The key background feature to the article is that the nature of online communications means that while individuals have new or enhanced opportunities to speak, they are also more likely to be engaged with the legal system in doing so.  For example, the change to the historic focus of libel law on the mass media (p. 3; all page refs to the SSRN draft) and the implications of storage, search and ‘persistence’ for individuals (p. 9) are canvassed .  [On libel - the Reynolds defence and its limitations are briefly discussed, which is important in the light of the current defamation reform efforts.  Actually, I'm optimistic about this, given the possible link between Reynolds and responsibility more generally (cf Irish Defamation Act 2009), and glimpses of a non-media approach, e.g. in the Privy Council case of Seaga v Harper (para 11).]

From this, Rowbottom develops an argument about ‘high level’ (professional, researched, wide audience) and ‘low level’ (amateur, conversational) speech.  This weaves in and out of the existing (and controversial) concept of the ‘value’ of speech.  Low level may require a particular type of protection, and the author discusses factors such as context, the opportunity to prepare/edit the material, the type of audience [real potential for media studies-style audience research here, I think, along the lines of the great 1988 'third person effect' work on defamation which is so much fun to teach], the knowledge of the user [which I read as a note to lawmakers that media literacy and public legal education should be a core part of a regulatory strategy], and more.  There’s also an intriguing argument about freedom of thought here, which I’m still chewing on.  My former colleague Robert Heverly (now at Albany) gave a very provocative workshop paper recently about the Internet as a collective mind, so this is an idea really coming into its own now.

One of the interesting (and effective) tools of the article is collating a mixture of cases – appeals, sentencing decisions, newspaper reports of trials, and so on – and so presenting a more accurate picture than one would get from looking at statutes and major cases only.  We see the ways in which the different statutory provisions are being used in practice, and indeed the overlap between them.  On that, the statute book doesn’t fare very well.  The main part of the article discusses a range of statutes (e.g. on public order, malicious communications) and how they have been interpreted and used.

I hope the reader will allow me a brief plunge into the mess that is section 127 Communications Act 2003.  Rowbottom is rightly critical of its use as a catch-all offence (p and, more broadly, of selective prosecution (p 9).  One could be even more critical, though, through considering its origin (as a provision of post office law, then of the regulation of the national telephone system), and indeed its non-application to certain forms of communication (letters, broadcasters, painted walls).  It [and its close cousin s 125 on dishonest use of a network, which I kicked in the knees in my wi-fi piece] need to be completely reassessed.  There’s nothing wrong at all with requiring the court to take the medium of communications into account – but having a ‘special’ provision for electronic communications of this nature achieves very little.

There’s also (p. 21) a discussion of self-regulation, which is sensibly aware of the perils of assigning responsibility to private operators of websites, and also offers a link to ongoing discussion on the regulation of media and advertising, e.g. in the Leveson Inquiry.  The discussion of quick adjudication for the intermediary to work from is also of interest to the Joint Committee on the Defamation Bill, and the Government response to it.  Rowbottom doesn’t present a detailed scheme for regulation, but the intention, as I see it, is to suggest possibilities for further investigation, mindful of the analysis of the importance of low level speech.

What will this article achieve?  I’d suggest a couple of things.  In policy terms, it’s a key reading for anyone considering ‘new laws’ on various harms associated with the use of the Internet.  In general academic terms, I hope that it will spark a debate on freedom of expression of the nature that the author notes in the US (on democracy and discourse) in the footnotes to p 13.  Indeed, the framework of high/low value could be capable of application in a variety of other contexts.

For IT/media law, it’s a very significant European contribution to what I have called (here, in the context of private ordering) the ‘mass age’ of Internet law, where researchers need to look at how speech fares on the (digital) ground, without getting locked in to kneejerk forms of technological determinism or indeed technological neutrality (but that’s for another day).  The fact that Rowbottom (primarily associated with public law, politics, and human rights) has looked at literature on cyberlaw (mostly US) and on the ECHR, in a ‘mainstream’ journal, should also increase the visibility of these issues, which is particularly welcome, in the way that, for example, Chris Reed’s ‘bad law’ work in the MLR did recently [which I'll be blogging about very soon, as I've just received my copy of his new book].

