Law, Justice and Journalism

Posts Tagged ‘lorna woods’

Lorna Woods: Leveson, the ICO and Data Protection

In Journalism, Law, Media regulation, Research, Resources on March 25, 2013 at 8:57 am

By Professor Lorna Woods

One aspect of the Leveson recommendations that seems to have escaped the headlines is that relating to data protection, though implementation of his recommendations could give those adversely affected by media treatment of their personal data some tools.

Section 32 Data Protection Act provides an exception to data processing rules in relation to a number of ‘special purposes’, which includes media purposes.  The scope of the exemption is pretty broad: it provides an exemption to non-compliance with any of the Data Protection Principles except the Seventh Principle (security), the right of access and objection (Ss32(2)(a) Data Protection Act).

This exemption is available provided the press-related data controller believes that the special importance of the public interest in freedom of expression is served by the processing of personal data, and that the processing of such data is with a view to publication.

The terms of the Act in this regard are thus vague and potentially subjective; they do not really give any clear steer on when processing of data might be protected.  Section 32(3) specifically provides, however, that when considering whether such belief was reasonable, “regard may be had to [a data controller’s] compliance with any code of practice” and provides that such codes may be designated by statutory instrument.

While there are existing codes for journalists (which are not limited to the PCC Code (SI 2000/1864), but include those put together by other media organisations, e.g. the BBC), they are not sufficiently detailed guidance on data protection obligations either.  Section 51 Data Protection Act empowers the drawing up of codes of good practice, or encouraging trade associations so to do. On this basis the ICO consulted (close date 15th March) on the intention to produce a code of conduct aimed at media organisations, including but not limited to the press, as it proposed in its response to the Leveson Report.

So given that there are existing codes under the system, what is the big deal about a new code?  Well, if it is designated under s.32(3), then this brings into play the (statutory) enforcement procedures under the Data Protection Act.  Given the monetary penalties that the ICO can now apply, this might get some attention.

More generally, the ICO has committed itself –again in response to Leveson – to “provid[ing] regular updates to Parliament on the effectiveness of the measures we are adopting in response to Lord Justice Leveson’s recommendations and more generally on our assessment of the culture, practices and ethics of the press in relation to the processing of personal data”. This may give evidence about whether any new system of regulation is working which, crucially, comes from outside the system.

This then re-emphasises the importance of the scope of the journalistic exception and the meaning of ‘public interest in freedom of expression’, which is presumably tied in to the fourth estate capacity of the media, rather than its capacity for spreading rumour and gossip.

Further, how closely connected must the processing of the data be to the publication of a story to benefit from the exception? Mr Jay made this point at the Leveson Inquiry:  when the press obtains an ex-directory number (for hacking purposes), is it likely that the press would publish the ex-directory number? The answer is “no”, so presumably processing such material cannot benefit from Article 32.

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Lorna Woods: Reviewing the Communications Review

In Journalism, Law, Research on March 19, 2013 at 3:27 pm

Professor Lorna Woods

As part of the ongoing discussion surrounding the Communications Review, Lorna Woods, Professor and Associate Dean of Research at City Law School, City University London, explains which areas of communications regulation are being given the most attention, and which areas should be given more. This post was originally published on the LSE Media Policy Project blog.

The current government has long promised us a review of the Communications Act 2003, but with Leveson rumbling on in the background, progress seems slow.  The review process was launched by Jeremy Hunt in 2011 who issued an ‘open letter’ and DCMS created a review webpage. In 2012 a series of seminars were held (aimed at industry, not consumers/audiences).  The topics identified were:

  • Consumers: this includes content regulation, and online transactional and audience behaviour.
  • Competition in content: this envisages the market as the solution to diversity issues.
  • Spectrum: this concerns greater roll-out/connectivity and assumes the desirability of spectrum trading.  For example, Ofcom has recently issued a consultation on one aspect of spectrum: whether there should be charges for national digital terrestrial TV (DTT), local TV and digital audio broadcasting (DAB), in line with Ofcom’s duty to secure optimal use of radio spectrum.
  • TV Content: this questions the current requirements of the existing regulatory framework for broadcasting and looks for other options such as the introduction of tax incentives to support the creation of digital content. It also considers the policy objectives for UK and European regulatory requirements for Electronic Programme Guide (EPG) prominence, conditions for carriage consent and product placement. The Culture, Media and Sport Committee is examining these issues as part of its inquiry into support for the creative industries, with a focus on the development of high quality British content.
  • Radio: this questions whether the radio licensing regime is sufficiently flexible for future changes, and whether there are existing barriers to the on-going success of the radio sector.

