I’ve written about this week’s two TripAdvisor stories (Conor Pope’s piece on an Irish hotel group in the Irish Times and the ASA’s ruling on TripAdvisor’s marketing claims) over on the blog of the Centre for Competition Policy. I talk about the legal status of reviews posted by businesses who claim to be consumers (which I wrote about on Lex Ferenda – was it really five years ago?), and the reason why the ASA found against TripAdvisor for what was a statement on its own website.

Read the full post here.

SLS 2011: Media and Communications

This is my (personal) report on the Media and Communications subject section at the annual conference of the Society of Legal Scholars, held in Cambridge this week. For those not familiar: the SLS is the organisation for legal academics in the UK and Ireland, and this was its 102th annual conference. As well as plenary sessions and an AGM, the main business of the conference is a range of subject-specific parallel sessions, of which Media and Communications is one. A related area is Cyberlaw, but this year they ran at different times in the week (the conference is divided into groups A and B), which did appear to increase the attendance at both. During this year’s meeting, I was elected as the fourth convenor of the section, taking over from Mike Varney (and before him Tom Gibbons and before him Eric Barendt) – a quite daunting line of succession!

Session 1 had a focus on information – although in very different ways. Damien Carney (Portsmouth) opened up with ‘Truth and the unnamed source’, considering the importance of truth (and objectivity) in the law and ethics of the protection of sources. He looked at the recent decisions in National Post (Canada) and Financial Times v UK (the latest instalment in the Interbrew case), making particular points about the reassessment of who the privilege on the protection of sources ‘belongs’ to, with the Canadian and European courts heading towards an emphasis on the rights of the public to know (the truth?). Lawrence McNamara (Reading) followed with his paper on terrorism and disclosure obligations, considering section 38B Terrorism Act and the various laws that preceded it. Despite very few cases on the matter, the provision has an impact on the practices of media organisations, although there are differences between the thresholds applied within organisations and as apparently required by law. He also debated the rights and wrongs of a media exemption and how necessary it is to take a legal approach in any event. Finally, Neil Richards (Washington University, St. Louis) presented his theory of intellectual privacy. He distinguished between ‘tort privacy’ and ‘intellectual privacy’, particularly on the difference between the impact of each on freedom of expression, suggesting that the former might be confined to ‘truly shocking’ disclosures, but the latter was important because it protects the process of considering and forming ideas. Interestingly, there was a strong technological dimension here, given the role of search engines and of surveillance technologies. He proposed four key aspects of the right to intellectual privacy: thought and belief, the right to read, spatial privacy and confidentiality, and also considered the need for a horizontal approach rather than a negative constitutional doctrine alone.

Session 2 had a European theme, with papers from Irini Katsirea and myself. Irini’s presentation was about product placement, specifically the implementation of the new rules set out in the Audiovisual Media Services Directive (AVMSD) in two jurisdictions, Germany and the UK. She highlighted some of the vaguer aspects of the Directive, such as the criticism (but not outright ban) of thematic placement, the conflict between provisions on surreptitious commercial communications, undue prominence, and limited scope for allowing product placement. The UK has excluded certain genres (above and beyond the Directive), but only for broadcasters under UK jurisdiction, again because of the Directive. Germany has required identification of PP in acquired programming, but without an offence of breach of this duty. The UK and Germany took different paths on thematic placement – unclear in the former, banned in the latter. The minimal requirements of the Directive on notifying viewers were also considered. In the discussion of the paper, we also wondered to what extent product placement was actually present in EU-origin programmes since the Directive. My own paper was on the European Convention on Transfrontier Television, a Council of Europe instrument dating from 1989 but currently in serious trouble after an aborted attempt to amend it. After explaining the history of the relationship between it and the EU’s media law directives, I discussed how the European Commission objected to the amendments that would have brought it up to date with the AVMSD, assessing the legal basis for this objection (external powers of the Union) and how this was debated in various fora. I also looked at the reaction of the UK, which had in the 1980s been a strong supporter of the Convention, but had some problems with the current amendments and mixed feelings about the Commission’s intervention. I concluded with a wider discussion on EU-Council relations and whether other areas (such as media pluralism and impartiality) might fare in future developments. [If readers will permit a further note: I have a draft paper on which comments would be appreciated, not available online but happy to supply copies if you are happy to offer your views: email me].

Session 3 was about recent developments, both with a European context and a British focus. Tom Gibbons (Manchester) looked at the relationship between reputation and privacy within Article 8 ECHR, and the differences between English law on defamation and on privacy. He was reluctant to describe what is happening in Strasbourg as a doctrine, given the inconsistent positions expressed by differently constituted courts, but discussed a number of defamation-type cases where the engagement of article 8 was taken for granted. Nonetheless in Karakó v Hungary there may have been a move away from this position, with some importance attached to internal and external notions (he considered, later, whether reputation is external and privacy is internal). English cases on injunctions (ZAM, Terry) have added comments on the importance of reputation, and the Supreme Court’s decision in the freezing orders discussion discussed ECHR decisions and the need for a serious threshold. Are we moving towards a Re S-style ultimate balancing exercise? Is the justification defence to defamation threatened by an article 8 approach? What about Reynolds? He also argued that the ability to evaluate others is important and subsuming reputation into article 8 may be difficult to reconcile with this. Following on, my UEA colleague Michael Harker presented his paper on vertical restraints in broadcasting, or why ‘content is king’. As well as a thorough explanation of the market structure of pay-TV in the UK, he focused on Ofcom’s intervention regarding sports channels, particularly the requirement on Sky to offer its channels to other platforms (e.g. digital terrestrial) at a regulated price. Michael explored the differences between ‘sectoral’ and ‘competition’ approaches, and the remedies available in both cases. The possible consequences of intervention were outlined, including the need to protect innovation and also the policy goals of (for example) promoting broadband uptake.