(FYI, the source (ish) of the title of this post).

Day one is all about early career researchers, across the fields of IT, IP and medical law.  It’s a chance to present, under the watchful eye of experts (well, some experts, and me).  If you’d like to learn more about this, and apply to present, please do so ASAP: all the information is here.

Day two is about ‘trust’.  And a dinner, with a ceilidh. (‘Trust’ = ‘tell me, is ceilidh dancing safe?’) Onora O’Neill is giving a keynote lecture (if, like me, you are still impressed by her Reith lectures, also ten years old this year, this is particularly promising). There will be panel sessions, addressing questions like “computing, clouds and the regulation of next century’s technologies; legal and ethical implications of autonomous technologies”. An ‘unconference’ will also take place; your position papers are welcome, by 11th May – information here.

Day three is about ‘openness’.  Topics on the panel sessions include access to medical information, the law and policy of net neutrality, and copyright, technology & culture.  And then we emerge, after a postscript (see what they did there?) into the Edinburgh sunshine.

More information at http://www.scriptconference.org.

In Tamiz, Google sought to have an order for service regarding a claim for defamation (regarding material published on Blogger) set aside.  Tamiz complained to Google about an article and various comments on a Blogger blog – first through the Report Abuse button and later in a series of letters of claim and other correspondence.  Google didn’t take it down, but some time after the letters started flying around, Google notified its user of the complaints, and the material was taken down by the user.

The valid claim was against Google (not Google UK), so it was an application to serve out of the jurisdiction, i.e. a preliminary stage.  The basis of Google’s success was not jurisdictional (some of the claims did constitute a real and substantial tort within England). Instead, it was substantive – that Google was not the publisher, or in the alternative was protected by the Defamation Act and/or the E-Commerce Directive. Eady J would have found in Google’s favour in all three cases – and so the claim is thrown out. (NB: this is not a search engine case – it is just that the host in question is ultimately owned by Google – lest there be any confusion).

Let’s start with the E-Commerce Directive (article 14, as implemented in the UK as regulation 19 of the Electronic Commerce Regulations), because it’s probably of the widest appeal to readers. What’s important about this finding (drawing on earlier English cases and also the ECJ decision in L’Oreal v eBay) is that Eady J makes it extremely clear that an allegation of defamation does not constitute actual notice of unlawful activity (i.e. triggering a takedown in order to avoid liability). “It cannot be right that any provider is required, in the light of the strict terms of Regulation 19, to take [Tamiz's complaint] at face value. Clearly more is required for a provider to acquire a sufficient state of knowledge to be deprived of the statutory protection” [60]. So there it is. No takedown, but still no liability.

This was hinted at as far back as Bunt v Tilley (very briefly), then in Kaschke v Gray and considered most recently in Davison v Habeeb - but Tamiz is the clearest example yet (albeit still as a dismissal at an early stage of proceedings).  Kaschke has a very complicated factual record, with the passages on the Directive being blanketed in double and triple negatives and probably obiter anyway.  Davison is much closer, and is the first to recognise the impact of L’Oreal but because of multiple claims of unlawfulness, and some comments on the notices in question, something sharper was needed in order for the position to be clear.  I think Tamiz does that.  (Although, it would have been clearer again if this were a normal case without the need to serve a US defendant).

The other issue, more specific to English law, is whether Google (Blogger) was a publisher (for the purposes of defamation law, at common law) at all.  It was established in Metropolitan Schools that a search engine was not a publisher. This was of crucial importance in England because the transposition of the E-Commerce Directive does not extent here to search engines.  In Tamiz, Eady J goes further and accepts that the act of hosting does not constitute publication.  (If correct, this means that there is no need to rely on the E-Commerce Directive at all). The use of analogy is fascinating: ‘it is no doubt often true that the owner of a wall which has been festooned, overnight, with defamatory graffiti could acquire scaffolding and have it all deleted with whitewash. That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher” [38]. This is the opposite finding to that in Davison (which was also about Blogger) – and I expect the Court of Appeal will be particularly interested in sorting this one out.  However, the stakes aren’t as high as they were in Metropolitan, as the host has a wider choice of arguments.  (The court also finds that Google could rely on the statutory defence in section 1 Defamation Act 1996, but there’s less of interest or novelty in that section of the judgement).

