Dear Mike Buchanan,
Welcome to the FSU’s weekly newsletter, our round-up of the free speech news of the week. As with all our work, this newsletter depends on the support of our members and donors, so if you’re not already a paying member please sign up today or encourage a friend to join and help turn the tide against cancel culture. You can share our newsletters on social media with the buttons at the bottom of this email (although not if you’re reading this on a desktop). If someone has shared this newsletter with you and you’d like to join the FSU, you can find our website here.
The Digital Services Act and the EU’s bureaucratic assault on free speech
The European Union’s (EU) Digital Services Act (DSA) came into force on Friday 25th August, establishing a regulatory framework that critics have likened to an “incoherent, multilevel censorship regime” (LA Times) that will have a “chilling effect on free speech” (Spiked), “momentous and disastrous implications for freedom of speech worldwide” (Brownstone) and will ultimately cause “the death of free speech online” (Spiked).
The DSA is designed to function in combination with the EU’s so-called ‘Strengthened Code of Practice on Disinformation’ (the Code), which now requires online platforms with more than 45 million monthly active users – i.e., companies like Facebook, Twitter and Instagram – to swiftly censor ‘mis-‘ and ‘disinformation’, and provide regular updates – or ‘transparency reports’ – on all the work they are doing “to fight disinformation”, as the EU’s new ‘transparency centre’ website puts it.
Thanks to the DSA, the European Commission (EC) also has at its disposal an aggressive enforcement regime, such that if Big Tech companies fail to abide by the Code, they can be fined up to 6% of their annual global revenue, investigated by the Commission, and potentially even prevented from operating in the EU altogether.
Unfortunately, the fact the UK is now no longer an EU member-state won’t do much to protect social media users in this country from this new law. The so-called ‘Brussels Effect’, whereby firms wishing to operate in the world’s second-largest market quickly come to apply the EU’s strict regulatory standards outside as well as inside the EU is well-known. (Witness the evolution of GDPR, from newly minted EU regulation in 2018, to global standard today.) What’s particularly striking about the first raft of transparency reports submitted to the EC earlier this year is their focus on fighting disinformation globally: i.e., Big Tech’s efforts to meet the EC’s censorship expectations do not only affect the accounts of users based in the EU, but of users all around the world.
So who is to say if something is dis- or misinformation? In the case of social media platforms operating within the EU, the EC’s unelected bureaucrats are the arbiter of that, since it is the Commission that will decide if platforms like Facebook are doing enough to combat it. (It is the EU’s executive body, the EC, that is invested by the DSA with the exclusive power to assess compliance with the Code and apply penalties if a platform is found wanting.)
And what kind of speech is the DSA expected to police? The Code defines disinformation as “false or misleading content that is spread with an intention to deceive or secure economic or political gain and which may cause public harm”. That sounds innocent and apolitical enough. Yet the European Digital Media Observatory (EDMO), which was launched by the EC in June 2020 and aims to “identify disinformation, uproot its sources or dilute its impact”, appears to adopt a much broader, deeply politicised understanding of the term “misleading content”.
Consider, for instance, some of the “disinformation trends” listed in EDMO’s recent 2023 briefing on disinformation in Ireland. They include “nativist narratives” that “oppose migration” (bye bye Nigel Farage) and “gender and sexuality narratives” that touch on trans issues as “part of a wider ‘anti-woke’ narrative that mocks social justice campaigns and efforts to promote diversity and inclusion” (farewell Titania McGrath). In the section on “science and environment”, posts in which “Greta Thunberg is a frequent target for abusive language and humour relating to climate change” are cited as disinformation, as are those in which “Met Éireann [the state meteorological service] weather warnings are viewed with suspicion” (au revoir to the Global Warming Policy Foundation).
As Laurie Wastell points out for the European Conservative, what is common to these supposedly ‘harmful’ narratives is not that they contain ‘disinformation’ in the sense outlined in the Code (i.e., “false information intended to mislead”). Rather, they represent opposition by the public to unpopular policies favoured by elites – in this case, mass migration, transgender ideology and Net Zero eco-austerity.
That’s concerning given that the EDMO sits on the Code’s ‘Permanent Taskforce’ (stated aim: keeping the Code “future-proof and fit-for-purpose”), and nearly every company that submitted a transparency report to the EC earlier this year cited EDMO as a partner organisation.
In the words of EC President Ursula von der Leyen, the EU considers it vital that companies censor disinformation of the kind identified by EDMO to “ensure that the online environment remains a safe space”.
Safe for whom, one wonders – politicians or citizens?
Dr Almut Gadow’s legal fundraiser – show your support!
