC, in theory owned by the people, does not have a fair and open approach (try getting a view posted on their website for example!).

    If the message from the Portuguese court is that the McCanns clearly losing position is the one to be supported by the judiciary, then Portugal shows itself to be subservient to the UK UK - very sad for a proud nation to give away its sovereignty.

    ReplyDelete
  6. I agree with Nancy. In the UK the McCanns have been seen as 'victims' by the UK establishment - because in the UK doctors and especially consultants are seen as some kind of gods.

    There is of course more to their protection, one aspect of which is the type of people in the media, people like Fiona Phillips and teh other woman (who's name I forget) who lied about her dieting and campaigns for parents who suffer cot deaths. These types of people expect everyone else except themselves to protect their children!

    ReplyDelete
  7. I watched a new video on McCannfiles, where Garry makes a terrible slip.
    something like"there is no evidence that Madeleine is dead and there is no evidence we are involved in her DEATH"
    watch it!

    ReplyDelete
  8. An extract from Plon versus France:

    "the European Court of Human Rights did not consider that it was legitimate to maintain said prohibition, when the court decided to uphold it nine months after Miterrand’s death: the doctor’s civil and professional responsibility had already been investigated, thousands of copies of the book had already been seized and copies of the book were circulating on the internet, hence the matter of medical secrecy had been surpassed and there was no “imperious social need” to uphold the prohibition. Therefore, the European Court of Human Rights considered that France had violated freedom of expression."

    Now surely the European Court of Human Rights will take into account that the book (that the McC's now try to censor)was in circulation for a year or more and also translations of the book was available on the internet in many different languages before the McC's did anything about it. Translations of the book are still available on the internet. How can they claim it damages their reputation if they did not take legal action immediately? Just my opinion for them to have taken legal action immediately would mean there was no money to be made! Hopefully the Portuguese judicial system will see sense and nip this in the bud.

    ReplyDelete
  9. There is a very scientific article by Martin Roberts on McCannfiles today ( something about key). Very logical (and difficult to be read).
    It would explain why 4 of Tapas 9 "recognized" Murat.
    And why Kate was insisting asking the PJ to concentrate on Murat.
    If the PJ would have found the body before the dogs came, Murat would have hang.
    This theory could be true.
    After being kept in the church(my theory) they took her to an empty house or apartment, that Murat was renting to tourists.

    He could have gaven the key to his new client(it is his job) and did not think of controlling that place, of course.

    ReplyDelete
  10. Here two articles of The Universal Declaration of Human Rights that I particularly suggest Gerald McCann, Kate Healy and accolades should read.

    Article 18.
    Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

    Article 19.
    Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

    ReplyDelete
  11. IMO it's a question not of naive belief that words don't harm, but of balancing the benefit for society when ideas and opinions circulate freely vs the cost for society when receiving dangerous and controversial ideas and opinions. No doubt that the first outweigh the second.

    ReplyDelete
  12. 9, I just read the article on McCannfiles.
    Yes, the person who rent the residence must be Tapas 13.
    He probably took the body to that empty house, not the McCanns themselves.
    That is why Jane Tanner at first only saw an egg and later "recognised" Murat.
    And somewhere, long ago, I read about McCanns visiting an apartment.
    And this explains the McCanns going to Huelva when the dogs arrived.
    They were afraid the dogs would check all residences rented to others by Murat.
    Maybe is Madeleine not yet buried, poor child.
    People who live close to that apartment must have seen who rented it.
    or who was coming and going.

    Perhaps she has been taken to another empty house, another freezer in Algarve, much later.

    But it is obvious that Tapas 9 wanted to incriminate Murat.
    Hoping that the police would find Maddie's body in an apartment that had to do with Murat.

    And four people of Tapas 9 had "seen"him.

    Four witnesses, a corpse, Tapas 9 could not wish themselves better.
    And Maddie would have had a decent funeral,
    Murat in prison,
    case closed.

