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George Brock: The post-Leveson dog’s breakfast

In Comment, Journalism, Law on April 25, 2013 at 9:47 am

Professor George Brock

This post originally appeared on georgebrock.net.

I know that this week’s media debate is going to be all about the pros and cons of real-time news sharing in fast-moving crises like the Boston marathon bombings and subsequent shootouts, but my blog has a little catching up to do. While I have been writing a book, the government, Houses of Lord and Commons and the Hacked Off campaign have managed to make a gigantic dog’s breakfast of the follow-up to the Leveson Inquiry into phone-hacking.

This was pretty much the only subject on which I published during the long winter, so I’ll start by rounding up that stuff. It’s hardly surprising that inventive lawyers intent on intimidation are using Leveson’s recommendations to try to silence newspaper reporting or that the Metropolitan Police, who had a grimly embarrassing time in front of Leveson, are being cautious and unhelpful. What has surprised me is the depth of the legal and political doo-doo into which the government has stepped. In a hurry to get the Leveson Inquiry dealt with before the 2015 election season opens next year, the government tied itself in knots which may take years to unravel. The Royal Charter deal on a new press regulator was a rushed botch.

The largest single dilemma which Leveson plonked in the government’s lap is defining “the press”. Leveson was so heavily preoccupied by the issue of the misuse of power accumulated by the major newspaper groups, that he did not treat this as a central issue. He should have: defining who is to be covered by law or regulation dealing with news publishing is a basic issue in an era when “the press” doesn’t really exist any more. I argue in a TLS review (£) of Leveson and a report from the Columbia Journalism School on “post-industrial journalism” that the Leveson report’s worst flaw was that it was so backward-looking.

Thrashing round trying to define internet sites and blogs which are “news-related” and suchlike won’t work for anyone except lawyers who can spend happy years in court fighting over definitions. In this BBC explainer there is a nice little film by Newsnight’s David Grossman trying to explain the new law as it relates to online publishers. The Department of Culture Media and Sport have produced a colourful new diagram to help publishers work out if they’re covered by the new law. Here’s Patrick Smith of MediaBriefing picking holes.

The government seems frightened of open public debate about issues such as “public interest”. The reporting of the Leveson Report when it came out late last year was shoddy and partial. The negotiations leading up to the Royal Charter were opaque. The legislation is whistling through the Commons. Debate hasn’t happened. Opportunities to find better ways have been missed. And Leveson was a great chance to improve law and regulation of the news media, as I tried to explain in this lecture at Gresham College. Pity it was missed.

Comment: ECtHR decision in Pirate Bay case – Neij and Sunde Kolisoppi v. Sweden

In Comment, Law on March 15, 2013 at 12:39 pm

By Professor Lorna Woods

The European Court of Human Rights declared the Pirate Bay claim for freedom of expression inadmissible as being manifestly ill-founded [summary, PDF].  It follows the case earlier this year of Ashby Donald (Appl. nr. 36769/08 judgment 10th January 2013) and while it follows much of the reasoning in Ashby Donald, the court’s decision here carries some unusual points worth noting.

Ashby Donald and the Pirate Bay case both take place in a digital context in that they both relate to use of the Internet.  Ashby Donald was noteworthy as it seems to accept that speech infringing copyright can in principle claim protection.

This might seem good news for Pirate Bay, but the terms of Ashby Donald recognised the need to protect copyright, meaning freedom of expression by no means automatically trumps copyright protection.  It certainly does not appear to be a pirate’s charter, as is re-affirmed by the admissibility decision in Pirate Bay: Neij and Sunde Kolisoppi v. Sweden (Appl. nr. 40397/12, decision 13th March 2013).

The applicants were both involved in the running of the website “The Pirate Bay”, one of the world’s largest file sharing services on the Internet.  They were charged with complicity to commit crimes in violation of the Copyright Act. Subsequently, several entertainment companies brought private claims within the proceedings.

