Whistleblowers play a vital role in releasing information the powerful would rather keep secret. But the former pay a high price for their bravery, as the experiences of recent whistleblowers such as Chelsea Manning and Edward Snowden make plain. Another whistleblower whose life has become very difficult after leaking is Rudolf Elmer. He has a Web site about his actions and his subsequent problems, but it's not the easiest to navigate. Here's Wikipedia's summary of who he is and what he did:

In 2008, Elmer illegally disclosed confidential bank documents to WikiLeaks detailing the activities of [the Swiss multinational private bank] Julius Bär in the Cayman Islands and its role in alleged tax evasion. In January 2011, he was convicted in Switzerland of breaching secrecy laws and other offenses. He was rearrested immediately thereafter for having again distributed illegally obtained data to WikiLeaks. Julius Bär as well as select Swiss and German newspapers alleges that Elmer has doctored evidence to suggest the bank engaged in tax evasion.

According to a new article about him in the Economist, Elmer has undergone no less than 48 prosecutorial interrogations, spent six months in solitary confinement and faced 70 court rulings. The good news is that he has finally won an important court case at Switzerland's Supreme Court. The court ruled that since Elmer was employed by the Cayman Islands affiliate of the Zurich-based Julius Bär bank, he was not bound by Switzerland's strict secrecy laws when he passed information to WikiLeaks. Here's why that is a big deal, and not just for Elmer:

The ruling matters because Swiss banks are among the world's most international. They employ thousands of private bankers offshore, and many more in outsourcing operations in countries like India and Poland. Many foreign employees are involved in creating structures comprising overseas companies and trusts linked to a Swiss bank account. Thanks to the ruling, as long as their employment contract is local they can now leak information on suspected tax evasion or other shenanigans without fear of falling under Switzerland's draconian secrecy law, which imposes jail terms of up to five years on whistleblowers.

Sadly, Elmer's problems aren't over. According to the Economist article, he was found guilty of forging a letter and making a threat, and has been ordered to pay SFr320,000 ($325,000) towards the costs of the case. He maintains this was imposed on him as "revenge" for prevailing in the main part of his case. Certainly, in the light of the Supreme Court's ruling in favor of whistleblowing, he is unlikely to have won any new friends in the world of Swiss banking.

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In the era of "retweets ≠ endorsements," a ruling like this makes no sense. It makes no sense even without this caveat, but welcome to Switzerland's bizarre take on free speech.

A Swiss court has fined a man for “liking” defamatory comments on Facebook, in what is believed to be the first case of its kind.

According to a statement from the Zurich district court, the 45-year-old defendant accused an animal rights activist, Erwin Kessler, of racism and antisemitism and hit the “like” button under several comments from third parties about Kessler that were deemed inflammatory.

According to the court, you don't actually have to make defamatory statements to be fined for defamation. All you have to do is show your supposed support by clicking a button. Even if the defendant agreed with the inflammatory comments (information provided in the Guardian's article suggests Kessler has a distant racist past, which likely prompted the online dogpile), he did not make the statements himself. That people routinely use "like" buttons to flag stuff they want to keep track of and re-post things they don't agree with apparently wasn't considered. Or, if it was, it was quickly discarded.

The court said it did not matter that the comments had not originated from the defendant, whose name was not given. By clicking the like button, “the defendant clearly endorsed the unseemly content and made it his own,” the court statement said.

Just as surprising is the fact that several people ended up being fined in relation to this Facebook discussion. Except all the other fines were handed down in response to comments made. This defendant is the only one being punished for his "likes."

His lawyer raises a very good point:

“If the courts want to prosecute people for likes on Facebook, we could easily need to triple the number of judges in this country,” he said. “This could also obviously easily become an assault on the freedom of expression.”

The small mistake in this statement is there's no need to use the future tense. The assault on freedom of expression has already begun, where button clicks are treated as publication of defamatory statements.

Considering the court's extremely disturbing definition of defamatory speech, those fined in connection with this group thread perhaps picked the most inadvertently-hilarious hill to die on:

The comments were made in 2015 during heated discussions on a range of Facebook groups about which animal welfare groups should be permitted to take part in a vegan street festival, the Swiss daily Tages Anzeiger reported.

