Tag Archives: defamation

Computers and the Coalition

This is a summary of a talk (at some point soon to be a full article) given at the launch of the Centre for Law & Information Policy on 25 February 2015.  (I am a member of the Centre’s advisory board). I wrote it up afterwards, so it’s less of a speech and more ‘what I think I said’. For a note and reflection on the talk itself, see Ray Corrigan’s post here. Further comments welcome, especially on things I’ve skipped / missed.

Introduction

As we approach the 2015 General Election in the UK, and mark the launch of this new Centre, it seems appropriate to look back on the record of the outgoing Coalition government regarding law and information policy.   The agreement between the Conservative and Liberal Democrat parties specifically emphasised the importance of information and of technology on a number of occasions, as I will highlight where appropriate. Beyond specific commitments, other issues of significance and controversy emerged during the lifetime of the Government.  It’s fair to say that this administration has been perceived (at least at times) as engaged with questions of law and technology, but is that an accurate observation?

I have reviewed the legislation adopted by Parliament during this period, referring back to the Coalition agreement where appropriate. I have also considered the more significant instances of secondary legislation and policy documents, including EU measures (but primarily those measures where Member States had some discretion in implementation or where there is a meaningful link with a national-level debate or controversy.

I group the work of the Coalition into four categories: rollback, rebalancing, re-regulation, and projects.

Rollback

My first category of Coalition activity can be described as ‘rollback’, on the grounds that the avowed intention of the Government was to repeal or substantially amend existing legislation and/or practice.  Typically, these changes were flagged up in the Coalition agreement, and appeared in one (or both) of the party manifestos.

An early piece of relevant legislation was the Identity Documents Act 2010. This repealed the 2006 legislation on identity cards, as part of the Coalition’s commitment to abandon the scheme. Not only was the legislation adopted, but the responsible Minister (Damien Green) was pictured assisting with the physical destruction of hard drives on which ID card information was stored.

A broader package of changes, again highlighted in the Coalition agreement, was included in the Protection of Freedoms Act 2012. This Act included provisions on DNA retention, biometrics, oversight of CCTV, and amendments to the Regulation of Investigatory Powers Act (RIPA) 2000. Perhaps these are not true ‘rollback’ in isolation, but the deliberate packaging of them in legislation on freedoms demonstrates the high water mark of the libertarian strand of thinking in the Government.

However, evidence of this approach is not only found in big-ticket legislative proposals. Take for example the changes in the Enterprise and Regulatory Reform Act 2013 sch 21, and related secondary legislation, removing the duty on television retailers to record and report the details of customers (to support the TV Licence system).

A good example of a rollback amendment, albeit not included in the Coalition agreement and not yet in force, is the proposed repeal of sections 17/18 Digital Economy Act 2010. These provisions, adopted in the very last days of the previous Parliament, were a move towards a statutory system for Internet blocking injunctions. However, in practice the expansive interpretation of section 97A CDPA 1988 (inserted in 2003), and latterly the use of wider powers (in the context of EU legislation), has meant that such injunctions are readily available against ISPs, on the application of affected rights holders. Ofcom was in 2010 critical of the feasibility of these provisions (in response to a request from the new Government), and the Government committed in 2011 not to implement them and then in 2012 to their repeal. The Deregulation Bill, which remains before Parliament, would do this.

Rebalancing

My second category is ‘rebalancing’. In this category, we find major, established areas of private law, where the Government has researched and/or successfully proposed changes that, taken as a whole, amend the balance between the different interests affected by the law in a clearly demonstrable fashion.

The first such example is the Defamation Act 2013. The Coalition agreement included a commitment to “review libel laws to protect freedom of speech”. Thus, both the intention and purpose were connected. The resulting legislation was indeed a reform project with a goal in mind, rather than a general review/update. The new provisions, including single publication, jurisdiction, yet another form of protection for Internet intermediaries (including the newly minted ‘operator of a website’), and changes to the threshold for making out the cause of action, generally favour the interests of libel defendants. These changes were not without criticism, but were broadly welcomed and supported by interests including publishers, journalists, and scientists.

