Nick Anstead (lecturer at the School of Political, Social & International Studies) introduces the guest. He mentions interviewing McGregor during his PhD research, and his discovery that Jon Cruddas’ campaign was McGregor’s handiwork, and also the very current work with the Man. United supporters. We start with questions and answers.

Q: what are the differences between old and new style campaigning?

A: there isn’t a big difference. ‘Election campaigns are won by people speaking to their neighbours’. It’s how you use your email lists / followers – building of relationship, turning it into action (which is as a whole, offline). These tools are means to an end, e.g. talking to people at a door about reasons to vote for a candidate.

Q: indeed, this isn’t a completely revolutionary break. So if I was a potential customer and asked what is the BSD method, how would you pitch that?

A: first, a caveat: you can have the best technology, campaign and strategy in the world, but if your product isn’t good, that’s still a problem. McCain wouldn’t be president if he had Obama’s tools – he had the wrong vision for America. So: using online communities is a principle that can be applied – trade union, individual, not just in the US – but there are still differences between tactics. That said, you must operate with transparency and authenticity. (1) During the Obama campaign, David Plouff recorded short videos on his Mac explaining (in a reasonably open way) what was going on. People want to see openness if they are investing time in an organisation – treating with respect.

An example is email, 3 questions before you send – why am I on this list, what do you want from me right now, what comes next. Email is the most important tool right now – not Twitter or Digg! It’s about starting a conversation (like door-knocking), while a website is more like a street stall.

At the RNC, Sarah Palin said ‘do we really think that being a community organiser is a qualification for being President’ – attempt to put Obama down, but also directed at those campaigning for him. 10 minutes later, email by Obama campaign in response, sent to 10 million users. More money raised from this than any other email during the campaign.

Q: can you talk about Hope not Hate, a British example with some success?

A: 150k on the email list – up from 6k. Shows example of email – ‘not a newsletter’. One thing is the focus. Key information is in first 2 lines. One action requested – click on link and type in name (in this case, co-signing letter to local newspaper). Also provokes to tell friends – press a button, forward/tweet/share/etc. On average, every time someone takes an action, tells three others. This builds up the total number. This can mean quick and powerful responses, e.g. over 10k emails to head of ClearChannel protesting at BNP advertising. Time is important – e.g. email sent out after midnight when BNP candidates were elected with a bigger task – 7,500 uploaded ‘not in our name’ photos – ultimately turned into video. This is a good way of talking about social media, which can work to amplify (e.g. video and petition), which again brings more people in. For Facebook, though, you don’t control the data and it’s not your site – ‘they are more like embassies’, a tourist strategy. Also: you don’t persuade people not to vote for the BNP by sending emails to your friends – you need an offline strategy. For HNH this was flooding areas with campaigns, getting people on the ground. The email etc drives people to take offline action. Barriers to joining in are lowered, e.g. no need to demonstrate passion to ‘join’, search by postcode rather than specific contact details, etc. For HNH, ended up delivering more leaflets than the 2 major parties during the European campaign, over 3m, much more than planned.

Now to talk about donations. Obama raised half a million dollars from activists including through social media. You can indeed raise funds through the same type of emotional connection that drives campaigning – this is different to traditional charitable approach where donors don’t get ‘involved’. Presents the ‘ladder of participation’ – breaking down the email list, from ‘freeloaders’ (don’t read or read infrequently), then affiliates (read but little response), responders, volunteers, participants, donors, evangelists, superstars. For HNH again, offered training on how to do more at one of 12 venues – now has 550 people across the country, without previous political involvement, now active in communities. This is more inspiring than a large email list.

Audience questions:

Scott Wright: Is campaigning itself being democratised? Is this ‘revolutionary’ – e.g. would Obama have succeeded without new media? Also, is there a difference due to the cynical voters of the UK? Third sector more successful than political parties in the UK?

A: Both Tories and Labour say they haven’t been able to utilise tools because Obama was a ’start-up’, it’s like turning around a tanker. This only goes so far – and tools don’t change fundamental human relationships. HNH was around and working, but new media amplified it. You could also ask if Kennedy wouldn’t have been President without TV. In the coming election, independent non-party groups will make a major impact, and social media will make an impact on the reporting, in particular the leaders’ debate.

John Street: do you worry about the populist (or negative) aspects?