Somewhere in that sentence is a metaphor about progressives devouring themselves that begins with heated Facebook discussions and ends with someone overturning cars in a Whole Foods parking lot.

Beyond the entertaining mental image of PC'er-than-thou types devolving into defamatory mudslinging is the uncomfortable reality of the Swiss judicial system, where being little more than a bystander in a heated discussion turns you into a legally-culpable participant.

Perhaps the thinnest skinned politician on the planet -- Recip "Gollum" Erdogan -- is at it again. His legacy of injunctions, legal threats, and even copyright abuse continues. The latest to draw Erdogan's wrath is Switzerland, which, to be fair, has drawn his wrath in the past. The repeat "offender" was targeted by Erdogan in 2016 for an art exhibit he didn't care for. This wouldn't have happened if Switzerland didn't have a law on the books forbidding insulting foreign leaders. Erdogan has the uncanny ability to sniff out foreign laws that might help him remain un-insulted, but so far has only managed to Streisand himself into infamy.

This time around, it's a Swiss tabloid earning the Turkish president's disdain/threats of prosecution.

The Zurich-based tabloid Blick made Turkish television on Monday night when the country’s president Recep Tayyip Erdogan held up an edition of the Swiss paper with the front-page headline ‘Vote no to Erdogan’s dictatorship’.

The article in German and Turkish called for Turks in Switzerland to vote no in the April 16th referendum which, if successful, would give more powers to Erdogan.

Seems like a logical stance. Erdogan has abused every power he's been given. There's really no reason for other countries to give him more powers to abuse, even indirectly. The Turkish government went full Godwin in response, comparing this editorial's call for a "no" vote to Nazism.

Obviously, the Turkish government saw no irony in immediately demanding the Switzerland government do something about the tabloid's "insults." It has sent four requests for "legal aid," presumably in hopes of getting the tabloid's writers/publishers locked up for saying bad things about the Turkish president.

The Swiss government has responded, telling Turkey to stick to bullying its own citizens.

On Thursday a spokesman from the Swiss justice office, Folco Galli, told broadcaster SRF that four requests lodged by Turkey in mid January had been rejected, citing free speech.

Switzerland would only be obliged to cooperate if the act concerned was considered a crime in both Turkey and Switzerland, he said.

Speaking to the SRF Galli said: “If similar criticisms had been expressed in Switzerland against a federal councillor in the course of a political debate, they would of course have been tolerated as an expression of free speech.”

Which is precisely why the pending referendum should be shot down. The tabloid has perfectly demonstrated why such a law should not be instituted in Switzerland. If it had already been law, Switzerland's government might have been more inclined to assist Erdogan in pushing the editorial's writer.

The statement by the Swiss official is a healthy affirmation of Swiss citizens' protections, but is likely unintelligible to those it's directed at. "Tolerance" and "free speech" are concepts the Turkish president is completely unfamiliar with. As is pointed out in the article, the Turkish government is currently pursuing 2,000 domestic prosecutions over "insulting" social media posts and cartoons. Apparently Erdogan feels his persecution success at home should translate easily abroad. Fortunately for citizens in other countries, it doesn't.

The insanity around Turkish president Recep Tayyip Erdogan and his insanely thin skin is getting worse. As we've discussed, Erdogan has been going crazy suing anyone in Turkey who he claims insults him (over 1800 cases in just 18 months). And he's tried to take things internationally as well. Even when visiting the US, his team tried to silence the press. And then he whined about a song on a German TV station mocking him. That resulted in a German comic writing some more direct insults, and Erdogan somehow discovering a nearly forgotten German law that allows for criminal cases against anyone who insults a foreign leader.

People are completely up in arms over the fact that German Chancellor Angela Merkel made the political choice and gave in to Erdogan's request, allowing the comedian, Jan Bohmermann, to face charges that could land him in jail. Merkel, the pundits claimed, "needed" to do this because she needs Erdogan's support in dealing with the refugee crisis going on right now. The one bone she threw to critics was that the law in question should be changed -- a process that is moving forward rapidly.

