Lex Ferenda

With permission, here is a recent email I received from the editors of the Hibernian Law Journal.  You can contact the journal via email.

Established in 1999, the Hibernian Law Journal is a legal journal co-ordinated by trainee and qualified solicitors. Its multidisciplinary focus facilitates detailed argument and discussion on a wide range of topics such as e-commerce, environmental law, the European Convention on Human Rights, intellectual property, public private partnerships, criminal law, child law and financial services law. All legal topics of domestic, European and international law are considered provided that they are relevant in an Irish context.

The Editorial Committee is now accepting submissions for the 2013 edition. The Hibernian Law Journal offers an excellent opportunity for legal scholars to have their work published in an academic forum.

The following guidelines apply to submissions:

• Length should be between approximately 5,000 and 15,000 words.
• The article must not have been published elsewhere, although the article may be a thesis which is bound and catalogued in a university library.
• The topic should be thoroughly researched and footnoted.
• Articles may be on any legal topic of interest to the author.
• Articles are due by 31 October 2012 (although exceptions may be made in individual circumstances).

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.

I’ve written about the (Irish) Copyright Review Committee for the excellent IP Osgoode blog.  You can read the full post here.  Remember, the deadline for submissions has been extended to the end of May, so please consider answering some or all of the Committee’s questions.  Learn more about how to participate here.

So, the Dail (lower house of parliament) debated the proposed changes to Irish copyright legislation yesterday (Tuesday).  Over the last ten days, this has become a very significant debate.  The Irish Times has published a number of articles: by Noel Whelan (a political journalist), Karlin Lillington (a technology journalist) and TJ McIntyre (academic and solicitor).  I wrote about this legislation on Tuesday, and proposed four steps which I believed would improve the legislation.

Having watched most of, and read all of the transcript of the debate (and a lively Twitter stream on the #sopaireland tag), I’m pleasantly surprised to be able to say that all four points were touched upon at some stage (no credit to me – others made the points in various fora). On the other hand, none of the four were implemented, so there you go.

In the meantime, a well-drafted proposal for an alternative statutory instrument was issued by Catherine Murphy and Stephen Donnelly (with support from the above-mentioned TJ McIntyre and solicitor Simon McGarr.  I would endorse their proposal, because it clearly meets the two substantive criteria from my original post (sunset clause and clear Scarlet safeguards), but more importantly because it would provide reassurance to users and intermediaries about the extent of the power while still allowing action to be taken where there is a demonstrable necessity for such.  The key provision of the Donnelly/Murphy proposal is proposed section 40(5A)(e): ‘An injunction under this subsection shall not be granted unless the court is satisfied that the injunction will distinguish adequately between infringing material and lawful content so that it will not lead to the blocking of lawful communications.‘ As well as what it obviously does in terms of over blocking, the use of ‘satisfied’ and ‘adequately’ would require a court to give proper consideration to the technological efficacy of a proposed action.  There are other important procedural devices included in the proposal, such as the notification of the Data Protection Commissioner and the treatment of costs.  It should be emphasised that recital 59 of Directive 2001/29 (which is the basis for this legislation) provides, in black and white, that ‘the conditions and modalities relating to such injunctions should be left to the national law of the Member States.’  I’ll say that again. ‘The conditions and modalities relating to such injunctions should be left to the national law of the Member States’.

Imagine my surprise, then, when the debate concluded with this comment of the Minister leading it.  ’I will also defer to their legal advisers on this so that we can have a strategic conversation about how the future of the web operates in the State, but we are not changing the wording of the statutory instrument.‘  To me, this demonstrates exactly why the path of primary legislation should have been chosen, as it would have allowed for a proper consideration of alternative wordings.  Indeed, one may reasonably assume that it had been decided before the debate began that not a word would be changed; sadly not unusual in contemporary parliamentary proceedings but a real shock to those drawn to this debate because of its subject matter and a disappointing result to what was shaping up to be a useful exchange of views on law and technology.

The debate itself did include a decent discussion of the issues (aside from cheap shots about keyboard warriors – yawn).  I think the repetitional risks associated with hasty and overbroad legislation were well explained, and the impact of Court of Justice decisions was also recognised (although the argument that there is no need to legislate because the jurisprudence is clear didn’t persuade me – there are pages and pages in statute which set out things that are already in the case law).  And, by the standards of the debates on technology I have seen over the years, it was fairly well-informed.