Finally, session 4 was a pair of case studies. Ewa Komorek (my former colleague as a doctoral student in Dublin) reported on the ups and downs of Polish media law. She looked at three particular issues: ‘Rwyingate’, politicisation of public service media and problems with press freedom and criminal law. The first was a major national scandal regarding the proposed takeover of a private television channel by a major media company, and the disclosure of an attempt to exchange ‘a law for a bribe’, as a national newspaper reported. This led to a major report on the activities of the ‘group in power’, the resignation of a government, and wider discussion of the adequacy of the legal framework on media concentration and mergers. The second is also about the relationship between politics and media, with Ewa explaining the structure of the public service broadcaster and recent changes that may (or may not) increase the independence (from political influence) of the broadcaster. Finally, she looked at a range of criminal provisions, including those about insulting the president (imprisonment up to three years and no defence of provocation!) and defamation itself, despite criticism from the ECHR on the impact of these provisions. She was followed by Eliza Varney (Keele), whose presentation was about disability and ICTs after recent changes to EU law, particularly the 2009 amendments to the electronic communications directives and EU equality law. Although some progress has been made through the updating of universal service provisions, she pointed to outstanding issues such as the consumer-driven approach to regulation, the focus on sensory disabilities (e.g. as compared with cognitive), and the weakness (after industry lobbying) of some provisions. Eliza argued for a universal design approach and considered whether a disability-specific provision of general equality law (particularly if the proposed directive on discrimination re access to goods & services does not proceed) might be of assistance.

Complaints, content regulation and media convergence in the UK

During 2011/12, I’ll be working (among other things) on a project on media content regulation in the UK, with a particular focus on complaints about broadcasting.  It’s funded by the British Academy Small Grants scheme, and I’ll share further information once it is up and running.  The project includes analysis of decisions (with the help of a research assistant), interviews, and historical/archive work.  Here’s the abstract:

Despite the changes brought about in relation to technological convergence, the proliferation of television channels and the availability of content on the Internet, content regulation remains an important issue for much of the UK media. The point of entry for legal scholarship in this area tends to be the overarching statutory controls (e.g. the passing of the Communications Act 2003) or human rights law (the consequences of licensing or prior scrutiny, the impact of controversial decisions on freedom of expression). This study is an attempt to consider, with a particular view to the apparent changes in the media industries and in audience behaviour, the real impact of content regulation in situations where it is more routine (and less dramatic) than the occasional but well-scrutinised times when Parliament assesses principles or a court reviews a particular determination. At a time when diverse laws are under review, this work would contribute, through analysis of decisions in particular, to a debate of wider public interest, informed by scholarship in media/cultural studies.

Advertising and ancient stones

Here are two tales of advertising on ancient (or not-so-ancient) stone, in the famous city of Venice and in the less famous (but arguably older!) city in which I live, Norwich. Let’s start with that one. Our local newspaper, the Evening News (like all local papers, a place for fabulous non-stories, the best of late being ‘Pumpkins found on Norwich road‘), recently reported on ‘clean graffiti ads’ on city pavements. Here’s the story. What’s interesting about this service, where various operators (like this one) are involved, is that the ‘logo’ is made visible by taking a dirty paving slab, putting a stencil down and cleaning around it. When the stencil is removed, the cleaned section (or indeed the uncleaned section) forms the visible image. So on one reading it’s a clear use (appropriation?) of public space for the purpose of advertising (which many will be concerned about), but on another it’s not obviously contained within existing forms of regulation such as planning permission (for billboards) or criminal law (for ‘painted’ graffiti). Creative marketing or dangerous development?

The second story, over in Venice, is about the concerns expressed by architects, museum directors and others about temporary advertisements covering the scaffolding on various historic buildings (currently being renovated). Here’s the story from the Guardian. Again, this is not the most obvious method of advertising, although it’s an increasingly common one. The particular problem encountered in Venice is that the temporary banners seem to be very visible in famous views of Venice – so it’s not the interference with the building that is at issue, but with the view of other (undisturbed) buildings. Again, the response is not entirely clear, as in the absence of the banner, there would presumably be a big scaffold in the same vista. On the other hand, there may still be a difference between ‘famous view with scaffold in the corner’ and ‘famous view with big Coke ad in the corner’. (Not neglecting that other famous views such as modern Piccadilly Circus draw some of their power from ads!).

Thinking of the children

An interesting document was published by the Home Office this week, a report on the ‘sexualisation of young people’. Download the report here. Media coverage includes the Guardian on magazines, Toby Young in the Telegraph on electioneering and evidence, and an overview and video from the BBC. In one respect, it has performed the valuable service of putting a variety of important debates and questions before the public. Matters like the power of advertising, the ‘mainstream’ nature of sexual entertainment industries, and the ongoing problem of media and body image are all considered in a lively and engaging fashion. The report takes an admirably firm line on the presumption that the free market in media and entertainment does what it does without interference, using a range of social science approaches to question the wider significance of contemporary developments for issues like gender-based violence, alternative sexualities, career prospects and child safety. It is an affirmation of the responsibility of public authorities to take gender and child protection seriously, rather than admitting that the Internet is the end of law and policy as we know it. For that, I am very pleased. Yet I think there are some problems with the way that the report presents its evidence and recommendations, particularly in respect of supposed legal solutions.

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.