Lex Ferenda

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.  Sorry, this is the longest one.  I hope it’s worth it.

Much commentary in the lead-up to the publication of the report was on what sort of regulatory system would be recommended.  The report outlines various aspects of a new regulatory system, which would be different from that of the PCC, as well as the proposals put forward by those associated with the PCC and with newspapers.  But actually, we are not sure what model is being recommended yet.  In my view a key feature of regulation must surely be the method of oversight, and it is this particular point where important details are left for a later stage.  The report proposes that Ofcom (and by saying so, ruling out the idea that it would be Government or a Minister) plays a role in recognising an independent regulatory body but how that relationship is to proceed is not yet clear.  The criteria are (to some extent) set out, and it would appear as if the designation would be on the lighter side, i.e. no obvious monitoring role for Ofcom, and the ‘backstop’ (as in place for broadcast advertising) would not be present at first, although it is recommended that Ofcom would be best placed to be involved in that process.

On the other hand, what we do see is many statements on the importance of independence.  The language of self-regulation is also used quite extensively.  I’m watching the summaries and reactions carefully as how this is received and reported is going to be so important.

As for compulsion/incentives there is very positive discussion of the ‘Irish model‘ (pp. 1708ff) and indeed similar proposals regarding the link between subscription to a regulatory body and the use of defences, with some further suggestions regarding arbitration.  I guess the difference in emphasis is that the ‘carrot’ in Irish law is the statutory Reynolds-like defence (responsible journalism), here it appears to be data protection/ICO powers and civil costs (presumably in defamation, privacy etc.). It’s fair to say that if we see methods of co-regulation as being set out on a spectrum, as academics like Chris Marsden have argued, that we don’t have a clear statement in the report on where on the spectrum Leveson would see press regulation sitting.  (This is not necessarily a criticism, as defining that will now fall to Parliament, perhaps).

If I were forming a view on the system (which I can’t without more details), I would also need to know whether decisions of the body would be subject to judicial review and bound to act in accordance with the Human Rights Act.  I should hope so, with penalties of up to £1,000,000 and also the ability to benefit from membership in other proceedings.  For the press, as well as complainants, who guards the guardians is very significant.  Some of this could flow from the method of designation (I won’t bore you with my views on this which I have set out in length), and the report does appear to assume that JR (not sure whether this means ‘old’ style or s 6 HRA) would be part of the scheme (p. 1766), but this could be made even clearer by building it into the statutory underpinning… (To be fair, there is also a very brief mention (p. 1601), in the context of the Hunt proposals rather than the inquiry’s own recommendation, that the industry would be ‘unlikely to contest’ justicability, but that’s far from enough).

I am interested in the question of multiple regulatory bodies.  There is a genuine difficulty in this issue – is a single body the sensible way to have an accountable, understandable system?  Or does (as the BBFC has recently argued, perhaps reflecting its own changing position and role) the existence of multiple regulatory bodies avoid the concentration of power over expression in too few hands?  In the report, it’s not really seen in that way, although it is argued (p. 1779) that more than one regulatory body (in the area under consideration) should be possible but is not advocated and “would (be regarded) as a failure on the part of the industry”.  (But see the recent changes to the Video Recordings Act, recognising two bodies instead of one, so as to separate the video games sector from video/DVD works, which was not really seen in that way; the BBFC or the whole cinema/video/games area isn’t discussed in the report).

There has been some doubt expressed by the Prime Minister on taking forward the recommendations in his speech today.  It’s interesting to see the approach here being about “crossing a rubicon”.  Frankly I think this is a selective reading of the current law, where on one hand we see serious restrictions of press freedom through the law of defamation, contempt of court, official secrets in place, and on the other hand press privileges such as favourable VAT treatment, exemptions from data protection legislation in place.  That rubicon has long been crossed and it is a bit rich for the Prime Minister to suggest that press freedom is currently safe in the hands of the House of Commons.  I am not signed up to the view that the response should be one that satisfies the victims (I’ve never believed that is the measure of law in any other area so I don’t intend to start believing it now), and think that it is unfair to criticise Cameron for failing to honour that sort of promise; however, as this paragraph should make clear, I think the conceptual basis of his approach is dead wrong and potentially misleading.