So what are the implications of this decision?  For hosts, it may strengthen the resolve to keep material up, even if a letter alleges defamation.  The finding in multiple cases that there was no duty to take down because there was no actual notice, and Eady’s view that there was no publication to begin with, is a big win – although will it be enough to reassure hosts that they don’t have to take things down on receipt of a nasty letter?  For applicants, the lesson is to set out the nature of the unlawful activity in as much detail as possible.  For lawmakers, it’s a reminder of the weakness of the notice and takedown provisions of EU law, lacking in detail and clarity – but also, perhaps, a signal that a better procedure for working out what is ‘unlawful’ is necessary.

Read the full post here.

Having watched most of, and read all of the transcript of the debate (and a lively Twitter stream on the #sopaireland tag), I’m pleasantly surprised to be able to say that all four points were touched upon at some stage (no credit to me – others made the points in various fora). On the other hand, none of the four were implemented, so there you go.

In the meantime, a well-drafted proposal for an alternative statutory instrument was issued by Catherine Murphy and Stephen Donnelly (with support from the above-mentioned TJ McIntyre and solicitor Simon McGarr.  I would endorse their proposal, because it clearly meets the two substantive criteria from my original post (sunset clause and clear Scarlet safeguards), but more importantly because it would provide reassurance to users and intermediaries about the extent of the power while still allowing action to be taken where there is a demonstrable necessity for such.  The key provision of the Donnelly/Murphy proposal is proposed section 40(5A)(e): ‘An injunction under this subsection shall not be granted unless the court is satisfied that the injunction will distinguish adequately between infringing material and lawful content so that it will not lead to the blocking of lawful communications.‘ As well as what it obviously does in terms of over blocking, the use of ‘satisfied’ and ‘adequately’ would require a court to give proper consideration to the technological efficacy of a proposed action.  There are other important procedural devices included in the proposal, such as the notification of the Data Protection Commissioner and the treatment of costs.  It should be emphasised that recital 59 of Directive 2001/29 (which is the basis for this legislation) provides, in black and white, that ‘the conditions and modalities relating to such injunctions should be left to the national law of the Member States.’  I’ll say that again. ‘The conditions and modalities relating to such injunctions should be left to the national law of the Member States’.

Imagine my surprise, then, when the debate concluded with this comment of the Minister leading it.  ’I will also defer to their legal advisers on this so that we can have a strategic conversation about how the future of the web operates in the State, but we are not changing the wording of the statutory instrument.‘  To me, this demonstrates exactly why the path of primary legislation should have been chosen, as it would have allowed for a proper consideration of alternative wordings.  Indeed, one may reasonably assume that it had been decided before the debate began that not a word would be changed; sadly not unusual in contemporary parliamentary proceedings but a real shock to those drawn to this debate because of its subject matter and a disappointing result to what was shaping up to be a useful exchange of views on law and technology.

The debate itself did include a decent discussion of the issues (aside from cheap shots about keyboard warriors – yawn).  I think the repetitional risks associated with hasty and overbroad legislation were well explained, and the impact of Court of Justice decisions was also recognised (although the argument that there is no need to legislate because the jurisprudence is clear didn’t persuade me – there are pages and pages in statute which set out things that are already in the case law).  And, by the standards of the debates on technology I have seen over the years, it was fairly well-informed.

I would like to point out that the discussion of the position of hosts was not as complete as it should be, though.  It seemed to be suggested (on a number of occasions) that as long as a host was acting in accordance with notice and takedown (i.e. article 14 of the E-Commerce Directive), they would have nothing to fear.  That’s not the case, though.  The key debate (including at European level) is about how the requirements for injunctions etc affect the protections for intermediaries of articles 12-14 E-Commerce Directive and article 5 of the Copyright Directive.  In the Scarlet case, for example, the ISP should have been protected by article 12 (which is much stronger than article 14) and article 5 Copyright Directive, but this was under threat (much less after the decision).  A host that doesn’t abide by notice and takedown (or a service provider not within the terms of articles 12/13) runs a serious risk of being subject to liability in general, so the injunction is less relevant to them anyway – they have much bigger things to worry about.  Oh, and there was a lot of confusion between notice and takedown and user codes of contact – they are actually different things and sites are not required to have the latter in order to benefit from the former.  At all.  In short, the claim that the injunction does not affect hosts is not proven in the slightest.