In April 2009, the Stockholm District Court sentenced them to one year’s imprisonment and held them, together with the other defendants, jointly liable for damages.  The applicants complained that the finding of complicity had violated their freedom of expression; they should not be held liable for others’ use of their service.  Their claim was very broad.  The Court summarised it thus:

“According to the applicants, Article 10 of the Convention enshrines the right to offer an automatic service of transferring unprotected material between users, according to basic principles of communication on Internet, and within the information society. In their view, Article 10 of the Convention protects the right to arrange a service on the Internet which can be used for both legal and illegal purposes, without the persons responsible for the service being convicted for acts committed by the people using the service. In this connection, they referred to international frameworks, expressing a far-reaching right to receive and provide information between Internet users.”

While the Court eventually rejected the claim as manifestly ill-founded, its reasoning might suggest that to some extent accepts this broad-reaching right exists.  It started by recognising the importance of Internet, but linked to public sphere (e.g. news) raising the question of the extent to which the Internet is special in this regard.

The Court reaffirmed that “Article 10 applies not only to the content of the information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information” – but without considering who it restricted and whose right to expression is affected.

The Court then further blurs this point: “the applicants put in place the means for others to impart and receive information within the meaning of Article 10 of the Convention. The Court considers that the actions taken by the applicants are afforded protection under Article 10 § 1 of the Convention and, consequently, the applicants’ convictions interfered with their right to freedom of expression”.

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Upcoming event, 6 March 2013: The Future of Humanitarian Reporting

In Comment, Events, Journalism on March 1, 2013 at 9:59 am

Glenda Cooper

The Haitian earthquake, January 2010: a man performs brain surgery on a 15-year-old girl; a second writes a gripping eye-witness account for the Guardian about the dead bodies piled up in the street.

In the past it would have been pretty obvious which was the journalist and which the aid worker. But Dr Sanjay Gupta was working for CNN as a reporter when he carried out the surgery; Prospery Raymond, who is named as the author of the Guardian piece, was Christian Aid’s country manager who survived the quake.

Meanwhile the latest news was being broken via social media. As the Columbia Journalism Review noted, new media platforms such as Twitter, Facebook and Skype were crucial in delivering early information about damage and relief efforts. By the time Hurricane Sandy occurred two and-a-half years later, people were using the photo app Instagram to upload pictures of the storm at the rate of 10 a second – 1.3 million hashtagged in total.

We’ve come a long way since Michael Buerk’s seminal piece from Korem in 1984. As a piece of journalism that report still has the power to move and shock. But what is astonishing is that in seven minutes only two voices are ever heard: Buerk and a white Medecins Sans Frontieres doctor.

But what does it mean for the way we report humanitarian disasters in future if ordinary citizens can break the news, aid workers can act as journalists, while journalists cross the line and get involved?

What kind of pictures and reporting are we exposed to if anyone can upload pictures of a dying victim of a hurricane – or a dying dictator, as happened in the case of Gaddafi?

And while a wealth of user-generated content made the 2004 tsunami a mega-story and saw mega amounts of aid donated ($1,241 per survivor – 50 times the worst-funded crises that year, according to the Red Cross), what kind of disasters will we end up covering if it takes tweets and Facebook updates to get our attention?

Next week, a conference organised by City University’s Centre for Law Justice and Journalism, in partnership with the Red Cross, will debate these very issues with some of the foremost names in academia, journalism and aid work. It will look at the latest developments in the use of UGC by mainstream media and aid agencies, the relationship between journalists and aid workers now that social media is a factor, and consider how, in a Twitter age, we should think about reporting emotion and trauma?

Speakers include:

The BBC College of Journalism will be blogging from the conference: full programme. Places are limited. If you wish to attend please email Peter Aggar, or for any queries about the schedule contact Glenda Cooper.

This post first appeared on at the BBC College of Journalism.

Oliver O’Callaghan: Royalty, Nudity, Privacy, and Profitability

In Comment, Journalism on October 12, 2012 at 10:36 am

The recent publication of topless pictures of The Duchess of Cambridge
in a French magazine, following so closely after the exposure of Prince
Harry’s nocturnal activities in Las Vegas, has returned the issue of the
private lives of public figures to the forefront of the news once
again. Coming as Lord Justice Leveson prepares his report arising from
the eponymous inquiry, there are a number unresolved debates relating to
the publication of private information about celebrities or public
figures such as the royal family.

