Tag Archives: internet

Computers and the Coalition

This is a summary of a talk (at some point soon to be a full article) given at the launch of the Centre for Law & Information Policy on 25 February 2015.  (I am a member of the Centre’s advisory board). I wrote it up afterwards, so it’s less of a speech and more ‘what I think I said’. For a note and reflection on the talk itself, see Ray Corrigan’s post here. Further comments welcome, especially on things I’ve skipped / missed.

Introduction

As we approach the 2015 General Election in the UK, and mark the launch of this new Centre, it seems appropriate to look back on the record of the outgoing Coalition government regarding law and information policy.   The agreement between the Conservative and Liberal Democrat parties specifically emphasised the importance of information and of technology on a number of occasions, as I will highlight where appropriate. Beyond specific commitments, other issues of significance and controversy emerged during the lifetime of the Government.  It’s fair to say that this administration has been perceived (at least at times) as engaged with questions of law and technology, but is that an accurate observation?

I have reviewed the legislation adopted by Parliament during this period, referring back to the Coalition agreement where appropriate. I have also considered the more significant instances of secondary legislation and policy documents, including EU measures (but primarily those measures where Member States had some discretion in implementation or where there is a meaningful link with a national-level debate or controversy.

I group the work of the Coalition into four categories: rollback, rebalancing, re-regulation, and projects.

Rollback

My first category of Coalition activity can be described as ‘rollback’, on the grounds that the avowed intention of the Government was to repeal or substantially amend existing legislation and/or practice.  Typically, these changes were flagged up in the Coalition agreement, and appeared in one (or both) of the party manifestos.

An early piece of relevant legislation was the Identity Documents Act 2010. This repealed the 2006 legislation on identity cards, as part of the Coalition’s commitment to abandon the scheme. Not only was the legislation adopted, but the responsible Minister (Damien Green) was pictured assisting with the physical destruction of hard drives on which ID card information was stored.

A broader package of changes, again highlighted in the Coalition agreement, was included in the Protection of Freedoms Act 2012. This Act included provisions on DNA retention, biometrics, oversight of CCTV, and amendments to the Regulation of Investigatory Powers Act (RIPA) 2000. Perhaps these are not true ‘rollback’ in isolation, but the deliberate packaging of them in legislation on freedoms demonstrates the high water mark of the libertarian strand of thinking in the Government.

However, evidence of this approach is not only found in big-ticket legislative proposals. Take for example the changes in the Enterprise and Regulatory Reform Act 2013 sch 21, and related secondary legislation, removing the duty on television retailers to record and report the details of customers (to support the TV Licence system).

A good example of a rollback amendment, albeit not included in the Coalition agreement and not yet in force, is the proposed repeal of sections 17/18 Digital Economy Act 2010. These provisions, adopted in the very last days of the previous Parliament, were a move towards a statutory system for Internet blocking injunctions. However, in practice the expansive interpretation of section 97A CDPA 1988 (inserted in 2003), and latterly the use of wider powers (in the context of EU legislation), has meant that such injunctions are readily available against ISPs, on the application of affected rights holders. Ofcom was in 2010 critical of the feasibility of these provisions (in response to a request from the new Government), and the Government committed in 2011 not to implement them and then in 2012 to their repeal. The Deregulation Bill, which remains before Parliament, would do this.

Rebalancing

My second category is ‘rebalancing’. In this category, we find major, established areas of private law, where the Government has researched and/or successfully proposed changes that, taken as a whole, amend the balance between the different interests affected by the law in a clearly demonstrable fashion.

The first such example is the Defamation Act 2013. The Coalition agreement included a commitment to “review libel laws to protect freedom of speech”. Thus, both the intention and purpose were connected. The resulting legislation was indeed a reform project with a goal in mind, rather than a general review/update. The new provisions, including single publication, jurisdiction, yet another form of protection for Internet intermediaries (including the newly minted ‘operator of a website’), and changes to the threshold for making out the cause of action, generally favour the interests of libel defendants. These changes were not without criticism, but were broadly welcomed and supported by interests including publishers, journalists, and scientists.