Two points should be emphasised. The first is a recognition of a changing media environment that focuses on new (or not so new) services beyond traditional mass media.  The second is a deregulatory impulse.  These are no doubt important topics, but does the Communications Review cover everything that is actually under review, or needs reviewing?

While the review did identify carriage issues – and certainly the issue of the fees charged to PSB by satellite companies has risen up the agenda – it did not raise the issue of net neutrality directly, although this has already been the topic of considerable discussion.  (See, e.g., Ofcom’s approach as well as the voluntary code. Ofcom’s workplan suggests there may be more to come.)

The review did not directly address challenges in broadcast regulation, implicitly affirming the consensus established in the 2003 Act. Several broadcasting licences are currently being renewed, while the BBC Charter is not due for renewal until 2016. It may be that the Government was wary of opening the door to calls for Leveson to be implemented, or that the government is complacent if certain PSB obligations are weakened following licence renegotiation. Moreover, it is often unclear which platforms for content are subject to which types of regulations, such as the Authority for Television On Demand (ATVOD) rules. Having a fractured and piecemeal system does not reflect a converged environment and may be confusing for consumers.

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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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Violation of Article 10 in Yildirim v. Turkey (no. 3111/10)

In Cases, Law on December 20, 2012 at 8:18 am

By Professor Lorna Woods

Yildirim concerned the blocking by the Turkish authorities of all access to personal sites on the “Google.com” network, with the aim of prohibiting access to one such site in particular.

The order for blocking arose as one site had insulted the memory of Atatürk and the Turkish Telecommunications and Electronic Data Authority (TİB) (responsible for implementing the order) advised the court issuing the order that for technical reasons TİB would need to block sites.google.com entirely in order to block the offending site. Therefore, the court granted that request.

The blocking order had the effect of preventing the applicant from accessing his own site, which to publish his own academic work as well as his opinion and comments on various matters and which had no connection to the site concerned. Yıldırım claimed that this measure breached his right to freedom to hold opinions and to receive and impart information and ideas.

The case was communicated to the Grand Chamber on 31.01.2011 and the Court handed down its judgment on 18th December 2012 [PDF] and it found a violation of Article 10 ECHR. The Court reiterated established case law that Article 10 applied not only to the content of information but also to the means of disseminating it.

The Court noted the significance of the Internet, which in the ECtHR’s view has become one of the principal means of exercising the right to freedom of expression and information. While the blocking order was based on a court order itself based in Turkish law, which empowers a court to order the blocking of access to content published on the Internet if there were sufficient reasons to suspect that the content gave rise to a criminal offence, the ECtHR found that the relevant Turkish law did not authorize the blocking of an entire online platform, such as Google Sites.

The Turkish law did not therefore satisfy the requirement (under Article 10(2) ECHR) that any law restricting freedom of expression must be formulated with sufficient precision to enable individuals to regulate their conduct. Further, there was no evidence that Google had been informed of the illegal content or that it had refused to comply with an interim measure concerning the offending site, suggesting a lack of proportionality.

The law also failed to provide sufficient safeguards against potential abuses. The ECtHR reiterated that a restriction on access to a source of information would only be compatible with the ECHR if a strict legal framework was in place both regulating the scope of a ban and affording the guarantee of judicial review to prevent possible abuses.  Here, the court had simply allowed too much latitude to TİB.

Clearly, the handing down of sweeping blocking orders which include much legitimate content as well as potentially illegitimate material, constitutes a severe violation of freedom of expression.  While the ECtHR has recognised the significance of the Internet, this judgment does not mean that no blocking orders can comply with Article 10 ECHR.

The ECtHR’s reasoning is based on the facts of the case where there was an extreme response to a particular problem.  What this case does make clear is that laws seeking to enable blocking orders will require careful drafting, so that any orders are as targeted as possible and that there must be effective scrutiny of the need for such orders.