In copyright law, the Government set up the Hargreaves Review, which built on the work of the Gowers Review under a previous administration. This was not the only IP project (see for instance the Intellectual Property Act 2014 on designs and patents, or the provisions of Part 6 of the Enterprise and Regulatory Reform Act 2013 on performances). However, the long gestation of the changes (eventually adopted by statutory instrument in 2014) points to the significance and controversy of the project. These changes included a new statutory exception for works of parody, caricature and pastiche, various protections for libraries, archives, cultural institutions and educational institutions, and a scheme to allow private copying without remuneration (which is under challenge).  Broadly, these changes restrict the exercise of exclusive rights under copyright law, although many were supported by technology industries. The freedom of action of the Government was constrained by EU law, so the new provisions are within what is permissible under the Information Society Directive. Nonetheless, the whole package – and the extensive economic evidence assembled during and after Hargreaves – is a lasting contribution to the field of copyright.

Before leaving this category, one could also consider an area of public law – the proposed Privacy and Civil Liberties Board, which is provided for (subject to future secondary legislation) in the Counter-terrorism and Security Act 2015 s 46. This Board, which was proposed during discussion of data retention legislation (see below), would allow the Home Secretary to appoint a board (mandate to be set out by statutory instrument) to support independent reviewers of terrorism powers. Its inclusion in counter-terrorism legislation is semantically uncomfortable, but does assist the scholar in categorising it as an attempt to address the perception that one set of interests (security) dominates over another (privacy) and requires rebalancing.

Re-regulation

My third category is a more controversial one, re-regulation. In the later days of the Coalition, it has put in place a number of areas that add new forms of regulation in respect of the use of the Internet – often reversing or significantly departing from provisions adopted under predecessor Governments.

One cannot avoid starting with the controversial, speedily-adopted Data Retention and Investigatory Powers (DRIP) Act 2014. Introduced ostensibly to fill the lacuna following the Court of Justice of the European Union (CJEU)’s finding that the Data Retention Directive was not valid due to infringement of fundamental rights, it readopted in primarily legislation much of the secondary legislation initially introduced as transposition of the Directive. A number of further changes were made. The legislation was given limited consideration by Parliament in summer 2014, and the author signed a letter critical of both its provisions and the lack of time available for its consideration. Already, however, it has been extended by way of s 21 Counter-Terrorism and Security Act 2015, which provide in effect for the further retention of data that will allow the association of devices with IP addresses.

An even clearer example of the Government’s changing approach to the Internet is found in the Audiovisual Media Services Regulations 2014. These provisions amend the scheme for regulating on-demand services, which were put in place in 2009/10 following the 2007 AVMS Directive. While the UK had been a vocal critic of the perceived over-regulation of on-demand services at the time, these new provisions (essentially applying BBFC standards on explicit content to on-demand services) go well beyond those in other EU states. The issue of restricting access to and in some cases prohibiting outright online video services was a matter of some concern to the Department for Culture, Media & Sport, including a request for input from Ofcom, regular updates (and exercise of existing powers) by the designed co-regulatory body ATVOD, and ongoing consideration of how far the UK could go without contravening the Directive.

Similarly, the Gambling (Licensing and Advertising) Act 2014 was an attempt to put in place, within the bounds of EU law, further restrictions on online gambling. The Gambling Act 2005 facilitated the advertising of online services from selected jurisdictions (EU and those on a ‘whitelist’ of countries with sufficiently robust regulatory mechanisms), and did not require providers located outside the jurisdiction to be regulated by the Gambling Commission. As I have written, the 2014 Act reverses both principles; now, where a service is used or likely to be used by users in Britain (if the operator knows or should know that), the Gambling Commission has regulatory jurisdiction. Only services regulated by the Commission can lawfully advertise in the UK. This legislation was unsuccessfully challenged by Gibraltar-based operators, and clearly responded to a degree of tolerance demonstrated by the CJEU in respect of similar legislation emanating from other member states.