A: I don’t think so: the interactions are much deeper than soundbites, politicians are incentivised to get involved in longer conversations. Like all tools, can be used for good or evil. Two examples from Obama: (1) Obama voted to absolve telcos for wiretapping, which supporters didn’t like, using tools on Obama website to organise against this – this wouldn’t have happened in the UK, but in this case it stayed, Obama responded on the group, 3-hour webchat, was explained to press as a different style of campaign. (2) during the transition, people could leave policy ideas on the website, legalise cannabis was top of the poll, slightly awkward but lots of ideas are circulated and this is positive. Mentions here too Power 2010 campaign in the UK, with 3,500 detailed reform proposals often on constitutional details, broken down to 30, then to 5 for campaign (100,000 votes). By opening things up, you find people interested in the future of the country, and maybe we aren’t as cynical as is thought.

Rupert Read: how much do you charge?

HNH – 3 members of staff; Labour – 4 working on new media; Obama – 110 on new media by end of campaign. To do the type of work that is expected, especially breaking down to categories, it can take a lot of time (e.g. HNH emails are broken down to around 10 targeted mails). There isn’t a menu of prices, but it’s substantial and a lot of organisations cannot afford. But alongside this, a small list of friends or a major managed list, the same principles apply.

Q (?): Is political activism through new media possibly capable of being based on rational arguments or just calls to action?

A: Referring to the HNH email discussed earlier, it involves rational arguments but also strong emotional appeal in a short email. The same link is used in a number of different places.

Q: does new media organised grassroots or astroturf?
Q: is Blue State Digital as a name a statement about politics (Democrat support?)

A: taking 2nd question first – yes, we are a Democratic-supporting firm (blue states on electoral map), we are on the left – trade union, social democrat, won’t work for companies that act in negative or damaging ways. On 1st question, new media can be used for either. We’ve been here before, e.g. use of radio. Yes, can be used to ‘fake’ activism, but on the whole people may see through this.

Now I have a bit of prior interest in this area, and it’s only fair to point it out. I wrote an overview of a bundle of legal issues, published in 2009 here. At the time, I was a little concerned (and mentioned in passing) about this issue of responsibility for the actions of others using the network. It formed part of the broader theme (which was amplified in contemporary press coverage) that wireless networks play an important social role in providing access to underserved groups and thinking about Internet use as something beyond a way in which ISPs make money. I suggested that there might be some conflict between defining the admin of a wireless network as a customer of an ISP (subscriber) or as the operator of another provider (public electronic communications network). There are advantages and disadvantages either way. The Bill, though, seems to take this doubt, refuse to answer it, and throw in some previously-unknown restrictions that I would now argue are a serious threat to the development of open networks that I did not then anticipate. This is not to suggest that I had any great insight – quite the opposite, I feel as if my crystal ball needs an upgrade. That said, on with business.

The current state of play is that the Government is not prepared to consider exemptions. The argument is a rather ignorant one that an exemption e.g. for libraries would lead to abuse of the exemption and even fake institutions taking advantage of it.

We have considered the extent to which an exemption might be provided in the legislation. We cannot give blanket exemptions for any such establishment. This would send entirely the wrong signal and could lead to “fake” organisations being set up, claiming an exemption and becoming a hub for copyright infringement. Similarly existing establishments might simply ignore the issue of copyright infringement (or treat as “too difficult”) and allow users to infringe copyright with effective immunity.

This is a little surprising, given the range of existing special provisions and exemptions in the law for libraries; the Copyright, Designs & Patents Act 1988 contains stacks of them. Presumably on the Government’s new view they should all be repealed forthwith. Great.

Furthermore, it’s also being suggested that operators of open wifi be required to put in place untested, burdensome and potentially pointless restrictions such as peer-to-peer blocking, commercial filtering software, and terms and conditions for users. Registration is also suggested – just like pay-as-you-go mobiles, the intention to have a complete record of users is clear. This is putting in place restrictions that are not currently required under UK law. Filtering software is not a legal requirement in this jurisdiction nor should it be. Effectively requiring it for cafes, universities and libraries – at the very time that we are suggesting that the future is based around Internet delivery of everything from video news to Government services – is absurd. Surely a system like this will lead to an environment where there are fewer open networks and those that remain being crippled. The presumption in the new proposals is that the best network is a closed network – indeed, one idea is that admins be sent instructions on how to secure the network. I am, as I mentioned above, already associated with the anti-closed network view, but I accept that there are complex arguments here. That said, this is something that should be considered in full, rather than as a subset of a subset of a copyright debate. If wireless networks are to be controlled, this should not be achieved through the nod and wink approach of allowing open networks but forcing those who provide them to change the essence of Internet access through the threat of liability for supposed copyright infringement. Given that the Government refuses to say what the status of the wifi admin is, it’s far too early to decide what their responsibilities are, especially when the net result of those responsibilities is a dystopian vision of the version of the Web used in primary schools. I’ll leave the final word to the document, which appears confused as to whether it is a legal proposal, a statement of fear, or a sales pitch for software:

Wireless connections are harder to secure. It is straightforward to limit use to only authorised users – via a password or by registering the PCs that can access. Access might also be limited to particular times of the day. Preventing authorised users from miss-using a connection is more difficult. One option is to route all traffic via a proxy server which does not support or allow (eg) use of file-sharing technologies. Another is to place similar restrictions on the router.
The “Get Safe Online” website (http://www.getsafeonline.org/) – supported by HMG and Ofcom – lists three companies who provide filters and software which can block or filter content and who can also block the use of P2P programmes: Cybersitter, Net Nanny, and Cyberpatrol.
It also provides a link through to other sites such as GetNetWise.org which lists and evaluates a wider range of products including BSafe, Safe Eyes, ChildSafe and Cybersentinel.
These products typically cost in the region of US$40 (about £30) and allow the user to block the most popular P2P applications such as: Bit Torrent, eMule, Gnutella, Kazaa, Morpheus, and Limewire.

In the body of the report, a wide range of sources are referred to, although in a very general fashion. There are no pinpoint citations, for example, and many important points are referred to as being from ‘evidence supplied’ by named individuals. Unlike reports of parliamentary committees, we don’t get to see the evidence, and given the rather general tone taken in the main text, it’s hard to verify the strength of the source. Similarly, this is not really a literature review in the sense of dealing with various arguments; the bulk of the space (and, it appears from the list of witnesses heard, the most part of the time) is given to arguments that are accepted by the author. I would like, for example, to hear the views of those involved in the (rightly criticised) ‘lads’ mag’ industry as to the decisions they take, the reasons for their imagery and the ways in which things could be changed.

Finally, and most importantly, it is difficult to accept the recommendations for legal change when very little attempt is made to deal with the legal context. It’s suggested that ‘pro-ana’ websites be blocked by UK ISPs – a hugely significant debate for lawyers and for others, but simply dropped in here as a recommendation without any serious discussion of it. Given the long discussion over the blocking of child pornography and file-sharing, to take two examples, there is too much on the table about this to ignore. Take too the discussion of sexually explicit and pornographic material, which fails to define such in a sufficiently precise fashion, or engage with scholarship on the extent of and limits to freedom of expression. This is not to say that law is unnecessary, but it is better – in my opinion – to start with an interdisciplinary conversation, rather than making confident recommendations for legal change without consideration of the most rudimentary issues, such as the role of the Human Rights Act (not mentioned in the entire report). There’s also a lack of understanding of the relevant principles of media law; the report recommends, for example, that the Government extend the ASA powers over websites to close a supposed ‘loophole’ – despite the ASA’s existing website powers not deriving from Government in the first place! Similarly, it’s suggested that local authorities regulate the content of outdoor billboards, without any significant discussion (other than a reference to the authorities’ gender equality duties) on how should happen. Indeed, the fact that there is a separate chapter for recommendations (with no link drawn between such and the chapters that come before it) causes me to doubt the link between the evidence discussed in the detailed chapters and the lengthy wishlist included in the recommendations; in the case of billboards, they are not considered until the recommendations section, which is far too late. The discussion of video-on-demand reproduces the test for Ofcom intervention regarding harm to minors, without mentioning (even in passing) that the exact language is that of the Audiovisual Media Services Directive or that the UK government opposed (tooth and nail), with the support of the content industries, the calls of other EU member states to have a higher level of regulation for VOD than was ultimately agreed.

Now it might be suggested that this is not really a problem, and that the boring and technical questions of law can be considered by the Home Office experts at a later stage. However, we’ve seen already in the case of the Byron Review (re the Internet, video games, etc) how a report of this nature then becomes the basis for specific statutory proposals, and by then it’s often too late to have a serious interdisciplinary consideration of the important questions. In order to ensure that this happens, the Home Office should immediately publish all the evidence referred to in the report. Scholars from other disciplines should be invited to add their views on the matters considered and the recommendations made, including an assessment of the role of human rights instruments (including provisions regarding equality, freedom of expression, and the like). The report should be discussed with those involved in the media (and not just sympathetic voices) in a non-adversarial fashion. There is a great opportunity here to consider necessary legal and non-legal reforms if the right tone and approach is taken.

