Recommended reading, 14-20 February 2013

News, blog posts, etc

Lisa Campbell, ‘Is Netflix just a novelty?‘ (Broadcast 14 February 2013). Given my interest in VOD (primarily how it is regulated but to get there requires understanding the market), the last few weeks have provided much to think about.  I can’t decide whether to be impressed at the Netflix coup of launching House of Cards as an all-at-once release or cynical about how its press releases were parroted by some in the press.  I think both.  Anyway, the coverage in Broadcast does look at it from a number of different angles. (Thought I will return to although I’ve probably said it before: if the standard for being covered by EU audiovisual media law includes being ‘TV-like’ subject to interpretation in a ‘dynamic’ way, does this sort of move make a difference?)

Jeremy Phillips, ‘Save our hyperlinks! Paws for reflection as Profs Opine‘ (IPKat 15 February 2013).  Commentary on the intervention of academic group the European Copyright Society (does it have a website? cannot find) in a very important case on hyperlinks, Svensson.  The case is before the Court of Justice of the EU shortly and takes up a question much loved by IT textbooks more or less since they started to exist: is a link one of the acts restricted under copyright law?  If so, then the consent of the author of the target page may be necessary – but the consequences are significant.

Claire Porter, ‘Google ‘flaw’ puts users’ details on display‘ ( 16 February 2013). Another tricky story about apps and privacy; this one is about the Google Play store.  Worth noting that there is a bit of discussion about the way the story has been reported (and amended) – see e.g. here.  Original link via Slashdot.

David Streitfield, ‘Tech Industry Sets Its Sights on Gambling‘ (New York Times 18 February 2013). Discusses the implications of any change in the law on online gambling in the US for social networks and for the casual gaming sector.  Also mentions the interesting issue of gambling and Diablo.

William Turvill, ‘News agencies’ fear over impact of copyright law proposals‘ (Press Gazette 20 February 2013). It looks like the lobbying against the proposed implementation of the Hargreaves Review is well underway now.  I think there is a fair point to be made about the constitutional problems (the typical, pernicious turn to secondary legislation in place of proper parliamentary scrutiny), although the substantive arguments tend to the alarmist.  For example, I can see why the photographer groups who were critical of orphan works proposals in the past are sceptical about extended collective licensing.  Less obvious to me is why that opposition extends to the long-overdue proposals on parody.  Perhaps there’s just general opposition.  We’ll see.  Given that some of these recommendations are still overdue from Gowers 2006, it would be a shame to get stuck at this stage..

Academic publications

Speaking of parody: Kris Erickson, ‘Evaluating the Impact of Parody on the Exploitation of Copyright Works: An Empirical Study of Music Video Content on YouTube‘ (Bournemouth University for IPO, 2013).  Fascinating attempt to measure the consequences of protecting (or not protecting) parody.  Via Rebecca Tushnet.

And more on copyright: Lee Edwards, Bethany Klein, David Lee, Giles Moss, and Fiona Philip, ‘Framing the consumer: Copyright regulation and the public’ (2013) 19 Convergence 9-24 (£). Multi-disciplinary perspective on attitudes to copyright, with a particular interest in downloading (other articles in the same issue also explore the theme of attitudes and IP)



Early thoughts on Leveson 2 of 4 – the Internet!

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.

There was much discussion on whether Leveson would make recommendations regarding Internet regulation.  There’s a decent discussion of Web issues in the report, and brief mentions of the system for regulating video-on-demand (discussed a bit more below), but in terms of recommendations there is not much there.  Of course, the remit was the press, and indeed there will be some who express relief regarding the lack of recommendations in this regard.  The proposed regulatory system would be open to participation by websites (as I read it) and that is sensible.  (There is a discussion of a ‘de minimis’ approach to required/encouraged participation, which would be particularly important in this context).  However it will be interesting to see whether further work on taking forward that discussion (e.g. on intermediaries, on dissemination through social networking sites, etc) will now be appropriate, i.e. outside of the Leveson process.  In my view, one outcome of the process was a lot of evidence on how different service providers governed their services (and thus their users), as well as issues raised about the application and enforcement of existing law.  On balance it was probably right to stay away from specific recommendations, but it would be sad to see that effort go to waste (the problems will not go away).