Writing in the Spectator, Prof Alice Sullivan described the case of former-law lecturer and FSU member Dr Almut Gadow as “perhaps the most shocking” of the three legal challenges the Open University (OU) is currently facing from staff and students who say they’ve been discriminated against for expressing the ‘gender critical’ beliefs.
In Dr Gadow’s case, the claim is that she was sacked by the OU after questioning requirements to embed gender identity within the law curriculum.
Supported by the FSU, Almut is bringing a case against the OU, arguing that she was harassed, discriminated against and unfairly dismissed because she rejects gender identity ideology, and this breached human rights protections for academic freedom.
During the academic year 2021-22, the university’s equality, diversity and inclusion (EDI) team announced plans to incorporate its political ideologies across the curriculum. The “liberating the curriculum” policy that resulted was, Almut says, “effectively a checklist of ideological compliance”.
Dr Gadow raised concerns about various requirements, including introducing numerous gender identities into the curriculum and teaching students to use offenders’ preferred pronouns.
She argued that a criminal lawyer’s role “is to present facts” and that “sex is a relevant fact for offences involving perpetrators’ and/or victims’ bodies”.
Dr Gadow also made the case that “no offender should be allowed to dictate the language of his case in a way which masks relevant facts”.
To her disbelief, managers who spotted these forum posts described her requests for engagement as “serious insubordination” and accused her of creating an environment not “inclusive, trans-friendly or respectful”. Months later, her posts would be cited as reasons for her dismissal.
This is the FSU’s most ambitious crowdfunder yet, and for good reason: not only does Almut deserve justice for the egregious way she’s been treated, but this case provides the best opportunity yet to establish a strong legal precedent in favour of academic freedom that will protect all the staff of British universities, especially those who believe in the reality of biological sex.
We’ve just passed £60,000 on our way to the initial target of £70,000, which will cover the cost of the preliminary hearing, disclosure of documents and preparation of a trial bundle. That’s good news – but there’s still a long way to go.
Click here to read Almut’s legal Crowdfunder statement – and if you can, please share the page and make a donation.
Latest episode of the FSU’s weekly podcast is out now!
On this week’s episode, hosts Tom and Ben interview Dr Almut Gadow about her impending legal battle with the Open University, and discuss Denmark’s proposed ban on burning the Koran and other religious texts, as well as the free speech concerns raised in our latest briefing paper on ‘Carbon Literacy Training’ (interestingly – and revealingly – called ‘Carbon Emergency Training’ is Scotland).
The episode is available to download for free by clicking here.
The radical subjectivism of the Irish hate speech bill
How is it that Ireland can have witnessed a sharp rise in the reporting of hate crime and hate-related incidents just as the Irish Government’s own survey data indicates the country is becoming an increasingly tolerant country, where eight in 10 people feel “very comfortable” living next door to people with different nationalities, ethnicities, genders, sexual orientations, disabilities, religious beliefs (or lack thereof) and marital statuses?
As the Irish journalist Ben Scallan points out in an article that caught Elon Musk’s eye this week, a clue lies in the fact that an increase in ‘reporting’ is not the same thing as an increase in actual hatred.
All that’s required for the Garda to log a reported hate crime (a crime motivated by hatred), or non-crime hate incident (behaviour motivated by hatred), is that the ‘victim’ – or any other person who witnessed the incident – perceives that the ‘perpetrator’ was motivated by hostility or prejudice towards one or more of the victim’s protected characteristics.
The distinction between perceived and actual hatred is deliberately glossed over by the identikit woke graduates with degrees in all sorts of ghastly sounding subjects like ‘sustainable development’, ‘social justice and community action’ and ‘global ethics and justice’ that now comprise the workforce at the NGOs with links to George Soros’s Open Society Foundation that operate in Ireland.
In Ben Scallan’s view, these organisations have been manipulating the statistics and waging campaigns to lower the threshold for hate crime reporting in Ireland, while encouraging citizens to report instances of perfectly lawful speech that happen not to align with their doctrinaire ideological worldview as ‘hate incidents’.
The Garda does at least acknowledge that things may not be quite as they seem, having conceded that a “very low threshold of perception” currently applies to hate crime reporting. Yet methodological sophistication of this kind has been curiously absent from proposals put forward by Ireland’s governing classes that argue for a new and allegedly desperately needed hate crime law that will restrict free speech and open up new pathways for political persecution.
In those proposals, the distinction between perceived and actual hatred has all but collapsed: ‘increased reporting’ is breezily conflated with ‘increased hatred’ such that for politicians like Justice Minister Helen McEntee and Senator Pauline O’Reilly the need for intensified state censorship of perfectly lawful but dissenting speech that certain sub-sections of Irish society happen to regard as ‘hateful’ now seems completely unarguable.
