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      Thursday, January 19, 2012

 

I've been meaning to write about the O'Dwyer TVShack extradition decision since District Judge Purdy made his ruling on Friday but I'm still (and sadly looking likely to continue to be) buried in zombie bureaucracy. Catherine Lee at Jeremy Phillips' ever reliable IPKat blog, however, has done a terrific analysis and pretty much saved me the job. Mr O'Dwyer challenged the extradition order on 3 grounds (see section 3 of Judge Purdy's ruling):

"Firstly that this Request is not an extradition offence(s) per S.78(4)(b) Ex Act 2003 i.e. the complaints do not meet the dual criminality requirement of the conduct being, if committed in this jurisdiction, an offence(s) here as well as in the U.S.A. Secondly that it would be “unjust or oppressive” by virtue of the passage of time from the alleged offences to extradite for trial per S.82 Ex Act 2003. Thirdly that it would be disproportionate to order extradition and thus breach his Article 8 ECHR (family life) Convention rights as enshrined in the Human Rights Act 1998 and per S. 87(2) Ex Act 2003. A material gloss, if I may so term it, on this third challenge is a submission that if any offence(s) is/are to be prosecuted such can/should take place in this jurisdiction, the so called forum issue."

The passage of time argument was unlikely to pass muster and precedent meant the odds were against him on article 8 but I originally thought he had a fair case on the dual criminality issue.  He still might have on appeal but as IPKat succinctly explains the key question will be the interpretation of Section 107 of the Copyright, Designs and Patents Act 1988:

"Dual Criminality: for this Kat, this was arguably the most intriguing aspect of the case. Counsel for the US Government argued that the substantive offence committed by Mr O'Dwyer was contained in s. 107(2A) of the Copyright Designs and Patents Act 1988::

'A person who infringes copyright in a work by communicating the work in public
(a) in the course of business, or
(b) otherwise than in the course of business but to such an extent as to affect prejudicially the owner of the copyright commits an offence if he knows or has reason to believe that, by doing so he is infringing copyright in that work'.

Counsel for Mr O'Dwyer sought to refute this by relying on 'mere conduit' exception as set out in Regulation 17 of the Electronic Commerce (EC Directive) Regulations 2002 and applied at first instance in the Gloucester Crown Court in R v Rock & Overton (2010) (the TV Links case, noted by TorrentFreak here). Counsel also submitted that Mr O'Dwyer did not 'make available' copyright material that came from remote websites.

Counsel for the US Government went very close to arguing that TV Links was wrongly decided. In any event, Counsel sought to distinguish Mr O'Dwyer's behaviour from the restrictive decision in TVLinks. First the TVShack websites were entirely in the hands of Richard O’Dwyer and his co-conspirators, requiring third parties to sign up to TVShack and be vetted before going further. Secondly, unlike TVLinks, there was no attempt to protect copyright, as Mr O'Dwyer knew materials were subject to copyright and actively taunted already-cited efforts in June 2010 to seize TVShack.net.

In a short conclusion, Judge Purdy found in favour of the US Government. He stated:

'To my mind there is much in the distinction factually, always remembering these matters are allegations of conduct which a trial court alone can resolve – that Mr Jones contends between the instant matter and Rock & Overton. I also have in mind the mischief Parliament had in mind. Accordingly in my judgement I am satisfied the conduct alleged in the instant request meets the dual criminality test and would be an offence in this jurisdiction'.

[...]

This Kat was looking forward to a more rigorous discussion of the meaning of 'communicating the work in public' in s 107(2A). She notes that the Copyright and Trade Mark Enforcement Notebook for Trading Standards Officers prepared by the Federation Against Copyright Theft (FACT, whose self-stated 'primary purpose is to protect the United Kingdom’s film and broadcasting industry'), available here on the UK Intellectual Property Office (IPO), website states (at 8) that:

The offence in s107(2A) is now available as a tool to trading standards officers to prosecute uploading file sharers of digital product, such as film and music, whether or not they do so in the course of a business.

As such, this understanding from an organisation which is in favour of IP owners is that s. 107(2A) would not cover the encouragement of others to download film and TV program files from third party websites.

The IPKat asks the $64,000 question: what is your understanding of 'communicating the work in public' in the context of s 107(2A)?"

I hadn't fully appreciated that FACT favored an interpretation of s107, at least in the context of their advice to trading standards officers, that would work to Mr O'Dwyer's advantage.