Most recently, provisions in the Criminal Justice and Courts Act 2015 will, when they come into force, create or extend criminal offences of some significance. The Act extends the penalty for breach of the Malicious Communications Act 1988. It also extends the scope of the ‘extreme pornography’ provisions enacted by the previous Parliament. This was presented at various stages as a ‘possible loophole’ or ‘loophole’, although the evidence was in my view more nuanced and contested than this.  Famously, the Act also contains a new offence of ‘disclosing private sexual photographs and films with intent to cause distress’ – often, but not entirely accurately, called the ‘revenge pornography’ clause. Although without doubt a difficult and sensitive issue, these provisions were introduced without a committee stage in the House of Commons, and with limited research or consultation. The use of new approaches and definitions is interesting (note the focus upon distress, or the defining of sexual as including something that a reasonable person would consider to be sexual). However, unfortunately it is another example, in Internet-related criminal law, of the creation of a new offence without the methodical consideration of existing offences or an attempt to put in place a meaningful set of workable, understandable provisions. Taking along with the MCA changes and pornography provisions, we see the gradual growth of criminal sanctions in an area that surely demands a proper look (perhaps along the lines of the House of Lords Communication Committee’s 2014 report on social media and criminal offences).

Projects

A final category is major projects – here, I highlight open data, juries, consumer law, creative industries tax relief, local media, and the Leveson Inquiry.

Starting with the big one – open data. This is an area where the Government has been very active, at least in terms of policy statements and reports. The manifesto included commitments to openness in principle and further points of detail. Since then, we have seen a White Paper (2012), a review on public sector information, another review on anonymisation, and more. Open Data Strategies have been adopted at department level, prompted by a letter from the Prime Minister. Data.gov.uk is a repository of data and a shopfront for innovative uses.  An Open Data Institute, with a focus on private-sector activity, has been created. Legislatively, the changes were at a smaller scale. The Protection of Freedoms Act included an amendment to the FOI Act in support of the release of usable datasets. More controversially, the Health & Social Care Act 2012 put in place various regimes in relation to health data, which have already proven to be controversial (e.g. the care.data events of 2014). Interestingly, though, much of the work here has been non-legislative, confirmed by the statement in the 2012 White Paper that “we don’t want to use legislation too readily – that would sit at odds with our core principle to reduce bureaucracy”.

A smaller project, perhaps, is the work that the Law Commission has done on jurors, in the context of contempt of court. New provisions were included in the Criminal Justice and Courts Act 2015, dealing with matters including the carrying out of research by jurors and the use of electronic devices. The Law Commission’s project was wide-ranging, and led to timely legislation.

The consumer law reform project is an interesting one. There wasn’t much detail on this in the Coalition agreement (beyond a general commitment to “introduc(ing) stronger consumer protections, including measures to end unfair bank and financial transaction charges.” Initial steps came in the transposition of the Consumer Rights Directive, which had at one time been a planned overhaul of the EU consumer law acquis, but turned out to be something a lot less extensive. In this gap, then, came the Consumer Rights Bill, which remains before Parliament. The Bill, in line with the recommendations of a number of reports, addressed a long-standing potential gap in consumer law, which has a firm distinction between the sale of goods and the supply of services, without properly addressing the position of ‘digital content’. The new Bill creates a three-tier structure, with much (but not all) of the existing or reframed requirements for goods being applied to the new digital content category.

Creative industries tax relief was the subject of a notable shift in direction. The incoming Government initially abandoned video games tax relief, on the grounds that it was ‘poorly targeted’. However, it subsequently introduced a new relief for games, high-end television and animation. The games scheme was delayed pending consideration by the European Commission, but ultimately approved – and is now in force. Indeed, a follow-up set of changes introduces relief for theatre as well.  As I have written elsewhere, the adopting of this scheme highlights the ability of the Government to promote it within the UK as an industrial measure, while reassuring the European Commission that its objectives were truly cultural.

