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Judge rules TV Shack O'Dwyer should be extradited

2012-01-19T16:02:00.002Z

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.

Human rights: the root of all evil

2012-01-12T16:30:00.009Z

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

John Naughton's new book now available

2012-01-06T11:04:00.002Z

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.

AMP v Persons Unknown: privacy injunction on stolen mobile images

2011-12-21T15:54:00.000Z

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.

Council conclusions on the open internet and net neutrality in Europe

2011-12-13T16:15:00.000Z

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.

Council of Europe book on media and human rights

2011-12-09T18:53:00.015Z

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.

The lobbyists and the PM: Bell Pottinger calling the kettle black

2011-12-06T11:37:00.002Z

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)}

Open University Access to Success fund for poorer students

2011-12-01T14:39:00.000Z

I just got an email from the Open University's Director of Development regarding a fund the OU are setting up to facilitate access to our courses for poorer students who will not have access to student loans or the government's new National Scholarship Funding. It deserves wider circulation hence I've reproduced a copy below.

"Dear Colleague,

I am writing to you as I am concerned about future funding for some widening participation students in England who take part in introductory Openings courses. For many students, successfully completing an Openings course means that they have the skills and the confidence to forge ahead to complete their chosen qualification.

However, the new National Scholarship Programme will not be available to Openings students, and nor will those students be eligible for loans. Those courses, though, are a vital gateway to OU study and give confidence to people with no prior Higher Education experience.

We have created an Access to Success fund which will specifically provide financial support for Openings students who cannot afford to pay their own fees. The University has asked the Development Office to raise money for this fund to ensure that those taking their first steps into Higher Education can do so without finance being a barrier to entry. I was delighted that the first £100,000 was donated by OU students themselves through a generous gift from the OU Students Educational Trust. I am now writing to you as a member of staff to ask you to consider making a donation. A wider fundraising appeal will start next year.

Ahead of a public launch, we have been given a time-limited opportunity for donations to be matched by Sir Alec Reed CBE, a friend and generous supporter of the OU, and the OU’s Pro-Chancellor and Chair of Council, Lord Haskins. It means that a donation made next week through The Big Give Christmas Challenge (Sir Alec’s fundraising initiative) could be match-funded by both The Big Give and Lord Haskins. In addition, Gift Aid can be added. This means that in total, a donation of £10 could be worth £23 towards the new fund.

This is the first time that many OU staff members have been directly asked to consider making a donation to the University. These are unprecedented times for the institution. We are determined to ensure that we can continue to provide opportunities for the most disadvantaged.

Many members of staff already choose to contribute in this way. The OU is an educational charity and, over the years, many of its alumni, students, staff and friends have shown their support through donations. In fact, just last year, more than 9,000 people and organisations made contributions to the University totalling more than £2.4 million.

As a member of staff, your contribution to enriching our students’ lives is invaluable. I am hoping that you might consider joining me in supporting our students through this appeal and I will be in touch again next week to let you know how to donate.

Best wishes,

Edith Prak

Director of Development

The Open University"

ICT & schools - we're getting it all wrong

2011-11-28T12:02:00.001Z

The Next Gen. Skills campaign is kicking off today:

"One of the founding fathers of interactive entertainment and fiction Ian Livingstone OBE and Double Negative MD Alex Hope OBE will announce that some of the biggest names from the UK digital, creative and hi-tech industries have joined up with leading skills and educational bodies to back a new campaign aiming to improve the computer programming skills needed for the future growth of the UK’s economy.

Launching a day before the Chancellor’s Autumn statement, the Next Gen Skills campaign showcases:
Announcement of major industry supporters
Key policy objectives and industry demands
How high-tech skills contribute to the growth agenda
Reactions to the Government’s response to the Livingstone-Hope Review"

Three cheers for Alex Hope on the BBC this morning where he did a great job of explaining to the ever technophobic Today folk the importance of teaching kids about how computers work. It is a truly appalling indicator of the state of our broadcast culture and education system that we are even having to ask the question.

I knew the ICT curriculum in schools was not even in terminal decline - that would have implied it once had a spark of life in it - but completely devoid of even the pedagogic DNA that might one day give it life, on talking to an ICT teacher a few years ago. He explained to me with some enthusiasm one of the "exciting" activities, particularly for the boys, his class had been engaging in for that past few weeks. The activity? Drawing up a balance sheet for a hypothetical car dealership using Microsoft Excel.

"Exciting?" I queried, a little less impressed than he had anticipated.

"Because Boys like cars, don't you see." he replied, baffled at my lack of outwardly visible joyful exhilaration (or was he just amazed at my remarkable self control?).

Kids learn more about computers from mucking about with Gamemaker or Scratch or the dreaded (by parents) MMORGs, or the plethora of wireless enabled gadgetry they own than they do in a school ICT class. IF the substantive chunk of the next generation, necessary to sustain a robust 21st century economy, are to learn to use computer and networking tools creatively and productively then it is vital that it be underpinned by a strong educational infrastructure.

It's an opportune time to remind people of the 20 recommendations of the Livingston Hope Review:

"Twenty recommendations across the talent pipeline

Schools

Recommendation 1. Bring computer science into the National Curriculum as an essential discipline.

Recommendation 2. Sign up the best teachers to teach computer science through Initial Teacher Training bursaries and ‘Golden Hellos’.

Recommendation 3. Use video games and visual effects at school to draw greater numbers of young people into STEM and computer science.

Recommendation 4. Set up a one-stop online repository and community site for teachers for video games and visual effects educational resources.

Recommendation 5. Include art and computer science in the English Baccalaureate.

Recommendation 6. Encourage art-tech crossover and work-based learning through school clubs.

Recommendation 7. Build a network of STEMNET and Teach First video games and visual effects Ambassadors.

Recommendation 8. Introduce a new National Video Games Development and Animation Schools Competition.

Recommendation 9. Design and implement a Next Generation of Video Games and Visual Effects Talent Careers Strategy.

Recommendation 10. Provide online careers-related resources for teachers, careers advisers and young people.

Universities, Colleges and Vocational education

Recommendation 11. Develop kitemarking schemes, building on Skillset accreditation, which allow the best specialist HE courses to differentiate themselves from less industry-relevant courses.

Recommendation 12. HEFCE should include industry-accredited specialist courses in their list of ‘Strategically Important and Vulnerable’ subjects that merit targeted funding. Industry commits to these courses through industrial scholarships and support for CPD for lecturers.

Recommendation 13. Raise awareness of the video games and visual effects industries in the eyes of STEM and arts graduates.

Recommendation 14. Give prospective university applicants access to meaningful information about employment prospects for different courses.

Recommendation 15. Develop a template for introducing workplace simulation into industry-accredited video games and visual effects courses, based on Abertay University’s Dare to be Digital competition.

Recommendation 16. Leading universities and FE colleges sponsor a high-tech creative industries University Technical College (UTC), with clear progression routes into HE.

Recommendation 17. Kitemark FE courses that offer students the best foundation in skills and knowledge to progress into Higher Education.

Training and continuous professional development

Recommendation 18. Skillset Creative Media Academies and e-skills UK’s National Skills Academy for IT to work with industry to develop specialist CPD training for video games and visual effects industries.

Recommendation 19. Support better research-oriented university-industry collaborations in video games and visual effects.

Recommendation 20. Continue to treat the 18 visual effects occupations on the Government’s shortages list as shortage occupations."

None of this is new - you'll see the same recommendations in multiple government reviews of maths, science and language education. Some of it I don't agree with - the kite/quality mark stuff is energy sapping, distracting, superficial inspection based tick box nonsense. But the baseline recommendation:

of putting smart dedicated teachers together with decent tools/facilities, a broad based relevant curriculum with sufficient professional freedom to experiment and kids with a natural curiosity about this stuff

would, if the political establishment had sufficient guts and long term vision to pursue it [sic], create magic.

ECJ rule out blanket filtering in Scarlet v SABAM

2011-11-24T16:29:00.004Z

The European Court of Justice has published its decision in the case of Scarlet v SABAM, Case C‑70/10. This is the Belgian case where the entertainment industry and creative artists representative body SABAM had sued Scarlet, an ISP, in an effort to have the respondent compelled to install filters. The filters desired were pretty broad and crude, though, and the Court, predictably, ruled in favour of the ISP, on a narrow interpretation of the facts.

Expect a positive spin on the decision from both sides in spite of the apparently crystal clear outcome in favour of Scarlet.

The conclusion was:

"the Court (Third Chamber) hereby rules:
Directives:
–        2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’);
–        2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society;
–        2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights ;
–        95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and
–        2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications),
read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering
–        all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;
–        which applies indiscriminately to all its customers;
–        as a preventive measure;
–        exclusively at its expense; and
–        for an unlimited period,
which is capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual-property rights, with a view to blocking the transfer of files the sharing of which infringes copyright."

The bottom line is that the Court believed the ISP level filtering demanded by SABAM, a system to filter:

– all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

– which applies indiscriminately to all its customers;

– as a preventive measure;

– exclusively at its expense; and

– for an unlimited period,

was over-reaching. That the decision was so short - a mere 55 paragraphs - and clear is an indication that it wasn't that difficult a challenge for the Court in relation to the specific facts of the case.

I can only agree with Jeremy Phillips, however, that the decision is quite narrowly focused and the race will now be on to see what kind of filtering will be considered acceptable. Newzbin 2 anyone?

