Un-conventional

Here’s a paper by me on the European Convention on Transfrontier Television. Not perhaps the most familiar of legal instruments, but I promise you that it is a story full of mystery and excitement. The background to the work is that the Council of Europe has (had?) a convention on broadcasting, which came out of a great deal of interest in the subject in the 1980s. (The Television Without Frontiers directive of what was then the EEC emerges from the same period). However, after the EU revised its law (the Audiovisual Media Services Directive), the Council tried to do the same.

What happened next took me a long time to unpick (unpack?) and involved a lengthy FOI process with the UK government, a (fortunately more straightforward) access to documents request to the EU, research on the EU’s external powers, and quality time with Council of Europe minutes. And then I presented it (to three different audiences), and had some wonderful colleagues volunteer to read it and give detailed comments.

This version (the ‘Accepted Version’, on SSRN) appears in the Edinburgh Law School Working Paper Series.

Death of a Convention: Competition between the Council of Europe and European Union in the Regulation of Broadcasting

If you have access via, for example, a university library, the published version is available here, in volume 5(1) of the Journal of Media Law.

This article considers a dispute between the European Union and Council of Europe regarding their respective roles in the broadcasting field, so as to explain and assess its relevance for the development at the international level of media law and policy. The dispute is a long-running one and dates back to the adoption of the first EEC Directive and Council Convention on this subject in 1989. It is argued that the expansion of the scope of EU broadcasting law and the consolidation of the European Commission’s role in external affairs left little room for the Council to continue to exercise influence over the regulation of the electronic media in the way it has done for some time. The exact nature of the dispute between the institutions, and the response of a vocal member state, is ascertained through consideration of published minutes and internal correspondence, set in the context of doctrinal and political developments. The article concludes with analysis of possible future actions for the Council.

FISA, NSA and PRISM: behind the headlines

My Edinburgh colleague Judith Rauhofer (who has a particular research and teaching interest in privacy, data protection, and information), along with Caspar Bowden (who many readers will know through his writing and advocacy on privacy), has just launched a very timely paper on data protection in ‘the cloud’, with a particular emphasis on data stored in the US and subject to US law on access to data. Judith and Caspar have been making this argument well before the current PRISM/NSA reporting, and the paper makes it clear how there are already a number of important legal issues that require attention. The paper engages with recent scholarship on cloud computing itself (e.g. the Queen Mary projects) and the proposed new Regulation on data protection. It also contains a very detailed analysis of FISA. But the key argument, and the one that deserves the most attention from those who have reacted with alarm to recent news reports, is that about the obligations of European institutions to protect fundamental rights; both the Charter and Convention are discussed.

The paper is now available on SSRN:

Protecting Their Own: Fundamental Rights Implications for EU Data Sovereignty in the Cloud

Preview: media & communications at SLS 2013

The 2013 conference of the Society of Legal Scholars takes place here in Edinburgh this September. I continue as convenor of the Media & Communications section, and we have a particularly exciting (and packed) programme this year. An EU session, a set of responses to Leveson, and two general sessions (one with a social media flavour and one with a human rights theme).

Registration is now open; ‘early bird’ discount until the end of July.

Tuesday 3rd September

A1: 14.00-15.30 (Special session on conference theme)

Ewa Komorek (Trinity College Dublin):
The problem which will not go away. Recent developments in the EU approach to media pluralism issue

Dimitrios Doukas (Belfast):
The Sky is not the (Only) Limit – Sports Broadcasting without Frontiers and the European Court of Justice

A2: 16.00-17.30

Alan Durant (Middlesex):
The DPP’s Interim guidelines (December 2012) on prosecuting communications via social media

Damien McCallig (Galway):
Intrusion into private grief: regulating the reporting and presentation of deceased persons in the modern media

Paul Bernal (East Anglia):
Defamation on Twitter: a defence of ‘responsible tweeting’

Wednesday 4th September

A3: 9-10.30

Yik Chan Chin (Hong Kong Baptist) & Yanbin Lu (Nottingham):
Defenses of Freedom of Expression in Chinese Right to Reputation Lawsuits

Päivi Tiilikka (Helsinki):
Margin of appreciation and balancing-criteria in the practise of the ECtHR when balancing the freedom of expression and right to private life – is there any consistency?