Nor is this confusion simply to be found in the debating chambers of the Dáil and Seanad Éireann. It constitutes the underlying philosophy of the country’s Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill, where the “communication” of material or speech that might “incite hatred” against people with certain protected characteristics is punishable by up to five years in prison, and where simply to “possess” such material on a computer or a phone is a crime with a maximum tariff of two years.
The proposed legislation contains no definition of ‘hate’, which means that once the Bill is passed it will effectively be the Garda that determines what constitutes hatred based on its current, capacious definition of a hate crime as “perceived by the victim, or any other person, to have been motivated by prejudice, based on actual or perceived age, disability, race, colour, nationality, ethnicity, religion, sexual orientation or gender”.
Critics of the Bill – like Free Speech Ireland – are concerned that this perception-based definition will leave the public unaware that in speaking about certain issues in certain ways that may in future unwittingly be committing a crime.
Looked at from the opposite perspective, however, it’s precisely this lack of clarity that will allow every perpetually offended woke scold south of the Irish border to trust to their perceptions and report every street preacher proselytising their faith on the streets of Dublin, the ‘transphobia’ of every gender critical feminist arguing the importance of biological sex on social media, the ‘offensive colonial condescension’ of every white male momentarily raising an eyebrow during a workplace team meeting to the Garda. It is after all the stated policy of the country’s national police force that when it comes to hatred, “[t]he perception test is the defining factor, no additional evidence is required at the reporting stage”.
As Ben Scallan goes on to point out, under the Garda’s perception-based definition of hate crime, you don’t even have to be the victim of an alleged hate incident to report it: “A random bystander who has nothing to do with the event can say, ‘I think it was based on prejudice,’ and it will be categorised as such.”
Of course, it won’t be “random bystanders” with a priggish manner, flapping ears, and a little too much time on their hands that end up weaponising this definition. The real danger is posed by activist groups and George Soros-funded NGOs bent on criminalising perfectly lawful views that they happen to disapprove of for doctrinaire ideological reasons.
“Will mocking memes be tolerated?” asked independent senator Ronan Mullen during a debate on the proposed legislation in the Senate earlier this year. “Will carrying a placard stating, ‘Men cannot breastfeed’ warrant a hate-speech investigation or up to five years’ imprisonment, a lifelong label as a criminal hater, and all of the stigma and life limitation that goes with that? Nobody actually knows.”
Nobody actually knows, no. But each of Mr Mullen’s hypothetical scenarios could potentially lead to a ‘hate crime’ investigation, which would then feature in the Garda’s annual reporting dataset, which would then perpetuate the myth that Ireland is becoming less tolerant, which would then lead to calls from Soros-backed NGOs for even more draconian hate speech laws, which would then… and so on and so forth, in an endless cycle of intensifying state censorship.
Gillian Philip case – show your support here!
FSU member Gillian Philip continues to fight for a woman’s right to state biological facts without fear of losing her job.
Gillian brought an Employment Tribunal claim against publishers Working Partners and HarperCollins, arguing that she was unlawfully discriminated against when her contract to write children’s books was terminated because she included #IStandWithJKRowling in her Twitter bio.
A preliminary hearing was held to determine whether Gillian’s claim had been filed in time and whether she had rights under the Equality Act 2010 as a worker or employee of Working Partners.
The judge at the Employment Tribunal described Gillian’s situation as unique. (The judgement can be found here.) Gillian won on the trickiest aspect of her case, namely, delay in bringing a claim. The judge found that it was fine for her case to be pleaded after the time limit because in the immediate aftermath of her termination by Working Partners she was depressed following the death of her husband.
However, although Gillian won on the time question, she lost on the worker status question and so she is now appealing that part of the judgement to the Employment Appeal Tribunal.
In launching her appeal, Gillian will once again need your help. You can find out more about the case and donate to her cause here. (Gillian was also a recent guest on our weekly podcast, That’s Debatable! – you can listen here).
Is there a left way back from woke? Online tickets still available!
In-person tickets have now sold out for our next event, ‘Is there a left way back from woke?’, with Professor Umut Özkirimli on Wednesday 13th September in London. But if you’d like to attend virtually, you still can – watching online is free for FSU members. The link to register for the Zoom feed is here.
In his provocative new book, Cancelled: The Left Way Back from Woke, Professor Özkirimli describes how the Left has been sucked into a spiral of toxic hatred and outrage-mongering, retreating from the democratic ideals of freedom, tolerance and pluralism that it purports to care about.
Professor Özkirimli will be joined in conversation by two eminent public intellectuals. Professor Alice Sullivan has been instrumental in providing evidence that clarifies the need to preserve sex-based social categories in data-collection and policy-making, while Dr Ashley Frawley is one of the most interesting contemporary critics of identity politics.