(For the record, on VAT – the recommendation, following the legal advice of HMRC etc, is that this is not really a viable method of control: p. 1660).

An eye-catching recommendation is a specific statutory provision on the freedom of the press (p. 1780)  This is fairly new to me but I probably missed it in the avalanche of evidence and documents.  I can see it being part of the mandate of a regulatory body for sure, but I’m not sure what it offers above and beyond the existing requirement of article 10 ECHR as referenced in the Human Rights Act.  And two other things: (a) constitutional provisions on press freedom are controversial in terms of the relationship between the rights of the press, rights to expression more generally, and the wide idea of communication rights, and (b) the EU Charter now couples freedom of expression and media pluralism; would that approach be followed here?  The draft here, modelled on that of the Media Regulation Round Table, is called an admirable proposal but not prescriptive as to text.  I think that caution is wise – as drafted, it seems too favourable to media interests and its relationship with Article 10 ECHR and Article 11 CFR is unclear.

Just a point on education and training, which was a big theme in the earliest Leveson hearings, but is not the subject of a specific recommendation after all.  It’s noted (p. 736) that training is increasingly university-based and the importance of training is emphasised.  Would the new press body have a role to play?  I don’t see anything on that but it may be helpful.  Perhaps this is a thumbs-up for existing education but I wonder whether further action will be needed under this heading…

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)!

On Thursday (8th December), a group of academics from seven UK institutions gave evidence at the Leveson Inquiry on the culture, practice and ethics of the press. I was one of the seven heard in what was termed a ‘hot tub’ format – this phrase has provoked much comment; I was vaguely familiar with it (for expert witnesses in trials, particularly scientists) and it does lend itself to interesting (if slightly worrying) images. The others were (in the morning) Steven Barnett, George Brock, Brian Cathcart and Angela Phillips, and then (alongside me in the afternoon) Julian Petley and Ian Hargreaves (yes, same Hargreaves as the Hargreaves Review, as a number of people have asked. No, I didn’t say thank you for the report, although I am a big fan of it). Each session opened with a discussion on journalism/media education and segued neatly into a broader discussion on the inquiry’s work, particularly regarding regulation of the press.  We were asked to answer polite (and very well informed) questions from the two counsel (David Barr & Carine Patry Hoskins) and Lord Justice Leveson  himself.

All three of the afternoon witnesses were there for the morning, so we had a good opportunity to see what our colleagues were saying – particularly the useful debate between Barnett and Brock on models of media regulation and the role of statute. It was interesting to watch the Inquiry go about its business – serious but not overly formal, and a technology-infused room (transcribed text appearing on screens, each lawyer with a computer in front of them, iPads and smartphones in circulation, and of course the fixed (and indeed unobtrusive) video cameras dotted around the room, linked to the live stream on the Inquiry’s website. On this occasion, it’s fair to say that neither Court 73 nor (I’m told) the overflow annex) were packed out – perhaps a day of academics does not have the appeal for others that is has for me! (Not even a Guardian live blog – which according to Charlie Brooker’s Black Mirror defines a serious event – but the Telegraph did have one (and a still of me in full hand-waving mode).

The full details of what we all said can be found in the transcripts: morning and afternoon. As a new lecturer I didn’t have a lead role in the discussion of education, although I was pleased to be able to talk about some of the things we are working on at UEA, particularly the interdisciplinary ‘Media & Society‘ module, and to comment (briefly) on the differences between media law for law students and media law for journalism students. (Lord Justice Leveson also appeared amused (or scared) at my observation that the inquiry itself is a useful part of this year’s media law syllabus). I enjoyed the discussion of the different careers of journalism graduates and the ups and downs of NCTJ recognition in the morning and afternoon sessions – a really useful exchange to review.

My next major intervention was regarding the Press Complaints Commission; this was the bit that made into the end of a Guardian report too. I suggested that some aspects of the Press Council of Ireland could form a part of UK reform – e.g. statutory recognition of an independently constituted Council, the involvement of journalists and not just proprietors, links between the responsible journalism defence to defamation law and Council membership. I also observed (and Twitter users took notice!) that UK publishers had joined the Irish council in respect of their Irish editions; others have made this point before but it does bear repeating. I added that investigative powers would only be appropriate if a press body was appropriately accountable for the exercise of those powers.