Read full post on the Inforrm blog…

Oliver O’Callaghan is a PhD researcher in Press Freedom and Privacy at the Centre for Law, Justice and Journalism, City University London

George Brock: Leveson – how to avoid the pitfalls of “better mousetrap” press regulation

In Comment, Journalism, Media regulation on May 17, 2012 at 9:10 am

Professor George Brock

Towards the end of next month, the Leveson Inquiry into the British press will turn from its current, revelatory phase about media relationships with politicians and address again the knotty question of regulating journalism.

The inquiry’s most basic dilemma hasn’t changed: how to prevent and discourage the wrongs which have occurred without tipping over into state control of the news media.

When he has grown bored and irritated with an editor waffling vaguely about how things will be improved by a few light adjustments to the present rules, Lord Justice Leveson usually asks one of two questions and sometimes both: what would you actually do?

Will what you suggest command public confidence? Next month will bring forth a slew of ideas for regulation designed to work better than the much-abused self-regulation of the past. Legal and media experts are busy putting the finishing touches to better mousetraps.

Read the post in full on George Brock’s blog here.

Sir Nigel Rodley on General Comment 34, Article 19, ICCPR

In City University London, Comment, Events, Law on April 2, 2012 at 11:06 am

By Professor Lorna Woods

On 7 March 2012, Professor Sir Nigel Rodley of the School of Law and Human Rights Centre at Essex University and a Member of the UN Human Rights Committee, established under the International Covenant on Civil and Political Rights gave a seminar on General Comment 34 on Article 19 of the ICCPR. The following is a summary.

General comments are commentaries on the scope of the rights to which they relate. While not limited to being a summary of the decisions on that Article, they are in part based on that case law.

Originally, general comments were introduced as it was difficult to reach consensus in the country-specific reports and evaluations carried out. While concluding that observations may now be possible, in the post-cold-war environment, general comments are established and have persuasive stature.

General Comment 34 replaces General Comment 10, a much shorter document. The revisiting of the general comment was triggered by the problem of how to deal with “defamation of religion”, which had led to political tension. Rather than leave this issue as a political one, transforming the issues into technical legal questions operates to diffuse this tension.

The new general comment was adopted in the summer of 2011. The new general comment reflects a mixture of points drawn from concluding observations, case law and other elements. So this general comment is not just codification of what went before. There was no case law, for example, on defamation of religion.

General Comment 34 (GC34) refers to Article 19 (1) and (2) of the ICCPR, made up of two separate rights: the right to opinions and the right to freedom of expression. Article 19 (3) constitutes the “clawback” clauses and relates only to Article 19 (2).  General Comment 34 starts by providing a conceptual view of Article 19 ICCPR and its value. Paragraph 2 of the GC34 states:

“Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society. The two freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions.”

This is one of the first attempts to delineate the conceptual underpinnings of Article 19 and to identify the “infrastructure” aspect of the right, a point which has developed further in paragraph 4.

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Lorna Woods: Google and Data Protection – Again!

In Comment, Law on March 16, 2012 at 9:52 am

By Professor Lorna Woods

A new reference has landed on the ECJ’s desk: Google Spain and Google (Case C-131/12) from the Audiencia Nacional in Spain.

The ECJ official website is a bit thin on details, but this seems to be the same case reported by Reuters. That case concerns the right to be forgotten – implicit in the current data protection regime (but which would be made explicit were the draft Data Protection Regulation ever to come in to being).

While the judge apparently referred a number of questions, including one about jurisdiction, the central issue is whether Google should be obliged to delete data referring to individuals.  The impetus for the cases comes from aggrieved individuals who have applied to the Spanish data protection authority to have information deleted.  This case is likely to be one that is closely watched given the likely stormy passage of the proposed Data Protection Regulation.

Central to the discussion will be the relationship between the e-Commerce Directive (Directive 2000/31/EC) and the Data Protection Directive. While the e-Commerce Directive shields ISPs from liability in a range of circumstances, that directive is expressed not to apply to ‘questions relating to information society services covered by Directives 95/46/EC and 97/66/EC’ (article 1(5)(b) e-Commerce Directive and Recital 14).  Directive 95/46/EC is, of course, the current Data Protection Directive.

