Hot tub time machine

Posted on by
1

On Thursday (8th December), a group of academics from seven UK institutions gave evidence at the Leveson Inquiry on the culture, practice and ethics of the press. I was one of the seven heard in what was termed a ‘hot tub’ format – this phrase has provoked much comment; I was vaguely familiar with it (for expert witnesses in trials, particularly scientists) and it does lend itself to interesting (if slightly worrying) images. The others were (in the morning) Steven Barnett, George Brock, Brian Cathcart and Angela Phillips, and then (alongside me in the afternoon) Julian Petley and Ian Hargreaves (yes, same Hargreaves as the Hargreaves Review, as a number of people have asked. No, I didn’t say thank you for the report, although I am a big fan of it). Each session opened with a discussion on journalism/media education and segued neatly into a broader discussion on the inquiry’s work, particularly regarding regulation of the press.  We were asked to answer polite (and very well informed) questions from the two counsel (David Barr & Carine Patry Hoskins) and Lord Justice Leveson  himself.

All three of the afternoon witnesses were there for the morning, so we had a good opportunity to see what our colleagues were saying – particularly the useful debate between Barnett and Brock on models of media regulation and the role of statute. It was interesting to watch the Inquiry go about its business – serious but not overly formal, and a technology-infused room (transcribed text appearing on screens, each lawyer with a computer in front of them, iPads and smartphones in circulation, and of course the fixed (and indeed unobtrusive) video cameras dotted around the room, linked to the live stream on the Inquiry’s website. On this occasion, it’s fair to say that neither Court 73 nor (I’m told) the overflow annex) were packed out – perhaps a day of academics does not have the appeal for others that is has for me! (Not even a Guardian live blog – which according to Charlie Brooker’s Black Mirror defines a serious event – but the Telegraph did have one (and a still of me in full hand-waving mode).

The full details of what we all said can be found in the transcripts: morning and afternoon. As a new lecturer I didn’t have a lead role in the discussion of education, although I was pleased to be able to talk about some of the things we are working on at UEA, particularly the interdisciplinary ‘Media & Society‘ module, and to comment (briefly) on the differences between media law for law students and media law for journalism students. (Lord Justice Leveson also appeared amused (or scared) at my observation that the inquiry itself is a useful part of this year’s media law syllabus). I enjoyed the discussion of the different careers of journalism graduates and the ups and downs of NCTJ recognition in the morning and afternoon sessions – a really useful exchange to review.

My next major intervention was regarding the Press Complaints Commission; this was the bit that made into the end of a Guardian report too. I suggested that some aspects of the Press Council of Ireland could form a part of UK reform – e.g. statutory recognition of an independently constituted Council, the involvement of journalists and not just proprietors, links between the responsible journalism defence to defamation law and Council membership. I also observed (and Twitter users took notice!) that UK publishers had joined the Irish council in respect of their Irish editions; others have made this point before but it does bear repeating. I added that investigative powers would only be appropriate if a press body was appropriately accountable for the exercise of those powers.

Of course, most of the questions directed to me were Internet-related, and it’s where I had the opportunity to put across quite a few points drawn from my research. While I wanted to emphasise that the idea of the lawless Internet is inaccurate (and has been for some time), I also discussed the importance of clear laws that individual bloggers etc could understand (and possibly be protected by akin to journalists if standards are met), the dangers of encouraging or requiring online intermediaries to be the key location of regulation (or treating them all, from telecoms providers to search engines, as the same), and also the strong points of some community-driven regulation. (Those who have read things I have written in law journals or even on this blog may recognise many of those points, and what I was trying to do was summarise them for the purposes of the Inquiry, which isn’t specifically about online media but will surely be dealing with it under various headings). I did coin an unintentional soundbyte, that hosts should not be the “new arbiter of what is right or wrong”. I also responded (not in much detail due to time) to Julian Petley’s comprehensive paper on freedom of the press vs freedom of expression, which I recommend as a very interesting reading on this topic. Oh, and I defended media studies as an important contribution made by the academic world, but that again won’t surprise readers. And then it was off to the cleverly squeezed in BBC remote studio for a chat with the fine Radio Norfolk : hear the results here (at 1h45m) and the following morning’s studio interview here (at 1h48m).

The Inquiry has a lot of work to do, and it’s running alongside other processes, such as the draft Defamation Bill. I’ve been watching it with fascination and it has been a privilege to be able to contribute. It continues to invite submissions from the public and will shortly be inviting further submissions on the press and the police (module 2).  Based on what I’ve seen so far, its report should be wide-ranging and fascinating, and I hope to continue blogging about it and sending in my written observations in due source.