Local media was an early theme of the Department for Culture, Media and Sport, with the initial Secretary of State frequently wondering why local TV was in a better state in Birmingham, Alabama than in Birmingham, England. Beyond the soundbite, a number of specific changes were made. The Communications Act was amended twice: first in 2011 to liberalise some cross-ownership requirements, and then again in 2012 to put in place a new form of licence for local TV stations; some of them are now up and running.

And then, there was the Leveson Inquiry. Certainly not in the Coalition agreement, as the question of phone-hacking was yet to come to a head. When it did in 2011, the Prime Minister established the Inquiry, and the rest was history. Or was it?  Leveson’s recommendations were acknowledged in part through the inclusion of provisions in the Crime and Courts Act 2013 (linking membership of an approved regulator to the question of exemplary damages for certain media-related causes of action e.g. defamation), and the broadly-worded clause in s 96 Enterprise and Regulatory Reform Act 2013 on the relationship between Parliament and Royal Charters for specific industries. This was part of the Government’s attempt to provide for some measure of press regulation without formal statutory control, although the current Secretary of State at DCMS seems to have stepped back from this approach somewhat. Other areas of the Leveson report, especially on data protection and media pluralism, remain unimplemented at a legislative level.

Conclusion

Finally, I make three general observations, and then highlight some issues to watch in the election campaign and the formation of the next Government.

There was no major legislative project in this field during the lifetime of the Coalition. Open data as a project could be considered as information policy, although the lack of legislative underpinning is surprising for something argued to be so fundamental to a change in the way of governing. With 130 or so Acts adopted since the 2010 election, only a handful relate to information and technology, and often it was only a clause or two that were relevant.

The initial urgency of Coalition libertarianism gave way to a late enthusiasm for Internet (re)regulation.  This is not unusual for governments, and the knee-jerk response to perceived disorder or threat is not specific to the Internet, but it is remarkable how the measures in this field adopted over the last 12-18 months have been characterised by the extension of State power in a whole range of areas.

The Coalition also addressed a range of industries in varying ways. The press was pleased at the Defamation Act and (mostly) pleased with the (limited) approach to the Leveson report. IT industries were well served by changes to defamation and copyright law, but some spoke out against changes to data retention. Some in the creative industries were upset at the copyright changes, but reassured by the new tax reliefs.

Here are a few things to watch out for.

1. Data and information. Eventually, the EU will (should?) adopt the General Data Protection Regulation, which may lead to a debate at national level for other or related issues. A consultation on ‘nuisance calls’ consultation closed in December 2014, so the proposed changes might follow (update: this has now happened). The Law Commission’s project on data sharing has so far provided a scoping report, which sets out very explicitly the complexity of the legislative changes that could be necessary to support this goal. The long-term position of data retention will need to be resolved after DRIP expires, and the Justice Committee’s post-legislative scrutiny of the FOI Act could also be a useful starting point for a future Government.

2. Infrastructure. The Law Commission’s 2013 report on the Electronic Communications Code (which affects the building of networks) was to be implemented through the Infrastructure Bill. However, the provisions were withdrawn and a separate consultation is now taking place.

3. A review of the sharing economy reported in November 2014, recommending various changes to the law (albeit not in much detail, and the handling of the matter was questionable, with the report being written by an ‘independent’ person, the founder of a home-swapping company). Already, the Deregulation Bill contains a specific amendment that supports private short-term letting of property in London (amending 1970s legislation). However, the controversy associated with this field, and the existence of a report, could well keep this on the agenda.

4. Media. Many would have predicted, given DCMS activity and proposals, that this Government would have proposed a new Communications Act. The 2003 Act has been amended (mostly through secondary legislation), and other provisions are politically contentious. Will the next Parliament be asked to consider a Communications Bill?

PS: Subsequently, and quicker than I had expected, the Serious Crime Bill became the Serious Crime Act 2015. This Act contains provisions on journalistic sources (s 83), possession of any item that contains advice or guidance about abusing children sexually (s 69), sexual communication with a child (s 67), and a series of changes to the Computer Misuse Act. In the next version of this work, I’ll incorporate all that…

(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.