Aside from the above, I reiterate my call for the Copyright Review Committee to be consulted and the submissions received by the Department to be published (in accordance with the official policy on consultations* – their requirement, not mine).  I can’t see the harm it would do.

[* this is offline, but it was OK a couple of days ago; it's still showing up through a Google cache here]

Things have moved quite fast this week, so I don’t intend to go over the whole story: you can get that here from the Stop SOPA Ireland website and the Department of Jobs, Enterprise & Innovation statement. Instead, I offer a proposal for how the matter should be dealt with. My feeling is that the current proposal lacks detail, even compared with the unsatisfactory section 17 Digital Economy Act (which as some might recall was a response to a poorly drafted first attempt at such a clause, and hasn’t yet been implemented through the necessary statutory instrument). But I have some confidence that if the four procedural steps I recommend here are adopted, that concern can be dealt with.

1. The matter should be dealt with by primary legislation, i.e. an Act of the Oireachtas. Although there is a power to implement EU directive by way of statutory instrument, this is not a requirement. Due to the significance of the matter – and the strong statutory basis for copyright law in Ireland (the 2000 Act was debated at length) – the full application of the parliamentary process in the Dáil and Seanad (including committee stage) is appropriate.

2. The implications of the Court of Justice decision in SABAM C-70/10 need to be considered. The decision that the proposal responds to is EMI v UPC [2010] IEHC 377 (the Irish High Court) which precedes the SABAM decision. Would the High Court have said the same if it had seen sight of SABAM first? Well, it does cite the questions in SABAM and summarises the finding in the Belgian court. (It has however always puzzled me why the ECJ’s Promusicae C-275/06 remarks on the balance between rights was not discussed). The Minister is clearly aware of the importance of SABAM (see his press statement), so that’s a good starting point. As it happens I think that SABAM is more of an obstacle than he appears to recognise, but opinions may vary. Of course, the English decisions in the Newzbin litigation and the judicial review of the DEA should also be assessed.

3. The Minister should (a) publish all submissions received in response to the summer 2011 consultation on this matter (the consultation question was online but is no longer online; the responses have not been published), and (b) seek the formal advice of the Copyright Review Committee (which will report this year on its wider review of copyight and innovation). [Note that the public body consultation guidelines in Ireland provide that 'It is good practice to publish a list of the submissions received, summarising key messages and specific suggestions. Where possible, it is good practice to publish all submissions received, subject to considerations of confidentiality and / or defamation']

4. With these three points in mind, any resulting legislative change should come into force along with any changes made as a result of the Copyright Review. This is because copyright law is ultimately a compromise between different interests and needs and to take a step as big as the one that the Government proposes here in advance of (what might be) other substantial changes to different parts of the ‘mix’ would assign undue priority to one set of interests. If there is no alternative to a speedier solution it should still be by way of primary legislation but with a sunset clause (i.e. that the legislation would not be valid beyond a specified point).

This matter comes before the Dáil for debate next Tuesday. If anyone wants to take up my four-point proposal, please do so.

All three of the afternoon witnesses were there for the morning, so we had a good opportunity to see what our colleagues were saying – particularly the useful debate between Barnett and Brock on models of media regulation and the role of statute. It was interesting to watch the Inquiry go about its business – serious but not overly formal, and a technology-infused room (transcribed text appearing on screens, each lawyer with a computer in front of them, iPads and smartphones in circulation, and of course the fixed (and indeed unobtrusive) video cameras dotted around the room, linked to the live stream on the Inquiry’s website. On this occasion, it’s fair to say that neither Court 73 nor (I’m told) the overflow annex) were packed out – perhaps a day of academics does not have the appeal for others that is has for me! (Not even a Guardian live blog – which according to Charlie Brooker’s Black Mirror defines a serious event – but the Telegraph did have one (and a still of me in full hand-waving mode).

