Preview: media & communications at SLS 2013
The 2013 conference of the Society of Legal Scholars takes place here in Edinburgh this September. I continue as convenor of the Media & Communications section, and we have a particularly exciting (and packed) programme this year. An EU session, a set of responses to Leveson, and two general sessions (one with a social media flavour and one with a human rights theme).
Registration is now open; ‘early bird’ discount until the end of July.
Tuesday 3rd September
A1: 14.00-15.30 (Special session on conference theme)
Ewa Komorek (Trinity College Dublin):
The problem which will not go away. Recent developments in the EU approach to media pluralism issue
Dimitrios Doukas (Belfast):
The Sky is not the (Only) Limit – Sports Broadcasting without Frontiers and the European Court of Justice
A2: 16.00-17.30
Alan Durant (Middlesex):
The DPP’s Interim guidelines (December 2012) on prosecuting communications via social media
Damien McCallig (Galway):
Intrusion into private grief: regulating the reporting and presentation of deceased persons in the modern media
Paul Bernal (East Anglia):
Defamation on Twitter: a defence of ‘responsible tweeting’
Wednesday 4th September
A3: 9-10.30
Yik Chan Chin (Hong Kong Baptist) & Yanbin Lu (Nottingham):
Defenses of Freedom of Expression in Chinese Right to Reputation Lawsuits
Päivi Tiilikka (Helsinki):
Margin of appreciation and balancing-criteria in the practise of the ECtHR when balancing the freedom of expression and right to private life – is there any consistency?
Jason Bosland (Melbourne)
Defamation, Statutory Reform and the Protection of Opinion in Australia and the United Kingdom
A4: 14.00-15.30 (Leveson Inquiry session, chaired by Tom Gibbons, Manchester)
Paul Wragg (Leeds):
Freedom of the Press after Leveson
Judith Townend (City):
An uncertain climate: Defamation, privacy and the resolution of disputes outside the courtroom
Karen Mc Cullagh (East Anglia):
Regulation of Investigative Journalism post Leveson
(Free) access to articles on apps and on intermediaries
This month, the final versions of two of my articles have been published by Oxford University Press. OUP’s approach to copyright allows pre-prints to be posted on sites like SSRN, but for final versions, the author is supplied with a free-access URL instead. This link can be posted on personal or institutional sites (like this one).
(1) Daithí Mac Síthigh, ‘App law within: rights and regulation in the smartphone age‘ (2013) 21 International Journal of Law and Information Technology 154-186.
An earlier version appeared as a working paper, posted here. The final version includes the changes proposed by the editor and by peer reviewers (including some reorganisation and clarification of the core questions), as well as a small number of subsequent developments.
(2) Daithí Mac Síthigh, ‘The fragmentation of intermediary liability in the UK‘ (2013) 8 Journal of Intellectual Property Law & Practice 521-531.
This is now online for the first time. It’s a shorter paper (just at the upper limit of 7500 words for this journal, although they print in columns so it’s not too long when printed!), which started life as a talk and a briefing paper for events with legal practitioners. Subsequently, I wrote it up in more detail, and also added new material on the Defamation Bill (now Act) as it developed. Here’s the abstract:
It is argued that the system for intermediary liability (for mere conduits, hosts and search engines) is splitting into a number of different systems.
In the case of copyright, intermediaries (particular mere conduits) have new duties. However, regarding defamation (and to a lesser extent privacy), new schemes are reducing the liability risk of hosts – under certain circumstances.
The result is that the single system of the Electronic Commerce Directive is being replaced by a mixture of EU and national legislation, revived common law doctrines, and specific provisions for particular areas of law.
The European Commission should ask for a refund
I was surprised to see discussion of the Mediadem project in the Telegraph this week (picked up elsewhere although without additional information), which some of my Edinburgh colleagues have been involved in. I should say at the outset (as you can see from the previous post) that I have spoken at two Mediadem events. I’m not part of the project. I’ve benefitted to the tune of approximately £50 worth of food, biscuits and coffee from the two events I attended.
It’s always good to see the discussion of academic projects in the media. Here, though, I don’t think that the article gives a fair reflection of the relevant outputs. The author (Andrew Gilligan) makes a number of claims, which deserve further investigation. (This is my own opinion and not that of any of my colleagues, Mediadem or otherwise).
The EU has spent £2.3 million on the previously unpublicised “Mediadem” project to “reclaim a free and independent media”. In a “policy brief” co-authored by its lead British researcher, Rachael Craufurd Smith, Mediadem says it is “simplistic” to “see state influence [over the press] as inherently stifling”.
Dr Craufurd Smith, an Edinburgh University academic, said that it was also “simplistic” to believe that “market-driven media” were now “free and independent”.
Most importantly, it’s not unpublicised. See this website – stacks of papers, updates, etc. Regular updates over the last three years. And here’s the Twitter feed.
It is simplistic to see state influence as inherently stifling. The debate on media regulation is a nuanced one. Very passionate at times – but even those in favour of limiting the role of the state can identify for the purposes of debate a spectrum of state responses (perhaps bad vs very bad in some views), but still worth talking about.