Recommended reading, 7-13 February 2013

News, blog posts, etc

European Commission, ‘EU Cybersecurity plan to protect open internet and online freedom and opportunity‘ (press release, 7 February 2013).  Marking the release of a new strategy and proposed Directive (download both of them here) on this topic.  The interesting bit about this is how it’s framed – legally speaking it’s an internal market measure (not crime!); strategically, it follows up on the many comments about ‘trust’ in the Digital Agenda documents of the last couple of years.  While most of the operative provisions of the Directive are about national authorities for infrastructure and cooperation between them, there is an interesting (proposed) obligation for member states to regulate ‘market operators’ in terms of security and also notification of breaches.  (Incidentally, is this category of ‘market operator’ a new one?  It has two sub-categories – information society services ‘which enable the provision of other’ ISSes (examples in an Annex are cloud computing platforms, app stores, search engines, social networks), and operators of certain types of critical infrastructure.  Art 14 doesn’t apply, in essence, to telephone/mobile/broadband providers, because the electronic communications directives already occupy the field.  (It also doesn’t apply to certain players in the much-maligned electronic signatures field – although I read that exclusion as being broader than those entities contemplated in the 1999 Directive).  (The ‘open internet’ etc language of the strategy and press release is slightly overstated, I think).

John Brodkin, ‘Wi-Fi “as free as air”—the totally false story that refuses to die‘ (Ars Technica 8 February 2013). This is most curious. The (interesting and potentially significant) work of the FCC on what to do with UHF ‘white spaces’ – spectrum formerly used or left as a buffer for TV broadcasting but becoming available for other uses – has been of interest in IT law for some years now.  Then seemingly from nowhere, a normal development in the regulatory process became the basis for an article about free wifi.  This is not to say that white spaces and Internet access are unconnected; clearly, it’s one of the reasons that people beyond spectrum gurus talk about it.  (I wrote about it in passing in this 2009 article, in section 5.5).  But the licensing process does not deliver a free service by any means (even if, as is being discussed, the regulatory model would not include a license fee for spectrum use).  Nor has anything particularly interesting happened in recent weeks – as Brodkin’s deconstruction points out, the interesting stuff either happened a few years ago (when the opening up started) or will happen in the future (if new services are launched).

Simon Fodden, ‘Edwin Mellen Press’s Curious Case‘ (Slaw 10 February 2013).  A comment, with plenty of links, on the developing (and worrying) story about the huge defamation claim (the applicant seeks the equivalent of over £2m!) against a librarian (who wrote some quite critical things about a publisher, informed by his knowledge of the field) and his university employer.  I would certainly not have anything to do with this publisher as a result of its actions in this case (whatever about the underlying allegations themselves!).

Alexander Hanff, ‘The murky world of privacy advocacy‘ (10 February 2013). A new blog and a rollicking start, with a detailed analysis of corporate funding for tech-related NGOs. It’s about time. Given the field I’m working in, I’ve seen quite a few of these organisations (and indeed, their close cousins, the consultant reinventing themselves as an NGO/think-tank with no membership, no membership and often nothing to add). I think the post by Hanff demonstrates a very honest attempt to understand the weaknesses of the lobbying system and reminds us all to think about the motives as well as the contents of interventions.

Virtual currency and virtual property revisited‘ (Technollama 11 February 2013). An overview of recent developments on virtual £££ and IP and other things, prompted by a piece in Forbes which mostly about virtual property). See also this nice PBS video on Bitcoin, etc.

Academic articles

Nina Mendelson, ‘Should Mass Comments Count?’ (2012) 2 Michigan Journal of Environmental & Administrative Law 173 (SSRN). This is a response to the author’s earlier work (and a debate about it), but reading the article covers much of what before quite neatly.  The issue is a controversial one – how, when public consultation happens, to deal with different forms of participation (particularly one-click or template methods).

Michael O’Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34’ (2012) 12 Human Rights Law Review 627-654 (£, link).  The author of this article was the rapporteur work on this General Comment and discusses the comment as well as some of the cases and stories it relied upon.  Watch out for the interesting discussion of article 19 and emerging technology, too.