On demarcation, it is recommended that services within the scope of the Broadcasting Code or the ATVOD system would not be within the scope of the proposed press body (p. 1791).  This is interesting, although since the Ofcom finding that the Sun’s video content did not constitute (for the purposes of VOD regulation) an on-demand audiovisual media service, and ATVOD’s subsequent withdrawal of actions against (broadly speaking) other newspaper websites, the potential for overlap is significantly reduced.  I raised an eyebrow at the idea on the same page that the criterion for regulation of on-demand services (that they are ‘TV-like’) applied by ATVOD and Ofcom (but following the language of the AVMS Directive) could help to define ‘press-like’ in the context of press regulation.  I still harbour doubts about the sustainability of the TV-like definition (not least because, when you put all the defined terms together, one goes around in circles), so I hope the press body, if it is created, has a strong pot of coffee for figuring it out.

By the way, at p. 166 (discussing on-demand services and the designation of ATVOD by Ofcom), the report argues that “protections similar to that applied to broadcast content are applied to that same or similar content when made available online.” In this case, I disagree.  Aside from the procedural differences in licensing (which don’t tell us about protections, really), or sanctions (which might), the content standards are radically different.  ATVOD applies a much smaller set of regulatory requirements (identification, incitement to hatred, protection of minors and some controls on commercial promotion) than Ofcom does.  Think for example of the EU-required higher level of protection of children or on advertising which applies to ‘linear’ content only, not to mention the many requirements of UK law (which apply to all broadcasters, not just the public service ones) on due impartiality, on fairness and privacy, and much, much more.

I think that the discussion on intermediaries (p. 178) will require further thought – it cites article 15 ECD as the regulatory framework, which doesn’t quite concur with how I read the Directive, but no conclusions are drawn in any event.  (There is a much better explanation of the issue, including the issues raised in Tamiz, at p. 1900)

Finally, there is a neat framing of the Internet as an ethical vacuum (page 736) – the report is careful in pointing out that this is not intended to impugn the ethical standards of individual bloggers etc, and that the point is to demonstrate that the Internet does not make a claim as to standards.  Nonetheless I think attributing an ethical concept to ‘the Internet’ does not get us very far; I think the class is too big to make sense. There may also be useful ethical models associated with online communication which might, I dare to say, be useful for the press!

Sorry, two other things.  There is what might be interpreted as praise for Google’s approach to privacy (p. 168).  I’d imagine this will be controversial in some eyes.  But not much is made of it.  And there is a quirky mention of, of all things, ICANN (not further developed) (p. 166)!

Notice and no-takedown

Last week’s decision in Tamiz v Google (High Court, Eady J) comes at a very important time for the debate on the liability of Internet intermediaries. The draft Defamation Bill is being considered in the UK (new Government response today), Ireland’s comprehensive review of copyright law is taking flight (excellent consultation paper just out – more on that soon), and the European Commission is preparing a ‘horizontal initiative’ on the liability provisions (articles 12-15) of the E-Commerce Directive.

In Tamiz, Google sought to have an order for service regarding a claim for defamation (regarding material published on Blogger) set aside.  Tamiz complained to Google about an article and various comments on a Blogger blog – first through the Report Abuse button and later in a series of letters of claim and other correspondence.  Google didn’t take it down, but some time after the letters started flying around, Google notified its user of the complaints, and the material was taken down by the user.

The valid claim was against Google (not Google UK), so it was an application to serve out of the jurisdiction, i.e. a preliminary stage.  The basis of Google’s success was not jurisdictional (some of the claims did constitute a real and substantial tort within England). Instead, it was substantive – that Google was not the publisher, or in the alternative was protected by the Defamation Act and/or the E-Commerce Directive. Eady J would have found in Google’s favour in all three cases – and so the claim is thrown out. (NB: this is not a search engine case – it is just that the host in question is ultimately owned by Google – lest there be any confusion).

Let’s start with the E-Commerce Directive (article 14, as implemented in the UK as regulation 19 of the Electronic Commerce Regulations), because it’s probably of the widest appeal to readers. What’s important about this finding (drawing on earlier English cases and also the ECJ decision in L’Oreal v eBay) is that Eady J makes it extremely clear that an allegation of defamation does not constitute actual notice of unlawful activity (i.e. triggering a takedown in order to avoid liability). “It cannot be right that any provider is required, in the light of the strict terms of Regulation 19, to take [Tamiz's complaint] at face value. Clearly more is required for a provider to acquire a sufficient state of knowledge to be deprived of the statutory protection” [60]. So there it is. No takedown, but still no liability.

