Recommended reading, 7-13 February 2013

News, blog posts, etc

European Commission, ‘EU Cybersecurity plan to protect open internet and online freedom and opportunity‘ (press release, 7 February 2013).  Marking the release of a new strategy and proposed Directive (download both of them here) on this topic.  The interesting bit about this is how it’s framed – legally speaking it’s an internal market measure (not crime!); strategically, it follows up on the many comments about ‘trust’ in the Digital Agenda documents of the last couple of years.  While most of the operative provisions of the Directive are about national authorities for infrastructure and cooperation between them, there is an interesting (proposed) obligation for member states to regulate ‘market operators’ in terms of security and also notification of breaches.  (Incidentally, is this category of ‘market operator’ a new one?  It has two sub-categories – information society services ‘which enable the provision of other’ ISSes (examples in an Annex are cloud computing platforms, app stores, search engines, social networks), and operators of certain types of critical infrastructure.  Art 14 doesn’t apply, in essence, to telephone/mobile/broadband providers, because the electronic communications directives already occupy the field.  (It also doesn’t apply to certain players in the much-maligned electronic signatures field – although I read that exclusion as being broader than those entities contemplated in the 1999 Directive).  (The ‘open internet’ etc language of the strategy and press release is slightly overstated, I think).

John Brodkin, ‘Wi-Fi “as free as air”—the totally false story that refuses to die‘ (Ars Technica 8 February 2013). This is most curious. The (interesting and potentially significant) work of the FCC on what to do with UHF ‘white spaces’ – spectrum formerly used or left as a buffer for TV broadcasting but becoming available for other uses – has been of interest in IT law for some years now.  Then seemingly from nowhere, a normal development in the regulatory process became the basis for an article about free wifi.  This is not to say that white spaces and Internet access are unconnected; clearly, it’s one of the reasons that people beyond spectrum gurus talk about it.  (I wrote about it in passing in this 2009 article, in section 5.5).  But the licensing process does not deliver a free service by any means (even if, as is being discussed, the regulatory model would not include a license fee for spectrum use).  Nor has anything particularly interesting happened in recent weeks – as Brodkin’s deconstruction points out, the interesting stuff either happened a few years ago (when the opening up started) or will happen in the future (if new services are launched).

Simon Fodden, ‘Edwin Mellen Press’s Curious Case‘ (Slaw 10 February 2013).  A comment, with plenty of links, on the developing (and worrying) story about the huge defamation claim (the applicant seeks the equivalent of over £2m!) against a librarian (who wrote some quite critical things about a publisher, informed by his knowledge of the field) and his university employer.  I would certainly not have anything to do with this publisher as a result of its actions in this case (whatever about the underlying allegations themselves!).

Alexander Hanff, ‘The murky world of privacy advocacy‘ (10 February 2013). A new blog and a rollicking start, with a detailed analysis of corporate funding for tech-related NGOs. It’s about time. Given the field I’m working in, I’ve seen quite a few of these organisations (and indeed, their close cousins, the consultant reinventing themselves as an NGO/think-tank with no membership, no membership and often nothing to add). I think the post by Hanff demonstrates a very honest attempt to understand the weaknesses of the lobbying system and reminds us all to think about the motives as well as the contents of interventions.

Virtual currency and virtual property revisited‘ (Technollama 11 February 2013). An overview of recent developments on virtual £££ and IP and other things, prompted by a piece in Forbes which mostly about virtual property). See also this nice PBS video on Bitcoin, etc.

Academic articles

Nina Mendelson, ‘Should Mass Comments Count?’ (2012) 2 Michigan Journal of Environmental & Administrative Law 173 (SSRN). This is a response to the author’s earlier work (and a debate about it), but reading the article covers much of what before quite neatly.  The issue is a controversial one – how, when public consultation happens, to deal with different forms of participation (particularly one-click or template methods).

Michael O’Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34′ (2012) 12 Human Rights Law Review 627-654 (£, link).  The author of this article was the rapporteur work on this General Comment and discusses the comment as well as some of the cases and stories it relied upon.  Watch out for the interesting discussion of article 19 and emerging technology, too.

E Tarantino, ‘A simple model of vertical search engines foreclosure’ (2013) 37 Telecommunications Policy 1 (£, link).  The new volume of this journal (mix of law, business, economics, etc) starts off with one of the topics of the year, competition law and search engines.

Recommended reading, 17-23 January 2013

Action!