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      Thursday, January 12, 2012

 

The UK is currently taking its turn at the head of the table at the Council of Europe (Nov'11 to May '12) the objectives of which are

to create a common democratic and legal area throughout the whole of the continent, ensuring respect for its fundamental values: human rights, democracy and the rule of law

Cue the Mail, the Telegraph and rights-for-all-except-those-we-don't-like politicians peddling the 'human rights are the root of all evil' meme again.

Let's get something straight from the start - both the Mail's and the Telegraph's headlines are misleading.  The Mail screams Europe's war on British justice: UK loses three out of four human rights cases, damning report reveals. The Telegraph's is a more staid, apparently factual statement ECHR: Britain loses 3 in 4 cases at human rights court.

Now look at the actual statistics published by the Court. Take, in particular, the riveting, graphically agreeable and accessible report, European Court of Human Rights Statistics on judgments by State: Statistics 1959 - 2010.  The graphic on page 21 shows the UK's status.  I'll reproduce it here for clarity:

Just look at that pie chart again.  Only 3% of the cases that the UK faces in the European Court of Human Rights ever get to a judgment. 97% are rejected as inadmissable or struck out.  97%. Of the 3% that go through the full process in the Court, the UK has lost 271 and won 86 of a total number of 357 cases since 1959.  So the UK loses about three quarters of 3% of cases or about 2.3% of the cases that it faces in the ECHR.

It's worth repeating that - the UK loses only a little over 2% of its cases at the ECHR. To use a favorite UK sporting metaphor, that's one helluva batting average. So the Mail's notion that the ECHR is making a mockery of British justice is somewhat difficult to defend.  In fairness to the Telegraph, although the heading is misleading, the body of the article is largely devoted to reporting on the report that makes the claims.  Unfortunately it's the heading that will stick in the mind.

It is ironic, though, that mainstream media and politicians, in a country that fought two world wars in the 20th century and has been and continues to be engaged in multiple other military adventures in the name of freedom, take such an antagonistic perspective on human rights.  I'm not necessarily defending the ECHR as an absolute bastion of virtue. At the opposite end of the scale the Court has been criticised for taking such a convoluted approach to human rights law that its decisions have little wider application. It might be a perenniel target for rabble rousing media and politicians but it was not the Court that was at fault when it ruled against the UK in relation to the shooting of unarmed terrorist suspects or the hacking of a police chief's phone because she was suspected of having "frolicked in her underwear".

If the benchmark is that someone loses their basic rights as soon as they can be labelled a terrorist or as falling the wrong side of some nebulous sexual (or other) morality line, then then that is sad, dangerous and pretty scary. Even a small campaign group working to stop an energy company dumping waste into local lakes have been labelled "domestic extremists" (aka terrorists). So it's always worth remembering when the rights-for-us-not-for-them brigade are on the march, that ordinary people get unexpectedly caught on the wrong side of that we-don't-like-you-so-you-don't-have-any-rights line.

Update: Human Rights blog on same. Adam Wagner's interpretation of the figures is slightly different as he also considers the cases where there were eventual "friendly settlements/striking out judgments" and "other judgments", of which there were 65 and 21 repectively (or 357+65+21=443 in all). The more detailed figures are available in the Court's Violation by Article and by Country 1959-2010 table.

Update 2: the UK's success rate in 2001 was even better - "of the 955 applications against the UK decided, the court found a violation of the convention in just eight cases." A success rate of 99.2% i.e the UK lost only 0.8% of its cases in the Court last year

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      Friday, January 06, 2012

 

John Naughton's terrific new book, From Gutenberg to Zuckerberg: What you Really Need to Know About the Internet, is now available.

 

Recommend, nag until they agree to get it or better still stick a copy in the grubby hands of every single person of influence you know who doesn't get the Net. They won't be able to put it down once they start and they'll thank you every time they are faced with a big technology related decision.

We could begin to build a significantly different world if the next piece of crackpot Internet regulation that appears in Parliament or Congress or the EU is met with policymakers muttering "the web is not the Net", "disruption is a feature not a bug", "Orwell and Huxley are the bookends of our future, good grief he's right!", while flicking through a well thumbed copy of John's book.

Here's John talking engagingly about why he wrote the book and an outline of  ideas therein:



and his related Observer article from 2010.

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      Wednesday, December 21, 2011

 

There was a really interesting interim injunction granted in a privacy case, AMP v Person's Unknown [2011] EWHC 3454 (TCC), in the UK High Court yesterday.

AMP v Persons Unknown

A young woman (AMP) had her mobile phone stolen.  The phone contained sexually explicit images of the woman which subsequently appeared on a free online media hosting service, tagged with her name and Facebook profile. She found out about this via messages from strangers on Facebook and contacted the hosting service which removed the images. She was also threatened via Facebook by a 'Nils Henrik-Derimot' that if she did not add him as a Facebook 'friend' he would expose her identity and spread the images widely online.  She deleted these threats and blocked the sender.