Of course, most of the questions directed to me were Internet-related, and it’s where I had the opportunity to put across quite a few points drawn from my research. While I wanted to emphasise that the idea of the lawless Internet is inaccurate (and has been for some time), I also discussed the importance of clear laws that individual bloggers etc could understand (and possibly be protected by akin to journalists if standards are met), the dangers of encouraging or requiring online intermediaries to be the key location of regulation (or treating them all, from telecoms providers to search engines, as the same), and also the strong points of some community-driven regulation. (Those who have read things I have written in law journals or even on this blog may recognise many of those points, and what I was trying to do was summarise them for the purposes of the Inquiry, which isn’t specifically about online media but will surely be dealing with it under various headings). I did coin an unintentional soundbyte, that hosts should not be the “new arbiter of what is right or wrong”. I also responded (not in much detail due to time) to Julian Petley’s comprehensive paper on freedom of the press vs freedom of expression, which I recommend as a very interesting reading on this topic. Oh, and I defended media studies as an important contribution made by the academic world, but that again won’t surprise readers. And then it was off to the cleverly squeezed in BBC remote studio for a chat with the fine Radio Norfolk : hear the results here (at 1h45m) and the following morning’s studio interview here (at 1h48m).

The Inquiry has a lot of work to do, and it’s running alongside other processes, such as the draft Defamation Bill. I’ve been watching it with fascination and it has been a privilege to be able to contribute. It continues to invite submissions from the public and will shortly be inviting further submissions on the press and the police (module 2).  Based on what I’ve seen so far, its report should be wide-ranging and fascinating, and I hope to continue blogging about it and sending in my written observations in due source.

Human Rights in Ireland is a group blog that contains many useful posts on, as you might expect, human rights in Ireland. I was very pleased to write a guest post for the blog, which has just been published. I’m republishing it here for those who have not already seen it.  I do recommend that you subscribe to the full HRinI feed!

The recent attempt by JP McManus to secure the removal of ‘fake profiles’ on Facebook (reported by the Irish Times on 30 May) through an application for an injunction (struck out after the pages were taken down) is just the latest reminder of the importance of intermediaries when it comes to law and the Internet. In this situation, McManus appears to have been doing something that isn’t difficult to understand – turning to the law to make the offending page disappear from the Web. In the UK, of course, we have seen the last few weeks as a significant time in the development of the law on privacy injunctions, with judges, newspapers and certain Twitter users taking fairly different approaches.

However, it’s far from a new problem. Within the then-novel field of what some called cyberlaw, the middle part of the 1990s was dominated by earnest debates in journals, courts and parliaments on the future of law. John Perry Barlow’s assertiveDeclaration on the Independence of Cyberspace of 1996 told governments they were not welcome in this new world that was governed by its own social contract, dismissing laws on everything from property to identity; ‘they are all based on matter, and there is no matter here’. Many responded by pointing to existing legal principles or forms of technological enforcement. Regarding Facebook, Twitter and other sites, the key resolution of these early debates, which continues to shape their rights and responsibilities as well as those of their users and those their users write about, was in new statutory principles on liability. For example, article 14 of the E-Commerce Directive (2000/31), transposed into Irish law as SI 68/2003, points to a ‘notice and takedown’ approach. This means that Facebook is not liable for – say – a defamatory statement posted by one of its users, as long as it ‘upon obtaining such knowledge or awareness [of the unlawful activity], acts expeditiously to remove or to disable access to the information’. In the case of ISPs acting as ‘mere conduits’ (like your friendly broadband provider), a greater degree of immunity is provided.

The position is a little different in the US, where a distinction is drawn between intellectual property (governed by a notice and takedown system in the Digital Millennium Copyright Act) and other (non-criminal) claims (close to absolute immunity without a takedown requirement, under the Communications Decency Act). Other provisions may also be relevant at a national level, such as s 27 of the Defamation Act 2009 in Ireland on innocent dissemination.

