Lex Ferenda

The front page of the National edition (though not the other widely circulated edition, the City Final) of the Evening Herald has the headline : “PRIVACY CHIEF CAUGHT OUT BY HACKER” and the subheading “SECURITY BREACH : Data Protection Commissioner left red-faced by blogger“. Fiona Dillon wrote the article, which continues on page 4.

It’s possibly one of the silliest things I’ve seen from the Irish press in relation to technology for a while, and that’s saying something. Below, you can see the relevant parts of the article. Now, what actually happened is set out here : the blogger in question simply linked to a document that was available on the website (though without a link from the relevant pages, i.e. news updates or reports or whatever). No hacking took place (at all). I understand that they have to sell newspapers but to allege hacking where it is clearly untrue is shoddy and sensationalist at best and perhaps even dangerous and unethical. Of course, I approve of teasing the Commissioner when something like this happens - but doing it in a way that blares about HACKING is totally uncalled for.

The comment attributed to the Commissioner is also clearly inaccurate - it is not (as he is reported to have said) about a report “on our web which was due to be put on our website this morning” - the report was on the website and this idea of “our web”, suggesting access to internal pages, is manifestly and demonstrably wrong. But at least that’s on an inside page.

Oh, and yes, they spelled embarrassing and Commissioner’s wrong. On the front page. Well done, Herald.

Also discussed on RTÉ, here.

Extract from front page:

THE office of the country’s privacy chief was at the centre of an embarrasing security breach today after a blogger hacked into its website.

Details of the Data Protection Commioners annual report were accessed and released by a blogger a day before the report was due for release.

The report for 2007 was only officially published at 11am today. But the details were already on the internet yesterday after a blogger found the report on the Commissioner’s website.

Data Commissioner Billy Hawkes acknowledged his office had fallen was victim to “a security breach” but played down the significance of it.

Extract from page 4:

The Data Protection Commissioner Billy Hawkes said today: “A very resourceful blogger has managed to access the copy of our Annual report on our web which was due to be put on our website this morning.

“It obviously was pre loaded, and thanks to his technological knowledge he was able to access the version that we pre loaded but didn’t intend to be in the public domain until 11am.

“So I think it’s a wonderful illustration for a Data Protection Commissioner whose about to launch an annual report warning about security that actually even our own office can be, as it were, be a victim of a security breach.”

(Follow-up to Fontastic).

Canada’s public broadcaster, the CBC, has two programmes that deal with technology and culture and law and politics in a particularly useful way. The first is Search Engine (welcomed with joy here; website here) and the second one is Spark (website here). I’ve been meaning to blog about Spark for some time, as recent themes (such as online health information, Scrabulous and online TV each could have inspired a blog entry. Oh well. Anyway, the final straw in the guilt-trip for not blogging about this lovely show is the episode all about writing and fonts. Including a great game exploring the common ground shared by the names of fonts, coffees and babies!

Listen to it here and then subscribe to the podcast.

Ofcom (the UK communications regulator) is carrying out a review of public service broadcasting. In connection with the review, they have taken the wrapping off a blog, the Ofcom PSB Review Blog, which is an interesting way to add some spice to the familiar ‘public consultation’ ballet. Just a few posts so far, although they even used SlideShare to embed a presentation, which is a nice touch. I’m involved in a review process at Trinity College (the Statutes Review Working Party), and although the webpages are on the local page (meaning I can’t link to them), we’ve been trying to do something similar with that consultation, putting relatively informal updates on a blog. We haven’t been bombarded with comments, one might say, but it’s a useful way to engage with a different part of the audience. The (still unpublished) Broadcasting Bill in Ireland was the subject of an e-consultation which had similar objectives.

Another particularly helpful element that Ofcom and others are including in their consultations is a feed for the blog, of course (it comes by default in virtually all blogging software). Indeed, if you are a consultation-junkie, you should look at the beta service from TellThemWhatYouThink - they have a feed of all UK government and agency consultations which is pretty cool.

A blast from the media law past in today’s Observer, where we learn that the British Board of Film Classification (BBFC) (or a member of its classification committee in a personal capacity - you decide) has invited Nigel Wingrove to resubmit ‘Visions of Ecstasy‘ (don’t get excited, it’s just a database entry) for classification. This short film was banned at the time of its 1980s release and is the subject of a well-known European Court of Human Rights decision, Wingrove v UK, which Wingrove lost, with the UK benefitting from a wide ‘margin of appreciation’ in its regulation of certain kinds of offensive speech; the influential elements include the finding that “whereas there is little scope under Article 10 para. 2 of the Convention for restrictions on political speech or on debate of questions of public interest (citations of political speech cases omitted)), a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion. Moreover, as in the field of morals, and perhaps to an even greater degree, there is no uniform European conception of the requirements of ‘the protection of the rights of others’ in relation to attacks on their religious convictions.”