Jason Bosland (Melbourne)
Defamation, Statutory Reform and the Protection of Opinion in Australia and the United Kingdom

A4: 14.00-15.30 (Leveson Inquiry session, chaired by Tom Gibbons, Manchester)

Paul Wragg (Leeds):
Freedom of the Press after Leveson

Judith Townend (City):
An uncertain climate: Defamation, privacy and the resolution of disputes outside the courtroom

Karen Mc Cullagh (East Anglia):
Regulation of Investigative Journalism post Leveson

(Free) access to articles on apps and on intermediaries

This month, the final versions of two of my articles have been published by Oxford University Press. OUP’s approach to copyright allows pre-prints to be posted on sites like SSRN, but for final versions, the author is supplied with a free-access URL instead. This link can be posted on personal or institutional sites (like this one).

(1) Daithí Mac Síthigh, ‘App law within: rights and regulation in the smartphone age‘ (2013) 21 International Journal of Law and Information Technology 154-186.

An earlier version appeared as a working paper, posted here. The final version includes the changes proposed by the editor and by peer reviewers (including some reorganisation and clarification of the core questions), as well as a small number of subsequent developments.

(2) Daithí Mac Síthigh, ‘The fragmentation of intermediary liability in the UK‘ (2013) 8 Journal of Intellectual Property Law & Practice 521-531.

This is now online for the first time. It’s a shorter paper (just at the upper limit of 7500 words for this journal, although they print in columns so it’s not too long when printed!), which started life as a talk and a briefing paper for events with legal practitioners. Subsequently, I wrote it up in more detail, and also added new material on the Defamation Bill (now Act) as it developed. Here’s the abstract:

It is argued that the system for intermediary liability (for mere conduits, hosts and search engines) is splitting into a number of different systems.

In the case of copyright, intermediaries (particular mere conduits) have new duties. However, regarding defamation (and to a lesser extent privacy), new schemes are reducing the liability risk of hosts – under certain circumstances.

The result is that the single system of the Electronic Commerce Directive is being replaced by a mixture of EU and national legislation, revived common law doctrines, and specific provisions for particular areas of law.

The European Commission should ask for a refund

I was surprised to see discussion of the Mediadem project in the Telegraph this week (picked up elsewhere although without additional information), which some of my Edinburgh colleagues have been involved in.  I should say at the outset (as you can see from the previous post) that I have spoken at two Mediadem events.  I’m not part of the project.  I’ve benefitted to the tune of approximately £50 worth of food, biscuits and coffee from the two events I attended.

It’s always good to see the discussion of academic projects in the media.  Here, though, I don’t think that the article gives a fair reflection of the relevant outputs.  The author (Andrew Gilligan) makes a number of claims, which deserve further investigation.  (This is my own opinion and not that of any of my colleagues, Mediadem or otherwise).

The EU has spent £2.3 million on the previously unpublicised “Mediadem” project to “reclaim a free and independent media”. In a “policy brief” co-authored by its lead British researcher, Rachael Craufurd Smith, Mediadem says it is “simplistic” to “see state influence [over the press] as inherently stifling”.

Dr Craufurd Smith, an Edinburgh University academic, said that it was also “simplistic” to believe that “market-driven media” were now “free and independent”.

Most importantly, it’s not unpublicised.  See this website – stacks of papers, updates, etc. Regular updates over the last three years.  And here’s the Twitter feed.

It is simplistic to see state influence as inherently stifling. The debate on media regulation is a nuanced one.  Very passionate at times – but even those in favour of limiting the role of the state can identify for the purposes of debate a spectrum of state responses (perhaps bad vs very bad in some views), but still worth talking about.

The ‘policy brief’ is one of a whole bunch of very interesting (and wide-ranging) briefs.  Check them out here (there are not far off a hundred).  The quote comes from one of the shorter ones, addressed to a wide audience.  In any event, what the report actually says.

“Understanding free and independent media requires a move away from simplistic categorisations that see, on the one hand, state influence as inherently stifling and, on the other, market driven media to be free and independent.A media service may be independent in the sense of being autonomous from state control, yet still offer partial, biased or inaccurate information. Alternatively, a media service that is under state direction may be established with a clear remit to carry out and offer impartial reporting.”

This is mostly a descriptive statement.  It recognises that an assessment of independence requires more work than just checking the ownership – as well as ownership, one needs to look at remit, autonomy, accuracy, etc.  Remember that this is a Europe-wide project and that the high standards of the British press may not be present in the same way in every jurisdiction. Similarly, there is a wide range of types of state-directed media across Europe. I can’t see why someone interested in the media – even those very sceptical of state regulation – wouldn’t find that an interesting question.

