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.

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

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…

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.

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?

The first was my own, “Law in the Last Mile: Three Stories of Wireless Internet Access”. I will make the paper available shortly. I write about the legal restrictions and risks associated with the sharing of Internet access through wifi, the objections to municipal or community wifi systems, and touch on the ‘white spaces’ Internet access proposals. The bulk of the paper deals with the first, looking at what I argue is the inappropriate use of criminal sanctions against users of open wireless access points and the tools that discourage users from sharing. I believe photos were taken of the special interactive element, which I’ll leave as a surprise for the time being.

The second presentation was given by Anniina Huttunen on behalf of a research group at Helsinki, “Cooling-Off the Over-Heated Discussion of Consumer Digital Rights Discourse by Extending the Cooling-Off Period to Digital Services”. They take as a starting point the problem that there is a high level of protection for physical goods, but almost non-existent for digital services. Consumers are more empowered than ever, and the Facebook user revolt is an example of this, but what is the position of online purchases of software? There is the familiar cooling-off period in EU law - no penalties and no reason needed - for situations like doorstep, time sharing and distance selling. The case study is on software sold as downloaded data. Referring to the revision of the consumer acquis: 34th recital, data files downloaded during cooling-off period not to be included, unfair to allow cooling-off when service enjoyed in full or part. At the moment, many providers have a return policy (well hidden), and also ‘lite versions’ available, or restrictions on return (i.e. download for a second time). The pros of allowing cooling-off are allowing testing of technical and contextual compatibility; no unreasonable cost (physical return) and no wear and tear (so no need to re-sell the product at a lower price), but the cons are the expense for the developer, the design consequences, and seeming to make unauthorised use easier.

The final presentation was Scott Boone’s, ‘Why Study Virtual Worlds‘? It was a report on his own efforts but also evangelical - so that we can consider the advantages. There’s some cynicism - ‘this generation’s D&D’, also critiques that it’s just a fad/hype. But VW give us a means to study possible futures. Borrowing from the discipline of Future Studies, look at simulation gaming (formerly operational gaming). Do things that we can’t do with a real world in terms of understanding scenarios. VWs have a unique set of features and practices, and indeed more focused than the Internet taken as a whole. Already in use are 3D as user interface; what sorts of benefits do we get? and the ‘future of money’ (note disappearance of fiscal currency and privatisation of money). The focus of the paper was then on five potential outcomes of studying virtual worlds: (A) fully realised third paradigm of computing: (1) mainframe/client, (2) personal computing, (3) ubiquitous/pervasive : entirely computer-mediated ‘universe’?; (B) widespread distribution of property without relinquishment of control - do we have emerging issues here - cars on the cellphone model, control separated from use; (C) (nearly) perfect DRM for media distribution - see what the market does; (D) software designed for universal connectivity; this will be a different authorisation, practice etc. Look at business models, EULAs etc (E) augmented reality (though how do we do this without putting in all the variables?) In questions, Boone clarified that his focus was on studying virtual worlds as they currently exist, rather than creating simulations in future virtual worlds (though this too is interesting).

This is the last of my blog updates on the SCRIPTed conference at the University of Edinburgh. Remember, the full list of papers is available here. I will return to the themes of the conference (including the keynote by Prof. Bartha Knoppers) in a later post, and hope that you have enjoyed these fairly rambling updates. There will be one final session that, unfortunately I will miss most of for travel reasons, featuring Lilian Edwards, Andres Guadamuz and TJ McIntyre, which I’m sure will be excellent.

Another case study is the calculation of disability benefit in Germany - based on the average income of the last five years; there was an exception for having served military service, but this was not defined precisely enough. Take for example someone dismissed during service (one day in vs one day from the end?). This shows that, with automation, you really cannot include vague terms - everything must be defined beyond argument. Bing suggests some strict criteria (examples in brackets) - measures (weight), relative measurements (smaller), natural status (sex), legal status (authorised). In natural language, vagueness is usually resolved through textual context. Also, note legal expert judgements (circumstance-based, non-deterministic), which have a certain process but an uncertain outcome. On the other hand, complexity can be a non-problem in computer decision-making; this is often why legal expert is necessary (because there are too many possibilities for a ‘rule’ to be judged) - does this mean that there is a trend towards complex structures based on strict criteria?

The development has been:

The first generation: computerised support, e.g. a case officer facing a client, prepared in the traditional way but has access to a legal information system, internal databases or third party data.
The second generation: paper case replaced by computerised form (collection), with the similar info system and databases - but the system integrates legal knowledge (embedded), e.g. help functions as alternative to legal reference.
The third generation: ’self-serviced public administration’, client-oriented and interpretation of law is integrated. It is more the execution of public authority than a ’service’.

Qs from the audience:

- do jurisdictions with strong judicial review have difficulties with this approach, as it’s not so easy to ‘abolish appeals’?
- to what extent could you have an automated, first-stage appeals system?
- does the system itself encourage quite conservative decision-making?