The Observer reporter speculates on the symbolism of a possible certification and the links with the debate on the repeal of blasphemy laws in the UK. We will see. For a little bit of amusement, have a look at the Irish register of prohibited publications - while books are unbanned after 12 years, magazines (periodicals: part 3 of the list), once properly banned, stay on the list until they are taken off, although I doubt if many of them (such as ‘Daring Detective’ - banned 1951) are still publishing.

Prof. Kevin Robins is a very prolific media/communications studies academic; his current project is ‘Europe in Motion’ (on European media spaces and policy) and he has written extensively about British and European culture for some time. (My OU course had loads by him). He’s coming to DCU to give a public lecture, European Media and Cultural Policy: The Challenges. (He’s also been at DIT)

Date: Thursday, 3 April 2008 (Time: 7.00pm / refreshments at 6.30pm)
Venue: Room HG22, Nursing Building, Dublin City University

This lecture will explore issues relating to media and cultural politics in the contemporary European context. It will offer a critique of prevailing approaches, arguing that they are too nation-centric.

Current developments across the European space - associated particularly with new migrations and mobilities - mean that we have to radically re-think European cultural agendas. The lecture will put forward ideas within a European cosmopolitan frame.

Alas the news page on the School of Communications website hasn’t been updated since 2006 (oops), but Activelink has the details. I can’t go, but you should. And if you want to do work in this area, they need PhD students to work on Europe in Motion in London!

I enjoyed this article by Jeffrey Rosen in this weekend’s New York Times on the US Supreme Court and ‘business’ cases. Well, I didn’t really enjoy some of the conclusions, but the writing is good

Anyway, today’s exciting legal news is that the same court has accepted Fox v FCC (a challenge to the FCC’s new policy towards ‘fleeting’ expletives*), an appeal by the FCC (petition here) from the 2nd Circuit Court of Appeal’s finding that the new policy violated US administrative law (’arbitrary and capricious’ under the Administrative Procedures Act). They’re arguing that the 2nd Circuit’s decision is inconsistent with FCC v Pacificaand with standards of review under administrative law. Susan Crawford and Scotusblog and Slate’s new law blog, Convictions, all have more.

* Most famously, Bono, who said (and I quote): This is really, really fucking brilliant. Really, really great. Who will be saying that at the end of the case? Headline writers, start your engines.

Finally, tomorrow is the day for oral argument in DC v Heller, trying to figure out what the Second Amendment (the right to short-sleeved shirts) means. Marc Liberman at Language Log has a good post from an interesting perspective and Above the Law has a bit of fun with it.

I will post some separate, lengthy comments about the Defamation Bill (which is - finally - passing through the Seanad today) later on or over the course of the week. However, something quite remarkable - and unexpected - happened in today’s proceedings. That is the question of the offences in Ireland of criminal libel, seditious libel and obscene libel.

The Defamation Bill, as drafted, and through Committee Stage in the Seanad, would have abolished these three (relatively obscure) offences, and replaced them with a new offence of the publication of gravely harmful statements. That would have been good, but not enough, as there would still have been a significant cirminal offence of the statute books. However, in an amendment (nos. 51 and 53) introduced by the Minister for Justice at this stage (only published this week), and debated quite speedily in the House, the sections relating to the new offence were removed; he argued that he was not convinced that it was appropriate to introduce a new criminal offence that would have such an impact on freedom of expression.

So on the topic of criminal offences, all that remains in the Bill is the abolition of the three offences (the full Defamation Bill 1961, which developed some of the offences in terms of penalties and procedures, is to be repealed in full anyway). The Minister did point out, though, that the ‘constitutional offences’ of article 40.6.1 (”the publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law“), would still have to be dealt with, and that part of the 1961 Act might have to live on in order to provide for the sanctions for the constitutional offences. It was a short enough debate - Alex White (Labour) agreed with the Minister and Joe O’Toole (Ind) said that this would make Ireland a leader on this issue and would enhance the standing of the Minister in criticising criminal libel laws in more repressive states.