Mediadem recently produced “recommendations for the UK” demanding the “imposition of sanctions beyond an apology or correction” on errant media outlets and the “co-ordination of the journalistic profession at the European level”.
The recommendations call for the press to be controlled by the same body and on the same basis as broadcasters, who are currently tightly regulated with statutory “balance” obligations that do not apply to newspapers.

Mediadem produced recommendations for lots of other jurisdictions too, by the way (see the link above).  The recommendation in question (demand – really? I wish we of the ivory tower had that power) is worth reading.

On the paragraph itself, I think it is an unfair characterisation of the document.  It omits the paragraph immediately before it, which explains that the point on sanction is part of a proposal for self-regulation. I don’t read the point as saying that newspapers should be regulated on the same basis of broadcasters.  If anything, it suggests starting with the press system and folding other sectors into it.  (Not sure I’d agree with it, but it’s a well-argued point and backed up by more thorough analysis of the existing regulatory systems in earlier, much longer papers on the site).   What the report actually says (before making that recommendation) is:

“The first would be to create a self-regulatory framework open to all media sectors and players. As the PCC Code is substantively quite close to the content codes applicable to broadcast television, a framework broadly based on the PCC Code could be extended across all sectors, video, audio and text, to create a more coherent framework. The more detailed provisions in the broadcasting codes could, where relevant, be drawn on to develop the code further.”

The point on the co-ordination of the journalistic profession is taken from a completely different part of the document – an annex summarising recommendations directed at the European institutions.  It appears to be copied across from the more detailed discussion on p. 16 of this document, which is a more general point about the different models of journalistic status across Europe, including its consequences for the protection of journalists.  Again, not everyone’s cup of tea, but far from as scary as it sounds.

I should say that the UK brief contains quite a range of points.  (Again, not endorsing all of them, but they are plausible, relevant assertions).  For example, there’s discussion of using the taxation of ISPs to support journalism, and of clarifying statutory public interest defences for offences that restrict reporting.  Or making the appointment of the BBC Trust more transparent.  As it happens, some of these recommendations were discussed at a workshop I attended earlier in the year.  Also in attendance as an invited keynote speaker was a representative from the Icelandic Modern Media Initiative.  Her presentation was extremely critical of the restrictions on press freedom in the UK.  (Indeed, it sparked an interesting exchange as some of the audience argued in favour of greater protection of privacy – I call it a draw).  It’s a strange sort of stooge project that invites people like that to speak.

Gilligan’s article goes on to discuss various other EU-funded projects.  Erroneously, this is described as ‘coordinated’ and the responsibility of one Commissioner.  However, Mediadem is funded under FP7 (i.e. as an academic project), whereas some of the other projects are work run by or directly commissioned by the European Commission for its current policy work.  There are various suggestions made about the involvement of those supporting changes to media regulation (e.g. the “Hacked Off” campaign group).  It’s hard to see how much of an influence UK campaigners (particularly in relation to Leveson) have had on a 14-country consortium of universities, particularly for a project that was applied for long before and started its public activities in early 2010.

I found it funny to see the point being made that Prof. Steven Barnett attended the final Mediadem conference.  (I received an invite, but couldn’t attend).  I don’t doubt that he did, but the conference report discloses a wide range of presentations, including the participation of representatives of journalists and media organisations, and a particular focus on freedom of expression.  The list of attendees (again, an unusual way to hide a project, publishing such information) includes a lot of journalists, commercial and public service broadcasters, as well as academics from different countries and lots of regulatory bodies.  Not unusual for this sort of event. Not unusual that a Prof of journalism like Barnett would be in the crowd.

All in all, I think those who disagree with the regulation of the media might find a lot to interest them in the Mediadem project.  To suggest that it is part of the EU’s attempt to regulate the media is far off the mark – it’s an academic project with stacks of recommendations (which even contradict each other, so coordination is hardly the key), lots of people involved, various ideas floating around – fairly typical for this sort of project, in my experience.  Looking in from the margins, I thought it a useful exercise and the amount of information that has been made available (for all on a very non-secret website) would, I think, actually assist campaigners on different sides of the argument.  So while the article does raise some interesting questions about the overall EU approach to media regulation, and does highlight the work to a wider audience, I would advise the interested reader to check out the policy briefs, research reports and conference proceedings for themselves.  It’s more balanced and engaging that the Telegraph suggests.