Hacked Off would like your comments on its draft Leveson Bill.  Read all about it at this post on Inforrm. Comments by 15 February 2013.  It would be wonderful to see more of this type of engagement on the part of civil society organisations.

Academic publications

Matthias Kettemann, ‘The UN Human Rights Council Resolution on Human Rights on the Internet: Boost or Bust for Online Human Rights Protection‘ [2012] Human Security Perspectives 145. A short, well-referenced and very exacting comment on the ‘La Rue Report’ and associated documents on human rights and the Internet.

Timothy Zick, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties. The first two chapters of this new book (forthcoming, Cambridge University Press) are available for download from SSRN.  Zick’s first book on speech and place is one of the most important contributions to the field of First Amendment studies of recent years; it was very useful when I wrote about similar issues in a European context and I read it with great interest.  So this new book is something to look forward to.

Lorna Woods, ‘Beyond Murphy, Films and Football: Audiovisual Content in Europe’ (2012) 4 Journal of Media Law 189 (£). A copyright-focused discussion sparked by the Murphy (Greek decoder cards in UK pubs) decision and its consequences, with a particularly interesting section on competition and video-on-demand (which is the theme of this week’s post, it seems).

News, blog posts, etc

John Tate, ‘Ensuring prominence for public service content as media converges‘ (About the BBC Blog 17 January 2013). A BBC report on ‘due prominence’ for public service media, on its way to Government but already the subject of interesting debate. A key issue is dealing with alternative forms of distribution (e.g. video-on-demand) and the future-facing yet very 90s issue of ‘portals’ – specifically, how to apply the type of regulation currently used, i.e. a ‘good’ slot on an electronic programme guide or EPG.  (When I was speaking about minority-language broadcasting in the UK recently, I was intrigued to see how a debate arose in relation to a point I had just mentioned, which was geographically-limited EPG prominence for Gaelic and Welsh broadcasters; some saw this as significant but others very much deemed it a legacy issue).

Eleonora Rosati, ‘The (low) cost of balancing broadcasting rights with the public interest‘ (IPKat 22 January 2013).  A note on the Court of Justice decision in Sky v ORD C-283/11.  The case is a human rights challenge to the ‘short extracts’ provision of EU broadcasting law, added in the beloved Audiovisual Media Services Directive in 2007, and now consolidated as article 15 of Directive 2010/13.  The rights cited by Sky (for that is who challenged the provision – and it was clearly the principle rather than any specific problem in the Austrian implementation or the specific incident) were property rights (EUCFR and ECHR) and the freedom to conduct a business (EUCFR). However, the Court of Justice comes down pretty firmly in favour of the Directive.

Dirk Voorhoof & Inger Høedt-Rasmussen, ‘Copyright vs Freedom of Expression Judgment‘ (ECHR Blog 22 January 2013). Another case note – this time with the added significance of being about a decision not currently available in English. The decision raises a number of issues on which the Court’s view has been awaited for some time, particularly the relationship between copyright and article 10 ECHR.  However, as the note points out, it is also important in terms of new technology more generally and the long-running issue on the status of commercial speech.

Fred Campbell, ‘What Does Netflix’s Decision to Block Internet Content Tell Us About Internet Policy?‘ (Technology Liberation Front 23 January 2013).  This is a link-rich update on a story that has developed during the week, on Netflix and how it is managing/negotiating peering.  While I’m not completely convinced by the author’s framing of the issue along the lines of his long-established opposition to net neutrality rules, the issue is a serious one – and how it is resolved may affect the direction in which VOD goes – the Netflix ‘model’ is interesting, and is being replicated outside the US in related but different ways.  (See earlier post here)

David Streitfeld, ‘Keeping the Internet Safe From Governments‘ (New York Times: Bits Blog 23 January 2013). A petition to propose the US not fund the International Telecommunications Union, in protest at its alleged attempt to regulate the Internet and suppress free speech.  (One wonders how (a) withdrawing support when you don’t get your way in debate and (b) not cooperating with other states so as to ensure that telegraph, telephone, satellite and data traffic can cross borders support this cause.  I’d be the first in the queue to criticise actions of intergovernmental organisations, but the demonisation of recent ITU debates is a road we have been down before, with UNESCO and other organisations; hopefully, calmer and more constructive voices will be heard soon.  (On the other hand, if you think I’m wrong, then the petition is here. Speech for all).

Recommended reading, 10-16 January 2013

Well, the first thing with a new series is for it to happen more than once. Here are this week’s recommendations. Two lists, one for academic journals/conferences and another for blogs, newspapers and similar.