Sotiria Kechagia (Queen Mary) on how to manage copyright in the digital environment. I was a bit slow to start here, so apologies for missing part of the presentation. Looking with three approaches:
(a) DRM/TPM: governed by article 11 WCT, article 18 WPPT, DMCA and UECD implement; but we don’t understand the interface between DRM and limitations/exceptions, interoperability etc / management and contracts: no specific copyright contract rules, EULAs prevalent, and is there harmonisation? / collective rights management (how can they adapt to digital?)
(b) e-business models: pay-per-download or per-use, service convergence, Noank - but no common understand what new business models means for copyright
(c) Open Content Initiative: users access, create, modify etc the works: questions on creativity, role of authors

Users are creators too; copyright itself is changing in terms of subject matter, first ownership etc - and of course enforcement. What about various ideas such as sui generis approach, independent authorities like HADOPI (more on that in a moment), fundamental rights, the flexibility (or not) of the Berne three-step test…not forgetting that there is a creativity dimension (it is, apparently, the European Year of Creativity and Innovation).

Nicolas Jondet is presenting about a very controversial, current topic - the he French copyright authority (HADOPI), graduated responses and disconnection (outside France, often refered to as three strikes, though that means little within France/in French!). This reminds me that I really have dropped the ball on covering the Eircom issue in Ireland; Nick Scharf at UEA is working hard on comparative approaches to this question. Anyway, back to Nicolas, who starts with an explanation of the Olivennes report, including Olivennes’ own background with Fnac, and the wide consultation that took place. The report argued that there was a need for a better ‘legal offer’, but quickly Sarkozy stepped in and demanded action and the debate moved from report to draft law very quickly.
1. The media industry should act (VOD, no DRM, shorter release windows, seek VAT change at EU level).
2. Modifying the response to piracy, from strung but ineffective criminal provisions (hampered by constitutional difficulties with previous reforms): but technological and contractual solutions were found to be inappropriate or inadequate.
3. Graduated response - rebrand the DRM watchdog into a broader authority (HADOPI) with new missions to monitory piracy and implement the graduated response.
The response is a regulated warning phase (brought before HADOPI) which includes email/formal letter. There can be a disconnection, then, which should also apply to other operators (national directory of barred persons). Subscribers can follow recommended security, or even appeal the sanction to a court (Paris Court of Appeal, then Cour de Cassation). The response has been civil society campaigns (like la Quadrature), raising concerns like privacy, proportionality, the right to Internet access, technical questions (like triple play - ask Jacqui Smith!), and indeed the legislative/lobbying process behind the new law. However, there has been strong support in the Senate (a little less so in the Lower House), and the law is likely to pass. There may well be a constitutional reference too. Finally, there is the EU (Parliament) dimension (Guy Bono) - attempt to prevent disconnection (inc. in the Telecom Package), condemnation of the French proposals, and possible conflicts? [Lively question and answer - covering everything from standards of proof to the prospects for the legislation to the obligation to secure networks (open wifi etc) to the crucial question of proportionality - too much to follow!]

Finally, Tobias Bednarz addresses the question of collective management of music copyright.
1. He starts with a quick explanation of collective copyright management: exclusive rights exercised/enforced through collecting societies, collecting from commercial users. Typically, rights-holders transfer all their worldwide rights to the collecting society. This means that a user in one country would need multiple licences - so in practice CISAC coordinates this through a series of bilaterial agreements. Thus, each collecting society can issue ‘multi-repertoire licences’, being a monopoly within a territory.
2. This is under significant pressure due to online exploitation. Territorial boundaries are barely there, and there’s not even a EU-wide copyright. So the provider needs a number of licences. The ‘one-stop-shop’ advantage is gone, and then there’s….
3. EC competition law: can you go through a foreign collectng society? Lucazeau and Tournier cases, where nightclubs wanted to get licences from foreign collecting societies. ECJ found territorial limitations were not included in the reciprocal arrangements, and no concerted practice present (esp due to objective reason for societies not to engage in foreign markets). Revisited in CISAC (Commission decision) re Music Choice (more about it here), where it’s found that there is parallel behaviour and no objective reason due to online activities. This has been criticised that it is vague, and also the fear of a ‘race to the bottom’ (though administration costs might prevent this?)
4. The way forward:
- unconcerted responses (independent review of territorial restrictions), but does that really help the download store
- concerted response, meaning that the download store would have a choice (within the EEA).