E Tarantino, ‘A simple model of vertical search engines foreclosure’ (2013) 37 Telecommunications Policy 1 (£, link).  The new volume of this journal (mix of law, business, economics, etc) starts off with one of the topics of the year, competition law and search engines.

Recommended reading, 24 January – 6 February 2013

Double edition! At the end of January, I was caught up in the excitement of the official launch of CREATe.  I was taking notes on laptop and paper, so more to follow on that soon.

News, blog posts, etc

Eric Goldman, ‘17 USC 512(f) Is Dead–Lenz v. Universal Music‘ (Technology & Marketing Law Blog 25 January 2013). Goldman discusses the latest decision in the Lenz case (the infamous ‘kid dancing to Prince‘ video and how it was taken down at the request of the record label).  He reports on the way in which section 512(f) of the DMCA (misrepresentation in takedown notices) has been read in a narrow fashion by the court and argues that it will have little purpose in the future.  This is interesting (as is his neat point that because a lot of takedowns now happen outside of the DMCA process, it’s already becoming irrelevant) – for me, having argued that the EU should apply its ‘groundless threats’ approach to notice and takedown to come into line with the DMCA, it’s a warning to draft that suggestion more carefully.

Mike Madison, ‘Coulton, Glee, and Copyright‘ (Madisonian 28 January 2013). On a theme of legal and other considerations – this is an article responding to a scandal which I confess had escaped me (involving Glee!), about a legal issue I’m more familiar with ‘covers of covers’.  For the interest of non-US readers – this is a particular feature of US copyright law where a ‘cover version’ can be the subject of a compulsory licence.  (Actually – as discussed in the post – this isn’t always the solution, as there can be negotiation or going through the Harry Fox Agency instead).  However the situation here (the rights of B in its cover version of A’s composition against C’s cover version of A which is derived from B’s) may stretch the effectiveness of that solution (and, as Madison talks about in the second half of his post, suggest questions about the purpose of the law and about the ethics of the situation.

WhatsApp breaches privacy laws‘ (CBC News 28 January 2013). You know I like stories about apps.  This one is about one of the success stories of last year, WhatsApp (instant messaging).  As the CBC story explains, the Privacy Commissioner of Canada (along with equivalent authorities in the Netherlands) has investigated a bunch of issues regarding the service and privacy.  Some were resolved through changes to the operation of the service, but one major continuing breach was noted – the requirement to grant access to full address books in order to use the service.  The full report is here.

Liat Clark, ‘WTO grants Antigua right to launch ‘pirate’ site selling US media‘ (Wired UK 29 January 2013).  This story, widely reported during this period, is about Antigua’s success before the World Trade Organisation (some time ago now – see case file DS285) in its criticism of US violation of world trade law in respect of the regulation of online gambling.  As suggested for a few year now – but now getting more likely as the measure has been approved – it proposes to use the WTO mechanism of trade retaliation, because the US has failed to implement the binding decision of the dispute settlement process.  The US is professing shock and dismay.  However, as a strong proponent of free trade (and indeed the sanctions associated with the WTO process), I’m sure that an understanding can be reached.  Remember: the US took the case to an appeal and lost, and arbitration has also been pursued.

Jason Del Rey, ‘YouTube Set to Introduce Paid Subscriptions This Spring‘ (Advertising Age 29 January 2013). There’s been a flurry of stories in 2013 about how to build a model of charging for video-on-demand; this story explains the proposal to identify selected channels and charge a monthly (and possibly PPV) fee.  Answers on a postcard – will this, if it succeeds, encourage broadcaster-managed non-archive VOD (e.g. the ‘catchup’ bit of 4od, for example) to try and build a charging system – and if so, is it Spotify-style or micropayments per programme?  (I say non-archive VOD because there is a relatively clear mixed economy emerging for archive VOD with various forms of charging and ad support)

Kevin Chao, ‘Mobile Kills the Console But Advances the Gaming Industry‘ (Wired 31 January 2013). Is this finally the year of mobile gaming?  Lovely stats here and a framing of the issue as being about reach, engagement and monetization.  (There is however an ongoing and very significant issue in the UK – and no doubt elsewhere – about monetization and mobile, the role of mobile network operators vs (e.g.) Facebook credits vs other models and the role of PhonePayPlus (regulates premium rate calls and texts which is one of the ways the charge can be set) – see the very perceptive market study for that very organisation.