The ‘policy brief’ is one of a whole bunch of very interesting (and wide-ranging) briefs. Check them out here (there are not far off a hundred). The quote comes from one of the shorter ones, addressed to a wide audience. In any event, what the report actually says.
“Understanding free and independent media requires a move away from simplistic categorisations that see, on the one hand, state influence as inherently stifling and, on the other, market driven media to be free and independent.A media service may be independent in the sense of being autonomous from state control, yet still offer partial, biased or inaccurate information. Alternatively, a media service that is under state direction may be established with a clear remit to carry out and offer impartial reporting.”
This is mostly a descriptive statement. It recognises that an assessment of independence requires more work than just checking the ownership – as well as ownership, one needs to look at remit, autonomy, accuracy, etc. Remember that this is a Europe-wide project and that the high standards of the British press may not be present in the same way in every jurisdiction. Similarly, there is a wide range of types of state-directed media across Europe. I can’t see why someone interested in the media – even those very sceptical of state regulation – wouldn’t find that an interesting question.
Mediadem recently produced “recommendations for the UK” demanding the “imposition of sanctions beyond an apology or correction” on errant media outlets and the “co-ordination of the journalistic profession at the European level”.
The recommendations call for the press to be controlled by the same body and on the same basis as broadcasters, who are currently tightly regulated with statutory “balance” obligations that do not apply to newspapers.
Mediadem produced recommendations for lots of other jurisdictions too, by the way (see the link above). The recommendation in question (demand – really? I wish we of the ivory tower had that power) is worth reading.
On the paragraph itself, I think it is an unfair characterisation of the document. It omits the paragraph immediately before it, which explains that the point on sanction is part of a proposal for self-regulation. I don’t read the point as saying that newspapers should be regulated on the same basis of broadcasters. If anything, it suggests starting with the press system and folding other sectors into it. (Not sure I’d agree with it, but it’s a well-argued point and backed up by more thorough analysis of the existing regulatory systems in earlier, much longer papers on the site). What the report actually says (before making that recommendation) is:
“The first would be to create a self-regulatory framework open to all media sectors and players. As the PCC Code is substantively quite close to the content codes applicable to broadcast television, a framework broadly based on the PCC Code could be extended across all sectors, video, audio and text, to create a more coherent framework. The more detailed provisions in the broadcasting codes could, where relevant, be drawn on to develop the code further.”
The point on the co-ordination of the journalistic profession is taken from a completely different part of the document – an annex summarising recommendations directed at the European institutions. It appears to be copied across from the more detailed discussion on p. 16 of this document, which is a more general point about the different models of journalistic status across Europe, including its consequences for the protection of journalists. Again, not everyone’s cup of tea, but far from as scary as it sounds.
I should say that the UK brief contains quite a range of points. (Again, not endorsing all of them, but they are plausible, relevant assertions). For example, there’s discussion of using the taxation of ISPs to support journalism, and of clarifying statutory public interest defences for offences that restrict reporting. Or making the appointment of the BBC Trust more transparent. As it happens, some of these recommendations were discussed at a workshop I attended earlier in the year. Also in attendance as an invited keynote speaker was a representative from the Icelandic Modern Media Initiative. Her presentation was extremely critical of the restrictions on press freedom in the UK. (Indeed, it sparked an interesting exchange as some of the audience argued in favour of greater protection of privacy – I call it a draw). It’s a strange sort of stooge project that invites people like that to speak.
Gilligan’s article goes on to discuss various other EU-funded projects. Erroneously, this is described as ‘coordinated’ and the responsibility of one Commissioner. However, Mediadem is funded under FP7 (i.e. as an academic project), whereas some of the other projects are work run by or directly commissioned by the European Commission for its current policy work. There are various suggestions made about the involvement of those supporting changes to media regulation (e.g. the “Hacked Off” campaign group). It’s hard to see how much of an influence UK campaigners (particularly in relation to Leveson) have had on a 14-country consortium of universities, particularly for a project that was applied for long before and started its public activities in early 2010.
I found it funny to see the point being made that Prof. Steven Barnett attended the final Mediadem conference. (I received an invite, but couldn’t attend). I don’t doubt that he did, but the conference report discloses a wide range of presentations, including the participation of representatives of journalists and media organisations, and a particular focus on freedom of expression. The list of attendees (again, an unusual way to hide a project, publishing such information) includes a lot of journalists, commercial and public service broadcasters, as well as academics from different countries and lots of regulatory bodies. Not unusual for this sort of event. Not unusual that a Prof of journalism like Barnett would be in the crowd.
All in all, I think those who disagree with the regulation of the media might find a lot to interest them in the Mediadem project. To suggest that it is part of the EU’s attempt to regulate the media is far off the mark – it’s an academic project with stacks of recommendations (which even contradict each other, so coordination is hardly the key), lots of people involved, various ideas floating around – fairly typical for this sort of project, in my experience. Looking in from the margins, I thought it a useful exercise and the amount of information that has been made available (for all on a very non-secret website) would, I think, actually assist campaigners on different sides of the argument. So while the article does raise some interesting questions about the overall EU approach to media regulation, and does highlight the work to a wider audience, I would advise the interested reader to check out the policy briefs, research reports and conference proceedings for themselves. It’s more balanced and engaging that the Telegraph suggests.