The Court makes reference to the excessive surveillance features of the SABAM demanded filtering system and the disproportionate interference with

(a) the right of the ISP to engage in commercial enterprise and
(b) the fundamental rights of the individual

that such filtering would result in.

They also refer approvingly to the earlier ECJ Promusicae case which emphasised the need to respect intellectual property rights but not at the expense of more fundamental freedoms such as privacy and free expression. The key elements are:

"39 Preventive monitoring of this kind would thus require active observation of all electronic communications conducted on the network of the ISP concerned and, consequently, would encompass all information to be transmitted and all customers using that network.

40 In the light of the foregoing, it must be held that the injunction imposed on the ISP concerned requiring it to install the contested filtering system would oblige it to actively monitor all the data relating to each of its customers in order to prevent any future infringement of intellectual-property rights. It follows that that injunction would require the ISP to carry out general monitoring, something which is prohibited by Article 15(1) of Directive 2000/31...

43 The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.

44 As paragraphs 62 to 68 of the judgment in Case C‑275/06 Promusicae [2008] ECR I‑271 make clear, the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights...

47 In the present case, the injunction requiring the installation of the contested filtering system involves monitoring all the electronic communications made through the network of the ISP concerned in the interests of those rightholders. Moreover, that monitoring has no limitation in time, is directed at all future infringements and is intended to protect not only existing works, but also future works that have not yet been created at the time when the system is introduced.

48 Accordingly, such an injunction would result in a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly.

50 Moreover, the effects of that injunction would not be limited to the ISP concerned, as the contested filtering system may also infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

51 It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.

52 Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.

53 Consequently, it must be held that, in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.

54 In the light of the foregoing, the answer to the questions submitted is that Directives 2000/31, 2001/29, 2004/48, 95/46 and 2002/58, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an ISP which requires it to install the contested filtering system."

So in summary the SABAM required filtering system is crude and damaging because it doesn't respect the right to privacy, freedom of expression or the freedom to conduct a business. The case is a nice illustration of why Cory Doctorow argues that there is no longer such a thing as copyright policy but doesn't really get us a whole lot closer to a ceasefire in the copyright wars.

Update: ECJ press release on the decision is also available. What's interesting about the press release is that it states the decision of the Court in stronger terms than I suspect the Court intended:

"EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files
Such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between, on the one hand, the right to intellectual property, and, on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information"

A reading of the press release alone may have led some members of the press to interpret the decision as meaning that filtering on copyright protection grounds is universally prohibited. What the Court actually said was that the specific kind of filtering demanded by SABAM would breach a plethora of directives on ecommerce, copyright & related rights, data protection and intellectual property enforcement.

Update 2: SABAM are disappointed.
Glyn Moody wonders if it is a turning point in EU law.

Minister: UK music industry a huge success

2011-11-23T17:59:00.000Z

Largely unremarked in the mainstream press the Parliamentary Under-Secretary of State for Culture, Olympics, Media and Sport, Ed Vaizey, (and other MPs) had some very upbeat things to say about the UK music industry in the House of Commons yesterday. His contribution to the discussion begins at 1.49pm.

"I congratulate my hon. Friend the Member for Selby and Ainsty (Nigel Adams) on securing this important debate. The fact that so many hon. Members have attended, intervened and made speeches shows that there is large-scale recognition throughout the House of the success of the music industry, and support for it...

We talked about the huge success of the British music industry—and it is a staggering success, with almost £4 billion of sales. Britain is the only country apart from the United States and Sweden that is a net exporter of music..

We have a thriving and vibrant music scene...we have a vibrant music ecology in this country..."

Sadly he also engaged in loose platitudes about "intellectual property theft", the alleged dazzling brilliance of the digital economy act and the Newzbin blocking activities and vague references to the Hargreaves report.

It does beg the question though that if the UK music industry is doing so spectacularly well, why so much energy continues to be expended on the expansion of copyright? It would also be interesting from an economic perspective to see the underlying evidence for the suggestion that it is currently a nearly £4 billion industry and what specifically that £4 billion entails.

BBC legal advice on HD DRM

2011-11-18T18:26:00.000Z

The BBC has now responded to my internal review request in relation to disclosing their legal advice on competition issues associated with HD DRM. The review is very thoughtful and the analysis of the issues clear and enlightening. In summary the response suggests that:

(a) the BBC had no formal structured legal advice on the competition issues relating to introducing DRM on the HD Freeview platform;

(b) the legal advice that was sought was ad hoc and given in email communications on a range of issues over a number of weeks;

(c) the BBC should disclose the draft document (“Draft Submission”) they prepared on some of the competition and copyright legal issues which was intended for submission to Ofcom (but in the end not actually submitted);

(d) the BBC are going to review the relevant document before releasing a redacted copy by the 25th of November (next Friday).

Copy of the review below.

"Reference:
IR
2011027

Date:

17
November
2011

Original Request and the BBC’s Decision
By a request made on 6 June 2011, the requestor sought copies of all BBC
communications with Ofcom relating to the Ofcom consultation “Content
Management on the HD Freeview Platform”. A number of documents were
then disclosed by the BBC under cover of a letter from Steve Gutteridge (BBC
Distribution) dated 8 July 2011.

The requestor then raised a series of questions relating to the disclosed
material. Relevant to this internal review, the requestor asked if the BBC had
sought and/or received “professional legal advice on the competition issues
relating to:

(i)
Mandatory DRM removing the ability of consumers to purchase
receivers without DRM and the BBC leveraging its position as
holder of the multiplex licence to mandate DRM thereby affecting
competition at the level of the manufacturers;

(ii)
Rights holders’ possible collective efforts to pressurise public
service broadcasters into mandating HD DRM?”

In its response dated 25 August 2011, Rachel Ward (Information and
Compliance) confirmed that the BBC “did seek legal advice on our approach
to HD content management”.

Perhaps not surprisingly, the requestor then, on 25 August 2011, requested
disclosure of that legal advice and also copies of BBC documents and/or
briefings summarising that advice. On 23 September 2011, Mr Gutteridge
wrote to Mr Corrigan informing him that the BBC was withholding this
information on the basis that it was subject to legal professional privilege. It is
this final decision that I am now asked to review.

Issues Under Review

Although the requestor has asked that the review focus on the foundation of
one argument relied on by Mr Gutteridge (that legal professional privilege is
perhaps at its strongest where it relates to a public body or quasi-public body),

I do not consider it to be my role to scrutinise specific pieces of reasoning
which led to the decision to withhold information. My role is to look at the
issue afresh and to decide whether an exemption applies in respect of the
information that is sought. I therefore summarise the issue that I am to
address simply in the following terms:

Whether the Section 42 (1) exemption (legal privilege exemption) requires
that the information be withheld.

Consideration
In undertaking this review, I have considered the provisions of the Act and the
guidance issued by the Information Commissioner’s Office and the Ministry of
Justice on the exemption relating to legal professional privilege. I have also
consulted individuals within the BBC, both in its Legal Division and in BBC
Distribution, who were responsible for advising the BBC on the content
management proposals relating to HD on the DTT platform and for
corresponding with OFCOM on this issue.

I have gathered together a very considerable body of information relating to
the BBC’s proposal for content management on the DTT platform. In many
instances, one or more internal lawyers were party to internal communications
which fed into the BBC ‘s response to Ofcom’s consultation on HD Content
Management. However, having spent a very considerable amount of time
gathering this information and reviewing it, it is clear that only occasional input
was sought or offered by lawyers on competition law issues. It is important to
note, also, that there was no set piece formal legal advice that was provided
and, further, that the legal issues addressed in this advice do not closely
mirror the two issues highlighted by the requestor.

My assessment, therefore, is that legal advice was sought and given in email
communications on an ad hoc basis over a number of weeks on a range of
issues (“the Advice”), only some of which touch on (but do not mirror) the
issues highlighted by the requestor. In addition to the Advice, a document
was prepared for possible submission to Ofcom outlining some of the
competition and copyright law issues that had been identified. It appears from
my enquiries that this separate legal document (“the Draft Submission”) was
not in the event submitted to Ofcom.

The requestor is seeking the BBC’s internal legal advice and also
documents/briefings which summarise that advice. I consider that the Advice
corresponds with the first category of documents and that the Draft
Submission corresponds with the second category.

Notwithstanding the requestor’s observation that not all advice given by
lawyers is privileged legal advice (based on the House of Lords decision in
the Three Rivers Litigation), the wording of the request makes it clear in my
view that peripheral advice relating to business issues that may have been
provided by lawyers is not is what is being sought. The requestor in terms
seeks “professional legal advice” on “competition issues relating to two
specific issues”. Any presentational and/or commercial advice given by a
lawyer would fall outside the scope of the request. I am satisfied, therefore,
that the Advice held by the BBC is subject to legal professional privilege.

Section 42 (1) is for qualified exemption and it is therefore necessary to
consider the public interest test. In this case, apart from furthering the general
public interest in disclosure of information relating to public authorities, it also
possible that the public interest is served by the public understanding the
tenor of legal advice that was received may further the BBC’s accountability in
respect of the its actions. However, in the absence of a formal, structured
piece of advice on the competition law issues highlighted by the requestor, the
disclosure of the Advice would in fact shed little light. I consider that the public
interest in disclosure is clearly outweighed in respect of the Advice by the
public interest in legal privilege being maintained (recognised by the
Information Tribunal in Bellamy v Information Commissioner as being a strong
public interest). I see no factor in other words which displaces the public
interest in an organisation being able in confidence to seek and be given
candid legal advice on complex legal issues.