The images were subsequently uploaded to a Swedish BitTorrent site tagged with AMP's name and consequently came top of the search results when that name was plugged into any of the major search engines. Her solicitors had some success in getting these links removed from the searches through DMCA takedown notices in the US.

AMP is now pursuing this case in a effort to "prevent the spread and indexing of the image files by preventing their storage and transmission" within the UK.

Andrew Murray, professor of law at the LSE, was consulted as an expert witness and he explained the nature of BitTorrent technology.  The Court's understanding of his testimony is laid out in paragraphs 9 to 18.  The Court accepts that torrent seeders can be identified via their IP addresses and therefore prevented (or ordered to cease) from transmission, storage and indexing of the images in question. The Court also accepts (paragraph 17) that

it is also possible to prevent internet search engines from indexing particular sites or files which contain specific words; in this case the descriptor file containing the Claimant’s name could be filtered out on that basis. He says that this would then prevent wide-scale access to the “.torrent” file and again because of a lack of seeders the distribution by the BitTorrent protocol would cease to occur.

Whereas this is a genuinely valiant effort at providing the Court with advice on how to frame an order to protect someone subject to blackmail and harassment, the practical problem is that it is easy to produce an alternatively labelled descriptor file which could evade the filters. It seems fairly clear that Prof Murray pointed this out to the judge as Mr Justice Ramsey, in his concluding order, attempts to address the issue by prohibiting the creation of derivative files.

The case was brought against "persons unknown" because until the torrent seeders could be identified, via their IP addresses through their ISPs, they could not be party to the proceedings; but delays involved tracking down these people could lead to an increased spread of the images causing further damage to AMP. However it was straightforward to define a class of defendant, "namely any person in possession or control of any part or parts of the relevant files containing the relevant digital photographic images".

The key issue in terms of the practicalities of any injunction, not explicitly referred to by the court but nicely articulated by Andrew Murray, was that AMP was an ordinary person, not a modern celebrity or person of interest to the tabloid media. So people sharing or torrenting the sexually explicit images are likely to know or be acquainted with AMP personally. Therefore there is a fair chance they will be resident in the UK and hence subject to the jurisdiction of the Court.  Any injunction with sufficiently severe sanctions related to its breach would have a respectable chance of succeeding in deterring people who know AMP from spreading the images around. It is a little depressing to note that that partial protection declines exponentially if ever AMP did attain some degree of celebrity, as long as the images remain in the possession of actors with nefarious intent or purposes.

In terms of the legalities, AMP claimed the protection of the Copyright Designs and Patents Act 1988, the Human Rights Act (article 8 privacy) 1998 and the Protection from Harassment Act 1997.  Mr Justice Ramsey focused exclusively on the latter two in his judgement.  He gives a very careful analysis (paragraphs 23 to 38) of the human rights issues and why AMP's right to privacy clearly, in this case, trumps the (Article 10 free speech) right of persons unknown to store, index and distribute AMP's photos. Likewise he concludes AMP has a case for protection from harassment:

"44. ... I consider that, on the current evidence, there has been conduct on at least two occasions; the conduct was targeted at the Claimant; it was calculated, in an objective sense, to cause alarm or distress; objectively judged it would be oppressive and unacceptable in the context in which it occurred and, in my judgment would cross the line and be conduct which amounts to harassment, alarm or distress.
45. There is therefore a good arguable case that the conduct of disseminating the digital photographic images amounts to harassment of the Claimant under the Protection from Harassment Act 1997 and that this is a case where it is appropriate to grant an injunction."

The judge also re-affirms an earlier order under civil procedure rule (CPR) 39.2(4) that AMP's anonymity be  maintained (paragraph 46) before concluding with a strong interim injunction.

"Conclusion
47. ... I consider that this is an appropriate case for the court to grant relief both in relation to a breach of the Claimant’s right to privacy and also a breach of the provisions of the Protection from Harassment Act 1997.
[...]
49. This is a case where the Claimant is entitled to an interim injunction to prevent the distribution of the digital photographic images, either by conventional downloading from a site or by downloading by the use of the BitTorrent Protocol.
50. I therefore grant an interim injunction in the following terms against persons unknown being those people in possession or control of any part or parts of the files listed in Schedule C to the order who are served with this order:
(1) shall immediately cease seeding any BitTorrent containing any part or parts of the files listed in Schedule C of this Order.
(2) must not upload or transmit to any other person any part or parts of the files listed in Schedule C of this Order.
(3) must not create any derivatives of any of the files listed in Schedule C of this Order.
(4) must not disclose the name of Claimant (or any other information which might lead to her identification) or the names of any of the files listed in Schedule C of this Order."