Of course, all this has really done is increase attention to all of this (gee... doesn't that sound familiar?) and create more people mocking Erdogan and his thin skin. Bruno Kramm, the head of the German Pirate Party, went to the Turkish Embassy in Berlin and conducted a "literary analysis" of Bohmermann's satirical (if over the top) poem -- leading to Kramm being taken into custody by the police.

Meanwhile Erdogan's assault on free speech in Europe is spreading. The Turkish consulate in Rotterdam has apparently been urging Turkish nationals to send in reports of any insults directed at Erdogan. That comes right after the Netherlands realized that it has a similar law to Germany's and decided that it should probably get rid of it too:

The Turkish consulate in Rotterdam has urged Turkish nationals to report examples of president Recep Tayyip Erdogan being insulted and denigrating comments made about Turks in general, Dutch media say on Thursday afternoon.

Various Turkish organisations in the Netherlands have been emailed by the consulate, urging them to make a note of the insults. The call comes a day after the Dutch government said it would scrap legislation which makes insulting a friendly head of state a criminal offence.

And, it appears, the Turkish authorities are not messing around. Just as all of this was happening, Turkish police arrested a Dutch journalist, Ebru Umar, who was vacationing in Turkey, but who had just written a column critical of Erdogan (and had criticized Erdogan's supporters on Twitter). If Erdogan thinks this will actually suppress criticism, it appears he may have miscalculated. The biggest newspaper in the Netherlands released Monday's paper with a giant caricature of Erdogan as an ape crushing free speech:

Wel benieuwd of De Telegraaf vandaag ook in de Turkse krantenkiosken te koop is... #Erdogan pic.twitter.com/dPNZBqEmip

— Mike Muller (@_MikeMuller) April 25, 2016

And, that's not all. The Turkish consulate in Switzerland has filed an official complaint about an art exhibit in Geneva because, it turns out, Switzerland has a law like Germany and the Netherlands. It's quite amazing how Erdogan became such an expert on these laws in Europe so quickly...

The Genevan authorities have confirmed that they have received a complaint from the Turkish consulate to Switzerland. Just like Germany, Swiss law contains a clause prohibiting insults towards foreign leaders.

The offending photograph is part of an exhibition from photographer Demir Sonmez. The photo in question shows a protest in Istanbul in which a banner proclaims that Erdogan was responsible for the death of a teenager.

Thankfully, it does not appear Erdogan has discovered a similar such law over in the UK, where The Spectator has launched a contest asking for the most offensive and insulting poetry about Erdogan. The prize is £1,000 (and, I assume, a lifetime ban from visiting Turkey).

Meanwhile, back in Turkey, a court in Istanbul has told the editor-in-chief of a local publication, Cumhuriyet, that he must pay approximately $10,000 for "insulting public figures" because the publications released some details on a probe into corruption. But the guy, Can Dundar, is still facing other charges around "espionage, attempting to overthrow the government, and revealing state secrets." He may be sentenced to life in prison for that. So, yeah, as amusing as this is from miles away, actual people doing basic things like reporting on facts are facing their entire lives being destroyed.

In the end, a quote from a Turkish expat, Orhan Selim Bayraktar, living in the Netherlands and working for the main opposition party to Erdogan's made the most sense -- asking why someone so thin-skinned is in politics at all. As Bayraktar told Sputnik News:

"If the president does not want to be criticized and insulted, he should leave the political arena. Because for me, as a politician, it's obvious that if you choose to enter politics, you will have enemies who will insult you, and friends who praise you. If you cannot get used to this, you have no business being in politics. The Turkish president should abandon the persecution of his own citizens. He must serve as the guarantor of our freedoms, instead of assisting in their limitation."

Seems like common sense. But there's apparently no room for that in Turkey.

A common lament these days is that people have no real political power. Yes, elections take place, but after that, politicians just seem to do what they want, with little concern for what the public really thinks about the laws that they push through, as many stories here on Techdirt indicate. In particular, there is generally no mechanism to cancel a new law except by waiting for the next elections, and voting for a party that might repeal it. Often that's not an option, which means the public has no way to stop harmful legislation from going into effect.