Postscript: this is yet another report where the personal position of the ‘celebrity’ author, Dr. Papadopoulos, is front and centre (see again the Byron Review!). The tone is set in the introduction, where we are reminded that the author’s comments are ‘often syndicated by the press and discussed by television and radio networks both in Britain and in America’ and that she ‘enjoys family life in London with her husband and their young daughter’, followed on a later page with a nice big photograph. This might be appropriate for a book jacket, but is completely the wrong approach to take to work commissioned by a Government department informing public debate, not least one that talks about the pressure to look glamorous in the face of the male gaze. The credentials of an author in a report of this nature should be restricted to those appropriate to the task; I’m rather fed up of being reminded about people’s happy home lives in what is supposed to be public policy work (is a scholar who lives alone less qualified?). I’m very pleased that the author refers (more than once) to her understanding of how her little girl should grow up, but equally I have met some fabulous scholars who understand children’s issues without being married parents or media stars themselves.

The second Law Student Colloquium will be held at Trinity College Dublin on Saturday 20th February 2010. This year’s event will be chaired by Mrs Justice Catherine McGuinness of the Law Reform Commission. Once again, the Colloquium’s title is “Rethinking Law”.

Sessions range from childrens’ rights to new media & IP via constitutionalism, new perspectives and medical law, with a wide range of Irish and other law schools represented, including – most welcome – a number of undergraduate students presenting alongside their postgraduate counterparts. More information from the School of Law, Trinity College Dublin. Be there!

Not happening for a while yet, but with a call for papers about to close, is the Centre for Criminal Justice & Human Rights’ postgraduate conference at UCC (Cork), 29th April 2010:

The theme for this year’s event is “Borders of Justice: Locating the Law in Times of Transition.” The aim is to reflect upon how reactionary law making and the related rhetoric of crisis impact negatively on fundamental rights protection and the criminal law. We hope that this theme will encourage debate on the challenging and complex questions which arise when defining the remit of the law in changing and turbulent times.

And finally, over in Scotland, the call for papers for the Scottish Young Legal Researchers Colloquium is available, with a closing date of 21st March. It takes place at Dundee and you can download the call (PDF) right here.

Best of luck to the organisers of these three wonderful events.

Though Mr. Berlusconi himself — the man, oligarch, tabloid personality and plastic surgery victim — has undeniable entertainment value, Mr. Gandini is more interested in what might be termed the Berlusconi effect. What he’s after is Mr. Berlusconi’s impact on Italian culture, specifically those for whom celebrity is power. Which is why, by accident or design, “Videocracy” ends up holding a mirror to the larger world.

I know that those who care about cartels have The Informant (or, The Informant! as it became! when it transferred! to the big screen!), but media ownership can be fun too. On the strength of the IMDB listing and the official site, it’s still early days, having been shown in Sheffield in the UK last year, and coming up soon at the Dublin International Film Festival in Ireland on 27 February (not much use to me, but I know I still have a fair share of Irish readers). Any chance of a wider release? Here’s hoping. Clips and more all found at the official site.

The controversy stems from the publication of this book review (written by Prof. Thomas Weigund) on an associated website (Global Law Books). The author of the book under review, Dr. Karin Calvo-Goller, sets out her arguments in the correspondence reproduced in the editorial. You can learn more about the book (The Trial Proceedings of the International Criminal Court: ICTY and ICTR Precedents) from its publisher here.

One thing that I found particularly striking about the editorial was the request for readers to send examples of other reviews “which are as critical or more so than the book review written by Professor Weigend – so as to illustrate that his review is mainstream and unexceptional”. It is indeed quite a critical review, although perhaps not quite as pointed as the review of Goodfellas in Belfast that caused such fuss in the Court of Appeal in Northern Ireland in Convery v Irish News [2008] NICA 14 or – in the non-litigated but more academic world, Prof. Pierre Legrand’s dissection of the Oxford Handbook of Comparative Law (2007) 2 JCL 253 (sadly not online, but forwarded by a colleague, and worth reading if you can find it).

The talk was divided into five major sections: the idea of dual use technologies, a review of the case law, a discussion of the relationship between creativity and innovation, an argument regarding three asymmetrical issues, and a case for the benefits of P2P and similar technologies.

I’m going to assume that readers are relatively familiar with the first topic (a description of how P2P works) and with the inglorious history of cases like Napster, Aimster and Grokster. Carrier criticised the direction of these cases, reserving particular criticism for the idea of inducement as seen in the Supreme Court’s opinion in Grokster. For the third section, he touched on these points: alternative reason for the apparent decline in CD sales, alternative remedies (to secondary-infringement litigation) such as direct infringement cases, legislative lobbying and technological protection measures, differing concepts of creativity outside major record labels, and – crucially – the role of new technologies as disruptive innovation creating or contributing to new markets.