AMP's legal team will now need to identify and contact UK residents whose computers are involved in the further distribution of her images.  Anyone involved in such activity, whatever their motives might be, would be well advised to stop.  This was a civil action but breach of the injunction attracts criminal sanctions. See sections 3(6) and 3(9) of the Protection from Harassment Act.

For the moment AMP has had a clear win in the High Court. However, it follows years of expensive legal proceedings in the UK and US, the embarrassment and stress of having intimate photographs on public display and no indication that the original phone thief and/or blackmailer(/s) or possibly collective of actors of disreputable intent have been found. Though the police were notified of the phone being stolen there is no indication in the decision whether there was a subsequent criminal investigation either of the theft or of the blackmail.  I assume, since it was a civil case, there was no criminal harassment investigation or proceedings and the deletion by AMP of the Facebook blackmail threats may have made such an investigation difficult.

In a lot of ways this was an easy case for the judge to decide.  The rights of the ordinary woman, with no celebrity status, to privacy and protection from harassment, trump those of unknown persons spreading her private photos around the internet. The injunction may help to cut the distribution of the images by people resident in the UK, as AMP and her legal team hope, but it can't fully repair the damage of what's happened. It will be interesting to see if the 'not a celebrity' feature has a wider application in the future. 

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      Tuesday, December 13, 2011

 

The Council of the European Union has published the Council conclusions on the open internet and net neutrality in Europe. Some highlights:

The Council adopted the following conclusions:

"THE COUNCIL OF THE EUROPEAN UNION

1. WELCOMES
The Commission Communication of 19 April 2011 on "The open internet and net neutrality in
Europe"...

3. RECOGNISES...

d) The importance of preserving the open character of the Internet and ensuring the
maintenance of a robust best efforts Internet for all while respecting fundamental rights
such as media pluralism, linguistic diversity, freedom of expression and information as
well as freedom to conduct a business;

e) The need to encourage investment in new network infrastructures by both the public and
private sector, without prejudice to the negotiations on the Multi-Annual Financial
Framework, and to allow innovative business models to serve the needs of the market.

4. NOTES
a) That, although ICT is fundamental to the running of EU economies across all sectors, the
establishment of a well-functioning competitive digital single market still poses challenges
that need to be addressed;

b) That the open character of the Internet fosters innovation by creating a level playing field
for all actors involved and significantly contributes to the fulfilment of the Digital Agenda
for Europe goals;

c) The existence of some concerns, in regards to

- Discriminatory forms of traffic management and treatment of data, in particular
throttling of data and blocking of content, applications and services;
- Price transparency and quality of service, in particular the discrepancy between
advertised and actual delivery speeds for an Internet connection;
- Network congestion, mainly as a result of growing data streams;
- Sustainability of business models of network operators and Internet service
providers, due to investments needed to adequately respond to the growing
Internet traffic;
- Personal data protection.

d) The positive steps that can be taken by industry, in consultation with other stakeholders
and in coordination with National Regulatory Authorities, to provide effective transparency
to end users, notably on the scope of their services and on issues such as traffic
management, connection speeds and any restriction placed on data delivery.

5. UNDERLINES
a) The need to preserve the open and neutral character of the Internet and consider net
neutrality as a policy objective, which is consistent and interrelated with a number of
policy objectives already identified in article 8 of Directive 2002/21/EC (Framework
Directive) and with the corresponding provisions included in the amended EU Regulatory
Framework for Electronic Communications Networks and Services, namely in aspects
such as the promotion of the ability of end users to access and distribute information or run
applications and services of their choice, the increased transparency in the characteristics
and conditions of the service providers and the powers conferred to National Regulatory
Authorities to impose minimum requirements on quality of service;...