Most assume that's just the way things are, but the example of Switzerland shows that's not the case. Citizens there have a number of options if they want to influence politicians directly. For example, when new laws are passed, they can collect signatures in support of a formal referendum on the measure:

if 50,000 signatures are collected from Swiss voters or eight cantons [Swiss states] demand a referendum within 100 days, then a popular vote is held.

That's precisely what has been done in reaction to a new surveillance law that was passed last September, as this post from the Swiss email company, ProtonMail, explains:

the Swiss parliament passed a new surveillance law known as the Nachrichtendienstgesetzt (NDG) or la Loi sur le renseignement (Lrens). The law would have severely curtained privacy rights in Switzerland. Due to our use of end-to-end encryption, the ProtonMail secure email service would not be negatively impacted by the new law. However, we strongly believe in protecting privacy rights, so together with other opposition groups, we decided to mount a challenge against the new law. Due to Switzerland's unique system of direct democracy, any law can be challenged by collecting 50,000 signatures within a period of 3 months after the passage of the law.

Today, we are happy to announce that this effort has succeeded and this afternoon at 13:30h, the referendum will be officially presented to the Swiss government in Bern. This means at the next election, the Swiss surveillance law will be put to a public vote by the entire country, and for once, the people and not politicians will decide the future of privacy in Switzerland.

That's a pretty amazing result, not least because signatures had to be physical ones on pieces of paper, which then had to be verified before they could be counted towards the threshold figure of 50,000. In the end, over 70,000 signatures were sent in, 64,500 were processed, and 55,000 were certified. The success of this exercise in direct democracy contrasts painfully with how things are proceeding elsewhere around the world. In too many countries, new surveillance laws are being rushed through with little scrutiny from politicians, and no input from the public.

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Recently we wrote that Switzerland was keen for Edward Snowden to travel there to testify about US surveillance. Given that evident appreciation of the value of a whistleblower in revealing unsuspected wrong-doing, this news from Reuters that Switzerland's parliament is considering a law to tighten the rules governing this area is rather disappointing:

Although the bill aims to clarify a grey area of the law, it will effectively outlaw whistleblowing unless Swiss authorities -- renowned worldwide as a model of efficiency -- fail to follow correct procedures.

Apparently, this approach flows from the Swiss belief that employees have a fundamental duty to their employers, and so they must always report wrongdoings to them in the first instance. That's bad enough -- it could easily lead to the whisteblower being punished for speaking up -- but it gets worse:

Any response from the authorities -- even a decision not to investigate -- would nullify an whistleblower's right to go to the media, said Zora Ledergerber, owner of Integrity Line LLC, which advises companies on internal reporting systems.

Although that might seem to make sense in a country whose banking services pride themselves on their discretion, it's rather foolish, since it means that abuses and wrong-doing that could have been stopped will continue to fester, ultimately damaging the country and the rule of law there. The bill has been passed (original in German) by the Council of States, Switzerland's upper house, and now moves to the country's National Council for approval.

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Things have gone rather quiet on the Snowden front, with the initial torrent of leaks slowing to a trickle. But separately from the documents that he's provided to journalists, there's the story of the man, still holed up in Russia, in a rather precarious legal position. That probably explains why he has been reluctant to leave that temporary but apparently safe haven. Now it seems that Switzerland is thinking about offering him safe conduct if he visits to testify about surveillance there. Here's David Meyer's summary in Gigaom:

Sunday reports in Le Matin Dimanche and Sonntags Zeitung both cited a document, written by the attorney general last November in order to establish the legal situation around a potential Snowden visit, as saying an extradition request [from the US] would be rejected if the Swiss authorities saw it as political. The document stated that only "higher state obligations" could override this position.

According to Marcel Bosonnet, reportedly Snowden’s legal representative in Switzerland, the position means that "the legal requirements for safe conduct are met," and Snowden has shown interest in visiting Switzerland. Glenn Greenwald, the journalist and Snowden confidante, has previously recommended that he take asylum there.

