Last year, I was invited to give a ‘response’ to two very interesting papers at a seminar of the British Association for Comparative Law. The papers, by Paula Giliker and Elspeth Christie Reid, were on the evolution of breach of confidence and privacy, primarily in relation to England and Scotland. (Eric Clive wrote up his notes from the day here).
The papers, including a developed version of my comparative comments, are now being published in Juridical Review. A slightly earlier version of my contribution is available on SSRN through the University of Edinburgh School of Law Working Paper Series (here’s the series, and while there why not also download my colleague Judith’s latest paper on big data and small government…).
My article is a short one, and the main thing I hope it does is remind some UK-based readers of the interesting things that have happened in Ireland in relation to the privacy cause of action. I do spent a good deal of space talking about Sullivan v Boylan  IEHC 104, which is a particularly useful contribution to the English and Scottish debates on how to handle the evolving questions of privacy and confidence. I also talk a bit about New Zealand.
Beyond breach of confidence: an Irish eye on English and Scottish privacy law
This article is based on comparative comments (with special attention paid to Irish law) presented at a seminar on breach of confidence and privacy. It is first argued that a continuing uncertainty regarding the role of statute in relation to privacy is common to the development of doctrines in both England and Scotland, with similar anxieties present in other jurisdictions. In the absence of statutory clarity, the questions arising out of debate on the nature of the cause of action, and the consequences of variation in definitions of “privacy”, are considered – with special attention to developments in Ireland and New Zealand. The relationship between the evolution of breach of confidence and the human rights framework is also noted. Finally, the prospects for law reform and/or convergence across jurisdictions in the United Kingdom are assessed.
(Sorry if you expected this post would be about this; words fail me on that subject, I’m afraid).
Here’s a paper by me on the European Convention on Transfrontier Television. Not perhaps the most familiar of legal instruments, but I promise you that it is a story full of mystery and excitement. The background to the work is that the Council of Europe has (had?) a convention on broadcasting, which came out of a great deal of interest in the subject in the 1980s. (The Television Without Frontiers directive of what was then the EEC emerges from the same period). However, after the EU revised its law (the Audiovisual Media Services Directive), the Council tried to do the same.
What happened next took me a long time to unpick (unpack?) and involved a lengthy FOI process with the UK government, a (fortunately more straightforward) access to documents request to the EU, research on the EU’s external powers, and quality time with Council of Europe minutes. And then I presented it (to three different audiences), and had some wonderful colleagues volunteer to read it and give detailed comments.
This version (the ‘Accepted Version’, on SSRN) appears in the Edinburgh Law School Working Paper Series.
“Death of a Convention: Competition between the Council of Europe and European Union in the Regulation of Broadcasting”
If you have access via, for example, a university library, the published version is available here, in volume 5(1) of the Journal of Media Law.
This article considers a dispute between the European Union and Council of Europe regarding their respective roles in the broadcasting field, so as to explain and assess its relevance for the development at the international level of media law and policy. The dispute is a long-running one and dates back to the adoption of the first EEC Directive and Council Convention on this subject in 1989. It is argued that the expansion of the scope of EU broadcasting law and the consolidation of the European Commission’s role in external affairs left little room for the Council to continue to exercise influence over the regulation of the electronic media in the way it has done for some time. The exact nature of the dispute between the institutions, and the response of a vocal member state, is ascertained through consideration of published minutes and internal correspondence, set in the context of doctrinal and political developments. The article concludes with analysis of possible future actions for the Council.
When we were both at UEA Law School, Prof. Mathias Siems (blog | web | @siemslegal) and I started working on an article on legal research – seeing it as having affinities with practical, humanities and social science approaches. We presented it at UEA and Mathias also presented it at a number of other fora. It continued after both of us moved on – Mathias to Durham and me to Edinburgh – and it has now been published in the Cambridge Law Journal. Complete with charts and diagrams (including a ternary plot we are particularly attached to), and for those who like such things, our data is published in an online annex. We considered the question from a number of angles, including review of literature (on legal education, methodology and related issues), across different jurisdictions, data (which we collected) on the faculty structures of law schools in the UK, analysis of the role of research councils and associations, and a pilot survey on self-identification of research methods. When I’ve spoken about it (e.g. at breaks in conferences!), people seem interested, so I hope you enjoy the final result.
That result is the article, Mapping Legal Research (2012) 71 Cambridge Law Journal 651. A slightly earlier version is available on SSRN (without charge), with the annex included in the file: get it here. And finally, the abstract:
This article aims to map the position of academic legal research, using a distinction between “law as a practical discipline”, “law as humanities” and “law as social sciences” as a conceptual framework. Having explained this framework, we address both the “macro” and “micro” level of legal research in the UK. For this purpose, we have collected information on the position of all law schools within the structure of their respective universities. We also introduce “ternary plots” as a new way of explaining individual research preferences. Our general result is that all three categories play a role within the context of UK legal academia, though the relationship between the “macro” and the “micro” level is not always straight-forward. We also provide comparisons with the US and Germany and show that in all three countries law as an academic tradition has been constantly evolving, raising questions such as whether the UK could or should move further to a social science model already dominant in the US.
(1) Supported by CREATe, here’s a fascinating workshop on artificial intelligence and the law, organised by my Edinburgh colleague Prof. Burkhard Schafer:
Ever since Larry Lessig’s proposal to understand “Digital Rights Management” as a form of regulation through code, the field of copyright in the digital economy has opened up a new field of research questions for Artificial Intelligence and Law. How can we represent in more intelligent and semantically richer ways legal concepts that ensure that all, and only, lawful use can be made of digital objects such as film clips or music tunes? How can Information Retrieval support e-discovery in IP litigation? How can we support through technology creators and digital businesses to manage their IP rights, or to use third party material in a law-compliant way? These are just a few of the questions that offer new and exciting applications for artificial intelligence in a legal context.
The call for papers closes this week, so do get in touch; the workshop itself is in December. All of the details are available here.
(2) My former colleagues at the ESRC Centre for Competition Policy have a good opportunity for someone about to complete a PhD or with one recently in the bag – a one-year postdoctoral fellowship at a leading interdisciplinary centre (law, economics, business, political science) for academic research on competition and regulation. Even for someone who only scraped the surface of CCP issues during my time there, it was a very vibrant, provocative group to work with – and if your interests are within the Centre’s research programme, it would be a pretty great chance to immerse yourself in relevant academic activity:
The Centre is a focus of research into Competition and Regulation across a range of disciplines, and welcomes applications in the area of competition or regulation policy from candidates with a strong background in competition law, industrial economics, or Political Science related to competition policy or regulation. Post doctoral fellows are expected to contribute to the Centre’s research individually and to develop joint research with other Centre members.
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).