However, slightly different considerations apply to the Draft Submission
because, although this can be seen as addressing some of the same issues
as the Advice, it was prepared with a view to being provided to Ofcom as
representing the BBC’s considered position on the legal issues it addressed. It
was therefore prepared with a view to any legal privilege attaching to it being
waived. This document can be regarded in my view as a BBC document
and/or briefing which to a degree summarises the legal advice that was
received (albeit, understandably, it does not address the full process by when
the BBC came to form its legal position). Whilst legal professional privilege
does still apply to this document, it is of a lower order than attaches to the
Advice in respect of which, as I have explained, it is vital that organisations
can seek, receive and consider legal advice candidly and in confidence.

I also believe that there is some public interest in disclosing the Draft
Submission. This is because it may aid public understanding of the legal
basis of the BBC’s submission to Ofcom on HD Content Management
because the Draft Submission provides legal analysis of some of the issues
raised by the BBC in its submission. The disclosure of this document does
not risk in my view revealing the train of thought of the legal advice that was
sought and received and, therefore, does not undermine the confidentiality of
that important and sensitive process.

Decision

I endorse the BBC’s application of the Section 42(1) (legal professional
privilege) exemption so as to withhold the legal professional advice sought
and provided to the BBC on the two issues that the requestor has highlighted.

However, I have concluded that the same does not apply to the final version
of the Draft Submission document that was prepared with a view to it being
provided to Ofcom. Whilst earlier drafts of that document should not be
disclosed because they may reveal the train of the legal advice that was
sought and given, the final draft can be seen as setting out the BBC’s settled
position for external submission. My conclusion, therefore, is that the final
draft of the Draft Submission only can be disclosed, redacted to remove any
personal or commercially sensitive data in accordance with the Freedom of
Information Act and redacted so as to remove information that is not relevant
to the request. "

More Panasonic DMR EX75 DVD tinkering

2011-11-17T10:26:00.002Z

My Panasonic DMR EX75 DVD recorder with the dodgy DVD drive was back on the blink this week. It started refusing to pick up the Freeview signal again. It's been a year since I replaced the capacitor that's prone to overheating on these machines and, sure enough, on lifting the lid and inspecting the over-stressed replacement capactor, that's the problem again.

You need to remember if you're going to tackle this problem that when you take the metal cover off there is still some dismantling to do. This is the picture under the metal cover:

At this point you need to unplug the connector strips from both sides of the green PCB and remove the screws from the corners of that PCB and carefully unplug it. There's a smaller green pcb towwards the front of the machine above the one you're removing and you'll need to loosen the two retaining screws on this as well before lifting out the bigger board. You can then get at the dodgy capacitor.

Clip the old capacitor legs off as high as you can in order to leave plenty of purchase to crimp your new capacitor legs on. This makes the subsequent soldering much easier. If you cut the legs too close to the surface of the board soldering is extremely fiddly and it's very difficult to get a clean connection.

Now carefully replace the pcb. I wasn't careful enough and snapped the newly replaced capacitor off the bottom board. Back to square one. Pcb off, re-solder the capacitor and carefully replace the pcb. Plug the connector strips back in. Put the metal cover back on and you're done!

Except that in my case I wasn't.

On connecting the machine back to the TV and switching on, the DVD drawer comes out, the display starts flashing and eventually tells me I've got a U61 error.

This is the same DVD drive that the machine's DRM is preventing me from using. After a lot of communications with them last year, Panasonic eventually agreed to replace the faulty DVD drive free of charge via J.F. Associates. Shortly thereafter the stressed capacitor failed and I replaced it. At this point the Pansonic's DRM decided it didn't approve of my DVDs and wouldn't play any of them!

Ok I haven't been able to use the DVD drive anyway so I'll live with the U61 DVD drive error. No can do says the machine. Because as long as there is a U61 error it is going to keep whirring and flashing, sticking the DVD drawer in and out, switching the stations on the TV, sticking messages on the TV screen and generally making it impossible to watch the TV or use the hard drive on the Panasonic. Honestly it's like a scene out of a Morecombe and Wise sketch.

It's resort to the manual and online forums time. On consulting the troubleshooting section in the manual it tells me this is not a fault (the forums beg to differ) and that I should just let the machine go through the motions of resetting itself; and then turn it on when it powers down. I let the machine whirr and flash and guess what - the manual is wrong and the forums are right. The problem persists and no amount of automated resetting is getting rid of the fault.

I tried a variety of fixes none of which worked. Then I decided to try unplugging the connector strips connecting the DVD drive to the circuit board and connecting the machine to mains electricity with the DVD drive disconnected. The theory was that whatever software loop was causing the automatic reset to fail might be bypassed if I disconnected the drive, thus enabling a fix. There are four of these connectors:

It's probably best isolate them with insulating tape to avoid shorting, before replacing the machine cover and plugging into the mains. I gave it about 15 to 20 minutes to reset (I hoped though not with a great deal of optimism) before disconnecting it from the mains again.

The final stage was to plug the four DVD drive connector strips back into the green pcb, put the lid back on and try connecting it up to the TV and mains again. This time it worked. The Panasonic can pick up the Freeview signal and record to and playback from the hard drive again.

Now dare I believe that, as a side effect of this tinkering, some sense might have been knocked into the machine's DRM, to the extent it might play my DVDs again? I know if I try it the system will have a heart attack and just give up but I can't help myself.

Open the DVD drawer.

Put in a DVD (Red fwiw).

Close the DVD drawer.

Hold my breath.

Whatdaya know...

It plays!

Why didn't I think of doing a disconnect reset this time last year! [Probably because at that point in the saga I had given up (unfairly as it turned out) on Panasonic ever helping and bought a cheap DVD player to play my discs.]

In any case the DMR EX75 is back in operation until the next time... I'm hoping at the very least that it survives the stress of the holiday season.

Note: pictures, as before, are from the AVForums thread that pointed me at the suspect capacitor this time last year.

The anti-social nature of social networks

2011-11-09T17:40:00.000Z

Whilst working on other things I came across two excellent essays on social networking today, one from maciej on Pinboard and the other from Charlie Stross. The former articulately describes the highly anti-social nature of the architecture of social network services. The latter critically assesses a social network analytics firm.

There are echoes of Alessandro Acquisti's SCL 6th Annual Policy Forum keynote address in both. Acquisti is interested in the behavioural economics of privacy.

Maintaining privacy in a social networking context involves engaging in the complex calculus of balancing an immediate cost (eg deciding not to participate) against a future benefit (preservation of privacy) and we're not particularly good, as social creatures, of tipping the balance in favour of the long term benefit. Hence the traditional Schmidt/Zukerberg 'solutions' to privacy -

[let the market decide]/[no one's forcing you to participate]/[transparency]/[user control] = privacy expedited

don't work. Counterintuitively, the experiments that Acquisiti has done demonstrate that the user, who believes that they have more control over their personal data, trusts the entity offering that superficial control and ironically discloses more personal data. Whereas natural suspicion of economic agents (companies) not offering that apparent control leads to more limited disclosure.

One of the many other problems with mass personal data pollution is that the negative events/perceptions show a greater longevity than the positive. Or as Acquisti says, when it comes to privacy, "the bad is not only stronger than the good it is also discounted differently."

If there is a record on a social network or elsewhere in the personal data morass on the internet of someone getting a major award, engaging in a heroic act or just doing something which shows them to be a decent human being, the social kudos associated with that postive event has a limited life. If it was 5 years ago, for example, we ask what has he done in the meantime? But a negative event is much longer lasting - a bad deed five years ago will still be held against you. That's human nature. The net takes away the ability to forget and the human pscyche makes it difficult to forgive, particularly in an era of a 24 hour news cycle with a voracious appetite for bad news.

(Just an aside, it's been impossible in the spotlight of that news cycle, for any kind of rational public debate to emerge on the border control story in the past few days because of the competition in shrill tough talking hysteria; and the opportunity to explain the power of intelligence led surveillance compared to irrational and unworkable blanket/mass surveillance is lost in the fear of potential media accusations of being soft on immigration/terrorism/crime/[pick your favorite bogeythreat])

So,

the architecture of social networks,
our lack of capacity to weigh up or fully grasp the myriad of complex down stream uses of our personal data (we just cannot predict as consumers/citizens how our data will be used),
our psychological tendency towards immediate gratification bias (give up data now, hang the consequences later),
the rapid devaluing of past good deeds compared to the long-lasting impact of the bad
and the power of technology to mine "anonymous" data and link it to individuals (eg through improving face recognition technologies)
before we even think about the relative economic/information power relationship disparity

mean that the proposed solutions of

transparency - telling the user this is your data and this is how we use it
and superficial user control of data (here are some privacy setting buttons)

are not an adequate response to the complex problem of ensuring respect for private and family life in an information age.

Hargreaves’ exceptions: format-shifting, parody, research and archiving Prt II

2011-10-21T17:47:00.003+01:00

Returning to the the Pictfor/Consumer Focus Hargreaves panel event, at the House of Commons on Tuesday evening this week, the fourth speaker on the night was James Sedry of Greenpeace, who admitted he had very little knowledge of intellectual property law and wasn't even aware of the Hargreaves review until recently but came to tell the story of how Greenpeace ran into problems in the past few months with IP. Parody is critical for campaigning. He didn't know there was a problem with it until Greenpeace produced a parody of a Volkswagen 60 second TV ad - the most shared ad online ever he said - of the little boy in a Darth Vadar costume trying to make things move with the force of his mind. Greenpeace produced a parody of the ad criticising Volkswagen's opposition to controls on carbon dioxide emissions:

The parody went viral. Four days into the release it had 2 million views and been shared 200k times on Facebook. Then it was removed by YouTube following a complaint from George Lucas. Greenpeace were shocked - they'd put a lot of money into it. But they do have well paid lawyers who took it up with Google on fair use grounds and the ad was re-instated on YouTube. That put the ball back in George Lucas' court - he can now take the matter up directly with Greenpeace if he wishes. After two months Greenpeace has not yet heard from his lawyers.