I would like to point out that the discussion of the position of hosts was not as complete as it should be, though.  It seemed to be suggested (on a number of occasions) that as long as a host was acting in accordance with notice and takedown (i.e. article 14 of the E-Commerce Directive), they would have nothing to fear.  That’s not the case, though.  The key debate (including at European level) is about how the requirements for injunctions etc affect the protections for intermediaries of articles 12-14 E-Commerce Directive and article 5 of the Copyright Directive.  In the Scarlet case, for example, the ISP should have been protected by article 12 (which is much stronger than article 14) and article 5 Copyright Directive, but this was under threat (much less after the decision).  A host that doesn’t abide by notice and takedown (or a service provider not within the terms of articles 12/13) runs a serious risk of being subject to liability in general, so the injunction is less relevant to them anyway – they have much bigger things to worry about.  Oh, and there was a lot of confusion between notice and takedown and user codes of contact – they are actually different things and sites are not required to have the latter in order to benefit from the former.  At all.  In short, the claim that the injunction does not affect hosts is not proven in the slightest.

Aside from the above, I reiterate my call for the Copyright Review Committee to be consulted and the submissions received by the Department to be published (in accordance with the official policy on consultations* – their requirement, not mine).  I can’t see the harm it would do.

[* this is offline, but it was OK a couple of days ago; it's still showing up through a Google cache here]

This week has seen a debate break out in the press and parliament of Ireland ( and beyond) on the familiar question in copyright law of injunctions sought by rightsholders against intermediaries. This is never an easy question, as there are possibly contradictory objectives included in legislation (legal and commercial certainty for ISPs, flexibility for rightsholders, the free speech, privacy and consumer interests of users, and more), as well as dispute on the effectiveness of proposed technical remedies. The wide interest in the proposed Stop Online Piracy Act (SOPA) in the US has, unsurprisingly, increased the attention paid to the Irish proposal.

Things have moved quite fast this week, so I don’t intend to go over the whole story: you can get that here from the Stop SOPA Ireland website and the Department of Jobs, Enterprise & Innovation statement. Instead, I offer a proposal for how the matter should be dealt with. My feeling is that the current proposal lacks detail, even compared with the unsatisfactory section 17 Digital Economy Act (which as some might recall was a response to a poorly drafted first attempt at such a clause, and hasn’t yet been implemented through the necessary statutory instrument). But I have some confidence that if the four procedural steps I recommend here are adopted, that concern can be dealt with.

1. The matter should be dealt with by primary legislation, i.e. an Act of the Oireachtas. Although there is a power to implement EU directive by way of statutory instrument, this is not a requirement. Due to the significance of the matter – and the strong statutory basis for copyright law in Ireland (the 2000 Act was debated at length) – the full application of the parliamentary process in the Dáil and Seanad (including committee stage) is appropriate.

2. The implications of the Court of Justice decision in SABAM C-70/10 need to be considered. The decision that the proposal responds to is EMI v UPC [2010] IEHC 377 (the Irish High Court) which precedes the SABAM decision. Would the High Court have said the same if it had seen sight of SABAM first? Well, it does cite the questions in SABAM and summarises the finding in the Belgian court. (It has however always puzzled me why the ECJ’s Promusicae C-275/06 remarks on the balance between rights was not discussed). The Minister is clearly aware of the importance of SABAM (see his press statement), so that’s a good starting point. As it happens I think that SABAM is more of an obstacle than he appears to recognise, but opinions may vary. Of course, the English decisions in the Newzbin litigation and the judicial review of the DEA should also be assessed.

3. The Minister should (a) publish all submissions received in response to the summer 2011 consultation on this matter (the consultation question was online but is no longer online; the responses have not been published), and (b) seek the formal advice of the Copyright Review Committee (which will report this year on its wider review of copyight and innovation). [Note that the public body consultation guidelines in Ireland provide that 'It is good practice to publish a list of the submissions received, summarising key messages and specific suggestions. Where possible, it is good practice to publish all submissions received, subject to considerations of confidentiality and / or defamation']

4. With these three points in mind, any resulting legislative change should come into force along with any changes made as a result of the Copyright Review. This is because copyright law is ultimately a compromise between different interests and needs and to take a step as big as the one that the Government proposes here in advance of (what might be) other substantial changes to different parts of the ‘mix’ would assign undue priority to one set of interests. If there is no alternative to a speedier solution it should still be by way of primary legislation but with a sunset clause (i.e. that the legislation would not be valid beyond a specified point).

This matter comes before the Dáil for debate next Tuesday. If anyone wants to take up my four-point proposal, please do so.