La genta esta muy loca

Posted on by
1

Another Monday, another Ofcom decision on language in songs broadcast on the radio (in Broadcast Bulletin 195). (I’m working on a project this year where I’m looking at Ofcom decisions, but this is just an informal blog post rather than the fruits of that labour). This time around, the controversial broadcast appears to have been a genuine accident, where Capital FM played from a CD (instead of what I presume is a hard disc playout system) and played the unedited version of Loca People instead of the more radio-friendly edited version (all day, all night, what the ….). A sharp producer managed to hit the off button pretty quickly and an apology followed a few minutes later. (Not the first time for this sort of error this year – another Capital station in Leicester played the wrong version of Do It Like a Dude (rather than the edited version which simply leaves you trying to work out the rhyme for dirty dirty dirty dirty dirty dirty sucker, you think I can’t get hurt like you, you mother- (blank) – a tough one to work out).

Some of the cases about language on the radio turn on the protection of under 18s, but fortunately for Capital, this was in the morning during the school term, so all good children were nowhere near a radio. Instead, the clause of the Broadcasting Code being looked at was a general one, “In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context” (rule 2.3), and it was considered ‘resolved’ rather than a breach of the code, given the circumstances and the remedial measures put in place.

The bigger issue here is that new guidance on this matter is, according to reports over the last couple of months, on the way. Ofcom flagged this in BB 189 in September, saying that ‘In view of our concerns about the material in [cases in that bulletin], especially those broadcast when children were particularly likely to have been listening, we will be requesting that a number of radio broadcasters across the industry who transmit such programming attend a meeting at Ofcom to discuss the compliance of such material”.

There has been a number of interesting radio/music cases this year, and BB 189 was a bumper issue for rude words on the radio. It included the already legendary Brick FM decision (the station had already been up for breach of licence obligations in BB 184), where the station entered into a debate about the meaning of punany/punani (a hot sandwich or a sexual swear word?) and also suggested that Ofcom didn’t understand Scottish dialect (re the word ‘fuck’ – perhaps this argument didn’t occur to Capital FM in today’s case). My heart goes out to a Durham station, Bishop FM, who managed to play a rather fruity Eminem track (No Love – full text in the Ofcom bulletin) during a kids’ request show called School’s Out. Oops. And the exact same phrase that is the key refrain of Loca People was also the subject of a case in BB 192, when OnFM (a community station in London) played a version of Fatboy Slim’s Star 69 which repeated that phrase. 41 times (yup, they counted).

Ofcom’s new guidance will be important – we’ve already seen some discussion on music videos and on live pre-watershed performances on TV. Despite some assumptions that there are links between problem language and genre, today’s case is from a (no offence) bland bit of Europop, and the cases mentioned in this blog post do have quite an interesting range. There’s also a mix of major players and shoestring community stations. Watch this (bleep) for more.

Good to know about Good To Know

Posted on by
Reply

This week’s English newspapers (including the Guardian and Independent, but there may be others) carried a number of full-page advertisements for Google, which formed part of its current ‘Good To Know‘ campaign. The campaign is ‘in partnership with the Citizens Advice Bureau‘.

Some parts of the campaign strike me as extremely sensible and useful information, and leave me very pleased that Google is putting its money and reputation behind them. For example, one ad (which I first saw in a Tube station) emphasised Google’s 2-step verification; another (which I saw in print, but can’t recall where) gave examples of good passwords. (You can see a collection of these ads on the Good To Know website). The most recent ads, though, raise some interesting questions around data and privacy. As readers of the growing literature on the development of Google will know (most recently Douglas Edwards’ I’m Feeling Lucky on his experiences as employee #59), it’s clear that these issues are thought about and debated a lot within Google; this however is my external take and some quite preliminary questions rather than conclusions;.

One ad is about IP addresses – it doesn’t appear to be on the Google site, but I’ve scanned it (apologies for resolution) here. Explaining how a user in Brighton doesn’t need a plumber from New York when they use a search engine, the ad states that results based on where you are use your computer’s IP address. “It’s a number like 209.85.229.147 which acts a bit like the first part of a postcode to tell them the rough area your computer is in“. I think this isn’t the best definition of an IP address, particularly in the week where (in the Sabam decision regarding ISP filtering for copyright reasons) the Court of Justice of the EU found it to be common ground “that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified”. This confirms a direction in European Union practice, particularly the statements of the article 29 Working Party (e.g. opinion 1/2008 on search engines, opinion 2/2010 on online behavioural advertising), that an IP address can be personal data. In a way, I’d suggest, that the first part of a postcode is less likely to be.