There are close parallels with the situation last December, when Brazil too was keen to have Snowden's help in investigating surveillance of its citizens. Snowden wrote at the time:

Many Brazilian senators ... have asked for my assistance with their investigations of suspected crimes against Brazilian citizens. I have expressed my willingness to assist wherever appropriate and lawful, but unfortunately the United States government has worked very hard to limit my ability to do so -- going so far as to force down the Presidential Plane of Evo Morales to prevent me from traveling to Latin America! Until a country grants permanent political asylum, the US government will continue to interfere with my ability to speak.

Even leaving aside concerns about those "higher state obligations" that might override Switzerland's safe passage, Snowden must also rightly fear the US will try to seize him if he travels from Russia. The risks seem high, and for little direct benefit -- this is not, after all, the offer of permanent asylum that he is seeking. All-in-all, giving testimony via a video link seems a far safer option for him.

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Two years ago, Techdirt noted the price that Switzerland paid for daring to suggest that unauthorized file-sharing really wasn't such a problem: it was put on the USTR naughty step, aka the "Special 301 list." A post on Intellectual Property Watch explains the current copyright situation in Switzerland:

Anybody can download a movie or a soundtrack and share it with his family in the realm of the private sphere. The downloaded movie or soundtrack cannot, however, be made public on the internet -- for example through a social media platform -- or transmitted to third persons, the [Swiss] official said.

Switzerland is in the process of revising its copyright laws, and you might expect that by now it has been "persuaded" by the US to change its mind about allowing people to download files freely and share them in this way, but to its credit, that doesn't seem to be the case (pdf). Here's what the official Swiss working group carrying out the review of copyright, known as AGUR12, is recommending:

In view of the measures proposed below... downloading from illegal sources, as provided for in current law according to the prevailing doctrine, should remain legal.

The proposed measures mentioned there concern new responsibilities for ISPs, designed to help remove unauthorized online content. These include "takedown":

Hosting providers should remove content that has been illegally uploaded when notified to do so by the rights holder or a competent authority.

"Staydown":

Hosting providers, whose business model is clearly designed for the infringement of copyright by users, or who intentionally promote running the risk of performing illegal acts through measures or omissions for which they are responsible, need to remove illegally uploaded content when notified to do so by the rights holder and take all reasonable measures to prevent any further illegal uploading of such content.

And blocking:

On the order of the authorities, access providers located in Switzerland need, in serious cases, to block access to web portals that feature obvious illegal sources by means of IP and DNS blocking. The blocking of approved content along with unapproved content (overblocking) is to be avoided, as far as possible, by the competent authorities. All blocking measures are to be made publicly known in an appropriate form by the competent authorities and they may not compromise the technical functionality of the IP or DNS system.

AGUR12 also proposes introducing a new warning system for users, which concerns sharing materials on P2P networks:

An overzealous enforcement of the law is problematic and is perceived as being aggressive because internet users are often unclear about the legal situation. Prior notification may remedy this. It is therefore important to create the possibility for access providers to issue a one-off notification, when notified by the rights holder or a competent authority, to owners of internet connections who seriously infringe copyright by using peer-to-peer networks. Rights owners should adequately compensate access providers for the costs incurred for delivering such notification. Upon receipt of the notification, the subscriber will then have to take appropriate steps to prevent continued use of his connection for copyright infringement via peer-to-peer networks in order to avoid facing joint civil liability in the event of recurrence. To this end, the necessary legal basis is to be established and a guarantee of judicial review is to be observed; in particular, ISPs and consumer organisations must have the possibility of appealing to the competent authority upon notification from a rights holder.

As these excerpts of the recommended changes indicate, while revising their laws for the digital age, the Swiss seem to be keen to maintain their refreshingly moderate and rational approach to copyright. Which doubtless means that we can expect to see the country placed on the Special 301 list for some years to come.

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Here on Techdirt we often discuss economics in the absence of scarcity -- how the ability to make any number of digital copies for vanishingly small cost creates new business opportunities for creators. But could a kind of abundance exist in the physical world too? That's the question raised in a fascinating post on Salon about a vote that will take place in Switzerland:

By gathering over 100,000 signatures -- which they delivered last Friday along with 8 million 5-cent coins representing the country's population -- activists have secured a vote by Switzerland's parliament on an audacious proposal: providing a basic monthly income of about $2,800 U.S. dollars to each adult in the country.