The context for the original proposal was the report of the Legal Advisory Group on Defamation of 2003, where they said (at para 59) that they

… endors(ed) the recommendations of the Law Reform Commission concerning the desirability of abolishing the common law offences of blasphemous libel, obscene libel and seditious libel. This is in a context where the Group has formed the view that matters such as blasphemy, sedition and indecency should not be dealt with in the context of a defamation statute even if they should be criminalised in their own terms in another statutory vehicle. (PDF)

but proposed the ‘publication of a gravely harmful statement’ offence (paras 60-61) while abolishing criminal libel. Earlier, as they said, the Law Reform Commission had also recommended abolishing the offences of seditious libel and obscene libel and maintaining but reforming ‘the common law offence of defamatory libel’, with a series of alternatives being set out regarding blasphemous libel. The LAG also mentioned, as you see, blasphemous libel (for abolition), although the Bill doesn’t points to this specifically in the repeal of common law (though repealing the Act of 1961, I think, would do some of this in practice anyway). The Bill, as it emerges from committee later tonight, will without further amendment provide for

• the repeal of the 1961 Act including Part 2 dealing with various criminal offences
• the explicit repeal of “the common law offences of criminal libel, seditious libel and obscene libel”
• no provisions on a new offence of the publication of gravely harmful statements
• no specific mention of blasphemy or blasphemous libel other than the repeal of s 13 (as part of the general repeal) of the 1961 Act (though I think that might mean that, especially in conjunction with the Constitution, blasphemous libel - or blasphemy, indeed - would continue to exist - but see note below on the definition of criminal libel)

And that, I believe, is good news.

(Additional notes on blasphemous libel after the jump)

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(Yes, I know silly titles like that don’t do all that much for my search engine ranking, but that’s not really my game)

It’s been a very busy couple of weeks, which is why I haven’t been posting all that much on this lovely blog. The most fun thing (or things) this week, though, was teaching two classes to LLM (masters in law) students; one as a guest lecturer for an Internet Law & Regulation module (with thanks to Deirdre Ahern for the invite) and one as part of the European Media Law, Regulation & Policy module that I’m involved in alongside my supervisor, Eoin O’Dell and a fellow PhD student, Ewa Komorek.

The first was a class on ‘Social Networking and the Law’ (see the slides/handout here). We covered privacy, liability and general expression and copyright issues. The main cases were the 9th Circuit’s idiosyncratic opinion in Fair Housing Council v Roommates.com (currently in suspended animation awaiting the result of a full en banc rehearing), the district court decision in Doe v MySpace, and the statement of claim in Viacom v YouTube. All interesting cases about an interesting topic. Incidentally, for a nice short sharp summary of legal issues in this area, see Eric Goldman’s summary here.

The second was a class about the EU’s Audiovisual Media Services Directive, which (finally) made it onto the books in the final month of 2008. I’d written about the Directive on a number of occasions, but it was my first time speaking about it (other than to my computer or wall) since the final text arrived, and thus it was quite an interesting experience! The most difficult thing was to remember the EU’s careful political compromise of abandoning in all meaningful ways the use of the terms ‘linear’ and ‘non-linear’ that had characterised the draft Directive (and indeed much of the commentary that followed). The resulting bending of language is awkward - the category-that-is-no-longer-linear is always referred to as ‘television’ although its definition is some distance from the popular meaning of the word (’scheduled’ is probably the best fit for what the definition actually described) and the category-that-is-no-longer-linear (it’s now ‘on-demand’) is defined by various things including the general definition of a programme (where the ‘form and content is comparable to the form and content of television broadcasting’). Right. Anyway, the main reason for this paragraph is to say that the most useful way to use the Directive in teaching or research, I think, is to make use of the unofficial table setting out ‘old’ and ‘new’ provisions (which you’ll find here; something else we found useful was to make use of the Commission’s monitoring reports (which contain lovely statistics as well as caselaw) in building up the context of and backdrop to the reforms.

Apparently loads of you are reading this…

Best blog post: Fatmammycat, Fox hunting, horses and a girl’s awakening.

Another raffle, Jaipur dinners. Would have loved that but no such luck.

Now the moment you’ve been waiting for, Best Blog…Twenty Major! He pays tribute to the quality and quantity of Irish blogs, and plugs his book, but gently.

Lots of thank yous from Damien. And a tribute by Rick to Damien. And a standing ovation And that’s it for live blogging…

Had to open a new post…

Sports: Arseblog

News: Limerick Blogger and Maman Poulet. Suzy gives a special thanks to Michael Lynn.

Specialist: The Voyage

Newcomer: John Brain

Business: Ice Cream Ireland. In an appropriate outfit.

Music: Nialler9

Special Contribution: Simon McGarr. A lawyer with a soul. Very well deserved. And also photographer Ryan. And Rick O’Shea too.

Another raffle…fustar’s toy collection. Fun times…

Personal: Grandad and Grannymar, tie. Legends.

Photo blog: Gingerpixel. Great speech about why she takes photos.

Most humourous post: again will link later, Twenty Major, Tonight’s Debate