The video was offline for two weeks during a key part of the Greenpeace campaign and Mr Sedry reckons it damaged the campaign. He is concerned that smaller grassroots organisations will not take the risk of running this kind of parody.

There was a slightly bizarre set of exchanges then when the chairman, Mr Dowd MP, put Mr Sedry - a copyright novice - on the spot by asking him how he would shape copyright parody exceptions. The Greenpeace man talked about maybe allowing non commerical parody and the whole thing got side tracked, until a member of the House of Lords (who was also a lawyer) in attendance intervened to give Mr Sedry a break, since he'd admitted he was not a copyright expert, and essentially said there would be no justification for banning commercial parodies; that we need a parody exception in the UK and unless there was a question of passing off and trademark infringement in the commercial context, where more than adequate remedies were available to commercial rivals, then there was no justification for slicing parody exceptions into an irrational commercial v non-comercial dichotomy.

There was a lively subsequent discussion during which the most significant contributions came from a Google representative, Professor Fiona MacMillan of the University of London, Barbara Stratton of the Libraries and Archives Copyright Alliance, a representative from Intellect and Saskia Walzel of Consumer Focus.

The Google rep suggested to Martin Brennan, "If you knew what you were asking people to do was illegal and you'd talked to lawyers you would not have got any investment." He went on to say that a Martin Brennan or Greenpeace would not find themselves on the wrong side of the law if they were based in New York, implying the US copyright regime was preferable to that of the UK. Big claim that... cough... DMCA... cough. Martin Brennan responded by saying the VCR was illegal when it was launched but he wasn't necessarily concerned about designers having to push boundaries - he was concerned they find themselves outside irrational boundaries that they never would have expected to breach or simply did not know existed. He also mentioned being aggravated by the BBC who point blank refused to mention the JB7 in a series of programmes that was heavily praising (rip, mix and burn) Apple iPods.

The Intellect rep asked Martin Kretschmer why couldn't format shifting be permitted universally. Professor Kretschmer reasonably pointed out that the analysis of harm was a complex business and we need a carefully constructed IP landscape to encourage creators to create, investors to invest and consumers to buy. Unfortunately we seriously lack the empirical evidence base to provide a sound analysis of harm to inform policy. Though Prof K. has made a significant contribution to that with his report for the IPO this week.

Saskia Walzel of Consumer Focus then raised the issue of economic harm in relation to the JB7. In the case of the JB7 and the Greenpeace parody ad there was no economic harm. The JB7 was enabling people to enjoy music they had already bought. Where is the economic harm. Additionally where is the economic harm to rightsholders from achiving? Why should the BFI be exposed to the kinds of risks black letter copyright law lays down when all they are trying to do is preserve and protect our cultural heritage.

Barbara Stratton of the the Libraries and Archives Copyright Alliance made the point that libraries and archives were essential for creativity. Dark archives are of no use if no one can access them. She passionately believes we need to change the law or we will get to a point where even the limited exceptions of the 1988 Copyright Designs and Patents Act will only apply to the analogue world and our digital heritage will be locked away behind the paywalls of aggressive content monopolies.

Professor MacMillan then very eloquently - and I'm really sorry I didn't write her words down at the time because I'm pretty sure I'd be repeating them relentlessly - pointed out the key public interest function of intellectual property law and how we seem prone to forget or ignore it.

Depressingly Jim Dowd MP declared, just before he had to disappear for a vote in the House, that if the government don't get round to implementing Hargreaves in the next couple of years it will not get done in this parliament, if ever. In addition to the damage it would do the economy, that would be an insult to the work of the many people who fed into the review and to the memory of my friend, Mark Rogers, who considered it sufficiently important, in the final months of his life when he knew he was terminally ill, to devote time to producing evidence for the review (not to mention other earlier work he fed into it).

Martin Kretschmer neatly concluded proceedings by explaining that Hargreaves wants us to be careful not to over regulate but to understand that copyright policy - the subject of the evenings discussions - should focus on where it can make a difference to the creators, the investors (or as Mark Rogers would gently remind us that economists call them, the economic agents) and the consumers.

Well done to Consumer Focus & pictfor for setting up the evening and keeping the Hargreaves reforms in the spotlight and thanks for inviting me along.

Hargreaves’ exceptions: format-shifting, parody, research and archiving

2011-10-20T18:16:00.001+01:00

At the invitation of Consumer Focus I attended the Pictfor/Consumer Focus Hargreaves’ exceptions: format-shifting, parody, research and archiving panel event, in Committee Room 20 at the House of Commons on Tuesday evening this week. My first ever visit to the innards of Westminster.

The event was chaired by Labour MP, Jim Dowd.

The first speaker on the night was Martin Brennan of JB7 and Advertising Standards Authority spat fame. He opened by explaining that in the midst of his nightmare dispute with the ASA, over allegedly inciting copyright infringement, he felt like the Michael Douglas character in one of his favorite films, Falling Down, when he turns to the cop at the end and says "I'm the bad guy? How did that happen?"

The Brennan JB7 is basically a big iPod which you can use to copy and play all your music without the aid/intervention of a computer. He put 6 years of work and 3 re-mortgages into developing the machine, went from £0 to £7 Milllion (30,000 units) in sales.

The ASA decided, in response to a single anonymous complaint, after 10 million adverts, that Martin Brennan should include a prominent warning on all his ads declaring that copying CDs is not allowed under UK law. Yet the Apple iPods in use in the UK have millions of copied CDs and songs unlawfully copied from the internet and "rip, mix and burn" Apple have no obligation to include such a warning in their ads. As Mr Brennan said:

"I'm not a pirate."

"My customers are not pirates"

The JB7 is simply a "better way to enjoy music you've already paid for."

He rounded off with some general comments about the Hargreaves review recommendations. Mr Brennan considers himself to be a designer. He was thrilled to get his first patent at the age of 21 and reckons it was a great one which involved a genuine inventive step. Since then as an employee in various contexts he's been forced to put his name to junk patents by employers. The patent system is clogged full of such patents unworthy of protection and as an inventor he believes one of the ways of tackling the issue is, as Hargreaves suggests, increase patent fees. On copyright he thinks the term of copyright is ridiculously out of control and he would have no objection to anyone freely taking and making use of software he wrote 20 years ago. He positively supports Hargreaves notion of a digital copyright exchange.

Finally he said he was forced to include the copyright warnings in his adverts and he believes they have damaged his sales. He is similarly quoted in the Hargreaves review (chapter 5):

“My company is possibly one of the best examples of the sort of SME that can help lead this countryout of the recession – 10,000% growth in 30 months during the recession – but out of date legislationand red tape may sabotage my growth. It is no exaggeration to say that this matter has caused me more sleepless nights and wasted days than any other in my company’s history... Aside from legal headaches I face the cost of reassuring customers that record companies will not sue them. It’s daft because US companies Apple and Microsoft have been selling format shifting products in the UK for a decade."

Milliions routinely disregard, knowingly or unknowingly, the letter of UK copyright law but he's forced to warn people about it even though the government has accepted there should be a format shifting exception.

Next up was Professor Martin Kretschmer, of Bournemouth University's Centre for Intellectual Property Policy and Management. He has produced a very impressive and incredibily rare beast in intellectual property policy circles, an empirical report on the legal basis, rationale and economic effects of copyright levies, (in connection with his ESRC Fellowship at the UK Intellectual Property Office). The report was formally launched the following day at the Work Foundation.

He talked about there being significant copyright infringement through the use of mobile devices. He looked at a range of countries approaches and considered what the UK might do. Article 5 of the 2001 information society directive lists 20 possible exceptions and limitations to the scope of copyright. The UK has, thus far, chosen not to use all of them. (Though Hargreaves has recommended that we do). And since 2001 levies on electronic devices have tripled - €500 million per annum is collected in levies in the EU for private copying.

Of the 20 exceptions 3 require compensation - private copying, reprography and reproduction of broadcasts by social institutions. The Hargreaves review (chapter 5) recommends a limited private copying exception without compensation, partly on the basis of earlier versions of Prof Kretschmer's work in this area and the empirical evidence he provided to the review.

"5.30 The Review favours a limited private copying exception which corresponds to what consumers are already doing. As rights holders are well aware of consumers’ behaviour in this respect, our view is that the benefit of being able to do this is already factored into the price that rights holders are charging. A limited private copying exception which corresponds to the expectations of buyers and sellers of copyright content, and is therefore already priced into the purchase, will by definition not entail a loss for right holders.

5.31 The Government should introduce an exception to allow individuals to make copies for their own and immediate family’s use on different media. Rights holders will be free to pursue whatever compensation the market will provide by taking account of consumers’ freedom to act in this way and by setting prices accordingly."

