Sally Bercow aptly demonstrates that media laws are designed for a different century

"Don't break this law which we can't tell you."

So Sally Bercow appears to have quit the Twitters for good. She already was on thin ice following the legal threats from Lord McAlpine, who was understandably miffed that she named him on Twitter during speculation following a Newsnight report; but she plummeted straight through it when she was accused of breaching a section 39 order, under the Children and Young Persons Act 1933, for naming a schoolgirl who allegedly ran away with her teacher.

A parenthetical, here: a lot of people, on Twitter and elsewhere, are angry that Bercow is in trouble for this, because they rightly point out that the girl had previously been named.

Section 39 orders are used to protect the identity of children who appear, or are likely to appear, in court as witnesses, victims or suspects. They are discretionary, and so can be placed by the courts when they think appropriate. Typically, this is as soon as a court case looks on the cards, which is why the vast majority of children involved in such cases are never named. Occasionally, however, it is in the child's interest to allow their name to be publicised; maybe to encourage witnesses to come forward, to appeal to the public for help, or to track down a missing person. When that need has passed, the section 39 order can be placed as normal.

But what is important is that this is done in the child's interest. Being a witness, victim, or suspect as a young person can be traumatising, and the system is set up to allow those people to not have their name forever linked with a bad period in their early lives. Yes, it is hard to make the internet forget anything, and the Streisand effect is probably, unfortunately, going to be invoked by people. But this isn't the state crushing free speech to protect the interests of the rich and powerful; it is the state attempting to protect a vulnerable child. So please, don't start spreading that child's identity around as a knee-jerk response to Bercow's troubles.

Parenthetical over. The problem raised by Bercow's reported breaching of the order is that, as mentioned, section 39 orders are discretionary. While, as a lay person with a good knowledge of media law, it's possible to guess that whether such an order has been placed by looking at whether a child's name suddenly disappears from the press, the only way to know for sure is to be a journalist at a newspaper which gets sent the orders.

This is, frankly, a system which isn't fit for purpose in an age when nearly everyone in the country regularly uses tools which are capable of breaching those orders. The same is true of other media blackouts, like injunctions: the press is told of them, but they apply to the public as well. It has rightly never been a defence that one didn't know the law they were breaking – but when it isn't even possible to know the law you are breaking, you can perhaps feel slightly annoyed if you then accidentally get in trouble.

It's hard to know what would be better, of course. Publishing a list of the identities which can't be published is clearly counterproductive; yet we don't want to abandon the system altogether. It may be that the best option really is that mooted by Keir Starmer: an agreement that twitterers with few followers won't be prosecuted. That still leaves those who have ended up with thousands of followers facing the full wrath of the law – or, like Bercow, quitting until they take a course in media law – but it would at least minimise harm done to the vast majority of people using social networks.

In one final twist to the tale, just before Bercow's account was deleted, she appears to have been hacked. This tweet was posted late last night:

So it may not be the case that Bercow herself even deleted her account. We'll see.

As this piece involves multiple ongoing and potential court cases, comments are disabled.

Sally Bercow's former twitter page.

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

Getty
Show Hide image

What’s it like to be a human rights activist in post-Pussy Riot Russia?

It is five years since the feminist punk collective crashed Moscow’s Cathedral in a performance that got some of them jailed.

On 21 February 2012, five brightly-dressed members of Russian feminist punk collective Pussy Riot took to the alter of Moscow’s Cathedral of Christ the Saviour to protest links between the Russian Orthodox Church and its “chief saint” Russian President Vladimir Putin. “Virgin birth-giver of God, drive away Putin!” they shouted from beneath now-iconic balaclavas.

The “Punk Prayer” was both a political statement and a powerful feminist message. Six months later, a judge sentenced three of the girls to two years in prison (one was rapidly released) on a conspicuously apolitical conviction of “hooliganism motivated by religious hatred”.

These past five years, Russia’s involvement in crises in Syria and Ukraine has cast a dark shadow over relations with an increasingly cleaved-off West. The year 2015 saw opposition politician Boris Nemtsov murdered some 500 metres from the Kremlin walls.

Domestically, society has constricted people challenging the political status quo. However, low-key initiatives retain traction.

“Artists are simply silent,” says Russian curator and gallerist Marat Guelman, who left for Montenegro in early 2015. “It is better not to say anything about politics, it is better to bypass these issues.”

This is a major difference from five years ago. “Despite persecution against Pussy Riot, people were not afraid to defend them,” he says. “It was a better time.”