Bob Tarantino, ‘What the *BLEEP*? Coarse Language in Radio Broadcasts‘ (Entertainment & Media Law Signal 31 January 2013).  Round-up of Canadian broadcast standard decisions on language and radio.  (On that note, I noted subsequently how the New York Times reported the well-deserved Grammy success of Jay-Z & Kanye West as being for ‘___ in Paris’, and the awkward pacing of the bowdlerised broadcast version of the new UK no. 1 single, Thrift Shop; compare the editing on this page (short silencing of the offending part making the result ‘This is ___ing awesome’) with what actually went on air in the chart show (looping, making the result ‘This is aws-aws-awesome’), here at 2h54m)

Josh Halliday, ‘YouTube study shows children ‘three clicks away from explicit material’‘ (Guardian 5 February 2013).  Oh dear.  Apparently if you find a video aimed at children and then click and then click and click again you end up at a less suitable video.  Traumatic I’m sure, but has anyone figured out a way to prevent that without making ‘related videos’ completely unworkable?  Say a video has 20 ‘similar video’ links, then by the third click we are at up to 8000 possible videos – and by click five it’s over three million possibilities.  See also Six Degrees of Separation, etc.

Adrienne Jeffries, ‘Why Amazon wants its own currency‘ (The Verge 5 February 2013). I was reminded about The Verge by a student recently – just in time for this piece on e-money, with a nice approach to the practical as well as legal or technological reasons to adopt a particular model of payment.

Patrick Wintour, ‘Peers pass low-cost arbitration law for victims of press defamation‘ (Guardian 6 February 2013). Somewhat overtaken by events since, but this was a tricky development in the post-Leveson story – specifically, adding in one bit of the recommendations to the Defamation Bill.  Although I’m not convinced by this approach, I still hold to the view that the Defamation Bill needs to be properly linked up with the Leveson settlement.  I appreciate that some people have waited a long time for defamation reform, and that there is work that needs to be done…but its changes will be more legitimate and sustainable if they form part of the new approach to press regulation (particularly as many of the Bill’s changes are specifically defended as pro-press).

Early thoughts on Leveson 1 of 4 – Regulation

This is one of a series of responses to the publication of the report of the Leveson Inquiry.  For an introduction, and links to other posts, see here.  Sorry, this is the longest one.  I hope it’s worth it.

Much commentary in the lead-up to the publication of the report was on what sort of regulatory system would be recommended.  The report outlines various aspects of a new regulatory system, which would be different from that of the PCC, as well as the proposals put forward by those associated with the PCC and with newspapers.  But actually, we are not sure what model is being recommended yet.  In my view a key feature of regulation must surely be the method of oversight, and it is this particular point where important details are left for a later stage.  The report proposes that Ofcom (and by saying so, ruling out the idea that it would be Government or a Minister) plays a role in recognising an independent regulatory body but how that relationship is to proceed is not yet clear.  The criteria are (to some extent) set out, and it would appear as if the designation would be on the lighter side, i.e. no obvious monitoring role for Ofcom, and the ‘backstop’ (as in place for broadcast advertising) would not be present at first, although it is recommended that Ofcom would be best placed to be involved in that process.

On the other hand, what we do see is many statements on the importance of independence.  The language of self-regulation is also used quite extensively.  I’m watching the summaries and reactions carefully as how this is received and reported is going to be so important.

As for compulsion/incentives there is very positive discussion of the ‘Irish model‘ (pp. 1708ff) and indeed similar proposals regarding the link between subscription to a regulatory body and the use of defences, with some further suggestions regarding arbitration.  I guess the difference in emphasis is that the ‘carrot’ in Irish law is the statutory Reynolds-like defence (responsible journalism), here it appears to be data protection/ICO powers and civil costs (presumably in defamation, privacy etc.). It’s fair to say that if we see methods of co-regulation as being set out on a spectrum, as academics like Chris Marsden have argued, that we don’t have a clear statement in the report on where on the spectrum Leveson would see press regulation sitting.  (This is not necessarily a criticism, as defining that will now fall to Parliament, perhaps).

