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)!

Cyberlaw at the Society of Legal Scholars

I’m at the annual conference of the Society of Legal Scholars, where I’ll be convening the Media & Communications section later in the week.  Yesterday, though, I had the pleasant opportunity to sit back (or lean forward) and listen to the papers in this year’s ‘cyberlaw‘ section.  Here are some comments on the papers (not all I’m afraid due to coming and going from the room).

Uta Kohl (Aberystwyth): on intermediaries.  Currently working on a ‘trilogy’ of articles on connectivity, navigation and hosting Intermediaries. There are two theoretical influences here: Spar’s work on phases regulation (e.g. from Ruling the waves 2004) and Foucault’s use of Bentham’s panopticon work.  Intermediaries are key to the system, ie you cannot have regulated online environment without the regulation of intermediaries. They are key players in these debates. Connectivity, navigation (a key facilitator) and hosts. Judges taking a different approach to what they can ‘make’ intermediaries do. Attractive because there are so few of them. Also in transnational context.

There has lately been a change of regulatory mood; specifically mentioned the 9th Circuit decision re roommates.com and the comments on unfair advantage over offline equivalents. In general, immunities are hardly ever used, preference for general law of the land.  Use general law to favour intermediaries instead of the special provisions, or don’t find them applicable at all. Integration into economy supports Spar hypothesis.  Noted that full paper reviews different topics e.g. defamation, copyright, competition.  In the case of copyright, liability and blocking obligations are being separated (Newzbin and EU law) and there are other developments (Australian cases).  Existence of Cleanfeed influences copyright changes.

Paul Bernal (UEA): on the right to be forgotten in the US, EU and UK.  There has been a tension between EU and US in this field for a long time (with the UK quite confused).  In the EU this is a key aspect of proposed reform of data protection, protecting individuals in the face of (US) corporate power. From US perspective this is a threat to free speech and the end of the Internet as we know it, e.g. Rosen in Stanford Law Review. UK is resisting the right given its existing doubts about both privacy or free speech.  So who is right? Paul talked through the actual text and argues more like a right to delete than to be forgotten.  Important is the obligations it places on others, but also be aware of all reasonable steps clause re links etc. Is this ‘seek and destroy’? What about search engines? US free speech arguments relevant here, but more broadly (i)is data speech? (ii) Held vs published (iii) Links vs data (iv) significance of ‘journalism/art/literature’ defence.

Notes that if data protected by copyright, there is already a takedown option. Data as an IP right? Objections and constitutional issues both present. Ultimately it is more about free enterprise than free speech.  Those targeting products at EU are within scope.  And although the UK does not focus on privacy and expression there is an interst in bring a good place to do business! For example, MoJ consultation focused on businesses and the burden that it would create. Would require work eg privacy by design but also challenges the business model based on keeping data.

Damien McCallig (Galway), on his ‘digital remains’ project, specifically the deceased and data protection today.  In some jurisdictions the protections of data protection law are transformed upon death. Data subject defined as natural person? The A29 Working Party opinion on concept of personal data as personality, i.e. birth to death.  He reviewed the history of data protection law with a particular focus on the Council of Europe convention 1981; it is only in 1992 that natural person is used but that was so as to exclude legal persons. Conclusion is that there is no bar to inclusion.

Within the EU: 12 include, 4 express exclude, 10 say natural persons (presumed exclusion), 1 x 30-year limit.  But even within those that do recognise, there is a lack of consistency.  Ireland and UK  start with the common law proposition that the dead have no rights. Strong criticism of inclusion in Parl Ctee work implementation of directive in the UK. In Ireland it did not arise in parliamentary debates until 2003 revision. Government said no demand at first consultation but this clearly not true.

Proposed EU regulation followed same language although latest draft would mention living persons at the urging of Sweden (which currently excludes). Pressure to finalise soon (perhaps even during Irish presidency).

Michaela MacDonald (Queen Mary) discussed virtual assets, within environments ranging from Facebook to Second Life to World of Warcraft.  Key problems associated with virtual currency purchased with real-world currency and then used as means of exchange.  However the regulatory dimension includes EULAs (contracts of adhesion).  The focus of the talk was theft-related incidents and decisions (Chengwai situation in China, R v Mitchell in UK, Dutch supreme court consideration of Runescape).

Kim Barker and Olga Jurasz (Aberystwyth) – misogyny in gaming. While there is some awareness and discussion of explicit content there is also a need to consider predation, violence, etc.  This is in public eye again for various reasons (including Habbo Hotel investigation on C4), and also targeting of women (e.g. Anita Saarkesian, had Tropes vs Women Kickstarter project, drew extreme reaction including abuse on wiki page and even game to ‘beat up’ her image. While there is some work on cybercrime (Brenner, Kerr etc) that assists in understanding, and old situations from Internet studies (LambdaMoo), new situations emerge (ageplay in Second Life).  A key problem is that cybercrime (including academic work) focuses on different issues ie property, pornography.  The problems they have found are rooted in virtual real world framework but same problems re enforcement, public attitudes, etc.

So we must be aware of selectiveness in regulation; some issues (children) receive attention in the Cybercrime convention so why not violence against women, do we pick and choose?  Then, some comments on virtual harms and the dispute over violent acts in virtual worlds, with responses ranging from catharsis to online/offline mirroring (specific mention of Ryan Chinnery’s conviction).  What would the impact be of a human rights framework or even language?  Discussion too of Jessie Daniels’ Cyber Racism.