Whatever the position of the intermediary, important rights are at stage. Too much immunity, and the aggrieved person will say that they cannot see their rights vindicated; Danielle Keats Citron also argues that there are consequences for equality. Too little, and the intermediary becomes risk-averse, taking down content at the mere hint of potential possible illegality, as Ahlert, Marsden & Yung’s famous study demonstrated in 2004, with deleterious consequences for the right to communicate. Even where conditional immunity is pursued, there are further questions to be answered – what is expeditious, for example, and does it vary based on the gravity of the situation or the number of people who have retweeted the information? What of providers located in the US without meaningful assets, customers or facilities in the EU? Furthermore, beyond the big issue of liability, hosts may also be faced with Norwich Pharmacal orders, to disclose the name of a user where the host is ‘mixed up’ without fault in the wrongs of others.

Although much of the news coverage of Twitter seems to have glossed over this point, such an order was granted in respect of Facebook as far back as 2008: Applause Store Productions v Raphael [2008] EWHC 1781 para 10. There are some unresolved issues (which the ECJ has hinted at) on the balance between privacy and e.g. copyright enforcement, and of course, there are limits to (a) how tolerant a court is of mass applications and (b) how much information is available (or useful) through this process.

Indeed, the Irish Times also reports that McManus had raised constitutional and data protection claims. Neither are particularly surprising, and it surely won’t be long before an Irish court has the opportunity to try and deal with this balance. The most significant case so far has been about a betting chat room (Mulvaney v Sporting Exchange t/a Betfair [2009] IEHC 133), but that was a fairly straightforward application of the Directive; the various ‘music’ cases did discuss (albeit unsatisfactorily) the need to balance various rights in the context of the claims of record companies against ISPs. Certainly, reliance on Convention rights has been important in the grant of privacy injunctions in England; the recent cases have been about the need for injunctions in the face of disclosure (e.g. CTB [2011] EWHC 1326 (QB)), rather than takedown disputes. However, if the Irish courts see a fully-argued constitutional claim, difficult issues of EU law will need to be negotiated. It must surely be hoped that the current reviewof the E-Commerce Directive will take note of the decade’s worth of development and interpretations and sets out a system for intermediaries, including a method (despite its title) to give thorough consideration to relevant fundamental rights as part of the process, whether they are engaged directly or indirectly.

Here are some first thoughts on how the just-published coalition agreement (Fine Gael and Labour) in Ireland proposes to deal with issues of interest to cyberlaw and media law. I’ve picked out some key issues – no promises that I have covered everything. First copyright (and other IP), then broadcasting, then IT (broadband and cloud computing), then video games, and finally the Constitution. Your thoughts welcome. (Noting of course that this is not a government until the Dáil meets to nominate one!)

We will pioneer within the EU a model of ‘fair use’ in European Copyright Law, like in the USA, which effectively permits the use of portions of a copyrighted work so long as the normal economic exploitation of the originating work is not undermined. This will allow internet companies and other digital innovators to bring their services to market.

Ireland’s current legislation on copyright provides for specific fair dealing exceptions, such as regarding “fair dealing…for the purposes of research or private study”. This can be contrasted with the US ‘fair use’ test in section 107, setting out four factors to be considered: what in shorthand I still refer to as purpose, nature, amount and effect, although the tests themselves are more eloquent.

This proposal is similar to (but appears more committed to) the discussion in the November announcement of the Hargreaves Review by David Cameron in the UK. In Cameron’s case, specific reference was made to the suggestion that Google could not have set up in the UK due to the law on fair dealing – a claim that has been deconstructed by many since. The commitment here though also recognises that the current law in the EU is based on an extensive fair dealing approach (i.e. statutory exceptions, with Member States getting to pick and choose – parody, for example, is permissible as an exception under the directive but not found in UK/Irish law), and therefore a change away from exceptions towards US-style factors. If the UK does end up deciding in favour of fair use, then that’s two states lobbying for it. However, there are also some downsides (even from the point of view of facilitating innovate uses) of the US system – it’s still a bet whether the ‘unpredictable’ factors can end up broader than the ‘predictable’ exclusive exceptions.

We will develop a National Intellectual Property (IP) protocol to give predictability about the terms on which business can access IP created in Higher Education Institutions and the wider digital sector.