There are three topics artists and curators now avoid, says artist and feminist activist Mikaela. One is “homosexuality . . . especially if it involves adolescents”, she says, citing a 2015 exhibit about LGBT teens called “Be Yourself”. Authorities closed it and interrogated the galley owner. “Then the war in Ukraine,” she says. “Russian Orthodoxy is the third topic you cannot tackle.”

Marianna Muravyeva, a law professor at Moscow’s Higher School of Economics, says that aside from the government completely discarding human rights rhetoric, the most significant legal change is the “gay propaganda” law and “legislation against those who insult the feelings of believers”.

The latter came into force in July 2013. Since then, the Orthodox Church has made deeper societal incursions. Muravyeva says that the secular nature of the Soviet Union led to residual feelings of guilt towards the Church – and now it uses that “capital”.

Mikaela observes a “cultural expansion”, citing a new TV channel, radio station and three new churches in her neighbourhood alone.

Orthodox activist attacks on exhibits have increased. In August 2015, they targeted an exhibit at one of Moscow’s most prominent art galleries. Its perpetrators were found guilty of “petty hooliganism” and handed a 1,000 rouble fine (£14 by today’s rates).

“Any word written in Old Slavonic lettering is spirituality,” says Guelman. “Any work of art by a modern artist . . . depravity, sin, the impact of the West.”

Similar groups are active across Russia, and galleries err on the side of caution. Perpetrators, while self-organised, believe their actions to be state-sanctioned, says Muravyeva. They are influenced by “the kinds of messages” conveyed by the government. 

Nowadays, self-organisation is integral to artistic expression. Mikaela witnessed educational institutions and foreign foundations telling artists “we are with you”, “we know you are smart” but they cannot host political works for fear of closure. Not knowing where the “invisible line” lies foments uncertainty. “It’s self-censorship,” she says.

Dissident artist Petr Pavlensky, notorious for nailing his scrotum to the Red Square in late 2013 (“Fixation”) and setting fire to the doors of the FSB in 2015, advocates personal agency.

“Fixation” was about a sense of helplessness in Russia that must be overcome; he tried to convey the amount of power the castrated have. “Pavlensky says, ‘Look, I have even less than you’,” says Guelman. The artist and his partner Oksana Shalygina are now in France intending to seek asylum after sexual assault accusations.

Some rise to the opportunity, such as Daria Serenko. She rides the Moscow Metro carrying political posters as part of Tikhy Piket or “Silent Protest”. Her 12 February sign depicted a girl with her head in her arms inundated by the comments received if a women alleges rape (“she was probably drunk”, “what was she wearing?”).

However, as a lone individual in a public space, she experienced hostility. “Men, as always, laughed,” she posted on Facebook afterwards. Earlier this month an anonymous group pasted painted plants accompanied by anti-domestic violence messages around Omsk, southwestern Siberia.

Their appearance corresponded with Putin signing legislation on 7 February decriminalising domestic abuse that causes “minor harm”. While it doesn’t specifically mention women, Muravyeva says that the message “women can manage on their own” is a “disaster”.

On 27 January, after Russia’s parliament passed the final draft, pro-Kremlin tabloid Life released a video (“He Beats You Because He Loves You”) showing how to inflict pain without leaving a mark.

Heightened social awareness is aided by online networks. Since “Punk Prayer”, the proportion of people using the internet in Russia has exploded. In 2011, it was 33 per cent, while in 2016 it was 73 per cent, according annual Freedom House reports. Authorities have concurrently exerted stronger controls over it, eg. targeting individual social media users through broadly-worded laws against “extremism”.

Last July, the hashtag #ЯНеБоюсьСказать (“#IamNotAfraidtoSay”) went viral. Women documented experiences of sexual violence. Russian organisation Сёстры (“Sisters”), which helps survivors receive psychological support, receives “250-350” crisis calls annually.

“Over the past year, the number of applications increased,” because of the hashtag, it says. New media platforms Meduza and Wonderzine also emerged as more “socially aware” outlets. Previously “all we had was LiveJournal communities,” Mikaela says.

Bottom-up challenges are partially due to a generational shift. “Nobody bothered before,” says Muravyeva. “Those children who were born after ‘95 . . . they were already born in a very free society – they don’t know what it is to be afraid, they don’t know what it is to be self-censoring, what it is to be really scared of the state.”

Aliide Naylor is a British journalist and former Arts and Ideas Editor of The Moscow Times.

> Now read Anoosh Chakelian’s interview with Nadya Tolokonnikova of Pussy Riot