Lex Ferenda

I’ve been very interested to read the reactions to the decision of the High Court (in the person of the bould Justice Eady) in the ‘NightJack’ case, [2009] EWHC 1358 (QB). In short, the pseudonymous blogger (dead link), quite well-known as a result of winning an Orwell Prize for his tales of life as a police officer, was attempting to prevent the Times from publishing his real name. He failed, and his name was so published by the Times and more widely.

The dominant theme of the response is that the court found against the right to blog anonymously, or that (in some excitable cases) that anonymous blogging was now impossible. (See for example in the Guardian’s PDA blog, ‘Nightjack case kills the right of anonymity‘) I challenge this reading of the case (although I have my own issues with the behaviour of the Times, discussed below). For me, the most important feature to bear in mind when considering the decision and its consequences is that this was an attempt to use the courts to prevent a newspaper from publishing a story (using old-style breach of confidence and Campbell-style disclosure of private information - though the interaction between the two is unfinished business, as we know). If the Times had been prevented from publishing the story, this would, in my view, have been a significant setback for investigative journalism under English law. This is not to say that the Times were engaged in particularly important reporting - personally, I don’t really need to know the police officer’s name - but that the true question before the court was whether it was possible (and appropriate) to prevent the publication of potentially private information. If the result had gone the other way, this would have been quite a big development, meaning that the balance between freedom of expression and the right to privacy would be quite different to what we expect.

Now, the situation is not helped by Eady going into too much detail. I’d rather if he hadn’t done that! However, those comments (towards the end of the decision) are not necessarily at the heart of the decision - some of them are clearly obiter, given that the court finds no reasonable expectation of privacy (nor confidential information for the purposes of old-style BoC), and therefore need go no further. Furthermore, the statement that seems to be causing some concern (”blogging is essentially a public rather than a private activity“, para 11) is, to me, not a problematic one. Blogging is public, in that it involves publication, and is different to a private letter. For a long time, bloggers have made the point (too vigorously at times) that blogging is journalism and is media and so on. All of those activities are, for the purposes of ascertaining a reasonable expectation of privacy (which is the other half of the para 11 sentence), public rather than private activities. With the claim to the media-like status that so many express comes a notion of acting in the public sphere. (As ever, it does not mean that every activity of an individual is therefore public). On that point, bloggers should surely be cheering Eady’s finding that “although the Claimant here is not a journalist, the function he performs via his blog is closely analogous” (para 10). It’s unfortunate for those supporters of NightJack that this means that the prior caselaw (Mahmood v Galloway) on a similar case with a ‘real’ journalist was persuasive - but what would they prefer - ‘bloggers are not journalists and should not be treated as such’? Surely not!

I do disagree with the aspects of the decision that take NightJack’s role as a police officer into account, in terms of discipline and so forth - although unnecessary, I don’t think they were appropriate to an examination of a privacy claim of this nature. To protect the rights of the whistleblower, there needs to be a more subtle examination. (There is also the non-legal approach to the protection of anonymity: outlined in admirable clarity and with a dash of humour at the Online Journalism Blog)

There’s also the question that the freedom of expression of the pseudonymous blogger was infringed by his ‘unmasking’. It wasn’t really before the court, as it was a privacy claim brought by the blogger. That said, I am sympathetic to it as a theoretical argument, more so than I am to the privacy-based claim. I agree that the protection of anonymity is an aspect of free speech (see an excellent discussion of these issues by Eoin O’Dell here)and would support such arguments if, for example, an application was being made by another party to compel disclosure of a real identity. As regular readers know, I am particularly concerned not to class all ‘free speech threats’ as those that are backed by the State - it is possible for private parties to play a very negative role and I support, in certain circumstances, protection of the individual against private threats to free speech. It would have been very interesting to see this argued, though that will be another day’s work. There are similarities between such a situation and the protection of sources.

Finally, I would draw attention to another approach, one that is very well argued by the good Fernando Barrio. He questions the motives of the Times, wondering whether they were in fact attacking a competitor (i.e. a prominent blogger). I’m not sure they thought about it that much, but it does raise a strong ethical question, and one that the Times should have considered - if one of their journalists was writing under a pseudonym (let us presume for good reasons) and a rival newspaper attempted to unmask their identity, what would they do? (Even the Times itself reports the decision as ‘killing’ anonymity, here). I find newspapers suing newspapers quite distressing, given their pronouncements against the threat to free speech posed by gagging writs - but it’s an interesting question. Do unto others, etc. In a week where there has been admirable unity, including between Internet activists and journalism unions (and an encouraging result) from the proceedings regarding Suzanne Breen, no-one comes out of the NightJack affair looking particularly clean.

More: Jean Seaton in the Guardian; Ray Corrigan; IPKat; Times itself.

I have, on a number of occasions, mentioned the things that I am teaching at postgraduate level at the Norwich Law School. I teach on three modules: Commercial Aspects of Media Law, IT & Internet Law, and Media in Society. As it’s getting very close to ‘next year’, already, here is some information on those courses, and I’m happy to answer any questions in comments or by email (address on the right). This post contains information on the LLMs in Media Law, Policy and Practice and in Information, Technology and Intellectual Property Law, and on PhD studentships more generally. Further information on the LLM programmes here and on the research degrees here.

LLM in Media Law, Policy and Practice

This is a new degree, building on UEA’s strengths in media across disciplines, with the first students having arrived in September 2008. The core modules are an induction module in legal skills and research (shared with other LLM students) and a particularly exciting module called ‘Media in Society‘, which is jointly delivered by the schools of Law, Economics, International Development, Film & TV, and Political, Social and International Studies, attended by students from various postgraduate degrees in the media field from across these schools. Students then choose four modules, with at least two modules from the list of media law modules (Commercial Aspects of Media Law, Protection and Management of Privacy and Reputation, Media Regulation and Markets, Information Technology and Internet Law), and write a dissertation on an area of media law of their choice. More information and a brochure here.