Prof Kretschmer explained that the EU "fair compensation" provisions of the 2001 directive were interpreted by the European Court of Justice in the 2010 Padawan case as meaning the compensation must be the same everywhere and calculated on the basis of harm. As the court stated,

"“fair compensation must necessarily be calculated on the basis of the criterion of the harm caused to authors of protected works by the introduction of the private copying exception”

This is different to a concept developed by the highest German federal court in 1964 of "equitable remuneration". At the time it was decided that anyone who wanted to buy a tape recorder had to provide their personal details. This was challenged in the courts and the federal court eventually held it to be an unconstitutional invasion of privacy. Instead they came up with the concept of a statutory licence - equitable remuneration or levies on tape machines and associated ancilliaries to compensate copyright holders.

Professor Kretschmer concluded that we should be highly critical of the EU's fuzzy concept of fair compensation based on harm. He does believe that ill defined concept, however, gives the UK scope to produce a narrowly conceived private copying exception for consumers - eg to effectively enable copying of CD collections onto Brennan JB7 players. He reckons 96% or more of music on the average iPod is copied, most is not listened to; and a sufficiently clear, narrowly focussed private copying exception would do nothing to approve mass unlawful copying of songs from the internet, whilst enabling people to lawfully format shift legitimately purchased music. Such format shifting causes no harm to rightsholders - and as Martin Brennan argued it may even enhance the value of music CDs thereby improving sales - so there would be no requirement for compensatory levies.

Third on the roster for the evening was Richard Brousson, legal counsel at the British Film Institute (BFI). He spoke passionately about the difficulties the BFI faces because the existing archiving exception in the Copyright, Designs and Patents Act excludes film. The BFI is tasked, amongst other things, with preserving and restoring the most significant film collection in the world for today and future generations - a hugely important part of the UK's cultural heritage. He also gave an insight into the difficulties researchers face in accessing our cultural heritage because film is excluded from the existing non-commercial research exception.

The BFI is a registered charity partly funded by government and in recent times has additionally taken on most of the functions of the British Film Council which was abolished in the coalition government's bonfire of the quangos. You can get chapter and verse on their aims and objectives in the BFI royal charter. They are involved in the preservation of over 275,000 films and 210,000 TV programmes and the exceptions in the 1988 act don't cover the copying of moving images which instantly gives the BFI a problem. Mr Broussan also mentioned that a significant proportion of the films involved were orphan works.

He argued that copyright law is overdue reform if we want to avoid the systematic, legally approved destruction of our cultural heritage. The exceptions in the 1988 act and even specifically the section 29 "research and private study" exception does not apply to moving images. The law is significantly impeding the ability of researchers to access, understand and build on our cultural heritage. One of the ways the BFI has been dealing with this is through their Screen Online partnership with educational institutions like Cambridge, Derby and Newcastle universities - a terminal based physical walled garden which they also hope to roll out to other universities in the none too distant future.

The complex rights issues do mean they, like the Open University, have to employ a dedicated and expert group of rights and contracts officers and they regularly run into problems with the usual Hollywood crew refusing rights for educational use or archiving, for example. So the entrenched position of the large rightholders and the perilous state of copyright law and the risks it exposes the BFI to, if for example they attempt to preserve or transfer a copy of an old film in a physically deteriorating medium into a new format, mean it is extremely difficult for them to fulfil their royal charter objectives.

The fourth speaker was James Sedley of Greenpeace. I'll report on his contribution and some of the subsequent Q&A in a later post.

Independent review of the UK's extradition arrangements published

2011-10-18T13:35:00.000+01:00

The Independent review of the United Kingdom's extradition arrangements has just been published by the Home Office. It looks like bad news for Gary McKinnon who is facing extradition to the US and is potentially embarrassing for the coalition government which commissioned the review at least partly because of the McKinnon case. Deputy Prime Minister Nick Clegg in particular, prior to the last election, was a vocal supporter of McKinnon and stern critic of what he called the "lopsided" extradition agreement with the US.

Specifically on the imbalance in extradition provisions between the UK and US, however, the report concludes:

"The United States/United Kingdom Treaty

1.20 We have concluded that the United States/United Kingdom Treaty does not operate in
an unbalanced manner. The United States and the United Kingdom have similar but
different legal systems. In the United States the Fourth Amendment to the
Constitution ensures that arrest may only lawfully take place if the probable cause test
is satisfied: in the United Kingdom the test is reasonable suspicion. In each case it is
necessary to demonstrate to a judge an objective basis for the arrest.

1.21 In our opinion, there is no significant difference between the probable cause test and
the reasonable suspicion test.

1.22 In the case of extradition requests submitted by the United States to the United
Kingdom, the information within the request will satisfy both the probable cause and
the reasonable suspicion tests.

1.23 In the case of extradition requests submitted by the United Kingdom to the United
States the request will contain information to satisfy the probable cause test.

1.24 There is no practical difference between the information submitted to and from the
United States. "

EPDS, net neutrality, privacy & UK Commission on Bill of Rights

2011-10-13T11:03:00.003+01:00

Following the EDPS's opinion on net neutrality, traffic management and the protection of privacy and personal data, I've sent the Commission on a Bill of Rights an addendum to my original response to their discussion paper, Do we need a UK Bill of Rights. A copy follows.

As an addition to my response of Friday, August 26, 2011, and in particular the use and activities of the private/corporate sector in circumventing or ignoring human rights obligations and the potential for constitutional net neutrality principles to counteract such behaviours, could I draw your attention to the Opinion of the European Data Protection Supervisor, Peter Hustinx, on net neutrality, traffic management and the protection of privacy and personal data.

http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2011/11-10-07_Net_neutrality_EN.pdf

In my original response I suggested:

"I would suggest bringing the private sector into the remit of the bill of rights in relation to:

    Right to respect for private and family life, home and correspondence (Article 8);
    Freedom of thought, conscience and religion (Article 9);
    Freedom of expression (Article 10);
    Freedom of peaceful assembly and association (Article 11);
    Right to an effective remedy (Article 13);
    Prohibition of discrimination (Article 14).

On articles 9, 10 and 11 it may be possible to address these alternatively through technological architecture obligations and principles of net neutrality. I recognise that the consideration, drafting and implementation of such provisions are likely to be complex but however it is done the private sector cannot be provided with a free pass to ignore fundamental rights."

Mr Hustnix analysis provides an insight into how such net neutrality provisions could also provide support for the protections of Article 8. He concludes:

"85. ISPs' increasing reliance on monitoring and inspection techniques impinges upon
the neutrality of the Internet and the confidentiality of communications. This raises
serious issues relating to the protection of users’ privacy and personal data.

86. While the Commission’s Communication on the open internet and net neutrality in
Europe briefly touches on these issues, the EDPS feels that more should be done
in order to come to a satisfactory policy on the way forward...

89. ...additional legislative measures may be necessary. In
such a case, the Commission should put forward policy measures aiming at
strengthening the legal framework and ensuring legal certainty. New measures
should clarify the practical consequences of the net neutrality principle, as this has
already been done in some Member States, and ensure that users can exercise a real
choice, notably by forcing ISPs to offer non-monitored connections."

Whilst he refers in his conclusion to legislative rather than constitutional measures, he makes the point in the body of the report that article 8 privacy principles are sacrosanct and technology neutral; and government, corporate or incidental/inbuilt technological feature bypassing of those principles is unacceptable.

Just a reminder that the Commission's discussion paper is the first step in their programme of public consultation. You can respond via email or to their address. The deadline for responses is 11 November 2011.

TSA gone wild

2011-10-12T12:51:00.000+01:00

Nice graphic from Criminal Justice Degree on airport security.

Via: Criminal Justice Degree

Airport digital strip search machines: to see or not to see...

2011-09-30T12:59:00.005+01:00

To see or not to see, that is the question

In the political arena – and airport security examined in the OU/BBC’s Bang Goes the Theory(26/9/’11) is a good example – the desire to reduce risk at almost any cost is notable. Authorities on both sides of the Atlantic regularly advocate the need, in the context of the ‘war on terror’, to introduce measures like airport scanners, sometimes described as digital strip search machines, in order to be seen to be improving public safety. Often, the more expensive and hi-tech and visible the approach is seen to be the better.

We are asked to give up a little bit of privacy to improve overall security. People with nothing to hide, we are told, have nothing to fear.[1] The systems proposed will help catch the baddies and protect the goodies. I will touch on the validity of these claims a little later but for the moment I have a question. Is it true that people always want the level of risk they are facing in life to be reduced?

Evolution has effectively turned every single one of us into our own personal risk managers. We make decisions every day that involve taking risks. Some people eat, drink and smoke too much and do not take enough exercise, in spite of the health hazards associated with such a lifestyle. They may not always be consciously aware of it but they are balancing their interpretation of the long-term risks of damage to health against the short-term rewards of enjoying their food, drink and smoking.

Many actively seek out the thrill of risky pursuits or professions like mountain climbing or racing car driving. The motto of the SAS is “who dares wins”. Just helping the kids to safely cross a busy road to get to the local park involves the balancing of risks and rewards. So perhaps a more legitimate pursuit for those professionally involved in risk management at airports would be the balancing of risks against benefits rather than the reduction of risks? We need to weigh the costs against the benefits when making decisions about airport security.

Unfortunately this can be a complicated business. We need to consider security trade offs - the facts, effectiveness, economics, societal values, technology, health, safety, political, legal and ethical issues.

Fortunately, security expert, Bruce Schneier [2] has developed a user friendly check list that virtually anyone can use to do a pretty decent evaluation of security measures deployed in all kinds of contexts, including airports. Schneier suggests we ask a series of relatively straightforward questions.

