Archive for the ‘echr’ tag
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.
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.
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:
My recent paper on data protection and political marketing is now available on SSRN: download it here. The final version appears in the April 2011 issue of the European Human Rights Law Review (get it at a library or via Westlaw). It was a fun piece to write, although on mature reflection it’s probably a bit more provocative than I would usually be in print. In some ways, it’s an attempt to push arguments to extreme outcomes in order to understand how different notions (privacy and speech, but not superinjunctions!) relate to each other. In this case, I find myself arguing (not in as many words) for the ‘right to hassle’, specifically the possibility that the welcome expansion of data protection law might make it harder for political debate to take place. The paper takes the complaints against UK political parties for automated telephone calls as its starting point but spins off in a number of directions after setting out the recent decisions of the Information Commissioner regarding a range of parties. Actually, I started writing it as a blog post about Nick Clegg some years ago; came back to it in February 2010 after further cases were reported, then finished it last summer.
Something else that’s not in the paper as bluntly as it should be, but did influence the argument, was my own realisation (when I used to ‘do’ politics in Dublin) that the traditional door-to-door method of communicating political ideas became harder and harder each time, as more voters moved into apartment blocks with locked doors. Normally, I’m the type who is sceptical of free speech arguments against data protection (and am awfully cranky with telemarketers), and so I surprised myself while writing this in how much I was coming down in favour of an exception to the relevant data protection rules. The wider theme of data protection and free speech is something that David Erdos is working on at Oxford, of course, but I do hope you enjoy my shorter contribution too, and comments are welcome.
(I’m also thrilled that the title survived: if you haven’t already figured it out, this video tells all…)
The Council of Europe and ELSA International are happy to announce the extension of the deadline of the ‘Our Rights, Our Freedoms’ competition. Law students now have until 15 August 2010 to submit their work – an essay or a photo report – and win one of 6 prizes worth up to 5,000 €.
Top prize for the essay competition, on the subject of the title of this post, is €3000. There’s a photography competition too, on the theme of the European Convention on Human Rights. You have to be a ‘law student in Europe‘ to enter. Further information from the competition website.
For followers of media law, that is. The European Court of Human Rights gave its decision in another political advertising case today, TV Vest AS & Rogaland Pensjonistparti v Norway. Having already dealt with one situation earlier in the decade (VGT v Switzerland, 2001), finding that a Swiss ban was a violation of Article 10 (freedom of expression), and returned to a related matter in the Murphy v Ireland case mentioned on these pages last week, upholding an Irish ban on religious advertising, the case decided today involved a Norwegian political party’s attempt to advertise on TV, despite a statutory ban on such advertisements. The court found that there had been a violation of Article 10. Read the decision here and further comments from OfcomWatch (Russ Taylor) and MediaPal@LSE (Andrew) and Adrian Monck. While some of the counterarguments are dealt with in a bit more detail by the Court on this occasion, there’s not a huge amount in here that wasn’t in VGT, and although the UK did formally notify the Court of the House of Lords decision in ADI, it’s not dealt with directly (there was no obligation to do so, but it would have been very interesting!)
Political advertising on radio and TV is illegal in both Ireland and the UK. Challenges have been brought in both jurisdictions – in Ireland, it was Colgan v IRTC  2 IR 490. (which predated VGT and wasn’t much more than an application of the Murphy case on religious advertising, which hadn’t yet gone to the ECHR) and in the UK, it was the altogether more surprising Animal Defenders International case, which departed from VGT and found no violation of Article 10 (in the context of a Human Rights Act challenge). Both Ireland and UK intervened in writing in the Norwegian case.
Indeed, it has been a busy time. I dealt (fairly briefly) with the ADI case in teaching just over a month ago and before the semester is over, the landscape has changed. I already agreed to write an article on political advertising in 2009 and it’s turning out to have been an unusually sensible intention – at this rate it will write itself! There have been two significant decisions by Ofcom in relation to political advertising over the last fortnight (!) – one (here) on an advertisement found to promote the Yes cause in the Manchester congestion charge referendum and one (here) on a fairly blatant set of ads for the Lib Dems broadcast on the Channel S satellite services. Things are relatively quiet on the Irish side of things, though of course the Veritas dispute is enough to be going on with (and has led loads of readers to this site – hello, and welcome). The last Irish decisions on political advertising I recall are the Europe Direct decision at the Broadcasting Complaints Commission (discussed here), and the Irish Autism Action one at the BCI – though the one that keeps getting searched for according to my site stats is the earlier Trócaire controversy.
As a bonus link, the court referred to this wonderful EPRA paper from 2006 comparing political advertising rules across Europe. Download it here.