The next section dealt with what were argued to be three asymmetries, innovation, error cost and litigation. Taking them in order, the discussion of innovation suggested that the less-tangible non-infringing uses (and associated business models) lose out to the heavily emphasised perils of the infringing use; the error costs, borrowing from competition law, in this context highlight the cost of a potentially erroneous decision to stifle the new services; in terms of litigation, this is a particular problem when new entrants lack the deep pockets of incumbents for protracted litigation.

In conclusion, Carrier pointed to the possible benefits of P2P, mentioning again the possible move away from established industry ‘tastemakers’ and the efficiency of BitTorrent as a distribution method, but also referred to ideas like P2P search as an alternative to Google’s strong position. A very lively Q&A included the idea of dual-use technologies as a platform for free expression, problems with policy-making and regulatory capture, how to define innovation and creativity, quantifying the error cost of the ‘wrong’ decision, the differences between music and movie industries, and the ability of market leaders to be both incumbent and insurgent. It was an interesting argument, possibly easier to apply in the case of the music industry than others, but with useful illustrations of the relationship between IP and antitrust/competition law and the ultimate purpose(s) of copyright legislation. However, it is also quite the reminder how far the current parliamentary debate in the UK on the copyright provisions of the Digital Economy Bill is from the various provocative ideas that have been circulating in the academic side of copyright for quite some time now.

• Police in Norwich keep a close eye on a giant game of It
• Can fish be a tool? The Times is on the case
• Things John Scalzi doesn’t miss. No 3 rather interesting.
• Profile pictures and common myths, spotted on Information is Beautiful
• The phone book, from the London Review of Books blog
• A collection of themes for BBC’s Upshares Downshares. Try the punk jazz version from Led Bib
• Shooting people. Not what you think. Or maybe what you think.
• Nominees for Best Documentary at the Oscars
• The Law and Harry Potter (Carolina Academic Press).

For more on the purpose of this series, see Midweek #1.

Meanwhile, the panel of the great and the good charged with coming up with recommendations for the Ministry of Justice has been announced. Although there are some very interesting people, I was a little surprised to see the lack of academic involvement. I’ve broken it down as :
- six legal practitioners
- five media (counting in-house media lawyers as media)
- three civil society
- one scientist
- one academic (the always-interesting Prof. Gavin Phillipson of Durham, who has recently published a thorough piece on UK privacy law and the ECHR in the Journal of Media Law) (2009) 1 JML 73
- one ‘consultant’ (who, although not mentioned in the official release, is also a lecturer at Sunderland and a co-author of McNae’s Essential Law for Journalists, and could be counted as a second academic)

One hopes that, after they finish throwing the free biscuits at each other, the panel will engage with researchers active in the area. It might also be interesting to see if any reference is made to the new Defamation Act 2009 in Ireland (on which see Eoin O’Dell’s recent Irish Times editorial and ongoing coverage and John O’Dowd’s new article, also in the Journal of Media Law here (2009) 1 JML 173.

Here are two papers with a legal theme that caught my eye:

In ‘What’s wrong with media monopolies?’, Prof. Steven Barnett of the University of Westminster unpacks the idea that media concentration is ‘wrong’, including a good history of media regulation in the US and UK. Assessing the current trend for media enterprises to call for the removal or modification of ownership restrictions, and also various schemes proposed by Government and Opposition, he considers the idea of focusing on content regulation rather than structural regulation, and focuses on the promotion of ‘watchdog journalism’.

Lawrie Hallett (Westminster) and Deborah Wilson (Lincoln) presented a very thorough paper on the regulation of community radio in the UK. This is something quite close to my own heart, although I haven’t written in the area of radio regulation yet (I’d like to). Hallett and Wilson’s paper includes a discussion of the relevant statutory provisions, a consideration of the possible divisions within the sector and occasional tensions between the BBC and community stations and a lot of information on sub-statutory processes (especially Ofcom licensing).

And finally, quick impressions of some other papers. Dhiraj Murthy’s paper on Twitter is right up to date, with a discussion of the various uses of the service that raise broader questions, and also a very handy bibliography for this developing area. There are also a number of studies of individual jurisdictions outside of the UK. Shashwat Goswami considers the development of policy in relation to health communication in India, Opoku Ernest of the Ghana National Media Commission assesses both constitutional provisions and journalists’ ethical codes, including a presentation of the work of the Commission itself.