Another ad (with a quirky little graphic about extra-shot coffee, which is what I’m drinking as I type this) (scanned here) draws a link between the barista knowing your coffee order (but not your name) as you walk through the door, and how Google and other websites act:

Making a note of your preferences in case you visit them again. It’s how they are able to recommend a particular artist you might like, or if you prefer to fly from a certain airport, or if you like a specific printer ink.

(I think ‘preferences’ here is broader than a technical meaning of preferences as in settings, but am open to correction).

Again, I can see what they are getting at, but I think the anonymous coffee order may not be the best model here – as (a) there are plenty of ‘preferences’ that are more revealing (and yes, legally sensitive) than coffee choice, and (b) concerns about profiling include the cumulative impact of data collection rather than a single point – the barista doesn’t know what you prefer when you go to the clothes shop next door!

Google does some great work around data – and the Good To Know website highlights this, including work on Data Liberation, cookie deletion and more. But there’s something about the ads above that I’m not as sure about.

I mentioned this campaign to a fellow academic and s/he pointed out that the ultimate target here might not be users, but the forthcoming (and unpopular with large Internet companies) revision of the Data Protection Directive. If that’s the case, Google’s intervention isn’t unwelcome – we need to hear its voice – but it’s worth debating those points. If it’s just about consumers, I think it goes in the right direction (particularly the security stuff), but the wording could be a good bit tighter.

Finally, I think there are questions to be asked about the role of the Citizens Advice Bureau. It knows well that the interests of consumers are different to the interests of corporations – see for example its current struggle to publish the results of investigations and how libel law appears to prevent that. So should it be involved with (a) a particular company and (b) a particular view of the law of privacy? Indeed, the UK government proposes (consultation paper here) to take a whole range of consumer information and advocacy functions away from public bodies and transfer them to the (private, charitable and generally wonderful) CAB. Should it therefore be more careful about taking ‘sides’, appearing to endorse the views of Google and in having the ads presented as authoritative and neutral?

Football and flags: a pointless semantic exercise?

Posted on by
Reply

Some readers will know that I have a particular interest in the way in which the law approaches different media, but this post might be an unexpected version of that. A report I spotted this weekend in the Eastern Daily Press (on the tale of Matt Houchen of King’s Lynn, who was told to take down his Norwich City flag by his local authority) is a reminder of the unusual position of flags under English planning law. The Town & Country Planning Act 1990 (and the Town & Country Planning (Control of Advertisements) Regulations 2007) regulate various structures, including requiring consent for advertisements. These are defined as follows in section 336 of the Act:

“advertisement” means any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, and (without prejudice to the previous provisions of this definition) includes any hoarding or similar structure used or designed , or adapted for use, and anything else principally used, or designed or adapted principally for use, for the display of advertisements, and references to the display of advertisements shall be construed accordingly.

It’s probably not difficult to see how a flag is included in the first part of the definition, although the bit about purpose (wholly or partly for the purposes of advertisement, announcement or direction) means that attention to the content of the flag is necessary. (It also means that ‘advertisement’ means ‘advertisement and other things’. This is why people don’t like lawyers). In the case of a football logo or colours, which of these three is it? What are you advertising? The existence of the club, your support for it, or selling tickets? Is there a difference between communication and advertisement? (My colleague David Mead also points, in his book The New Law of Peaceful Protest, to the difficulties encountered under the Serious Organised Crime & Police Act (aka SOCPA) along similar lines, but in the case of defining ‘demonstration’).

There are however a number of situations where consent isn’t required, either because of an exception or ‘deemed consent’. First off, the following flags (in a category known as Class H) are exempt, subject to compliance with general conditions (such as not endangering the public, aircraft etc) and as long as they don’t contain any ‘additional subject matter’:

Any country’s national flag
The flag of the Commonwealth, EU or UN
The flag of an English county
The flag of a saint, in the county with which that saint is associated

As you might imagine, the press gets worried about this from time to time, such as the case of an army flag, or the inclusion of the EU flag in the list of exempt flags. For what it’s worth, the flag in the story I mentioned in the first paragraph appears to include a St George’s cross, the Norwich City crest and the initials NCFC. Would the cross alone count as a national flag? Is England a country?