e) The importance of the enforcement by National Regulatory Authorities of the provisions
under the EU Regulatory Framework for Electronic Communications Networks and
Services (inter alia article 20 of Directive 2002/21/EC -Framework Directive-, article 5 of
Directive 2002/19/EC -Access Directive-, articles 20, 21 and 22 of Directive 2002/22/EC -
Universal Service Directive-), including promoting the publication of transparent,
comparable, adequate and up-to-date information on applicable prices and tariffs as well as
quality of service;

f) The importance of ensuring efficient transparency, i.e. enabling consumers to make better
and informed choices, particularly through effective implementation of articles 20 and 21
of Directive 2002/22/EC (Universal Service Directive) and the promotion of innovative
technological solutions;

g) The importance of addressing the issues of discrimination and degradation of service that
may arise from certain traffic management practices (inter alia blocking, hindering and
restrictive connection and interconnection policies), particularly through effective
implementation of article 22 of Directive 2002/22/EC (Universal Service Directive);

h) The importance of promoting the ability of users to create, distribute and access online
content, applications and services of their choice, as required in Directive 2002/21/EC
(Framework Directive);

i) The importance of the application of the principle of technology neutrality, underlying the
objectives of the EU Regulatory Framework for Electronic Communications Networks and
Services;

6. WELCOMES...

c) The Commission’s commitment to issue a Code of existing EU Online Rights by 2012...

7. INVITES THE COMMISSION TO
a) Encourage its dialogue with Member States and stakeholders on net neutrality while
supporting Member States in ensuring the rapid development of broadband;

b) Monitor, jointly with BEREC, the issue of traffic management to allow for a smooth flow
of proportional, necessary and transparent traffic management practices that do not affect
net neutrality; ...

d) Continue studying, with the support of BEREC's investigations, any aspects of net
neutrality where significant and persistent problems are substantiated, including charges
and conditions that mobile operators impose on VoIP users as well as throttling of content,
applications and services;...

e) Further assess, jointly with BEREC, the discrepancy between advertised and actual
delivery speeds occurring in Member States, and report to the Council and to the European
Parliament on the situation thereof by 2012;

8. INVITES MEMBER STATES TO
a) Encourage the application of the principle of net neutrality and continue their dialogue with
the Commission and stakeholders on the openness of the Internet and net neutrality, taking
into account ongoing analyses;
b) Ensure the open and neutral character of the Internet as their policy objective.

9. INVITES STAKEHOLDERS TO
a) Continue the dialogue with Member States, National Regulatory Authorities, BEREC and
the Commission to further the benefits of an open and innovative Internet;

b) Develop behaviours and economic choices that support an open Internet platform, thus
preventing the exclusion of small players and innovative models, and enabling access to, or
the transmission of, online content, applications and services;

c) Seek wide consensus on the aspects of net neutrality through balanced discussions between
all participants in the knowledge economy and the Internet and electronic communications
sector, civil society and users' organisations."

Just to sum up, they

• welcome an open & neutral net in Europe
• recognise the importance of net neutrality but accept the maintenance of a robust best efforts Internet for all
• understand the need for network infrastructure development
• understand openness facilitates innovation
• have concerns about discriminatory traffic management, throttling and blocking; price transparency and quality of service; discrepancy between advertised and actual delivery speeds; network congestion; personal data protection. 
• underline the need to preserve the open and neutral character of the Internet and for National Regulatory Authorities to address discriminatory anti-neutrality behaviour on the part of network operators
• emphasise the importance of the ability of users to create, distribute and access online
  content, applications and services of their choice
• welcome the Commission’s commitment to issue a Code of existing EU Online Rights by 2012
• would like member states to sign up to net neutrality as a policy principle or objective
• encourage public and civil society involvement in policy development

That's a round to the net neutrality advocates, though the important get-out clause for industry is in 3(d) "ensuring the maintenance of a robust best efforts Internet for all". The telcos and big technology companies can drive a plethora of coaches and horses through that. And in fairness to them, as long as infrastructure capacity and investment are overloaded and underfunded respectively, they have a defensible stance. Despite the economic crisis it's time for Keynesian network economists to be making the case for massive modern infrastructure investment and development.

There is no such specific get-out clause for the copyright industries when the Council Conclusions underline "The importance of promoting the ability of users to create, distribute and access online content, applications and services of their choice, as required in Directive 2002/21/EC (Framework Directive);"

Overall it is, perhaps, a surprisingly positive commitment in principle by the EU Council to an open and neutral internet.  Whether it will have any real meaning in practice remains to be seen.

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      Friday, December 09, 2011

 

At the invitation of Article 19, I attended the launch of a new Council of Europe book on Human Rights and a changing media landscape yesterday at the Free Word Centre in London. Thomas Hammarberg, the Council of Europe Commissioner for Human Rights, led the panel of authors in a wide ranging discussion of freedoms in a digital age.  The website has a nice synopsis of the book

"The media play a crucial role in the protection of human rights. They expose human rights violations and offer an arena for different voices to be heard in public discourse. Free, independent and pluralistic media are a core element of any democracy. However, the power of the media can also be misused to the extent that the very functioning of democracy is threatened. Some media outlets have been turned into propaganda megaphones for those in power. Others have been used to incite xenophobic hatred and violence against minorities and other vulnerable groups.