In copyright law, the Government set up the Hargreaves Review, which built on the work of the Gowers Review under a previous administration. This was not the only IP project (see for instance the Intellectual Property Act 2014 on designs and patents, or the provisions of Part 6 of the Enterprise and Regulatory Reform Act 2013 on performances). However, the long gestation of the changes (eventually adopted by statutory instrument in 2014) points to the significance and controversy of the project. These changes included a new statutory exception for works of parody, caricature and pastiche, various protections for libraries, archives, cultural institutions and educational institutions, and a scheme to allow private copying without remuneration (which is under challenge).  Broadly, these changes restrict the exercise of exclusive rights under copyright law, although many were supported by technology industries. The freedom of action of the Government was constrained by EU law, so the new provisions are within what is permissible under the Information Society Directive. Nonetheless, the whole package – and the extensive economic evidence assembled during and after Hargreaves – is a lasting contribution to the field of copyright.

Before leaving this category, one could also consider an area of public law – the proposed Privacy and Civil Liberties Board, which is provided for (subject to future secondary legislation) in the Counter-terrorism and Security Act 2015 s 46. This Board, which was proposed during discussion of data retention legislation (see below), would allow the Home Secretary to appoint a board (mandate to be set out by statutory instrument) to support independent reviewers of terrorism powers. Its inclusion in counter-terrorism legislation is semantically uncomfortable, but does assist the scholar in categorising it as an attempt to address the perception that one set of interests (security) dominates over another (privacy) and requires rebalancing.

Re-regulation

My third category is a more controversial one, re-regulation. In the later days of the Coalition, it has put in place a number of areas that add new forms of regulation in respect of the use of the Internet – often reversing or significantly departing from provisions adopted under predecessor Governments.

One cannot avoid starting with the controversial, speedily-adopted Data Retention and Investigatory Powers (DRIP) Act 2014. Introduced ostensibly to fill the lacuna following the Court of Justice of the European Union (CJEU)’s finding that the Data Retention Directive was not valid due to infringement of fundamental rights, it readopted in primarily legislation much of the secondary legislation initially introduced as transposition of the Directive. A number of further changes were made. The legislation was given limited consideration by Parliament in summer 2014, and the author signed a letter critical of both its provisions and the lack of time available for its consideration. Already, however, it has been extended by way of s 21 Counter-Terrorism and Security Act 2015, which provide in effect for the further retention of data that will allow the association of devices with IP addresses.

An even clearer example of the Government’s changing approach to the Internet is found in the Audiovisual Media Services Regulations 2014. These provisions amend the scheme for regulating on-demand services, which were put in place in 2009/10 following the 2007 AVMS Directive. While the UK had been a vocal critic of the perceived over-regulation of on-demand services at the time, these new provisions (essentially applying BBFC standards on explicit content to on-demand services) go well beyond those in other EU states. The issue of restricting access to and in some cases prohibiting outright online video services was a matter of some concern to the Department for Culture, Media & Sport, including a request for input from Ofcom, regular updates (and exercise of existing powers) by the designed co-regulatory body ATVOD, and ongoing consideration of how far the UK could go without contravening the Directive.

Similarly, the Gambling (Licensing and Advertising) Act 2014 was an attempt to put in place, within the bounds of EU law, further restrictions on online gambling. The Gambling Act 2005 facilitated the advertising of online services from selected jurisdictions (EU and those on a ‘whitelist’ of countries with sufficiently robust regulatory mechanisms), and did not require providers located outside the jurisdiction to be regulated by the Gambling Commission. As I have written, the 2014 Act reverses both principles; now, where a service is used or likely to be used by users in Britain (if the operator knows or should know that), the Gambling Commission has regulatory jurisdiction. Only services regulated by the Commission can lawfully advertise in the UK. This legislation was unsuccessfully challenged by Gibraltar-based operators, and clearly responded to a degree of tolerance demonstrated by the CJEU in respect of similar legislation emanating from other member states.