The full details of what we all said can be found in the transcripts: morning and afternoon. As a new lecturer I didn’t have a lead role in the discussion of education, although I was pleased to be able to talk about some of the things we are working on at UEA, particularly the interdisciplinary ‘Media & Society‘ module, and to comment (briefly) on the differences between media law for law students and media law for journalism students. (Lord Justice Leveson also appeared amused (or scared) at my observation that the inquiry itself is a useful part of this year’s media law syllabus). I enjoyed the discussion of the different careers of journalism graduates and the ups and downs of NCTJ recognition in the morning and afternoon sessions – a really useful exchange to review.

My next major intervention was regarding the Press Complaints Commission; this was the bit that made into the end of a Guardian report too. I suggested that some aspects of the Press Council of Ireland could form a part of UK reform – e.g. statutory recognition of an independently constituted Council, the involvement of journalists and not just proprietors, links between the responsible journalism defence to defamation law and Council membership. I also observed (and Twitter users took notice!) that UK publishers had joined the Irish council in respect of their Irish editions; others have made this point before but it does bear repeating. I added that investigative powers would only be appropriate if a press body was appropriately accountable for the exercise of those powers.

Of course, most of the questions directed to me were Internet-related, and it’s where I had the opportunity to put across quite a few points drawn from my research. While I wanted to emphasise that the idea of the lawless Internet is inaccurate (and has been for some time), I also discussed the importance of clear laws that individual bloggers etc could understand (and possibly be protected by akin to journalists if standards are met), the dangers of encouraging or requiring online intermediaries to be the key location of regulation (or treating them all, from telecoms providers to search engines, as the same), and also the strong points of some community-driven regulation. (Those who have read things I have written in law journals or even on this blog may recognise many of those points, and what I was trying to do was summarise them for the purposes of the Inquiry, which isn’t specifically about online media but will surely be dealing with it under various headings). I did coin an unintentional soundbyte, that hosts should not be the “new arbiter of what is right or wrong”. I also responded (not in much detail due to time) to Julian Petley’s comprehensive paper on freedom of the press vs freedom of expression, which I recommend as a very interesting reading on this topic. Oh, and I defended media studies as an important contribution made by the academic world, but that again won’t surprise readers. And then it was off to the cleverly squeezed in BBC remote studio for a chat with the fine Radio Norfolk : hear the results here (at 1h45m) and the following morning’s studio interview here (at 1h48m).

The Inquiry has a lot of work to do, and it’s running alongside other processes, such as the draft Defamation Bill. I’ve been watching it with fascination and it has been a privilege to be able to contribute. It continues to invite submissions from the public and will shortly be inviting further submissions on the press and the police (module 2).  Based on what I’ve seen so far, its report should be wide-ranging and fascinating, and I hope to continue blogging about it and sending in my written observations in due source.

Some of the cases about language on the radio turn on the protection of under 18s, but fortunately for Capital, this was in the morning during the school term, so all good children were nowhere near a radio. Instead, the clause of the Broadcasting Code being looked at was a general one, “In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context” (rule 2.3), and it was considered ‘resolved’ rather than a breach of the code, given the circumstances and the remedial measures put in place.

The bigger issue here is that new guidance on this matter is, according to reports over the last couple of months, on the way. Ofcom flagged this in BB 189 in September, saying that ‘In view of our concerns about the material in [cases in that bulletin], especially those broadcast when children were particularly likely to have been listening, we will be requesting that a number of radio broadcasters across the industry who transmit such programming attend a meeting at Ofcom to discuss the compliance of such material”.

There has been a number of interesting radio/music cases this year, and BB 189 was a bumper issue for rude words on the radio. It included the already legendary Brick FM decision (the station had already been up for breach of licence obligations in BB 184), where the station entered into a debate about the meaning of punany/punani (a hot sandwich or a sexual swear word?) and also suggested that Ofcom didn’t understand Scottish dialect (re the word ‘fuck’ – perhaps this argument didn’t occur to Capital FM in today’s case). My heart goes out to a Durham station, Bishop FM, who managed to play a rather fruity Eminem track (No Love – full text in the Ofcom bulletin) during a kids’ request show called School’s Out. Oops. And the exact same phrase that is the key refrain of Loca People was also the subject of a case in BB 192, when OnFM (a community station in London) played a version of Fatboy Slim’s Star 69 which repeated that phrase. 41 times (yup, they counted).