Furthermore, ‘deemed consent’ (a little narrower than an exception, as it doesn’t apply in certain areas) applies to various things, including class 7 Flag Advertisements, which means a flag (of no more than 75cm high) on a ‘single flagstaff projecting vertically from the roof of a building’ containing the name/logo of the occupant or an event; also included in class 7 are flags on residential building sites while there’s at least one house unsold. Got that?

This still doesn’t provide much support to the football fan. A bit surprising, given the other things that are exempt (political advertisements during elections, an advertisement displayed on a vehicle) or have deemed consent (a B&B sign, an ad for a travelling circus, a balloon for 10 days a year, a hoarding on a building site).

The courts have had to deal with this on a couple of occasions. In Westminster City Council v Haw [2002] EWHC 2073 (QB), Mr. Haw (the late protester who stood outside the Houses of Parliament for many years) was alleged to be obstructing the highway without lawful authority or excuse. Although it wasn’t the main point of the case, the judge did find (when figuring out if Haw was acting lawfully) that his political placards were not advertisements as they were neither advertisements (as they didn’t promote a product or service), announcements (he wasn’t announcing anything) or directions (he wasn’t directing anyone anywhere or to do anything). It’s not a detailed analysis, but it was important in Haw’s case. But compare this with the later decision in Butler v Derby City Council [2005] EWHC 2835 (Admin), Mr. Butler had been convicted of a breach of planning law for a 200cm x 85cm banner with the logo of a campaign group (Derby Heart) and the slogan Save Five Lamps. He argued that it wasn’t an advertisement, and if it was, the law violated his right to freedom of expression. The court found that (noting that the definition of advertisement was deliberately broad and that it was a ‘pointless semantic exercise’ to figure out if a particular display should be in the advertisement, announcement or direction sub-category). On the issue of free speech, it said that the issue wasn’t content regulation; ‘a local planning authority is not entitled to refuse advertisement consent because it disagrees with the content of the message to be displayed’, and that the ‘rights of others’ exception to article 10 of the European Convention on Human Rights was relevant because of visual intrusion (and the ability to obtain consent). It probably didn’t help (as Richard Harwood pointed out in a brief comment in the Journal of Planning & Environment Law, June 2006) that the regulations have provisions for election posters, which would suggest that they fall within the definition of advertisement. The problem is therefore those things caught by the regulations that aren’t excluded in one way or another.

My view is that the decision in Haw doesn’t take the statute seriously enough and the decision in Butler doesn’t take freedom of expression seriously enough. A better approach would be to consider the limitations that article 10 might require be placed on the definition of advertisement. This would involve a proper consideration of whether the law as it stands creates a favoured type of expression and places restrictions on others, and whether that distinction is appropriate. In the case of flags, I’d suggest that it is difficult to defend the system as content neutral when it allows some flags but not others, or that a high level of protection of the rights of others is necessary in the case of a non-approved flag but not for the wide range of exempt and deemed-consent ads. Indeed, if political expression is regulated above and beyond travelling circuses and estate agents, justifying this will be difficult. Not impossible (see for example the TV political advertising ban being upheld in Animal Defenders), but requiring justification. (I also touched in this in my attempt to defend politicians ringing you up during your dinner in the European Human Rights Law Review earlier this year). Why are the colours of a local saint OK when those of a sports club are not? In this context, one could have a very interesting discussion of a declaration of support for a football team as free speech (and its importance in a democratic society), but that’s for another day.

Intellectual property: love or hate?

Posted on by
Reply

Now available via ‘advance access’ (institutional login required) to the Journal of IP Law & Practice (JIPLP) is my colleague Prof. Christopher Wadlow‘s barnstorming piece on Marmite, the BNP and the law, The Marmite Election. I had the pleasure of hearing the ‘live’ version of this piece earlier in the year, and it has already received a good deal of informal praise (including from those outside of law – note the use of semiotic theory and cultural studies alongside the expected doctrinal legal analysis). Aside from the thorough analysis of a range of trademark, copyright and passing off issues, including the relationship between these points and freedom of political expression, the reader will also find a remarkably wide range of references to authors, bands and musicians (from Florence & the Machine to Morrissey via Vera Lynn and Samuel Beckett), the X Factor and snowclones (to name but a few) in the text and footnotes. It’s also quite funny, and as such is an appropriate way for JIPLP to mark the end of another busy year. Enjoy!