What problem are you trying to solve?
What is your solution?
How well does your solution address the problem?
What other problems does your solution create
How much does it cost?
Is it worth it?

Let’s try to apply Schneier’s questions to airport scanners.

What problem are you trying to solve?

We hope to prevent attackers with malign intent getting onto airliners with dangerous weapons and the adverse consequences arising from such circumstances.

What is your solution?

Full body scanners (digital strip search machines). In the Bang programme presenter, Liz Bonnin, extolled the virtues of a millimetre wave scanner but it is important to note that there are generally two generic types of scanners deployed in airports (and other contexts) – (a) millimetre wave scanners and (b) X-ray backscattermachines. The latter seems to be the most commonly used in the US.

3. How well does your solution solve your problem?

Well here is where things get interesting. If you have a compliant attacker, like a Bang presenter, who tries to smuggle through a potential weapon which the scanner can detect – like Liz’s ceramic knife, secured under her bra strap – then if the security personnel are paying attention they will spot the knife. And indeed the expert, Paul Mason from Redline Aviation Security, did detect the knife on the scanner image. Queue imaginary impressed music - dah dah – and Liz’s “awesome… excellent stuff” reaction. She had got her ceramic knife through the metal detector without being spotted after all. But would she have been as impressed if the knife had been detected through a pat down search?

The key problem though is not that Liz’s knife could have been spotted through a simpler, cheaper route, although these physical searches create their own difficult issues.[3] The key problem is that a number of researchers have shown that the machines are ineffective at detecting explosives and other weapons. In 2010 the US Government Accountability Office, the independent agency which investigates how the federal government spends tax revenues, concluded [4] that airport scanners might not have found the explosives used by notorious underwear bomber, Umar Farouk Abdulmutallab.

Security expert, Markus Lanz, gave a stark demonstration on German television in early 2010 that the scanners were ineffective. He used bomb making components concealed on his person and undetected by the scanner to start an intense fire in a controlled experiment outside the studio immediately after he was scanned.[5] On the plus side, the machine did detect his mobile phone, penknife and microphone.

Also in Germany the millimetre wave type machines in trials at Hamburg airport last year were shown to have problems with creases in clothes.

So there are significant questions about the effectiveness of these machines.[6]

What other problems does your solution create?

There are significant security, ethical, operational, legal and health and safety problems with the routine deployment of these machines in airports (and other contexts like train stations).

The security problems are not obvious until someone points them out. More and more complicated and intrusive airport security causes long queues – lots of people gathered together in a small space. The result is that an attacker armed with a bomb doesn’t have to make it onto a plane. He can harm a large number of people without ever having to go through security. And contrary to the suggestion in Bang there is no evidence that strip search machines make the process of getting through airport security quicker. Bruce Schneier calls it “security theatre” when you create the impression of improved security without actually improving security. The misplaced belief or confidence that the machine will catch the bad guys can undermine our security as we pay less attention to other indicators of nefarious intent.

I occasionally wonder what Winston Churchill would have made of these types of technological “solutions”.

“We will fight them on the beaches, we will fight them with no dignity…”. What kind of values is a society displaying when routine (even if only of the virtual variety) strip searching is considered acceptable? Note I’m not passing judgment here just asking the question if respect for personal privacy is a value that is important any more.

The operational issues are legion. In Bang it was suggested that displays are remote from the scanners, viewed by same sex operators who only see the image and never the individual scanned. Whereas that is the case in some airports the set up is not universal. How do we know, by the way, that the scanned image is only being transmitted to the remote operator (if that be the case) at the airport? In truth we do not. The Bang crew suggested full body images are never recorded. Actually many, if not all, of these systems have recording capability [7] and lots of images have been leaked onto the Internet.[8]

There are numerous stories [9] about young women and ethnic minorities being disproportionately selected for scanning and other passengers being pressurized or maltreated by security staff and/or police when deciding to opt out of being scanned.

The other operational issue that was mentioned in the program was the question of how revealing the images produced by the machines were. Liz said the “technology is based on contours – your underwear is so close to your body that it kinda helps conceal the more detailed bits of your anatomy”; or as one of her co-presenters, Dallas Campbell put it “Your bits and bobs, your bits and bobs.” With reference to the images displayed during the course of the program that was arguably the case. What wasn’t said, however, was that the machines can be fine tuned, increasing the intensity of the beam, to leave little to the imagination. Tuning is in the hands of the airport authorities and ultimately the operators.

The legal issues with these strip search machines are complicated. It is possible that their use is in breach of Article 8 the European Convention on Human Rights [10] which guarantees a right to privacy. [11] Their operation, in the case of children, is likely to breach UK and other jurisdictions’ child protection legislation regarding the making of indecent images of children.[12] There are also data protection and data retention questions.

Then there are the health questions. It is probable, as stated in the Bang program, that the health risks are small with the millimetre wave machines that Liz Bonnin reviewed. The chances are you’ll be exposed to more radiation during an average flight that anything fired at you in a millimetre wave machine but the scanners have not been independently tested to rigorous academic standards. So there is no independent verification of how they work or what the specific exposure levels might be.

The X-ray backscatter machines are a different story, however. In April 2010 Professor John Sedat and a number of his highly respected academic colleagues at the University of California - biochemistry & biophysics, cancer, X-ray and imaging experts and members of the US National Academy of Sciences – wrote [13] to Dr John P. Holdren, President Obama’s chief science adviser, [14] explaining their “concerns about the potential serious health risks of the recently adopted whole body back scatter X-ray airport security scanners”. They point out that though the machines nominally use low energy beams the dose is concentrated into the skin and immediately adjacent tissue. Since this is such a small fraction of body weight, “the real dose to the skin is now high”. They also point out that the use of these machines with specific categories of individuals raises particular concerns. These include over 65s, females with a predisposition to develop breast cancer, pregnant women, HIV or cancer patients and children. They worry about operators increasing the intensity of the beam if images are not clear enough for them and conclude:

“There is good reason to believe these scanners will increase the risk of cancer to children and other vulnerable populations. We are unanimous in believing that the potential health consequences need to be rigorously studied.”

So in answer to our fourth question – what other problems does your solution create – it seems there are significant ethical, operational, legal and health issues to be considered.

How much does your solution cost?

I understand airport scanning machines cost between £60k and £200k. In addition there are the ethical, security, operational, legal and safety costs mentioned above.

Is it worth it?

Frankly no.

To sum up – they are very expensive, they don’t work very well,[15] can compromise security and they create lots of other problems. There is no need to peer through the clothes of people traversing through airports. If there are tens of millions of pounds available to install these machines it would be better spent on intelligence gathering and pursuing rigorous investigations

So why are so many of these expensive scanners being deployed in airports and other places?[16] Essentially it is because no politician or public official, in the aftermath of the next major incident or attack, wants to be the one held up to ridicule and abuse for not putting enough prior resources into security.[17] They must be seen to be “doing something” after every attack and they must be able to claim “no one could have foreseen” or “we did as much as humanly possible”. And when it comes to airport security it seems there are no limits to the resources (and stupidity) [18] that gets poured into it.

[1] See Nothing to Hide: The False Tradeoff between Privacy and Security by Daniel J. Solove. Yale University Press, 2011, New Haven & London

[2] See for example Beyond Fear: thinking about security in an uncertain world by Bruce Schneier Copernicus Books, 2003. New York

[3] So-called “enhanced” pat down searches introduced in the US have led to all kinds of problems. See for example Rape Survivor Devastated by TSA Enhanced Pat Down at http://pncminnesota.wordpress.com/2010/11/08/rape-survivor-devasted-by-tsa-enhanced-pat-down/ and TSA pat-down leaves traveler covered in urine http://www.msnbc.msn.com/id/40291856/ns/travel-news/t/tsa-pat-down-leaves-traveler-covered-urine/

[4] GAO Statement for the Record To the Committee on Homeland Security, House of Representatives Homeland Security: Better Use of Terrorist Watchlist Information and Improvements in Deployment of Passenger Screening Checkpoint Technologies Could Further Strengthen Security (January, 2010) http://www.gao.gov/products/GAO-10-401T

[5] Video with some English subtitles available on YouTube at http://youtu.be/idICUSiGcqo

[6] http://www.springerlink.com/content/g6620thk08679160

[7] The Electronic Privacy Information Center, EPIC, a civil rights group in the US obtained evidence through freedom of information requests in 2010 that the body scanners being used at federal courts house, for example, can store and record images. http://epic.org/privacy/airtravel/backscatter/ EPIC are pursuing a federal legal case to have airport scanners banned on constitutional grounds, so far without success.

[8] http://gizmodo.com/5690749/these-are-the-first-100-leaked-body-scans

[9] Bruce Schneier has a selection of links to some of these on his blog at http://www.schneier.com/blog/archives/2010/11/tsa_backscatter.html

[10] http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf

[11] And on the other the side of the pond the 4^th amendment to the constitution that guarantees protection from unreasonable search and seizure

[12] http://www.guardian.co.uk/politics/2010/jan/04/new-scanners-child-porn-laws

[13] http://www.scribd.com/doc/35498347/UCSF-letter-to-Holdren-concerning-health-risks-of-full-body-scanner-TSA-screenings-4-6-2010

[14] Assistant to the President for Science and Technology, Director of the White House Office of Science and Technology Policy, and Co-Chair of the President's Council of Advisors on Science and Technology (PCAST)

[15] See also Leon Kaufman and Joseph W. Carlson (2010) "An evaluation of airport x-ray backscatter units based on image characteristics" Journal of Transporation Security, Volume 4, Number 1, 73-94. http://www.springerlink.com/content/g6620thk08679160

[16] EG the Z back scanner van http://en.wikipedia.org/wiki/Backscatter_X-ray

[17] Schneier calls this CYA security and I respectively refer the reader to his essay on the same at http://www.schneier.com/blog/archives/2007/02/cya_security_1.html

[18] [sic] ban on liquids etc. Choose your favourite dopey airport security measure.