This is the old Bayh-Dole problem – who owns university-related IP and how does commercialisation happen? and has also been debated regarding ‘fourth-level Ireland’. A protocol might make sense although its existence doesn’t point one way or the other at this stage.

We will support the development of an International Content Services Centre to make Ireland world leader in managing intellectual property.

This one has been on the go for some time in Ireland – in the report on Technology Actions to Support the Smart Economy (available as .doc) (Damien Mulley’s reaction to the press conference remains worth quoting), as an International Innovation Services Centre in the 2010 report of the Innovation Taskforce, and not forgetting Neil Leyden’s successful Your Country Your Call bid.

We will review and update Intellectual Property legislation currently in place to benefit innovation, develop a National Intellectual Property protocol to give clarity about terms on which business can access IP created in Higher Education Institutions, and clarify legislation relating to online copyright infringement and enforcement of rights relating to digital communications.

As well as repeating the university and fair use points above, the last point refers to the current debate on ‘three strikes’, particularly the alleged lacuna identified by the High Court in EMI v UPC last November. As in the UK, how a Government can both extend and restrict the growth of copyright in a digital context will be fascinating to watch. If the intention is to facilitate emerging creative platforms and business models (through fair use), new powers to protect IP online may create new risks and threats. On the other hand, those who might welcome new legislation on online infringement could be concerned about how fair use would affect exploitation of rights, as we see whenever Google Books is debated.

We will examine the role, and collection of, the TV license fee in light of existing and projected convergence of broadcasting technologies, transform the TV licence into a household-based Public Broadcasting Charge applied to all households and applicable businesses, regardless of the device they use to access content and review new ways of TV licence collection, including the possibility of paying in instalments through another utility bill (electricity or telecom), collection by local authorities, Revenue or new contract with An Post. We will review the funding of public and independent broadcasters to ensure a healthy broadcasting environment in Ireland. We will maintain the current regime with regard to the Heineken Cup.

This is really it in terms of conventional media issues and that itself suggests a mixture of innovative (a public broadcasting charge, not associated with the ‘television set’ as TV licensing and radio licensing before it has been) and stand-still (nothing of any detail on public broadcasting, for example). Nothing on EU-wide issues in this case (as compared with copyright), except for the amusing reference to the Heineken Cup (the previous Minister had proposed listing these rugby events under the Major Events Directive but this (to my knowledge) has not been confirmed, so I read the reference here as meaning that this event will not be designated.

We will mandate the regulator to require all broadband providers to publish average speeds for each package.
We will restrict misleading advertisements relating to monthly caps.
We will introduce a new government rating system so that home owners and tenants can assess broadband facilities easily.

This is what we have on broadband. All sensible if not particularly dramatic.

We will make Ireland a leader in the emerging I.T. market of cloud computing by promoting greater use of cloud computing in the public sector, organising existing State supports for cloud computing into a package to promote Ireland as a progressive place for I.T. investment, establishing an expert group to address new security and privacy issues arising from the use of cloud computing and reviewing the adequacy of current legislation and identify what steps need to be taken to ensure a supportive regulatory environment.

Indeed, more on the cloud than on broadband suggests an interesting shift in the debate. The second half of this is more enduring than the first – a full review of the law on cloud issues, if properly mandated, could be an important piece of work for Ireland and for other states.

We will support our indigenous digital game industry by reforming R&D supports available to the industry, setting aside funding from Innovation Fund Ireland for a seed capital scheme for Irish digital gaming start-ups, introduce a digital media component to Transition Year programmes and promote Ireland as digital gaming hub.

Not particularly specific, but will this include tax breaks? Again, given the debate on this in the UK, we can see some positioning going here. For non-Irish readers: Transition Year comes between Junior Certificate (age 15) and Leaving Certificate (age 18, pre-university) study and often has more of a skills or employability focus than the general curriculum. Finally – I do not know exactly what the ‘digital gaming hub’ might be, but it sounds interesting…

Finally, a Constitutional Convention will consider various issues, including the removal of the constitutional reference to blasphemy (good) – and other unspecified issues, which might (or at least, I hope) include long-stalled reform of the law on freedom of expression.