Action!

The BBC Trust is reviewing BBC Online (and BBC Red Button). Questionnaire or online form. Closes 24 January 2013. All the details here. No doubt the usual suspects will be telling the BBC Trust that they would just love to invest in web content but sadly can’t do so until the BBC cuts back on what it does. But anyone can – and should – take part in the consultation.

Academic publications

Stefan Bechtold, ‘The Fashion of TV Show Formats‘ (working paper, ETH Zurich, November 2012). This is terrific – a 50-page, multinational tour of the law on formats (which is a really interesting topic in its own right – particularly when it illustrates the ability to ‘monetise’ inside and outside of copyright law as we know it. Clearly informed by conversations with industry and standing as a neat history of the sector as well as a legal analysis. Hopefully I’ll be teaching this topic on a course in 2013/14; the last time I taught it, the literature was lively but fairly thin. So this is an excellent addition, even as a work in progress.

Martin Robins, ‘A Good Idea at the Time: Recent Jurisprudence Under the Service Provider Safe Harbor in Section 512c of the Digital Millenium Copyright Act’ (2012) 15 Tulane Journal of Technology & Intellectual Property 1. The first half covers the cases that safe harbourwatchers will know quite well, but the second half is quite interesting, including an attempt to draft advice for service providers in response to the Circuit Court decisions.

M Heller, ‘The Tragedy of the Anticommons : A Concise Introduction and Lexicon’ (2013) 76 Modern Law Review 1 (£). A revised LSE lecture by Heller (author of The Gridlock Economy and indeed of the phrase included in the title). Has the splendid final subtitle ‘towards a non-squiggly language’, which is reason enough to read it. It’s a review (lit review, theoretical review, overview, as you wish) of the ‘anticommons’ problem (“when too many people own pieces of one thing, nobody can use it”) across a very wide range of sectors, including some of particular interest to me and perhaps to you, e.g. communications technology, patents.

News, blog posts, etc

Eric Goldman, ‘Top Ten Internet Law Developments of 2012‘ (Technology & Marketing Law Blog 11 January 2013). An annual fixture from Prof. Goldman and well timed for the start of the new semester. As well as the top ten issues, there’s a list of other issues and of interesting cases. Start rewriting your syllabi now…

Randall Stross, ‘Im Losing Money. So Why Do I Feel So Good?‘ (New York Times 12 January 2013). Stross (a consistently interesting journalist and author) has a piece on gambling, technology and psychology. It’s prompted by a new book, Addiction by Design. I picked this up from the new books shelf in the library just before Christmas, but haven’t made much progress on it yet. The article by Stross gives a nice peek into its key concerns.

Ryan Tate, ‘California Decides App Crime Is a Serious Problem‘ (Wired.com 13 January 2013). Well-written piece on two of the latest developments in the management of the app store – Apple’s action against an approval scam (get an innocuous version approved, then change the details afterwards) and the ongoing interest of the California AG in privacy and apps. (Plug: the final – and much improved – version of my app stores paper is published later this year; I’ve sent off the final version, so the next stage is proofs and then it goes online in the International Journal of Law & IT.

Campaign for Freedom of Information, ‘Crunch week for FOI in Scotland as Parliament debates coverage‘ (UK FOI Blog 14 January 2013). A preview of the discussion of new FOI legislation in Scotland (a Bill amending the existing Act), which took place on Wednesday. The legislation was passed, although the important arguments made by the Campaign (primarily on the application of FOI laws to those carrying out public functions under contract, looking for some automatic designation or better monitoring of the designation power) were, in the most part, not successful. A pity. The parliamentary debate is available here.

Simon Hattenstone, ‘Arsenal ticket protest ban yet another blow to football fans’ free speech‘ (Free Speech Blog 15 January 2013). You might have noticed the fuss over the cost of away tickets at Arsenal v Man City at the weekend (62!!), and the reaction of stewards and police to attempts to highlight the problems with this level of charging. Hattenstone rounds up the coverage of the various protests, tracks down a fairly unconvincing justification from a club spokesperson (insert shoddy defending gag of choice)

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…

Speak high, speak low

Jacob Rowbottom (late of Cambridge, now of Oxford) has written a fascinating article on ‘low level digital speech’.  It will appear soon in the Cambridge Law Journal, but a draft is available on SSRN, under the catchy title of To Rant, Vent and Converse: Protecting Low Level Digital Speech.  It’s a great read – and a very timely intervention in the debate on Internet regulation.  This post is my personal summary of some key points along with some responses – for the author’s own introduction to the topic, see his post at the Inforrm blog.