Now the phenomenon of social media presents us with a range of fresh challenges. Blogs, video and social networking sites have become a key forum for political debate and organisation – so much so that they have provoked counter-responses from some repressive states. While there is a need to ensure better protection of personal integrity in social media, the right to freedom of expression must not be undermined.

The purpose of this publication is to contribute to a more thorough discussion on media developments and their impact on human rights in a constantly changing media landscape. Eight experts were invited to contribute their personal assessments of trends and problems. They have not shied away from addressing controversial issues or providing far-reaching suggestions. Together their texts indicate that there is a need for stronger protection of media freedom and freedom of expression in Europe today. These are clearly topics of paramount importance which demand serious public debate."

But actually there is nothing like hearing it first hand from the authors.

The Commissioner opened proceedings noting the human rights cause really needs a free and professional media.  Rights organisations fundamentally depend on free and professional media but he is seriously worried about current trends in this area all over the world.  We can note the positive effects of social media and the internet's value for demonstrators.  But governments have been very active in regulating new media and it is important that we understand how to avoid strangling fundamental rights of freedom of association and expression in the process.

Some of the threats are the same as they have been with traditional media and the Commissioner wanted to highlight the abuse and murder of journalists in Russia, Turkey and Azerbaijan.  In some of these cases a killer has been caught and prosecuted but those responsible for orchestrating  the murder have escaped and continue to escape justice.  This creates a chilling effect where people are afraid to speak out for fear of their lives.

There are other pressures on a free press such as the criminal defamation laws in about half the member states of the Council of Europe.  In some cases these laws lead to journalists getting imprisoned or subject to disproportionate and unreasonable fines.  This also creates a chilling effect.  There are currently 70 journalists in prison in Turkey as a result of their writings alone.

Governments like to control media output and that desire for control is not limited to repressive regimes. Hungrary's implementation of a new liberty bashing media law earlier this year at the same time as the country was holding the presidency of the EU is an important example.

Freedom of information is fundamental, the Commissioner believes.

Another threat is monopolies in the private sector.  Pluralism in radio and newspapers is under a more serious threat than for a very long time.  The oligarchs who control the media have their own agendas and bend their media control to serve those interests.  The Commissioner noted that transparency of ownership is key here but even that apparently obvious condition has become controversial in Albania.  Many journalists have been dismissed for attempting to do old style investigative journalism in particular when there was a possibility it might expose some nefarious activity that might be associated directly or indirectly with media oligarchs or their preferred social/professional/political circles.

The ethics of journalism is under threat, an important example being the News of the World phone hacking scandal.  It is important that the Leveson inquiry gets full support and comes up with recommendations that will be useful not just in the UK but in the wider European context.

The Council of Europe formally supports self regulation of the press.  But the Commissioner bluntly stated that it simply has not worked in many countries, including most of Europe.  Why is that?  Well very often the dominant media don't cooperate because it doesn't fit the interests of the oligarchs in control.

The result is there is less ethical journalism and serious journalists are having difficulty being heard.  You could argue, therefore, that there is a case for public service media.  Where there has been public service media it has been positive but we can't ever believe they will be completely objective.  The holy grail of total objectivity does not exist but public service media where they exist should strive to be as objective as possible.

The Commissioner therefore asked a collection of experts to contribute to the book and the 6 chapters therein broadly cover the points he outlined above.

Dr Agnès Callamard, Executive Director of Article 19, followed Commissioner Hammarberg

So there is a pressing need for public service media but the trend is not looking good on this. And the financial crisis has been an extra burden/excuse in that regard.

The disturbing trend of physical violence against journalists continues. A journalist in Azerbaijan was murdered 2 weeks ago.

Additionally Dr Callamard is concerned about legal violence against journalists and has observed a "deterioration by imitation" around Europe as countries copy each others' worst laws. There has been some progress on the decriminalisation of defamation but not much. The use and abuse of defamation laws remain a major impediment to freedom of expression.  There are multiple legal attacks in this area in western as well as eastern and central Europe.

And quite simply regulatory violence has a chilling effect.

Dr Callamard wanted to highlight the case of Hungary's terrible media law.  Hungary is a member of the Council of Europe and the EU.  When they got away with it, others will emulate it.

She also noted that the OSCE met this week and declined to adopt a declaration on freedom in a digital age. Yet the fundamental freedoms don't change with technological development so press freedom does need to be protected in our digital age.

