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Politics

Oct 15, 2008

On freedom of speech and Gerald Fredrick Toben

We should be speaking up for him now, rather than waiting for a more appealing victim of this attack on free speech.

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Holocaust denier Gerald Fredrick Toben remains in prison in the UK and will return to court this Friday. He will not be tried before 2009 at the earliest and, given the apparently fanatical zeal of German prosecutors, is likely to remain in prison until then.

Media coverage of his case remains virtually zero. This partly reflects the fact that the natural constituency to speak up on his behalf, the Left and human rights advocates, are the ones most likely to find his views especially repugnant. Julian Burnside called last week for the Government to give him all assistance to which he was entitled as an Australian citizen. Otherwise, there’s been near-total silence. Right-wing commentators, who are normally happy to defend free speech when it’s being used against the Left and minorities, have also been peculiarly silent.

According to DFAT, Australian consular staff visited Toben last week and he will continue to be provided with consular assistance. The Government, however, has said nothing about him or on his behalf.

One of the worst aspects of this, as a UK commentator noted last week, is that this risks making Toben a martyr and giving him credibility. The man is a fool, at best, and holds disgusting views that even David Irving has expressed reservations about. That puts him way beyond any civilized discourse. It does not, however, put him beyond the fundamental protection that should be afforded free speech that does not amount to vilification or incitement to violence.

But if we disentangle the details of what has happened to Toben, maybe a few more people might begin to question what has happened.

Toben was en route from the US to Dubai. His plane had a scheduled stopover in London, and police boarded the plane and arrested him on a European Arrest Warrant from the German Government for publishing “anti-Semitic and/or revisionist” material prior to 2004. This is not an offence in the United Kingdom (or here). As another UK commentator pointed out, Toben’s arrest is therefore contrary to UK Government promises that people would never be extradited under the European Arrest Warrant — introduced to expedite counter-terrorism activities — for activities that were not crimes in the UK.

There is also a separate legal issue about whether Toben’s activities fall within the “European framework list” of offences that permit extradition and if so, whether it occurred in the UK as well as Germany and therefore Toben should be tried there rather than in Germany.

That’s because Toben didn’t commit his breaches of German law in Germany. He committed them in Australia, when he uploaded material onto his website. Anyone who downloaded them in Germany might have been breaching German law, but Toben didn’t, because he wasn’t there.

Of course, the Germans’ argument will be that in publishing his material on the internet, that means he was publishing in Germany, along with everywhere else. This isn’t a view confined to Germans trying to make up for their country’s Nazi past. Joe Gutnick inflicted significant damage on free speech in Australia in 2002 when he convinced the High Court that a comment in a Dow Jones online publication published in the US could be the subject of libel proceedings under Australia’s absurdly restrictive defamation laws, rather than in the US.

If we accept this approach, then, depending on extradition treaties, bloggers and online publishers could find themselves suffering the same fate as Toben — hauled off to a country where expressing a particular opinion constitutes an offence, regardless of whether it is an offence in their own country — or one they happen to be in at the time.

Sounds melodramatic, right?

Andrew Sinclair of the Queensland Council for Civil Liberties, while not commenting specifically on the Toben case, raised a scenario. What happens to an internet activist if a plane is forced to land, like the Qantas flight last week, due to a mechanical emergency, and touches down in a country with an extradition treaty with a jurisdiction with harsh restrictions on free speech? Toben’s plane was on a scheduled stopover at Heathrow when he was seized and taken from it. To this extent, he is arguably responsible for his current predicament, and should have avoided any EU country. But what if he had been on a plane that was forced to land in an EU country due to mechanical fault?

The combination of the UK’s willingness to extradite people when they have committed no offence under UK law, and goverrnments’ willingness to claim jurisdiction over the internet, has trapped Fredrick Toben. We should be speaking up for him now, rather than waiting for a more appealing victim of this attack on free speech. And so should our Government.

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