SLS 2011: Media and Communications

This is my (personal) report on the Media and Communications subject section at the annual conference of the Society of Legal Scholars, held in Cambridge this week. For those not familiar: the SLS is the organisation for legal academics in the UK and Ireland, and this was its 102th annual conference. As well as plenary sessions and an AGM, the main business of the conference is a range of subject-specific parallel sessions, of which Media and Communications is one. A related area is Cyberlaw, but this year they ran at different times in the week (the conference is divided into groups A and B), which did appear to increase the attendance at both. During this year’s meeting, I was elected as the fourth convenor of the section, taking over from Mike Varney (and before him Tom Gibbons and before him Eric Barendt) – a quite daunting line of succession!

Session 1 had a focus on information – although in very different ways. Damien Carney (Portsmouth) opened up with ‘Truth and the unnamed source’, considering the importance of truth (and objectivity) in the law and ethics of the protection of sources. He looked at the recent decisions in National Post (Canada) and Financial Times v UK (the latest instalment in the Interbrew case), making particular points about the reassessment of who the privilege on the protection of sources ‘belongs’ to, with the Canadian and European courts heading towards an emphasis on the rights of the public to know (the truth?). Lawrence McNamara (Reading) followed with his paper on terrorism and disclosure obligations, considering section 38B Terrorism Act and the various laws that preceded it. Despite very few cases on the matter, the provision has an impact on the practices of media organisations, although there are differences between the thresholds applied within organisations and as apparently required by law. He also debated the rights and wrongs of a media exemption and how necessary it is to take a legal approach in any event. Finally, Neil Richards (Washington University, St. Louis) presented his theory of intellectual privacy. He distinguished between ‘tort privacy’ and ‘intellectual privacy’, particularly on the difference between the impact of each on freedom of expression, suggesting that the former might be confined to ‘truly shocking’ disclosures, but the latter was important because it protects the process of considering and forming ideas. Interestingly, there was a strong technological dimension here, given the role of search engines and of surveillance technologies. He proposed four key aspects of the right to intellectual privacy: thought and belief, the right to read, spatial privacy and confidentiality, and also considered the need for a horizontal approach rather than a negative constitutional doctrine alone.

Session 2 had a European theme, with papers from Irini Katsirea and myself. Irini’s presentation was about product placement, specifically the implementation of the new rules set out in the Audiovisual Media Services Directive (AVMSD) in two jurisdictions, Germany and the UK. She highlighted some of the vaguer aspects of the Directive, such as the criticism (but not outright ban) of thematic placement, the conflict between provisions on surreptitious commercial communications, undue prominence, and limited scope for allowing product placement. The UK has excluded certain genres (above and beyond the Directive), but only for broadcasters under UK jurisdiction, again because of the Directive. Germany has required identification of PP in acquired programming, but without an offence of breach of this duty. The UK and Germany took different paths on thematic placement – unclear in the former, banned in the latter. The minimal requirements of the Directive on notifying viewers were also considered. In the discussion of the paper, we also wondered to what extent product placement was actually present in EU-origin programmes since the Directive. My own paper was on the European Convention on Transfrontier Television, a Council of Europe instrument dating from 1989 but currently in serious trouble after an aborted attempt to amend it. After explaining the history of the relationship between it and the EU’s media law directives, I discussed how the European Commission objected to the amendments that would have brought it up to date with the AVMSD, assessing the legal basis for this objection (external powers of the Union) and how this was debated in various fora. I also looked at the reaction of the UK, which had in the 1980s been a strong supporter of the Convention, but had some problems with the current amendments and mixed feelings about the Commission’s intervention. I concluded with a wider discussion on EU-Council relations and whether other areas (such as media pluralism and impartiality) might fare in future developments. [If readers will permit a further note: I have a draft paper on which comments would be appreciated, not available online but happy to supply copies if you are happy to offer your views: email me].

Session 3 was about recent developments, both with a European context and a British focus. Tom Gibbons (Manchester) looked at the relationship between reputation and privacy within Article 8 ECHR, and the differences between English law on defamation and on privacy. He was reluctant to describe what is happening in Strasbourg as a doctrine, given the inconsistent positions expressed by differently constituted courts, but discussed a number of defamation-type cases where the engagement of article 8 was taken for granted. Nonetheless in Karakó v Hungary there may have been a move away from this position, with some importance attached to internal and external notions (he considered, later, whether reputation is external and privacy is internal). English cases on injunctions (ZAM, Terry) have added comments on the importance of reputation, and the Supreme Court’s decision in the freezing orders discussion discussed ECHR decisions and the need for a serious threshold. Are we moving towards a Re S-style ultimate balancing exercise? Is the justification defence to defamation threatened by an article 8 approach? What about Reynolds? He also argued that the ability to evaluate others is important and subsuming reputation into article 8 may be difficult to reconcile with this. Following on, my UEA colleague Michael Harker presented his paper on vertical restraints in broadcasting, or why ‘content is king’. As well as a thorough explanation of the market structure of pay-TV in the UK, he focused on Ofcom’s intervention regarding sports channels, particularly the requirement on Sky to offer its channels to other platforms (e.g. digital terrestrial) at a regulated price. Michael explored the differences between ‘sectoral’ and ‘competition’ approaches, and the remedies available in both cases. The possible consequences of intervention were outlined, including the need to protect innovation and also the policy goals of (for example) promoting broadband uptake.

Finally, session 4 was a pair of case studies. Ewa Komorek (my former colleague as a doctoral student in Dublin) reported on the ups and downs of Polish media law. She looked at three particular issues: ‘Rwyingate’, politicisation of public service media and problems with press freedom and criminal law. The first was a major national scandal regarding the proposed takeover of a private television channel by a major media company, and the disclosure of an attempt to exchange ‘a law for a bribe’, as a national newspaper reported. This led to a major report on the activities of the ‘group in power’, the resignation of a government, and wider discussion of the adequacy of the legal framework on media concentration and mergers. The second is also about the relationship between politics and media, with Ewa explaining the structure of the public service broadcaster and recent changes that may (or may not) increase the independence (from political influence) of the broadcaster. Finally, she looked at a range of criminal provisions, including those about insulting the president (imprisonment up to three years and no defence of provocation!) and defamation itself, despite criticism from the ECHR on the impact of these provisions. She was followed by Eliza Varney (Keele), whose presentation was about disability and ICTs after recent changes to EU law, particularly the 2009 amendments to the electronic communications directives and EU equality law. Although some progress has been made through the updating of universal service provisions, she pointed to outstanding issues such as the consumer-driven approach to regulation, the focus on sensory disabilities (e.g. as compared with cognitive), and the weakness (after industry lobbying) of some provisions. Eliza argued for a universal design approach and considered whether a disability-specific provision of general equality law (particularly if the proposed directive on discrimination re access to goods & services does not proceed) might be of assistance.

Leave a Reply