Ali Sheikholeslami, the London correspondent for Euronews, who was chairing the panel, at this point noted it had been a "dark cold summer" for journalism with the phone hacking scandal and occasionally off the back of that it sometimes makes him ashamed to admit to anyone he's a journalist.

Aidan White, author of chapter 2 on ethical journalism and human rights, then came in and robustly suggested there was no reason for journalists to feel ashamed of their profession.  The issue in the News of the World case was corporate culture not journalism. It was also important to note that the nefarious criminal behaviour involved was exposed not by the police, the self regulators or the government but by journalists.

Mr White passionately believes we have to look again at the principles and values that underpin journalism and that this should feed into ethical behaviour in public life as a whole - including politicians and corporate leaders.

How do the media respectfully report the cruelties and tragedies of the world in which we live? Journalism is in crisis but sound ethical investigative journalism has a great future.  Good journalism, contrary to popular opinion, dominates access to information on the Net.  The debate about principled behaviour in journalism is really important but it can't be restricted to newsrooms.

Ethics has to be management led. (Mr White is a very articulate, convincing and passionate speaker but at that point I have to admit that the thought "is that a realistic prospect" ran through my head.).

He noted a lot of key problems are highlighted in the book and that we have to deal with energetic and sustained deceit in journalism.

Do we do this through regulation?  Well in nearly every country the print press is self regulated and the broadcast press is subject to statutory regulations.  Changing technology makes this approach useless. Therefore we need an open debate.  But we don't need what has happened in Hungary.  Though they have not used the draconian tools in the law there yet, they will.  South Africa are doing likewise and both have used the News of the World phone hacking scandal as an excuse.

The notion that media organisations can avoid any form of statutory control is not sustainable.  It is probably no longer possible to have self regulation of the press.  Co-regulation, that awkward compromise between statutory and self regulation, is the necessary path forward but we need to have the hugely important public debate on this.  It may also be necessary to have a privacy law but there must be built in protections in such a law for public interest journalism.

Prof Douwe Korff, joint author of chapter 6 along with Ian Brown, was the next speaker.  Prof Korff explained social media have features that are different to conventional media the most obvious being access to speech tools and audiences which were previously restricted to the professionals or the wealthy. He suggested the problem with social media was that ordinary people use it for private communications whereas organisations use it for professional ends.  At the professional end of the scale you can apply legal and ethical standards.  Private communications have different legal boundaries.

The technologies that are widely used for censorship in despotic regimes are the same technologies supposedly used for benign ends - like controlling copyright infringement or distribution of child pornography - in the West.

The data retention directive requires mass surveillance of people not suspected of any crime. How's that for a despotic law?

When technology can be used for abusive ends it will be so adopted and we have no cause to be smug in that regard in the West because governments and the private sector are engaged in unethical mass surveillance using these technologies.

Human rights standards are universal and should apply in the online as well as offline worlds. Offline they can be tailored to the specific sovereign jurisdiction and the European Court of Human Rights accepts multiple variations in the specific regulations governing freedom of expression in member states.  Yet if we are to apply the most restrictive of these laws online then you end up with unconscionable cases like the US citizen of Thai descent getting arrested and jailed for two years when he visited Thailand for something he wrote on the Net in the US.  Such transnational applications of domestic legal standards lead to real problems.

Another key issue in relation to human rights is that the internet is effectively controlled by the private sector.  How, therefore, do you ensure the private sector not only respects but also upholds the rights of users?  These private companies are not equipped to do so.  They cannot be expected to make subtle human rights judgments.  They are in business to make money so neither are they motivated to protect the rights of users.

So when these companies operate in repressive regimes they will do the will of those regimes and we have seen multiple examples of this.

Prof Korff also mentioned he is working with his fellow author Ian Brown on a framework to encourage the private sector to respect human rights.  In many online contexts punishment is arbitrary, lacks transparency, lacks due process, with limited access to remedies or appeals. That is not an environment in which human rights will be respected and so intermediaries like the telecoms companies and ISPs need support in protecting human rights.

Boyko Boev of Article 19 and co-author with Barbara Bukovska of chapter 5 on public service media and human rights, was the last of the panel into the fray before the audience got the opportunity to ask questions.  He symbolically instructed the audience to open the book at page 133, the first page of his chapter, before pointing out that public service media is a hot issue in Europe. The problems with public service media in Europe have been highlighted by a Council of Europe expert group.  Their report noted 4 key issues

1. the transition from public service broadcasting to public service media
2. competition with the private sector
3. securing the independence of public service media from the state and the powerful private sector
4. lack of funding

He tried to look at public service media from a human rights perspective focusing on transparency and accountability and found it instructive to use the epistemological framework relating to a "rights based approach to development". And the Article 19 issue paper, Public service media regulation in Europe: future or funeral was his starting point.