This was hinted at as far back as Bunt v Tilley (very briefly), then in Kaschke v Gray and considered most recently in Davison v Habeeb - but Tamiz is the clearest example yet (albeit still as a dismissal at an early stage of proceedings).  Kaschke has a very complicated factual record, with the passages on the Directive being blanketed in double and triple negatives and probably obiter anyway.  Davison is much closer, and is the first to recognise the impact of L’Oreal but because of multiple claims of unlawfulness, and some comments on the notices in question, something sharper was needed in order for the position to be clear.  I think Tamiz does that.  (Although, it would have been clearer again if this were a normal case without the need to serve a US defendant).

The other issue, more specific to English law, is whether Google (Blogger) was a publisher (for the purposes of defamation law, at common law) at all.  It was established in Metropolitan Schools that a search engine was not a publisher. This was of crucial importance in England because the transposition of the E-Commerce Directive does not extent here to search engines.  In Tamiz, Eady J goes further and accepts that the act of hosting does not constitute publication.  (If correct, this means that there is no need to rely on the E-Commerce Directive at all). The use of analogy is fascinating: ‘it is no doubt often true that the owner of a wall which has been festooned, overnight, with defamatory graffiti could acquire scaffolding and have it all deleted with whitewash. That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher” [38]. This is the opposite finding to that in Davison (which was also about Blogger) – and I expect the Court of Appeal will be particularly interested in sorting this one out.  However, the stakes aren’t as high as they were in Metropolitan, as the host has a wider choice of arguments.  (The court also finds that Google could rely on the statutory defence in section 1 Defamation Act 1996, but there’s less of interest or novelty in that section of the judgement).

So what are the implications of this decision?  For hosts, it may strengthen the resolve to keep material up, even if a letter alleges defamation.  The finding in multiple cases that there was no duty to take down because there was no actual notice, and Eady’s view that there was no publication to begin with, is a big win – although will it be enough to reassure hosts that they don’t have to take things down on receipt of a nasty letter?  For applicants, the lesson is to set out the nature of the unlawful activity in as much detail as possible.  For lawmakers, it’s a reminder of the weakness of the notice and takedown provisions of EU law, lacking in detail and clarity – but also, perhaps, a signal that a better procedure for working out what is ‘unlawful’ is necessary.

Good to know about Good To Know

This week’s English newspapers (including the Guardian and Independent, but there may be others) carried a number of full-page advertisements for Google, which formed part of its current ‘Good To Know‘ campaign. The campaign is ‘in partnership with the Citizens Advice Bureau‘.

Some parts of the campaign strike me as extremely sensible and useful information, and leave me very pleased that Google is putting its money and reputation behind them. For example, one ad (which I first saw in a Tube station) emphasised Google’s 2-step verification; another (which I saw in print, but can’t recall where) gave examples of good passwords. (You can see a collection of these ads on the Good To Know website). The most recent ads, though, raise some interesting questions around data and privacy. As readers of the growing literature on the development of Google will know (most recently Douglas Edwards’ I’m Feeling Lucky on his experiences as employee #59), it’s clear that these issues are thought about and debated a lot within Google; this however is my external take and some quite preliminary questions rather than conclusions;.

One ad is about IP addresses – it doesn’t appear to be on the Google site, but I’ve scanned it (apologies for resolution) here. Explaining how a user in Brighton doesn’t need a plumber from New York when they use a search engine, the ad states that results based on where you are use your computer’s IP address. “It’s a number like which acts a bit like the first part of a postcode to tell them the rough area your computer is in“. I think this isn’t the best definition of an IP address, particularly in the week where (in the Sabam decision regarding ISP filtering for copyright reasons) the Court of Justice of the EU found it to be common ground “that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified”. This confirms a direction in European Union practice, particularly the statements of the article 29 Working Party (e.g. opinion 1/2008 on search engines, opinion 2/2010 on online behavioural advertising), that an IP address can be personal data. In a way, I’d suggest, that the first part of a postcode is less likely to be.

Another ad (with a quirky little graphic about extra-shot coffee, which is what I’m drinking as I type this) (scanned here) draws a link between the barista knowing your coffee order (but not your name) as you walk through the door, and how Google and other websites act:

Making a note of your preferences in case you visit them again. It’s how they are able to recommend a particular artist you might like, or if you prefer to fly from a certain airport, or if you like a specific printer ink.

(I think ‘preferences’ here is broader than a technical meaning of preferences as in settings, but am open to correction).