Most recently, provisions in the Criminal Justice and Courts Act 2015 will, when they come into force, create or extend criminal offences of some significance. The Act extends the penalty for breach of the Malicious Communications Act 1988. It also extends the scope of the ‘extreme pornography’ provisions enacted by the previous Parliament. This was presented at various stages as a ‘possible loophole’ or ‘loophole’, although the evidence was in my view more nuanced and contested than this.  Famously, the Act also contains a new offence of ‘disclosing private sexual photographs and films with intent to cause distress’ – often, but not entirely accurately, called the ‘revenge pornography’ clause. Although without doubt a difficult and sensitive issue, these provisions were introduced without a committee stage in the House of Commons, and with limited research or consultation. The use of new approaches and definitions is interesting (note the focus upon distress, or the defining of sexual as including something that a reasonable person would consider to be sexual). However, unfortunately it is another example, in Internet-related criminal law, of the creation of a new offence without the methodical consideration of existing offences or an attempt to put in place a meaningful set of workable, understandable provisions. Taking along with the MCA changes and pornography provisions, we see the gradual growth of criminal sanctions in an area that surely demands a proper look (perhaps along the lines of the House of Lords Communication Committee’s 2014 report on social media and criminal offences).

Projects

A final category is major projects – here, I highlight open data, juries, consumer law, creative industries tax relief, local media, and the Leveson Inquiry.

Starting with the big one – open data. This is an area where the Government has been very active, at least in terms of policy statements and reports. The manifesto included commitments to openness in principle and further points of detail. Since then, we have seen a White Paper (2012), a review on public sector information, another review on anonymisation, and more. Open Data Strategies have been adopted at department level, prompted by a letter from the Prime Minister. Data.gov.uk is a repository of data and a shopfront for innovative uses.  An Open Data Institute, with a focus on private-sector activity, has been created. Legislatively, the changes were at a smaller scale. The Protection of Freedoms Act included an amendment to the FOI Act in support of the release of usable datasets. More controversially, the Health & Social Care Act 2012 put in place various regimes in relation to health data, which have already proven to be controversial (e.g. the care.data events of 2014). Interestingly, though, much of the work here has been non-legislative, confirmed by the statement in the 2012 White Paper that “we don’t want to use legislation too readily – that would sit at odds with our core principle to reduce bureaucracy”.

A smaller project, perhaps, is the work that the Law Commission has done on jurors, in the context of contempt of court. New provisions were included in the Criminal Justice and Courts Act 2015, dealing with matters including the carrying out of research by jurors and the use of electronic devices. The Law Commission’s project was wide-ranging, and led to timely legislation.

The consumer law reform project is an interesting one. There wasn’t much detail on this in the Coalition agreement (beyond a general commitment to “introduc(ing) stronger consumer protections, including measures to end unfair bank and financial transaction charges.” Initial steps came in the transposition of the Consumer Rights Directive, which had at one time been a planned overhaul of the EU consumer law acquis, but turned out to be something a lot less extensive. In this gap, then, came the Consumer Rights Bill, which remains before Parliament. The Bill, in line with the recommendations of a number of reports, addressed a long-standing potential gap in consumer law, which has a firm distinction between the sale of goods and the supply of services, without properly addressing the position of ‘digital content’. The new Bill creates a three-tier structure, with much (but not all) of the existing or reframed requirements for goods being applied to the new digital content category.

Creative industries tax relief was the subject of a notable shift in direction. The incoming Government initially abandoned video games tax relief, on the grounds that it was ‘poorly targeted’. However, it subsequently introduced a new relief for games, high-end television and animation. The games scheme was delayed pending consideration by the European Commission, but ultimately approved – and is now in force. Indeed, a follow-up set of changes introduces relief for theatre as well.  As I have written elsewhere, the adopting of this scheme highlights the ability of the Government to promote it within the UK as an industrial measure, while reassuring the European Commission that its objectives were truly cultural.

