Blame it all on my roots

This month has seen two very different stories about emergency legislation emerge on either side of the Irish Sea. Here follows the results of my ruminating on the stories (my word of the week after seeing a professorship in non-ruminant science advertised).

In the UK, the Data Retention and Investigatory Powers (“DRIP”) Bill is before the House of Commons today.  After a debate on timing, at lunchtime today, it was agreed that all ‘stages’ be taken today. (Normally, legislation gets a broad second stage debate, consideration over a longer period (line by line) in a committee, and a final Commons stage).  It’s due before the House of Lords tomorrow.  Given the strong support for the truncated timing given by MPs earlier today (only 50 or so voted against), it’s very likely that the Commons will say yes – what the Lords make of it is to be seen.

I signed a letter about this legislation, which has provoked some interesting coverage (e.g. here, here and here).  I think that the Government is making a mistake in how it’s handling this legislation. It’s well known that the Court of Justice of the European Union found the Data Retention Directive invalid as a matter of EU law in April.  As Judith Rauhofer and I pointed out in our editorial (see part 4), this raised significant questions for the future of national measures adopted on the basis of it, as well as similar replacement measures. The CJEU declared the Directive invalid immediately and also made important points about what safeguards were required as a matter of EU law, including human rights.

Now this could have been a good opportunity for sober consideration of how to draft a new scheme, compatible with EU law and the European Convention on Human Rights, and informed by the engaging public debate on surveillance, security and technology. But readopting the bulk of the EU measure (without necessarily restoring lawfulness), along with some separate ‘clarifications’ (which may have merit in themselves or at least be the basis for further debate), is not a way for Government to establish and defend the legitimacy of data retention and surveillance. It’s inadvisable that this be construed as an emergency.  It’s clearly a matter of national importance and I do see the significance of the arguments put forward on the need to have a well-regulated system of intelligence and investigation. And something did have to be done after the CJEU’s decision – doing nothing would be, in my view, still a mistake.

But after the last few years of Snowden, the NSA, Wikileaks, well-founded fears about technological development and all that, now is the time to build support and trust. (The sad thing is that for a lot of people who don’t follow Parliament closely, they are paying attention today and not really seeing democratic deliberation at its best).  Today hasn’t achieved the goal of establishing trust and legitimacy, and I’d encourage readers to contact members of Parliament (especially the House of Lords) asking for a proper, careful debate.

Meanwhile, in Ireland, emergency legislation was one of the many proposals put forward to deal with a licensing decision (under the Planning & Development Acts – see part XVI) by Dublin City Council. The decision was significant because it pertained to proposed concerts by Garth Brooks. Promoters had already sold tickets (“subject to licence”) for five concerts at Croke Park (the largest stadium in the city), but the local authority only granted a licence for three.  (The full reasoned decision is published here).

One point that seemed to annoy some people was the inability of elected representatives to override this decision. A fair point, if one disregards the sorry history of planning corruption in Ireland and the need to apply the law in a consistent and transparent fashion. So with that in mind, ‘emergency legislation’ was proposed (one Bill was even drafted by an opposition member of the Dáil). Again, I’m not saying that the law is perfect – the controversy has highlighted some areas for procedural change in particular (I taught a course on entertainment law last year – and hereby offer my free services to any official body in Ireland that wants some suggestions).  Nor am I unsympathetic to the disappointed ticket-buyers (not least because, having been a teenager in 1990s Ireland, I truly understand that he has a serious fan base – in my day, local radio playlisters first and foremost). But for a licensing system to have credibility, responsible authorities have to be able to say no as well as yes; the sale of tickets for what is at the time an unlicensed event shouldn’t affect this. So while it can be tempting to call for a new law, that also deserves proper consideration – of models from other jurisdictions, for example.

Fortunately, despite a lot of posturing, the Irish parliament didn’t go down that route, and it looks like the concerts aren’t happening at all.  Here are some interesting things to read on the topic: Fergal Davis, Rebecca Moynihan & Jane Horgan-Jones, Gene Kerrigan.

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.

(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.

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.