LLM in Information, Technology and Intellectual Property Law

This is a degree that the School has offered for some years, and now encompasses a range of options, with a particular focus on international aspects. Alongside the induction module, students take Globalisation of IP Law, Current Issues in IP Law and Protection of Brands and Innovation, and three further modules, at least two from Technology Transfer Law, Information Technology and Internet Law, Intellectual Property in the WTO System and Commercial Aspects of Media Law, and write a dissertation on an area of IT/IP law of their choice. More information and a brochure here.

Finally, we are always looking for potential PhD students in these areas, as well as other areas of law. The Faculty is offering 11 studentships this year, and applications are invited for these scholarship now.

11 Research and Teaching Studentships: 3 years full-time (Home/EU)
Application deadline: June 5th 2009

Applicants are strongly advised to view the specific research areas and interests of individual Schools.

The value of the studentships cover Home/EU fees, a maintenance grant of £8,000, a Research and Teaching grant of £750, plus the opportunity to earn additional income from teaching and teaching support activities.

The award will be conditional on the applicant taking on a teaching obligation of an average 6 hours per week during semester periods. This will primarily be core undergraduate teaching, although where appropriate some postgraduate teaching may be possible; successful applicants should also expect that some exam and/or coursework marking will be allocated. It will normally be expected that the area of teaching will be connected to the student’s research.

Applicants should indicate on their application that they wish to be considered for one of the Research and Teaching Studentships.

Study areas: Economics, Education and Lifelong Learning, Law, Business, Social Work and Psychology.
Further Information: SSF Admissions: Law

I don’t need an excuse for it being over a month since I last posted on this blog; it has happened before for no particular reason. Assuming anyone’s still out there, though (I think RSS means that the danger of losing eyeballs is less than it used to be, as there’s no timewasting associated with keeping up with a silent blogger), here goes.

A couple of days after my last post, the one about the Cyber Civil Rights symposium, my body had a speed-dating experience with hard tarmacadam. Or to be more direct, I was cycling from the university to my house, and was involved in a (thankfully minor) accident (mostly the fault of a thoughtless driver), meaning I sustained a little fracture in my right elbow, and was unable to write/type with the arm of which it is an integral part until quite recently. As I said, oops. Things are relatively back to normal now, though it will be a while longer before I’m cycling again. (It did give me the opportunity to get a good chance to test voice recognition on the Mac - it’s pretty good, and I might well use it to give myself a break from typing in the future).

Right now, and for the next while, I hope to be engrossed in thesis completion (it’s somewhere between the monkey on my back and the elephant in the room) and the various markings and meetings that dominate ‘exam season’. Therefore, I’m still going to be keeping this as a fairly low-traffic place, but hope you can stay subscribed (if you are) as I get things going again. I do have two posts coming up: one about postgraduate opportunities at UEA and one about my own experimentation with Twitter. Watch out for them…

I’m very pleased to be participating in a symposium on Danielle Citron’s Cyber Civil Rights paper at Concurring Opinions this week. My minor claim to fame here is that according to SSRN (that oracle of the new age), those who downloaded a particular paper of mine also downloaded hers, and those who downloaded hers also went for mine.

Of course, Citron’s article is a much more impressive work of scholarship than my piece, but it’s been very influential on my own thinking and thus it’s great fun to have a go at discussing it. My first contribution is here, and there are a good dozen other contributions already - go read them all, collated for your reference here.

Tags: concurringopinions, cybercivilrights

(Welcome, Bad Science readers!)

A very interesting decision (download it here) by the UK Information Commissioner has been published. A request was made to the University of Central Lancashire for various things, including copies of course material (course notes, PowerPoint presentations, list of recommended textbooks, etc) circulated to students on the BSc in Homeopathy. This course is quite well known due to controversy surrounding the academic/scientific standards in ‘alternative medicine’ courses in higher education, and was closed to new students last year. Ben Goldacre at badscience.net has followed these stories for quite some time - I’d imagine the FOI request is inspired by or related to the criticism of the UCLAN and other degrees. Edit: David Colquhoun, the person who made the request, explains the background here.

The University made some very interesting arguments, most of which were entirely unsuccessful. These were that the information was covered by exemptions in the FOI Act because (my summary):

• the information is reasonably accessible by other means (i.e. by registering as a student on the course) (rejected as paying 10k in tuition fees is not a reasonable method of access and in any event you do not normally do a course in order to get the materials)
• disclosure would prejudice the University’s commercial interests, especially with regard to passing on materials to competing private colleges (rejected as the publicly-funded university may have a financial interest but not a commercial one in recruiting students; if it does, then students on the course already have access to the course materials and could as easily sell/distribute course materials in a damaging fashion, therefore disclosure no more likely to cause prejudice)
• disclosure would prejudice the effective conduct of public affairs, though the disruption and cost of numerous other applications under FOI (and copyright points again) (also rejected, no evidence presented that this would the case beyond the mere assertion of the statement)

However, the University did succeed in its argument that some materials (case studies prepared by lecturers based on their own patients/subjects/victims) should be excluded.

This decision may have an impact on universities (as well as those who criticise them) far beyond the question of homeopathy. Indeed, given the well-known exemption from both FOI and data protection of certain materials (such as exam scripts), will universities seek a specific exclusion here, encourage UCLAN to appeal the Information Commissioner’s decision, come up with better arguments against future requests, set fire to course materials - or all four?