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.

Preview: media & communications at SLS 2013

The 2013 conference of the Society of Legal Scholars takes place here in Edinburgh this September. I continue as convenor of the Media & Communications section, and we have a particularly exciting (and packed) programme this year. An EU session, a set of responses to Leveson, and two general sessions (one with a social media flavour and one with a human rights theme).

Registration is now open; ‘early bird’ discount until the end of July.

Tuesday 3rd September

A1: 14.00-15.30 (Special session on conference theme)

Ewa Komorek (Trinity College Dublin):
The problem which will not go away. Recent developments in the EU approach to media pluralism issue

Dimitrios Doukas (Belfast):
The Sky is not the (Only) Limit – Sports Broadcasting without Frontiers and the European Court of Justice

A2: 16.00-17.30

Alan Durant (Middlesex):
The DPP’s Interim guidelines (December 2012) on prosecuting communications via social media

Damien McCallig (Galway):
Intrusion into private grief: regulating the reporting and presentation of deceased persons in the modern media

Paul Bernal (East Anglia):
Defamation on Twitter: a defence of ‘responsible tweeting’

Wednesday 4th September

A3: 9-10.30

Yik Chan Chin (Hong Kong Baptist) & Yanbin Lu (Nottingham):
Defenses of Freedom of Expression in Chinese Right to Reputation Lawsuits

Päivi Tiilikka (Helsinki):
Margin of appreciation and balancing-criteria in the practise of the ECtHR when balancing the freedom of expression and right to private life – is there any consistency?

Jason Bosland (Melbourne)
Defamation, Statutory Reform and the Protection of Opinion in Australia and the United Kingdom

A4: 14.00-15.30 (Leveson Inquiry session, chaired by Tom Gibbons, Manchester)

Paul Wragg (Leeds):
Freedom of the Press after Leveson

Judith Townend (City):
An uncertain climate: Defamation, privacy and the resolution of disputes outside the courtroom

Karen Mc Cullagh (East Anglia):
Regulation of Investigative Journalism post Leveson

Society of Legal Scholars, Media & Communications 2013 CFP

I am pleased to invite proposals to present papers in the Media and Communications subject section at the annual conference of the Society of Legal Scholars, which has the theme of “Britain & Ireland in Europe, Europe in Britain & Ireland” and takes place at the University of Edinburgh (3rd-6th September 2013).

If you would like to present a paper in this section, please send me your proposal (consisting of title, details of the author(s), and a provisional abstract or description) by 8th March 2013. Decisions will reach you by 22nd March 2013. My email address is here.

The media and communications section falls in the first half of the conference (Group A: 3rd & 4th). There are four 90-minute sessions available with two (perhaps three) speakers per slot.

Given the theme of the conference, I intend to facilitate one session on EU media and communications law. Please indicate if you would like your paper to be considered for this panel.  However, papers need not be on the conference theme at all.

Academic papers are invited on any area of media and communications law, including (but not limited to):

  • the regulation of broadcasting (in the UK, Ireland and/or elsewhere)
  • defamation and reputation, including proposed legislative changes
  • privacy / breach of confidence
  • freedom of expression and information in the context of media and
  • communications (for example, content regulation)
  • telecommunications law and policy
  • media ownership and pluralism
  • responses to the report of the Leveson Inquiry
  • competition and the media and communications industries
  • the laws, practices and codes affecting journalism (e.g. contempt of
  • court, subterfuge, court reporting, recognition/status of journalists)
  • the control of marketing, advertising, and sponsorship
  • contract and rights issues affecting the media and communications sectors
  • (for example, television coverage of sporting events)
  • universal design / access in relation to communications
  • language and minority rights and the media

Please note the following important information:

1. Speakers are permitted to present more than one paper. However, if you are offering more than one paper to this Conference, please say so when you submit your proposal. This is to enable better planning of the programme.
2. Those presenting papers will be expected to provide a final abstract of their paper for the paper bank (on the SLS website).  At the very latest, this will be required by the end of July.
3. There will be, as usual, a prize for Best Paper; a full paper must be uploaded by 5pm 26 August 2013 and not be published, accepted or under consideration elsewhere, in order to be eligible. Further information and full regulations can be obtained from the Society.
4. You are also reminded that all speakers and delegates will need to book and pay for the conference in due course.

I look forward to receiving proposals. Please feel free to forward this call to your colleagues and to appropriate mailing lists, and to contact me if you wish to discuss a proposal before you submit it.

Open access doubts

The editorial in the December 2012 issue of SCRIPTed: A Journal of Law & Technology is written by me, along with Dr. John Sheekey (a mathematician who also happens to be my brother).  In our piece, ‘All that glitters is not gold, but is it diamond?‘ (2012) 9 SCRIPTed 274, we respond to the proposals for open access academic publication in the UK and elsewhere.  While you might expect that we would welcome proposals to make the results of research more widely available, particularly when so many articles require payment or a subscription, we argue that the current proposal in the UK, and similar proposals elsewhere, have the potential to cause serious harm to scholarship, particularly in the disciplines in which we work.

The biggest threat is the proposal that publicly funded research (and possibly work submitted to future research assessments) be published in open access journals, funded through the device of ‘article processing charges’ (APCs) paid to journal publishers.  This system, where an author would need to come up with thousands of pounds in order to secure publication of her or his work, does not encourage early career scholars, and it raises serious questions about the incentives to accept submissions (in terms of journal editors).  Instead, we argue for the ‘diamond’ system to be given more attention.  This means journals which neither charge a subscription nor an APC, but may be funded directly by a research council or an institution.  Indeed, this model, rather than the APC model known in much better funded disciplines, is already becoming significant in both law and mathematics.  We suggest that it could form a part of a strategy towards genuine open access.

You can read the editorial here.  And remember, if you are interested in contributing to SCRIPTed, see here.

On the map

When we were both at UEA Law School, Prof. Mathias Siems (blog | web | @siemslegal) and I started working on an article on legal research – seeing it as having affinities with practical, humanities and social science approaches.  We presented it at UEA and Mathias also presented it at a number of other fora. It continued after both of us moved on – Mathias to Durham and me to Edinburgh – and it has now been published in the Cambridge Law Journal.  Complete with charts and diagrams (including a ternary plot we are particularly attached to), and for those who like such things, our data is published in an online annex.  We considered the question from a number of angles, including review of literature (on legal education, methodology and related issues), across different jurisdictions, data (which we collected) on the faculty structures of law schools in the UK, analysis of the role of research councils and associations, and a pilot survey on self-identification of research methods.  When I’ve spoken about it (e.g. at breaks in conferences!), people seem interested, so I hope you enjoy the final result.

That result is the article, Mapping Legal Research (2012) 71 Cambridge Law Journal 651.  A slightly earlier version is available on SSRN (without charge), with the annex included in the file: get it here.  And finally, the abstract:

This article aims to map the position of academic legal research, using a distinction between “law as a practical discipline”, “law as humanities” and “law as social sciences” as a conceptual framework. Having explained this framework, we address both the “macro” and “micro” level of legal research in the UK. For this purpose, we have collected information on the position of all law schools within the structure of their respective universities. We also introduce “ternary plots” as a new way of explaining individual research preferences. Our general result is that all three categories play a role within the context of UK legal academia, though the relationship between the “macro” and the “micro” level is not always straight-forward. We also provide comparisons with the US and Germany and show that in all three countries law as an academic tradition has been constantly evolving, raising questions such as whether the UK could or should move further to a social science model already dominant in the US.