The problem of public service media is not recognised in a lot of countries.

From an economics perspective there is no money. From a human rights perspective there is no question but that public service media are essential.

Then Ali Sheikholeslami addressed 2 questions to Aidan White and Commissioner Hammarberg:

1. How do we guarantee conglomerates will not have too much power
2. How do we guarantee governments don't undermine freedom of expression.

Mr White answered that transparency and disclosure are the key - who is saying what and why; who owns what; what are their interests etc.  It is scandalous for corporate power to have influence without disclosing potential conflicts of interest.

On regulation we need to modernise the root and branch of regulatory institutions because the existing ones are creaking and not fit for purpose. We have an opportunity to move towards more forms of self rule and we have to find a way to make self regulation workable through co-regulation.  This can't be a restraint on the right to report but a regulatory body should have the power to do minimal investigations and e.g. call witnesses.  The Press Complaints Commission is bound by a lack of authority.

We can make self regulation more creditable through co regulation.

Commissioner Hammarberg concluded this part of proceedings by noting transparency is really important.  He had just come from Ukraine where private sector media oligarch control and public service media control are coming together just as it did in Italy under Berlesconi and likewise in Georgia and Azerbaijan.  He agrees with Mr White that self regulation, attractive though it might be in principle, does not work in practice.  We need a thorough analysis of how to make it effective without restricting or damaging freedom of expression.  The idea of having a co-regulatory legislative basis is worth discussing and exploring.  But the key is who is going to be involved in making such laws and civil society's input is crucial.  The structures of the EU are certainly not ready to take this on, however.

At this point the floor was opened to questions and I will endevour to do another short report on the Q&A when time and a following wind allow.

Ray 6:53 PM [ Permalink ] 0 comments [ Links to this post ] Make a New Post

      Tuesday, December 06, 2011

 

The Independent's front page story today is on PR company Bell Pottinger's alleged influence on the UK government. It's based on an undercover investigation carried out by the Bureau of Investigative Journalism.

I'm not a big fan of lobbyists but some of the individuals caught on camera actually come out of the story slightly better than you might expect.  They are quoted as showing interest in working to improve the image of the Uzbekistan regime but only if that government demonstrates an intent to improve its behaviour on human rights.

"A number of [our client] governments have had serious reputational issues,"[...]
But he also stressed a need for genuine commitment to reform. "Everything we are recommending is predicated on the agreement by the government to change," he said. "[That] justifies why a PR company is representing a country which previously people shouldn't have been talking to. Now it actually wants to change it is fully acceptable."

Another executive stressed, whilst talking about one of the firm's clients: "I wouldn't actually represent a client whom I didn't believe."

He added: "Just trying to sell the situation as it is or to say that things are changing when in reality they aren't is not going to work. Once we're clear that we've got the collateral, the proof that things are changing, then obviously we have the connections to get the message through to the right people."

They're also reported as boasting easy access to and influence over government, though that's hardly surprising in a meeting where they are attempting to promote their services to secure a lucrative contract.

It's probably the government and in particular the prime minister who comes out of this with the least credit, if the PR consultants (or the journalist's reports) are to be believed.  Mr Cameron and the deputy prime minister Nick Clegg have been repeatedly quoted about the damaging effects of the disproportionate degree to which lobbyists and big business influence government. They even have plans for a register of lobbyists.

The alleged lightning speed at which a business can get a message through a PR firm to the prime minister, who then instantly takes that complaint to a foreign head of state, in this case China, therefore, will be cause for concern. Whether that concern arises from being found out or a desire that such influence should not be so powerful is another question.  What was predicatable in the world of Westminster, the media and PR was that the PM's office would issue a denial:

"Bell Pottinger nor any other lobbying firm has any say or influence over government policy."

The almost amusing part of the story comes at the tail end where, through their lawyers Carter Ruck, Bell Pottinger declare:

"The conduct of the Bureau of Investigative Journalism does not remotely constitute responsible journalism. It is an attempt by unethical, deception to manufacture a story where none exists."

A case of the Bell Pottinger calling the kettle black? {Assuming you define a kettle (or the Bureau of Investigative Journalism) as 'a vessel designed to withstand high temperatures, used in various processes such as refining and brewing' (stories)}

Ray 11:37 AM [ Permalink ] 0 comments [ Links to this post ] Make a New Post