Update: edited to cure broken links.

Freeview HD DRM FoI update

2011-09-23T16:50:00.003+01:00

Apologies to those of you following the BBC/Freeview HD DRM saga for not posting more updates on the succession of communications I've had with the BBC, ITV, Channel 4, Ofcom, the British Library, the BFI and others. I'm not finding much time in the average week for blogging at the moment.

The latest exchanges have been this afternoon, relating to legal advice the BBC received on the competition issues - they have refused to disclose this - and a meeting that took place between the broadcasters, the rights holders and Ofcom on 10 March 2010 at Freeview's offices. Ofcom has no record of who attended this meeting.

The BBC has justified its refusal to release details of the legal advice they got on the HD DRM competition issues citing section 42 of the Freedom of Information Act. (Section 42 combined with section 2(2)(b) refusal). Section 42 is a qualified exemption for legal advice. Section 2(2)(b) is

"in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information."

Their response is understandable but I've asked for an internal review and requested associated information citing the authority of the Three Rivers House of Lords case from 2004. For the uninitiated,

Three Rivers District Council and others (Respondents) v. Governor and Company of the Bank of England (Appellants) [2004] UKHL 48 on appeal from:[2002] EWHC 2730

suggested privilege does not cover all situations where legal advice relates to business matters. Additionally the court suggested that copies of, or discussion about such legal advice may not be privileged if such copies/discussions are for non privileged purposes.

Ofcom's lack of institutional records on a key meeting between themselves, broadcasters and rights holders on the HD DRM issue is perhaps a little surprising. Or perhaps not.

Is ACTA compatible with fundamental rights?

2011-09-02T17:19:00.002+01:00

Ian Brown and Douwe Korff have prepared a draft report, for the the Greens/European Free Alliance group in the European Parliament, on whether ACTA (The Anti-Counterfeiting Trade Agreement) is compatible with fundamental human rights. They conclude that it is not.

"SUMMARY & CONCLUSIONS
ACTA was negotiated in unwarranted secrecy, without adequate input from civil society or parliamentarians, but in close cooperation with major IP right holders. Not surprisingly, this resulted in a text that gives disproportionate protection to big business; fails to level the playing field between developed and developing nations in international trade relations; hampers innovation (especially by SMEs); fails to promote grassroots culture; and could impede the dissemination of knowledge for people across the world (and access to health care and generic medicines).
Human rights were effective ignored, apart from the inclusion in the Agreement of vague and ineffective “without prejudice” clauses that fail to redress the balance, and are little more than fig-leaves. The inclusion of a detailed provision on the need to respect human rights in the protection of IPR, on the lines of the “138 Amendment” to Directive 2002/21/EC, was rejected as “not needed”.
This was wrong. Our analysis shows that ACTA, as currently drafted, seriously threatens fundamental rights in the EU and in other countries, at various levels. Specifically:
THE RIGHT TO FREEDOM OF EXPRESSION AND INFORMATION:
Re Application of ACTA to trivial or small-scale, not-for-profit technical infringements of IP rights, and to the dissemination of IP-protected information without the agreement of the right holder where this is justified on higher public interest grounds:
Article 23 ACTA requires State parties to lower the criminal threshold for IPR infringements, and to widen the scope of the criminal offences, without a de minimis exception;
Without such an exception and/or similar exceptions on the lines of the U.S. “fair use” and “fair comment” rules, IPR enforcement will disproportionately restrict the freedom to seek, receive and impart information and ideas;
Since a de minimis exception can be seen as a limitation on procedural matters rather than on the substance of IP rights, this is not remedied by the fact that ACTA allows States to retain substantive exceptions to IP law;
In our opinion, an explicit de minimis rule and an explicit public interest defence are the minimum that are required to bring Article 23 in accordance with the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights (CFR).
Re Application of ACTA to evasion of Digital Rights Management systems:
ACTA too easily assumes that right holders’ rights always trump user rights, that right holders can impose whatever kinds of DRM restrictions they like, and that these are always lawful in terms of contract- and consumer law, no matter how draconian.
In our opinion, in specific contexts, this will not be right, and this approach therefore unduly and disproportionally restricts access to information, or the free dissemination of information, in violation of Article 10 ECHR and Article 11 CFR.
Re “Three strikes” and extended ISP liability:
the revised, final text of Article 27.1 – 3. ACTA no longer requires States to adopt the kind of draconian measures - excessive ISP liability, “three strike” rules, etc. - that were clearly originally in the minds of the drafters, and that the European Data Protection Superviser (EDPS) has shown to be clearly incompatible with European human rights and data protection law;
However, it still suffers from some of the same defects as the “criminal enforcement” provision mentioned above. Article 27 is still excessively vague; it encourages non-EU States to adopt such human rights-unfriendly measures in support of mainly U.S. and EU corporations, who could not rely on such measures in their own regions; and it could still be misread or misconstrued by EU States to adopt such measures.
In our opinion, without clear stipulations that require States that sign up to the Agreement not to allow private-sector-imposed “three strike” rules and not to impose excessive ISP liability in respect of IPR infringements, ACTA fails to ensure that it will be applied (by EU and non-EU States) in accordance with European and international human rights standards.
THE RIGHT TO PROTECTION OF PERSONAL DATA:
Articles 11 and 27(4) allow for the following:
the surreptitious monitoring of the Internet use of millions of individuals without any concrete suspicion of illegality, and the systematic recording and analyses of information on their Internet use;
the disclosure of the information gleaned from such surveillance to right holders, even though it may be wildly unreliable as an indicator of illegality, without any real safeguards to ensure that only information is disclosed which seriously suggests widespread infringement by identified individuals;
on the basis of completely unclear standards (essentially, mere claims by right holders);
by judicial and “other” authorities, i.e. also by authorities that are neither independent nor impartial in these respects;
across borders, including from EU Member States with strict data protection laws to non-EU Member States with “inadequate” data protection laws (or no data protection laws at all) ; and
in proceedings to which the individuals do not have access, and in which they are not heard (inaudita altera parte).
The above-mentioned suspicionless monitoring and disclosures of unreliable but sensitive personal data are incompatible with European human rights and data protection law, except under very stringent conditions, as outlined in our Opinion with reference to the Opinion of the EDPS, which include:
limiting such monitoring to “clear” cases of “major IPR infringements”, and even then only subject to a “prior check” by the relevant national data protection authority;
limiting transborder disclosures to right holders and law enforcement agencies in non-EU countries that ensure “adequate” protection of the received data, but in either case again only subject to such a “prior check”;
imposing serious checks on the validity of non-EU personal data disclosure orders, and on assurances of limiting the use of the data by the non-EU recipient to the purpose of the disclosure (which is not properly ensured by ACTA, in spite of phrases suggesting this).
In our opinion, the absence of such stringent conditions in ACTA means that the Agreement in these respects is incompatible with the ECHR, the CFR, and European data protection rules.
FAIR TRIAL/DUE PROCESS ISSUES RELATED TO OTHER FUNDAMENTAL RIGHTS:
Re Criminal law enforcement of IPR under ACTA:
In our opinion, ACTA, by not including a de minimis exception to its compulsory and draconian enforcement regime, fails to ensure adequate protection of the right to freedom to obtain and disseminate information, the right to freedom from unreasonable search and arrest, the right to inviolability of the home, and the right to the peaceful enjoyment of one’s possessions, and thus violates those rights.
Re Civil-law enforcement of IPR under ACTA (including injunctions, provisional measures, and the awarding of damages):
In our opinion, without clear provisions stressing that injunctions should be the exception, and inaudita proceedings the high exception, and that for both, there must be strong counterbalancing safeguards to preserve the “equality of arms” in IPR enforcement proceedings, ACTA is incompatible with the “fair trial” guarantees in the ECHR and the CFR.
Re “Privatisation” of IPR law under ACTA
Rather than contributing to the upholding of freedom of expression and due process rights by the dominant, private-sector players on the Internet, ACTA erodes the development of the Rule of Law in that realm. It encourages the regulation of human rights-sensitive matters by private entities, outside the formal frameworks, and without ensuring compliance with “off-line” human rights standards.
This “privatisation” of the IPR regime therefore, in effect, deprives individuals from their right to have crucial issues of Internet freedom properly adjudicated in proceedings that meet all the requirements of Article 6 ECHR/Article 47 CFR.
Overall, ACTA tilts the balance of IPR protection manifestly unfairly towards one group of beneficiaries of the right to property, IP right holders, and unfairly against others. It equally disproportionately interferes with a range of other fundamental rights, and provides or allows for the determination of such rights in procedures that fail to allow for the taking into account of the different, competing interests, but rather, stack all the weight at one end.
This makes the entire Agreement, in our opinion, incompatible with fundamental European human rights instruments and -standards."

The report is a draft and open for a 30 day public comment period.

Response to Commission on a Bill of Rights

2011-08-26T15:06:00.001+01:00

The Commission on a Bill of Rights established by the UK government in March this year has issued a discussion Paper, Do we need a UK Bill of Rights, the first step in their programme of public consultation. You can respond via email or to their address. The deadline for responses is 11 November 2011. A copy of my response follows.