Again, I can see what they are getting at, but I think the anonymous coffee order may not be the best model here – as (a) there are plenty of ‘preferences’ that are more revealing (and yes, legally sensitive) than coffee choice, and (b) concerns about profiling include the cumulative impact of data collection rather than a single point – the barista doesn’t know what you prefer when you go to the clothes shop next door!

Google does some great work around data – and the Good To Know website highlights this, including work on Data Liberation, cookie deletion and more. But there’s something about the ads above that I’m not as sure about.

I mentioned this campaign to a fellow academic and s/he pointed out that the ultimate target here might not be users, but the forthcoming (and unpopular with large Internet companies) revision of the Data Protection Directive. If that’s the case, Google’s intervention isn’t unwelcome – we need to hear its voice – but it’s worth debating those points. If it’s just about consumers, I think it goes in the right direction (particularly the security stuff), but the wording could be a good bit tighter.

Finally, I think there are questions to be asked about the role of the Citizens Advice Bureau. It knows well that the interests of consumers are different to the interests of corporations – see for example its current struggle to publish the results of investigations and how libel law appears to prevent that. So should it be involved with (a) a particular company and (b) a particular view of the law of privacy? Indeed, the UK government proposes (consultation paper here) to take a whole range of consumer information and advocacy functions away from public bodies and transfer them to the (private, charitable and generally wonderful) CAB. Should it therefore be more careful about taking ‘sides’, appearing to endorse the views of Google and in having the ads presented as authoritative and neutral?

Internet Rights

I had the privilege of participating in a round-table discussion (without the table) at UCL on October 20th. The event was organised by the very active Student Human Rights Programme and chaired on the day by Ben Allgrove of Baker & McKenzie. The topic was ‘Internet and E-Rights: challenges and perspectives’, and you can read the full report here and a brief note on the UEA Law School website here.

My contribution was on the subject of network neutrality and its relationship with the right to communicate. It drew on some of the material appearing in a future issue of the Journal of Internet Law (more on that soon), as well as the discussion of the right to communicate explored in my doctoral thesis. I argued that there was a need to consider the overall legal environment for ISPs, particularly the relationship between immunity as a mere conduit and the degree of neutrality regarding content, and discussed the various reviews in progress in the UK, EU and US, criticising the first two as lacking in a full appreciation of non-economic issues including fundamental rights. I was rewarded with some very interesting questions, including the method(s) of financing broadband expansion and the case for prioritising particular forms of traffic.

The theme of rights was introduced by Andrew Murray (website), who has published his suggested ‘Bill of Rights’ on his blog. This is a very interesting contribution and comes at a time where – at the Internet Governance Forum and elsewhere – the idea of drafting or amending rights is very much back on the agenda. Some (but not all) of his suggestions do related to the net neutrality debate and his draft can serve as the basis for a very interesting discussion, including on whether there is a need for ‘Internet-specific’ instruments as well as how any such rights would be monitored and enforced. In his talk, Andrew also assessed a number of current proposals for Internet rights, such as that of the proposed Bill of Digital Rights in Brazil.

The other two presentations, like mine, looked at a single topic rather than the overall picture about rights. Emily Laidlaw‘s talk on Google started with a summary of Google’s current position in the UK and elsewhere, followed by an overview of the power and potential for manipulation of search results. She suggested that there is a need to consider the social responsibilities of search engines as gatekeepers and also the need for public forum, freedom of expression and regulatory analyses of search. She has also blogged about the event here and even posted her slides. Lawyer Stratis Camatsos (Pappas & Associates, Brussels) discussed social networking in the context of privacy and data protection, suggesting that further work was needed to ensure that the activities of social networking sites are compliant with EU law in this regard, but also discussing (in the Q&A) whether the current system of data protection law was itself appropriate in the light of user practices and habits expressed through ‘sharing’.

I did enjoy the event, and the wide range of questions from the audience. For me, it highlighted the mature stage at which cyberlaw/Internet law has arrived, but also the number of issues yet to be resolved or dealt with which are still quite ‘fundamental’, whether rights-based or otherwise. It was also an opportunity to consider the relationship between specific debates of Internet law and policy and other current themes in international law and in human rights. Andrew Murray commented that the event was typically ‘international’, given the panel (an Australian chair, and speakers from Scotland, Ireland, Canada and Greece), while said chair Ben Allgrove also pointed out the focus of all speakers on beneficial forms of ‘regulation’, in contrast with other views (past and present) that might be more suspicious (often with good cause) of regulatory intervention.