Lorna Woods: Advertising Standards Authority and the Internet

In Journalism, Law, Media regulation on December 3, 2012 at 2:11 pm

By Professor Lorna Woods

There has been lots of discussion about press regulation and self regulation of late, with the PCC clearly in need of reform [see Leveson recommendations].  There are still voices arguing that self-regulation can work and often the ASA/CAP system is paraded of one such system of self-regulation that works. Certainly, the ASA is an effective organisation, but it is questionable whether it is true self-regulation. It works on the basis that the ASA sanctions have bite as its various members will restrict advertisers’ access to advertising space when advertisers do not comply with the code.  It has a further backstop: the ASA may refer matters to the OFT under the Consumer Protection Regulations or the Business Protection Regulations.  To date, reliance on the backstop powers of the OFT has been very much the exception.  Are things changing, however?

Looking at the decisions of the ASA, a sub strand of cases is appearing. Many of the complained of advertisements appeared on the internet, including quite a number on companies’ own websites.  This raises questions about the ASA (co) regulatory system.  It has been very successful to date, but it has been based on an industry that had effectively a small audience, the media outlets and advertising agencies acting to a large degree as a funnel for the regulatory process, being a relatively small group that allowed ASA rules and rulings to reach out to the advertisers more generally.  Essentially, this was a professional audience.  That has changed: the internet has increased the number of outlets available and introduced the age of the amateur.

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Professor Lorna Woods: Freedom of Expression and the Internet

In Events, Journalism, Law, Media regulation, Resources on November 19, 2012 at 9:01 am
Professor Lorna Woods, Associate Dean for Research and Professor of Law, City University Law School, gave a talk at the Institute of Advanced Legal Studies (IALs) on 14 November 2012, which discussed ‘Freedom of the Expression and the Internet’.

Her slides are available below:
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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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Murphy v Media Protection Services: not a clearcut victory

In City University London, Events, Law on October 12, 2011 at 5:16 pm

One view seemed to dominate last night’s  City Law School event: the implications of the ECJ judgment in combined cases FA Premier League & Ors v QC Leisure and Murphy v Media Protection Services were unclear.

As Professor Lorna Woods, City Law School, wrote ahead of the event,

“The long-awaited Murphy judgment … has been heralded in the press as a triumph for David (in the form of pub landlady Karen Murphy) over Goliath (in the form of FAPL and Sky).  But is this really such a stunning victory, or is it a bit more complicated?”

Woods was joined by Jeremy Phillips, Intellectual Property Consultant, Olswang LLP, and blogger at IPKat; Dan Wilsher, Senior Lecturer, The City Law School; and Jonathan Griffiths, Senior Lecturer, QMUL School of Law, to discuss the case further, in a panel chaired by Professor Sir Robin Jacob, a specialist in intellectual property law.

Each took a different focus:  Phillips looked at licensing issues; Woods raised the issue of the overlapping Directives; Wilsher concentrated on the free movement of goods and services; and finally Griffiths took on copyright and reproduction.

A few of us were tweeting from the event: you can catch up with the liveblog here.

City Law School’s re-launched research blog can be found here: http://citylegalresearch.wordpress.com/

#ECJMurphy: Football in the Pub: blogging from City Law School event

In City University London, Events, Law on October 11, 2011 at 4:22 pm

Wifi permitting, we’ll be live blogging from tonight’s event at City Law School: ‘Football, Broadcasting and the Internal Market: Is a common audio-visual space in sight?’  which follows the recent ECJ decision in the Murphy case.

Follow the live blog here.

On 4 October 2011 the Court of Justice of the European Union handed down its highly anticipated judgment in joined cases FA Premier League and Ors v QC Leisure and Murphy v Media Protection Services.

Professor Lorna Woods explains that the judgment “has been heralded in the press as a triumph for David (in the form of pub landlady Karen Murphy) over Goliath (in the form of FAPL and Sky). ”

But, she asks, ” is this really such a stunning victory, or is it a bit more complicated?”

Background
The cases concern pub landlords, including Karen Murphy, who contracted with satellite service providers based outside the UK whose (cheaper) broadcasts included Premier league football. The football associations argued that this was a breach of UK copyright law and the matter was referred to the ECJ.

In reconciling intellectual property rights with the free movement of services, the judgment has the potential to transform broadcasting in the EU.

Our expert panel will discuss different aspects of the judgment including reconciling intellectual property with the free movement of services as well as exploring the commercial implications of the decision. The panel includes:

Jeremy Phillips
Intellectual Property Consultant, Olswang LLP, and Blogmeister, IPKat

Lorna Woods
Professor, The City Law School

Dan Wilsher
Senior Lecturer, The City Law School

Jonathan Griffiths
Senior Lecturer, QMUL School of Law