Google is, of course, not unfamiliar with the exception to the e-Commerce Directive, as it arose when directors of Google were charged under Italian data protection laws relating to user generated content (UGC) posted on a You-Tube type service operated by Google.  The UGC was a clip from a mobile phone which showed some boys bullying another boy with Downs Syndrome.  The Google executives were given 6 month suspended gaol sentences.  A decision on appeal was due to be handed down by the Court of Appeal in Milan in 2011, though in September the case, according to one of those involved (Peter Fleischer) had not been assigned.  One would hope that in the interests of timely just that this issue is decided before the ECJ hands down its ruling in Case C-131/12.

If the non-availability of the hosting exceptions, then presumably the key issue is the scope of the rights under the DPD.  Therein lies the rub.  While the DPD is set against a privacy (Article 8 ECHR) backdrop, it does not grant any particular right to be forgotten.  Instead, the DPD provides how data should be managed, which includes the archiving and deletion obligations. How far the ECJ is prepared to push this, especially in the light of data protection as a fully fledged right in the EU Charter, remains to be seen.  This is the new contentious issue in the privacy/freedom of expression debate.  For a range of views see: Google’s privacy counsel; a security consultant; and an academic viewpoint [PDF], among, no doubt, many more.

James Murdoch before the select committee: The rules on giving evidence

In Comment, Journalism, Law on November 11, 2011 at 10:00 am

By Professor Lorna Woods.

This post also appeared on the City Legal Research blog.

James Murdoch has been called by the select committee to verify the evidence he gave to that committee earlier this year. The problem means that his evidence conflicts with that given by others, so somebody must – at best – be misremembering events. It is timely therefore to recap briefly the rules relating to evidence given to Parliamentary select committees.

Some have noted that none of the people giving evidence have done so on oath; the argument therefore is that such witnesses cannot commit perjury. The implication that seems to be drawn from this is that people are free to lie to Parliament at will. This is not entirely the case. There are two points:

1. It is possible that a witness be required to give evidence on oath. If this were to be done, then the perjury route would be available. Of course, requiring that a witness take the oath rarely occurs. In any event, there is another way.

2. Lying to Parliament, even if you have not taken an oath, constitutes contempt of Parliament. In both cases, the body which would impose a punishment is Parliament and in both instances the punishment would be the same: imprisonment. Parliament has the power to imprison someone for contempt until the end of the Parliamentary term. Despite some claims to the contrary, it seems Parliament does not have the power to impose fines.

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What does the public think about privacy injunctions?

In Comment, Journalism, Law, Social research on June 7, 2011 at 9:40 am

By Judith Townend

The public interest is at the heart of the debate around privacy injunctions, but do we know what the UK public thinks?

Unfortunately a new ComRes poll for the Independent doesn’t really tell us. While its themes were interesting – asking participants to consider celebrities’ right to privacy – its structure was problematic.

ComRes interviewed 1,001 adults in Great Britain by telephone between 27 and 29 May 2011 and states: “data were weighted to be demographically representative of all GB adults. Data were also weighted by past vote recall”. The full poll can be downloaded at this link [PDF].

The Inforrm media law blog has analysed its methodology in greater detail here and asks what the outcome might have been had the statements been flipped around:

… “Celebrities and sports stars owe their lifestyle to their public profile so they should not complain about intrusion into their private lives“.   Unsurprisingly, 65% agreed with this … the formulation of the question clearly suggests the answer.  If the statement had been – “Celebrities and sports stars have rights to privacy like everyone else” – then it seems likely a substantial proportion of respondents, perhaps a majority, would have agreed.

The introduction to the issue was alarmingly simplistic too. Each statement was introduced like this: “Thinking about super-injunctions, do you agree or disagree with each of the following statements?”

The survey does not appear to have explained its definition of a super injunction, or acknowledged the complexities of this phrase. As I have explained elsewhere, there is a distinction between an anonymous privacy injunction and a secret ‘super’ injunction whose very existence cannot be reported. Lord Neuberger’s recent report made the same distinction.

Inforrm concludes:

The Independent survey appears to have been designed to prove a point.   However, even against the background of the events of the past few weeks, with heavy hints and plentiful references to super-injunctions it is clear that a substantial proportion of the public has not bought into the media account of these issues.

More research is needed. The question is, therefore, how to formulate a survey that breaks free of the media narrative and presents the issues fairly?