Local media was an early theme of the Department for Culture, Media and Sport, with the initial Secretary of State frequently wondering why local TV was in a better state in Birmingham, Alabama than in Birmingham, England. Beyond the soundbite, a number of specific changes were made. The Communications Act was amended twice: first in 2011 to liberalise some cross-ownership requirements, and then again in 2012 to put in place a new form of licence for local TV stations; some of them are now up and running.

And then, there was the Leveson Inquiry. Certainly not in the Coalition agreement, as the question of phone-hacking was yet to come to a head. When it did in 2011, the Prime Minister established the Inquiry, and the rest was history. Or was it?  Leveson’s recommendations were acknowledged in part through the inclusion of provisions in the Crime and Courts Act 2013 (linking membership of an approved regulator to the question of exemplary damages for certain media-related causes of action e.g. defamation), and the broadly-worded clause in s 96 Enterprise and Regulatory Reform Act 2013 on the relationship between Parliament and Royal Charters for specific industries. This was part of the Government’s attempt to provide for some measure of press regulation without formal statutory control, although the current Secretary of State at DCMS seems to have stepped back from this approach somewhat. Other areas of the Leveson report, especially on data protection and media pluralism, remain unimplemented at a legislative level.

Conclusion

Finally, I make three general observations, and then highlight some issues to watch in the election campaign and the formation of the next Government.

There was no major legislative project in this field during the lifetime of the Coalition. Open data as a project could be considered as information policy, although the lack of legislative underpinning is surprising for something argued to be so fundamental to a change in the way of governing. With 130 or so Acts adopted since the 2010 election, only a handful relate to information and technology, and often it was only a clause or two that were relevant.

The initial urgency of Coalition libertarianism gave way to a late enthusiasm for Internet (re)regulation.  This is not unusual for governments, and the knee-jerk response to perceived disorder or threat is not specific to the Internet, but it is remarkable how the measures in this field adopted over the last 12-18 months have been characterised by the extension of State power in a whole range of areas.

The Coalition also addressed a range of industries in varying ways. The press was pleased at the Defamation Act and (mostly) pleased with the (limited) approach to the Leveson report. IT industries were well served by changes to defamation and copyright law, but some spoke out against changes to data retention. Some in the creative industries were upset at the copyright changes, but reassured by the new tax reliefs.

Here are a few things to watch out for.

1. Data and information. Eventually, the EU will (should?) adopt the General Data Protection Regulation, which may lead to a debate at national level for other or related issues. A consultation on ‘nuisance calls’ consultation closed in December 2014, so the proposed changes might follow (update: this has now happened). The Law Commission’s project on data sharing has so far provided a scoping report, which sets out very explicitly the complexity of the legislative changes that could be necessary to support this goal. The long-term position of data retention will need to be resolved after DRIP expires, and the Justice Committee’s post-legislative scrutiny of the FOI Act could also be a useful starting point for a future Government.

2. Infrastructure. The Law Commission’s 2013 report on the Electronic Communications Code (which affects the building of networks) was to be implemented through the Infrastructure Bill. However, the provisions were withdrawn and a separate consultation is now taking place.

3. A review of the sharing economy reported in November 2014, recommending various changes to the law (albeit not in much detail, and the handling of the matter was questionable, with the report being written by an ‘independent’ person, the founder of a home-swapping company). Already, the Deregulation Bill contains a specific amendment that supports private short-term letting of property in London (amending 1970s legislation). However, the controversy associated with this field, and the existence of a report, could well keep this on the agenda.

4. Media. Many would have predicted, given DCMS activity and proposals, that this Government would have proposed a new Communications Act. The 2003 Act has been amended (mostly through secondary legislation), and other provisions are politically contentious. Will the next Parliament be asked to consider a Communications Bill?

PS: Subsequently, and quicker than I had expected, the Serious Crime Bill became the Serious Crime Act 2015. This Act contains provisions on journalistic sources (s 83), possession of any item that contains advice or guidance about abusing children sexually (s 69), sexual communication with a child (s 67), and a series of changes to the Computer Misuse Act. In the next version of this work, I’ll incorporate all that…

(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.

Early thoughts on Leveson 1 of 4 – Regulation

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…

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)!

Hot tub time machine

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.