Mugabe versus the internet

Andrew Meldrum, the Guardian's correspondent in Zimbabwe, is on trial in Harare, accused of "publishing falsehoods" in this newspaper's online service. His case is important, not only as the first test of the Mugabe government's repressive media laws, but because it amounts to an attempt to inflict these laws on the rest of the world.

The Guardian newspaper is unavailable in Zimbabwe, but the prosecution insists that its criminal courts have jurisdiction over editors and journalists abroad whenever their "falsehoods" are downloaded by intelligence officers who spend their days surfing the net for criticisms of their country.

The crime of "abusing journalistic privilege" by publishing falsehoods carries up to two years' imprisonment. It is found in the Access to Information and Protection of Privacy Act - a disingenuously titled piece of legislation which in reality provides for the licensing, controlling and punishing of editors and journalists, 10 of whom have been charged so far. The act was rushed through parliament in January, and these charges relate to stories which discomfited the Zanu-PF government in the run-up to the election.

The prosecution contends that the crime is one of strict liability - ie that the journalist is guilty if the allegation reported turns out to be false, however credible or newsworthy it was at the time of publication. On this basis it will become risky to report any allegation made against the government, lest it turn out to be unfounded. Editors and reporters convicted under the act may not only be jailed but may also lose the licence to practise their profession that the act now requires them to obtain.

The magistrate in the Meldrum case must decide the crucial question of where the website story is published: in London, where it was uploaded on to the Guardian Unlimited webserver, or in Harare, where Sergeant Blessmore Chishaka downloaded it last month at the Central Intelligence Organisation.

If the crime of false publication was committed in London, the Zimbabwe court should have no jurisdiction. But if committed on downloading in Zimbabwe, the court would have jurisdiction to punish not only Meldrum but the editor of the Guardian and anyone else responsible for the uploading. (Mr Rusbridger, like General Pinochet, would have his travels truncated: no family holidays at Victoria Falls, or in countries like China and South Africa which have easy extradition arrangements with Zimbabwe.)

Last week the prosecution, which likens the world wide web to television broadcasting, sought to demonstrate how Guardian Unlimited is published in Zimbabwe. The court moved to the business centre at the Sheraton Hotel where Sergeant Blessmore quickly accessed Guardian Unlimited and called up every article written by Andrew Meldrum - except the offending piece. "Possibly it has been deleted," he concluded. In that case, of course, President Mugabe's laws would have already caused the censorship of information which would otherwise be available now in Britain, and throughout the world.

The case resumes today, with the prosecution relying on a copy of the webpage downloaded last month. The defence proposes to produce expert evidence to explain the difference between "push" technologies like broadcasting which transmit or direct information to particular areas and the "pull" technology of the world wide web, by which information reaches Zimbabwe only as a result of an electronic message sent from that jurisdiction which pulls the copy off the web server in London - the place where, as a matter of common sense, it is made available to the public.

Courts throughout the world are grappling with the legal consequences of publication on the ubiquitous and directionless web. For example, Australia's high court is deciding whether it has jurisdiction in civil defamation over a Wall Street Journal website in New Jersey. But the Meldrum case is the first to assert local criminal jurisdiction over foreign web postings. Countries with more barbaric laws against seditious writing (Iran and Libya, for example) would doubtless welcome a precedent.

This prosecution may prove an "own goal" for Robert Mugabe. He claims that his laws, however repugnant to other countries, are of concern only to Zimbabwe: they provide no warrant for the international community to interfere in his internal affairs. But by giving these laws extraterritorial effect, asserting jurisdic tion over web publishers wherever they may be located, his laws are attacking freedom of speech abroad as well as at home. Even on his own outdated theory of national sovereignty, this would entitle other countries to take action against Zimbabwe to protect the freedom of speech of their own citizens.

These new media laws are blatant infringements of the country's constitutional guarantee of freedom of expression: the acid test of the country's judiciary will be whether, in subsequent proceedings, it has the independence to say so.

· Geoffrey Robertson QC is co-author of Robertson & Nicol on Media Law, published by Sweet & Maxwell. He attended the Meldrum trial at the request of the Guardian.
g.robertson@doughtystreet.co.uk