Ofcom’s new guidance will be important – we’ve already seen some discussion on music videos and on live pre-watershed performances on TV. Despite some assumptions that there are links between problem language and genre, today’s case is from a (no offence) bland bit of Europop, and the cases mentioned in this blog post do have quite an interesting range. There’s also a mix of major players and shoestring community stations. Watch this (bleep) for more.

Some parts of the campaign strike me as extremely sensible and useful information, and leave me very pleased that Google is putting its money and reputation behind them. For example, one ad (which I first saw in a Tube station) emphasised Google’s 2-step verification; another (which I saw in print, but can’t recall where) gave examples of good passwords. (You can see a collection of these ads on the Good To Know website). The most recent ads, though, raise some interesting questions around data and privacy. As readers of the growing literature on the development of Google will know (most recently Douglas Edwards’ I’m Feeling Lucky on his experiences as employee #59), it’s clear that these issues are thought about and debated a lot within Google; this however is my external take and some quite preliminary questions rather than conclusions;.

One ad is about IP addresses – it doesn’t appear to be on the Google site, but I’ve scanned it (apologies for resolution) here. Explaining how a user in Brighton doesn’t need a plumber from New York when they use a search engine, the ad states that results based on where you are use your computer’s IP address. “It’s a number like 209.85.229.147 which acts a bit like the first part of a postcode to tell them the rough area your computer is in“. I think this isn’t the best definition of an IP address, particularly in the week where (in the Sabam decision regarding ISP filtering for copyright reasons) the Court of Justice of the EU found it to be common ground “that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified”. This confirms a direction in European Union practice, particularly the statements of the article 29 Working Party (e.g. opinion 1/2008 on search engines, opinion 2/2010 on online behavioural advertising), that an IP address can be personal data. In a way, I’d suggest, that the first part of a postcode is less likely to be.

Another ad (with a quirky little graphic about extra-shot coffee, which is what I’m drinking as I type this) (scanned here) draws a link between the barista knowing your coffee order (but not your name) as you walk through the door, and how Google and other websites act:

Making a note of your preferences in case you visit them again. It’s how they are able to recommend a particular artist you might like, or if you prefer to fly from a certain airport, or if you like a specific printer ink.

(I think ‘preferences’ here is broader than a technical meaning of preferences as in settings, but am open to correction).

Again, I can see what they are getting at, but I think the anonymous coffee order may not be the best model here – as (a) there are plenty of ‘preferences’ that are more revealing (and yes, legally sensitive) than coffee choice, and (b) concerns about profiling include the cumulative impact of data collection rather than a single point – the barista doesn’t know what you prefer when you go to the clothes shop next door!

Google does some great work around data – and the Good To Know website highlights this, including work on Data Liberation, cookie deletion and more. But there’s something about the ads above that I’m not as sure about.

I mentioned this campaign to a fellow academic and s/he pointed out that the ultimate target here might not be users, but the forthcoming (and unpopular with large Internet companies) revision of the Data Protection Directive. If that’s the case, Google’s intervention isn’t unwelcome – we need to hear its voice – but it’s worth debating those points. If it’s just about consumers, I think it goes in the right direction (particularly the security stuff), but the wording could be a good bit tighter.

Finally, I think there are questions to be asked about the role of the Citizens Advice Bureau. It knows well that the interests of consumers are different to the interests of corporations – see for example its current struggle to publish the results of investigations and how libel law appears to prevent that. So should it be involved with (a) a particular company and (b) a particular view of the law of privacy? Indeed, the UK government proposes (consultation paper here) to take a whole range of consumer information and advocacy functions away from public bodies and transfer them to the (private, charitable and generally wonderful) CAB. Should it therefore be more careful about taking ‘sides’, appearing to endorse the views of Google and in having the ads presented as authoritative and neutral?