    ReplyDelete
  13. @4
    Dr Kelly did not kill himself.
    He was 'removed'

    ReplyDelete
  14. The popular theory seems to be that Madeleine, or her body, was taken to a house, or according to Dave Edgar, in some wild and rocky part of Praia de Luz.

    The most likely scenario to me is that Maddie's body was taken via a boat to a very deep part of the Atlantic ocean where, being a very small body,it would soon disappear. I believe one of the tapas pals was proficient in sailing. I can't remember which one it was. I know somewhere it was said that Maddie was taken on a boat trip and she was very frightened.

    Does anyone else remember reading that?

    ReplyDelete
  15. Gerry McCann said that confusion is best.

    If Murat said he didn't know the McCanns, then why question his word when he has never been caught out in a lie.

    Gerry McCann, by answering the question in the way that he did as to whether or not he knew Murat, has done exactly what he says is best.

    Spread yet more confusion.

    ReplyDelete
  16. Since Mr. Amaral's book is based on the facts of the investigation, in other words it is not theory or fiction, I cannot understand why it should be prohibited. The only thing the McCanns are concerned about it will severely damage their reputation and careers among any persons who believe in their innocence.

    ReplyDelete
  17. #16
    Wish I didn't have to burst your balloon, but Murat's statements did have inconsistencies, too.

    Having said that, I do believe he was being used as a scapegoat and nearly took the fall for something he didn't do.

    #12
    After reading Dr MR's new piece, I agree that #12's theory is quite plausible.

    Gm's refusal to answer whether he knew Murat may have just happened because it was not within the scope of the mantra for that particular day.
    And as he says, confusion is best.

    ReplyDelete
  18. in some ways perhaps it would be to his advantage if in february GA loses the case>Then it would be decided by the european court which would generate more and bigger headlines making the public aware of more facts and could only result in his victory (I hope)

    ReplyDelete
  19. @19
    You have a good point there!

    ReplyDelete
  20. @4

    Dr Kelly is in the same mould as Robin Cook. Most likely bumped.

    There are many political figures who "go missing" or who "committ suicide".

    I personally believe they are "removed" - as one poster mentioned the word "removed".

    ReplyDelete
  21. Mathew Belgium

    To ban or not to ban the book, that is the question.

    Mr. Amaral wrote his book from the point of view as a former policeman with a lot of experience, no doubt about that. After analysing the case he came to some conclusions.

    Did I have to agree with his opinion and conclusions ?
    No, not at all. In fact my conclusions were even worse.

    Did the book changed my opinion ?
    To be honest: discussing the case with my wife and son, our view changed every 15 minutes just by reading the next chapter.
    However my conclusions didn't change.

    Did it damaged my search for Maddie ?
    No. We got even more active to find out what had happened.

    And than the files came available for the public.
    Well, they were chocking: there is sometimes more to find in one page than in the whole book. My own conclusion still stands.

    My opinion:

    If the book is to be banned than the files should also be banned.

    At this moment Mr. Amaral is the only person in the whole world not allowed to talk about the content of his book !!!

    Even when the book is banned , it's available on the internet.

    The worst scenario for the Mccanns is when the book is banned and Mr.Amaral goes to court again (Human Rights ). This could take several years. In the mean time:
    1. If Maddie is not found the Mccanns must keep searching (money ?)
    2. If she is found she must be alive
    3. If she is found dead (forensic will find out about her age,....

    Mathew







    On this moment Mr. Amaral is the only one who may not talk about his book.

    ReplyDelete
  22. For the dear ones parted from us, we would raise our hymn of prayer
    By the tender love which watches round our children everywhere
    Mother, father, teacher, lover, keep them ever in our care

    ReplyDelete
  23. For the dear ones parted from us, we would raise our hymn of prayer
    By the tender love which watches round our children everywhere
    Mother, father, teacher, lover, keep them ever in our care

    ReplyDelete