That’s it for today’s SCRIPTed blogging. More tomorrow, battery etc permitting

• Sara Smyth (Rochester Institute of Technology) on ‘Child pornography and the law in Canada’; this was the topic of her PhD and forthcoming book (U of T Press). Using Canada as a critical case study on circulation of CP materials; the broadest provisions in the world, but argues that a more narrowly focused provision combined with broad targeting of Internet circulation. ‘Global epidemic’ - but much of the regulatory approach is based on quick fixes. The Canadian law is contained in s 163.1 of the Criminal Code, and includes representations of u-18s as well as actual u-18s, and a wide range of materials (e.g. cartoons, written materials, morphed images, etc); Internet distribution (significant and popular due to privacy, anonymity and convenience) covered by the progression of this rather than the development of a new offence. ‘Moral panic‘ is a good conceptual framework. She discussed the (in)famous R v Sharpe on CP offences vs freedom of expression, reading in exceptions re privately held material. The subsequent amendments (Bill C-2) increased penalties (including mandatory minimum); Smyth argues that materials are circulating while the public desire for ‘justice’ has been satisfied by prosecutions of people like Sharpe, giving examples of R v Chin [2005] AJ No 1712, R v Austin [2006] BCK No 3430 and (missed the last one), and suggesting model legislation that would be more appropriate based on the harm, referring to images that reasonable person would consider indistinguishable from that of a real child (though contrast with Ashcroft v ACLU in the US re: ‘appears to be’). Finally, a model is presented of strategies (int’l co-operation: Canada should ratify the Cybercrime Convention, architectural innovation (interceptability in particular) and user regulation/self-help like INHOPE) that would be of benefit


• Edinburgh alum Gerrit Hornung (Kassel) is looking at the ID card legislation (passed through parliament in 2009) in Germany. The backdrop is biometric passports and electronic signatures; why have a separate authentication function in ID cards? The approach under development is separating, in terms of the ID card (which includes RFID and biometrics - voluntary fingerprints), between governmental purposes, general authentication (free) and (with additional cost) voluntary signature functions. Constitutional requirements on data protection have been quite influential. User must give written consent to use ID card as electronic proof of identity, and service providers will need an authentication certificate (and to get it must prove legitimate purpose, proof of necessity). There will be application-specific attributes, and alternative information (e.g. being of age rather than specific age, being of a locality rather than actual place of residence). DP supervisory authority can revoke auth certificate or ID card. (Some great diagrams for this). Some practical uses: everything from online opening of bank account to age verification for adult services. It’s planned that services will be available from November 2010 - depends on all parts being present. Some unresolved questions include non-German providers, availability of RFID readers and the security of PINs.
• Finally, Shizuka Abe & On-Kwok Lai turn to the age-old question of ageing. Ageing in Asia is catching up with N. America/EU. Lots and lots of fascinating (but rapid-fire) tables and graphs, reviewing social and demographic changes across Asian states. Some interesting points included: use of ICT in ‘caring relationship’ (e-medicine etc), the difference between Internet diffusion in countries and how this has an impact on behaviour, ownership of mobile phones and the requirement for ownership across generations in order to be a communicative tool, Imadaco and related GPS services (people-tracking!) and how they are framed by both developer and society, the intelligent pot (!) that tracks your tea-making habits. The common theme is the idea that the authors call ‘ICT-embedded filial piety’, with a zeitgeisty reference to current financial crisis and the need for ‘pro-growth development’ in areas like this; the conclusion is that the use of technologies reinforces face-to-face communication and is also quite local despite the use of ‘global technologies’, and ultimately holds the potential of facilitating ‘inter-generational dynamics’.

Geist’s work is in a very interesting area. Chair Rachel Craufurd Smith (last seen on Lex Ferenda here) alludes to the mixed blessing of legal information on the Internet - information overload is a persistent issue. Geist has been studying how to obtain relevant information from this huge stack of knowledge. My colleague at UEA, Mathias Siems, has been engaged in work using related techniques, on how courts cite each other (see for example this paper on citation patterns, presented at a staff seminar earlier this year).

Geist’s jumping-off point is the world since Google, and is interested in ‘relevance ranking’ - the way in which a search engine orders the results, particularly important when there are millions of responses. He explains how PageRank works (in brief!); but for something like Westlaw, things work quite differently. The basic assumption has been that we can’t use the Web-style algorithms for computer-assisted legal research systems; so the research hypothesis is thus that citation analysis could identify courts cases that are more relevant.

The first step in testing this is looking at the network structures, can you build a network based on court cases that looks like the WWW? Relying on typical networks (including scale-free networks; a topic that has been exercising the mind of fellow attendee and blogger Andres Guadamuz of late), Geist notes that the contemporary web (and thus web searching) is recognised as scale-free. Constructing a network (using Python!) of freely-available Austrian Supreme Court cases (both headnotes and full-text are available), he finds that the vast majority of decisions have few headnotes and a small number have many - i.e. a power law distribution. This suggests some similarity between web pages and the Austrian cases, meaning that citation analysis might be just as efficient in the latter case as it is in the former.

The second step, then, is looking at official reports (a selection of Supreme Court cases), to see if they are unevenly distributed. However, it seems that there are more headnotes for the reported cases; this could mean, in searching, that cases without headnotes would be ‘ranked down’. Again, this suggests that network data could be used.

Q: Jon Bing asks a very interesting question about evaluating different types of citations, i.e. looking at legislation etc, which is certainly (says Geist) an area worth researching. Geist also mentions the purported differences between reports in civil and common law jurisdictions.
Q: who writes the headnotes? normally by assistants/clerks after the judgement is completed.
Q: how do you deal with gaming/self-fulfilling prophecies/etc? acknowledges it, but focused here on publicly-available documents; so far, this is the best call on relevance that can be made.