26 March: ‘The future of press regulation in Scotland’
Note: I will be speaking at this event on the post-Leveson debate and the regulation of content on the Internet. So if you want to know my views on the whole ‘news-related material’ and ‘OMG regulating tweets!’ controversy, this is where I’ll give them (and follow up here on this blog with a summary).
The Future of Press Regulation in Scotland
The EU MEDIADEM project is hosting a workshop on Tuesday 26 March 2013.
The expert committee chaired by Lord McCluskey has been exploring the implications of the Leveson Report for press regulation in Scotland. This workshop will examine the findings of that committee, as well as the various models of press regulation, such as a Royal Charter, that have been proposed post-Leveson. Among the expert speakers at the workshop will be members of the McCluskey committee, representatives from the press and academics working in the field.
The workshop will also consider a number of findings and potential ‘gaps’ in the Leveson Report that have attracted rather less media attention to date, notably – data protection, statutory recognition of the public interest in investigative journalism and the regulatory implications of media convergence. Speakers will briefly introduce these topics before opening the floor to what we hope will prove to be a lively discussion.
The workshop will take place in the Ken Mason suite, Old College, South Bridge, Edinburgh EH8 9YL from 4pm – 6pm, followed by a wine reception.
The event is open to the public and we invite students, academics, journalists, civil servants, representatives from civil society organisations, the legal profession and members of the public to join us in engaging with these topical issues. Places are limited, so please confirm attendance with the administrator for the conference, Ms. Yolande Stolte. For further information call: 0131 650 2094.
Recommended reading, 14-20 February 2013
News, blog posts, etc
Lisa Campbell, ‘Is Netflix just a novelty?‘ (Broadcast 14 February 2013). Given my interest in VOD (primarily how it is regulated but to get there requires understanding the market), the last few weeks have provided much to think about. I can’t decide whether to be impressed at the Netflix coup of launching House of Cards as an all-at-once release or cynical about how its press releases were parroted by some in the press. I think both. Anyway, the coverage in Broadcast does look at it from a number of different angles. (Thought I will return to although I’ve probably said it before: if the standard for being covered by EU audiovisual media law includes being ‘TV-like’ subject to interpretation in a ‘dynamic’ way, does this sort of move make a difference?)
Jeremy Phillips, ‘Save our hyperlinks! Paws for reflection as Profs Opine‘ (IPKat 15 February 2013). Commentary on the intervention of academic group the European Copyright Society (does it have a website? cannot find) in a very important case on hyperlinks, Svensson. The case is before the Court of Justice of the EU shortly and takes up a question much loved by IT textbooks more or less since they started to exist: is a link one of the acts restricted under copyright law? If so, then the consent of the author of the target page may be necessary – but the consequences are significant.
Claire Porter, ‘Google ‘flaw’ puts users’ details on display‘ (News.com.au 16 February 2013). Another tricky story about apps and privacy; this one is about the Google Play store. Worth noting that there is a bit of discussion about the way the story has been reported (and amended) – see e.g. here. Original link via Slashdot.
David Streitfield, ‘Tech Industry Sets Its Sights on Gambling‘ (New York Times 18 February 2013). Discusses the implications of any change in the law on online gambling in the US for social networks and for the casual gaming sector. Also mentions the interesting issue of gambling and Diablo.
William Turvill, ‘News agencies’ fear over impact of copyright law proposals‘ (Press Gazette 20 February 2013). It looks like the lobbying against the proposed implementation of the Hargreaves Review is well underway now. I think there is a fair point to be made about the constitutional problems (the typical, pernicious turn to secondary legislation in place of proper parliamentary scrutiny), although the substantive arguments tend to the alarmist. For example, I can see why the photographer groups who were critical of orphan works proposals in the past are sceptical about extended collective licensing. Less obvious to me is why that opposition extends to the long-overdue proposals on parody. Perhaps there’s just general opposition. We’ll see. Given that some of these recommendations are still overdue from Gowers 2006, it would be a shame to get stuck at this stage..
Academic publications
Speaking of parody: Kris Erickson, ‘Evaluating the Impact of Parody on the Exploitation of Copyright Works: An Empirical Study of Music Video Content on YouTube‘ (Bournemouth University for IPO, 2013). Fascinating attempt to measure the consequences of protecting (or not protecting) parody. Via Rebecca Tushnet.
And more on copyright: Lee Edwards, Bethany Klein, David Lee, Giles Moss, and Fiona Philip, ‘Framing the consumer: Copyright regulation and the public’ (2013) 19 Convergence 9-24 (£). Multi-disciplinary perspective on attitudes to copyright, with a particular interest in downloading (other articles in the same issue also explore the theme of attitudes and IP)