The key background feature to the article is that the nature of online communications means that while individuals have new or enhanced opportunities to speak, they are also more likely to be engaged with the legal system in doing so.  For example, the change to the historic focus of libel law on the mass media (p. 3; all page refs to the SSRN draft) and the implications of storage, search and ‘persistence’ for individuals (p. 9) are canvassed .  [On libel – the Reynolds defence and its limitations are briefly discussed, which is important in the light of the current defamation reform efforts.  Actually, I’m optimistic about this, given the possible link between Reynolds and responsibility more generally (cf Irish Defamation Act 2009), and glimpses of a non-media approach, e.g. in the Privy Council case of Seaga v Harper (para 11).]

From this, Rowbottom develops an argument about ‘high level’ (professional, researched, wide audience) and ‘low level’ (amateur, conversational) speech.  This weaves in and out of the existing (and controversial) concept of the ‘value’ of speech.  Low level may require a particular type of protection, and the author discusses factors such as context, the opportunity to prepare/edit the material, the type of audience [real potential for media studies-style audience research here, I think, along the lines of the great 1988 ‘third person effect’ work on defamation which is so much fun to teach], the knowledge of the user [which I read as a note to lawmakers that media literacy and public legal education should be a core part of a regulatory strategy], and more.  There’s also an intriguing argument about freedom of thought here, which I’m still chewing on.  My former colleague Robert Heverly (now at Albany) gave a very provocative workshop paper recently about the Internet as a collective mind, so this is an idea really coming into its own now.

One of the interesting (and effective) tools of the article is collating a mixture of cases – appeals, sentencing decisions, newspaper reports of trials, and so on – and so presenting a more accurate picture than one would get from looking at statutes and major cases only.  We see the ways in which the different statutory provisions are being used in practice, and indeed the overlap between them.  On that, the statute book doesn’t fare very well.  The main part of the article discusses a range of statutes (e.g. on public order, malicious communications) and how they have been interpreted and used.

I hope the reader will allow me a brief plunge into the mess that is section 127 Communications Act 2003.  Rowbottom is rightly critical of its use as a catch-all offence (p 8) and, more broadly, of selective prosecution (p 9).  One could be even more critical, though, through considering its origin (as a provision of post office law, then of the regulation of the national telephone system), and indeed its non-application to certain forms of communication (letters, broadcasters, painted walls).  It [and its close cousin s 125 on dishonest use of a network, which I kicked in the knees in my wi-fi piece] need to be completely reassessed.  There’s nothing wrong at all with requiring the court to take the medium of communications into account – but having a ‘special’ provision for electronic communications of this nature achieves very little.

There’s also (p. 21) a discussion of self-regulation, which is sensibly aware of the perils of assigning responsibility to private operators of websites, and also offers a link to ongoing discussion on the regulation of media and advertising, e.g. in the Leveson Inquiry.  The discussion of quick adjudication for the intermediary to work from is also of interest to the Joint Committee on the Defamation Bill, and the Government response to it.  Rowbottom doesn’t present a detailed scheme for regulation, but the intention, as I see it, is to suggest possibilities for further investigation, mindful of the analysis of the importance of low level speech.

What will this article achieve?  I’d suggest a couple of things.  In policy terms, it’s a key reading for anyone considering ‘new laws’ on various harms associated with the use of the Internet.  In general academic terms, I hope that it will spark a debate on freedom of expression of the nature that the author notes in the US (on democracy and discourse) in the footnotes to p 13.  Indeed, the framework of high/low value could be capable of application in a variety of other contexts.

For IT/media law, it’s a very significant European contribution to what I have called (here, in the context of private ordering) the ‘mass age’ of Internet law, where researchers need to look at how speech fares on the (digital) ground, without getting locked in to kneejerk forms of technological determinism or indeed technological neutrality (but that’s for another day).  The fact that Rowbottom (primarily associated with public law, politics, and human rights) has looked at literature on cyberlaw (mostly US) and on the ECHR, in a ‘mainstream’ journal, should also increase the visibility of these issues, which is particularly welcome, in the way that, for example, Chris Reed’s ‘bad law’ work in the MLR did recently [which I’ll be blogging about very soon, as I’ve just received my copy of his new book].

(FYI, the source (ish) of the title of this post).