If I were forming a view on the system (which I can’t without more details), I would also need to know whether decisions of the body would be subject to judicial review and bound to act in accordance with the Human Rights Act.  I should hope so, with penalties of up to £1,000,000 and also the ability to benefit from membership in other proceedings.  For the press, as well as complainants, who guards the guardians is very significant.  Some of this could flow from the method of designation (I won’t bore you with my views on this which I have set out in length), and the report does appear to assume that JR (not sure whether this means ‘old’ style or s 6 HRA) would be part of the scheme (p. 1766), but this could be made even clearer by building it into the statutory underpinning… (To be fair, there is also a very brief mention (p. 1601), in the context of the Hunt proposals rather than the inquiry’s own recommendation, that the industry would be ‘unlikely to contest’ justicability, but that’s far from enough).

I am interested in the question of multiple regulatory bodies.  There is a genuine difficulty in this issue – is a single body the sensible way to have an accountable, understandable system?  Or does (as the BBFC has recently argued, perhaps reflecting its own changing position and role) the existence of multiple regulatory bodies avoid the concentration of power over expression in too few hands?  In the report, it’s not really seen in that way, although it is argued (p. 1779) that more than one regulatory body (in the area under consideration) should be possible but is not advocated and “would (be regarded) as a failure on the part of the industry”.  (But see the recent changes to the Video Recordings Act, recognising two bodies instead of one, so as to separate the video games sector from video/DVD works, which was not really seen in that way; the BBFC or the whole cinema/video/games area isn’t discussed in the report).

There has been some doubt expressed by the Prime Minister on taking forward the recommendations in his speech today.  It’s interesting to see the approach here being about “crossing a rubicon”.  Frankly I think this is a selective reading of the current law, where on one hand we see serious restrictions of press freedom through the law of defamation, contempt of court, official secrets in place, and on the other hand press privileges such as favourable VAT treatment, exemptions from data protection legislation in place.  That rubicon has long been crossed and it is a bit rich for the Prime Minister to suggest that press freedom is currently safe in the hands of the House of Commons.  I am not signed up to the view that the response should be one that satisfies the victims (I’ve never believed that is the measure of law in any other area so I don’t intend to start believing it now), and think that it is unfair to criticise Cameron for failing to honour that sort of promise; however, as this paragraph should make clear, I think the conceptual basis of his approach is dead wrong and potentially misleading.

(For the record, on VAT – the recommendation, following the legal advice of HMRC etc, is that this is not really a viable method of control: p. 1660).

An eye-catching recommendation is a specific statutory provision on the freedom of the press (p. 1780)  This is fairly new to me but I probably missed it in the avalanche of evidence and documents.  I can see it being part of the mandate of a regulatory body for sure, but I’m not sure what it offers above and beyond the existing requirement of article 10 ECHR as referenced in the Human Rights Act.  And two other things: (a) constitutional provisions on press freedom are controversial in terms of the relationship between the rights of the press, rights to expression more generally, and the wide idea of communication rights, and (b) the EU Charter now couples freedom of expression and media pluralism; would that approach be followed here?  The draft here, modelled on that of the Media Regulation Round Table, is called an admirable proposal but not prescriptive as to text.  I think that caution is wise – as drafted, it seems too favourable to media interests and its relationship with Article 10 ECHR and Article 11 CFR is unclear.

Just a point on education and training, which was a big theme in the earliest Leveson hearings, but is not the subject of a specific recommendation after all.  It’s noted (p. 736) that training is increasingly university-based and the importance of training is emphasised.  Would the new press body have a role to play?  I don’t see anything on that but it may be helpful.  Perhaps this is a thumbs-up for existing education but I wonder whether further action will be needed under this heading…