As the article explains, that $2,800 is unconditional:

If you're rich you get it, if you're poor you get. If you're a good person you get it, if you're a bad person you get it. And it does not depend on you doing anything other than making whatever effort is involved to collect the money.

The rest of the post is a great discussion with John Schmitt, a senior economist at the Center for Economic and Policy Research, who explores this idea from various angles. The whole thing is well-worth reading, but I think one section in particular will be of interest to Techdirt readers:

So if we were a very rich world, which I think we are to a certain degree, [universal basic income of the kind being discussed in Switzerland] would be a remarkable way to make sure that people could maximize their ability to express themselves but also maximize their ability to participate in the communities that they live in in a full way. Stay home and take care of kids if that's what you want to do. Take care of your parents when they're old and sick.

This feeds into discussions about how creators could live and thrive in a world where it was legal to share copies of their work. A society that provided them -- and everyone -- with a basic wage would not need to rehearse today's sterile arguments about piracy. Artists would have the option of living on the basic wage while they created, or of making more money by building on the fact that their work is freely available, as Techdirt has advocated. Some might dismiss this as a utopian dream, but as Schmitt points out, it's not:

People sometimes refer to this as a kind of "Star Trek" economy -- you just said, "Replicator, make me a ham sandwich." There wasn't any social conflict around production and consumption. And that, I think, is that kind of ideal in which this kind of a thing could play out. We are probably there in terms of the economics. We are very, very wealthy -- we could afford to do this. But we are not there in terms of the politics.

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As we noted last week, one of the key claims following the revelations about the Prism program was that it was aimed at those outside the US, and that US citizens were caught up in it only incidentally. A further leak concerned the Boundless Informant analysis tool, one of whose maps showed which regions of the world were subject to most surveillance. Along with obvious hotspots like Iran and Pakistan, Germany too was among those of particular interest, as was the US (whoops.) A story on reason.com offers a clue as to why that might be.

The blog post focuses on an incident from the time when the whistleblower Edward Snowden worked for the CIA, rather than the NSA. Here's the original text in the Guardian:

By 2007, the CIA stationed him with diplomatic cover in Geneva, Switzerland. His responsibility for maintaining computer network security meant he had clearance to access a wide array of classified documents.

That access, along with the almost three years he spent around CIA officers, led him to begin seriously questioning the rightness of what he saw.

He described as formative an incident in which he claimed CIA operatives were attempting to recruit a Swiss banker to obtain secret banking information. Snowden said they achieved this by purposely getting the banker drunk and encouraging him to drive home in his car. When the banker was arrested for drunk driving, the undercover agent seeking to befriend him offered to help, and a bond was formed that led to successful recruitment.

In that quotation, there's the nugget of information that the CIA was not targeting terrorists on this occasion, at least not directly, but "attempting to recruit a Swiss banker to obtain secret banking information". That raises an interesting possibility for the heightened interest in Germany, as revealed by Boundless Informant.

Given that the NSA is gathering information on a large scale -- even though we don't know exactly how large -- it's inevitable that some of that data will include sensitive information about business activities in foreign countries. That could be very handy for US companies seeking to gain a competitive advantage, and it's not hard to imagine the NSA passing it on in a suitably discreet way.

Germany is known as the industrial and economic powerhouse of Europe, so it would make sense to keep a particularly close eye on what people are doing there -- especially if those people happen to work in companies that compete with US firms. In other words, just as as the CIA was looking to obtain "secret banking information" in Switzerland, it seems quite likely that the NSA also comes into the possession of similarly sensitive commercial data during its German trawls.

If that were confirmed, it would certainly change the debate somewhat. The standard justification that massive surveillance is indispensable in the fight against terrorism if lives are to be saved, would be replaced by the rather weaker one that it's rather handy being able to spy on Germany since its industrial secrets can be pilfered. It will be interesting to see whether any future revelations about the NSA's activities shed more light on this area.

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