(1) do you think we need a UK Bill of Rights?

Given the actions of the government, the media, the public and corporate sectors, the constant dilution, criticism and breaching (e.g. S and Marper v UK, 30562/04 [2008] ECHR 1581) of the Human Rights Act and other common law rights protections and the widespread development and deployment of modern communications technologies over the past 20 years, there is a case to be made that a Bill of Rights, covered by special constitutional supremacy protections, is increasingly necessary for the UK.

On the technology front alone it is worth bearing in mind the comments of European Data Protection Supervisor, Peter Hustinix, at the University of Edinburgh in the summer of 2011[1]:

"Before 1995, the confidentiality of communications was a widely practiced rule. Interception or monitoring of communication was only allowed under strict conditions, subject to a series of safeguards."

Unfortunately now it seems confidentiality of communications is a widely ignored rule by the public and private sectors. Interception or monitoring of communication is commonplace on and offline.

It has been increasingly evident also, that government, under the glare and pressure of the 24 hour news cycle, requires robust constitutional constraints on their temptations to respond to complex socio-economic/political problems, such as the recent riots, with knee-jerk, liberty-undermining, ill-conceived legislation and/or irrational, populist mob ‘justice’ (e.g. the political pressure on the courts to issue excessively harsh sentences).

The prime minister’s idea, in the wake of the riots, of mandating control mechanisms in social media, for example, is at best unworkable and at worst will impede the activities of those trying to cope with emergency situations. Those very same networks are used by those in danger who through no fault of their own get caught up in a riot situation and emergency services trying to respond it.

Additionally modern communications technologies and networks pervade all aspects of our lives these days in the UK, not just facilitating communications with friends, family and wider social circles but providing access to basic public and private services, education, employment, consumer markets. Cutting access to these things on a mere suspicion involves an arbitrary interference with the right to communicate without due process, upending the principle of the burden of proof and applying pre-emptory criminal sanctions, potentially in the absence of any criminal act. It’s a short slippery slope from there to thought crimes (which arguably we already have in the UK with some of the anti-terrorism legislation already in place). Such research as is currently available on this largely concludes that deep packet inspection that is fundamental to such activities is dangerous technology and that it :

is ineffective at blocking illicit material (false positive) and communications
blocks legal content (false negative) and communications
sometimes assists access to illicit material - eg organised gangs find it easy to get access to "secret" lists of banned communications
does not achieve the aim of removing nefarious communications from the Net
does absolutely nothing to protect society from criminal acts

All states, including Western liberal democracies, want to block something and internet blocking is often based on vague arbitrary laws - you only have to look at the HADOPI regulations in France or the Digital Economy Act in the UK to see that. The blocking also often relies on secret banned lists, collated by unaccountable quangos, public or private, in dark smoky rooms. These blocking provisions or banning orders additionally tend to ignore due process – those affected get to know about the blocking after the event and it can be difficult to challenge.

Yet the blocking is pretty easy to bypass by people who know what they are doing and criminal gangs who have ready access to people who can facilitate such circumvention.

More generally in the context of the bill of rights is the need to understand the power of the internet as a panopticon. The internet applies the hard wired architecture of Bentham’s idea to the whole of society - the internet essentially facilitates mass surveillance of online activities and internet surveillance is linked to real world surveillance. Regardless of the relative amount of time we spend online we live in the real world.

In summary, the principle a bill of rights which confers and protects the civil and political rights of citizens and which has constitutional protections against parliamentary sovereignty is a sound one. In practice I doubt the political will exists to give such a bill of rights supremacy over all other laws and over parliamentary sovereignty. And if a new bill of rights is to be no more than a coalition government branded and diluted version of the Human Rights Act then there is little point in expending energy and resources pursuing it.

(2) what do you think a UK Bill of Rights should contain?

In principle it should minimally include the existing protections of the European Convention on Human Rights.

• Right to life (Article 2);

• Prohibition of torture or inhuman or degrading treatment or punishment (Article 3);

• Prohibition of slavery or servitude, or forced or compulsory labour (Article 4);

• Right to liberty and security (Article 5);

• Right to a fair trial (Article 6);

• No punishment without law (Article 7);

• Right to respect for private and family life, home and correspondence (Article 8);

• Freedom of thought, conscience and religion (Article 9);

• Freedom of expression (Article 10);

• Freedom of peaceful assembly and association (Article 11);

• Right to marry (Article 12);

• Right to an effective remedy (Article 13);

• Prohibition of discrimination (Article 14).

• Protection of property (Protocol 1,Article 1);

• Right to education (Protocol 1, Article 2);

• Right to free elections (Protocol 1, Article 3).

Additionally there has to be some provision tackling the increasing tendency of governments to sub contract activities to the private sector or other governments (in the case of torture) in a way which attempts to avoid/circumvent their human rights obligations. The US government’s mass, warrantless, unconstitutional, wiretapping activities were facilitated by the large telecom companies. The internet and associated technologies are largely controlled by the private sector, the primary interest of which is to make money not to operate in accordance with the principles of international human rights conventions.

I would suggest bringing the private sector into the remit of the bill of rights in relation to:

Right to respect for private and family life, home and correspondence (Article 8);
Freedom of thought, conscience and religion (Article 9);
Freedom of expression (Article 10);
Freedom of peaceful assembly and association (Article 11);
Right to an effective remedy (Article 13);
Prohibition of discrimination (Article 14).

On articles 9, 10 and 11 it may be possible to address these alternatively through technological architecture obligations and principles of net neutrality. I recognise that the consideration, drafting and implementation of such provisions are likely to be complex but however it is done the private sector cannot be provided with a free pass to ignore fundamental rights.

I’m open to suggestions on how this aspect of the Bill would work. It may be that a first step in the right direction would be for private sector organisations with substantial control of communications infrastructure to sign up to an internet charter of principles[2], based on the Convention and emerging constitutional-type principles of internet governance[3].

It is critical that respect for fundamental rights and the rule of law should apply to the operation of the internet and associated technologies. There should be no government or private sector secret compilations or deployment of secret blocking lists. All restrictions of rights should be based on clear, accessible, transparent, foreseeable, proportionate, necessary, effective, regulations; no arbitrary unchecked authority, no bypassing of due process; absolutely no excuses for mass, suspicionless, warrantless surveillance e.g. data retention[4]; and these rules should not be limited to government and public sector activities but also apply to the private sector that effectively controls the technologies of the internet and, in a real practical sense, the control of the governance of the internet is inherent in the control of that technological architecture.

(3) how do you think it should apply to the UK as a whole, including its four component countries of England, Northern Ireland, Scotland and Wales?

In principle, as far as possible, there should be no margin of appreciation in the application of the bill of rights to the constituent countries of the UK i.e. it should be applied consistently across the UK.

(4) having regard to our terms of reference, are there any other views which you would like to put forward at this stage?

Not at this stage.

[1] Public Lecture, University of Edinburgh, School of Law Edinburgh, 7 July 2011

"Do not track or right on track? – The privacy implications of online behavioural advertising"

[2] As suggested by Brown, I. and Korf, D. (2011) ‘Social Media, Political Activism and Human Rights’. Issue Paper for the Council of Europe Commissioner for Human Rights.

[3] For example, Council of Europe Recommendation CM/Rec(2008)6 of the Committee of Ministers to member states on measures to promote the respect for freedom of expression and information with regard to Internet filters.

https://wcd.coe.int/wcd/ViewDoc.jsp?Ref=CM/Rec%282008%296&Language=lanEnglish&Ver=original

See also UN General Assembly Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

http://www.scribd.com/doc/56634085/Report-of-the-Special-Rapporteur-on-the-promotion-and-protection-of-the-right-to-freedom-of-opinion-and-expression-Frank-La-Rue

[4] The EU Data Protection Supervisor, Peter Hustinix, has issued a strongly worded opinion saying the data retention directive is incompatible with the EU's privacy protections;.

http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2011/11-05-30_Evaluation_Report_DRD_EN.pdf

Mark Rogers RIP

2011-07-20T17:29:00.002+01:00

It is with great sadness that I write that my friend and colleague, Mark Rogers, died this morning after a long and incredibly dignified battle with a malignant brain tumour.

I’ve had privilege of knowing Mark for 11 years – we moved to the same location at roughly the same time, me the short hop from Oxford and Mark returning from a stint working in Australia. Both of us with young families. I’d been working at the Open University for about five years by then with Mark’s dad, Brian, one of the most decent human beings you could ever hope to meet.

An Oxford University economist of international renown, Mark’s recent work has formed one of the foundation stones of Professor Ian Hargreaves emphatic call for evidence based policy making in his review of the UK’s intellectual property regime.

Down to earth family man, friend, academic and practical economist, optimist, writer, basketball coach and player, runner, cyclist, all round handyman and an infinite well of sound personal and professional advice, Mark is one of those impossibly nice, exceptionally talented and generous individuals you’d like your children to emulate.

The dignity and positive outlook with which he has faced his illness were genuinely awe inspiring. He is survived by his partner Shona and two children, Callum and Tegan. Needless to say it is impossible to articulate the impact on his family - nothing can prepare you for such an experience.

There is neither rhyme nor reason for the world and, more especially his family, to be prematurely deprived of the gifts this man still had to offer. Mark himself would tell us to appreciate what we have and had rather than focusing on the loss and inevitable sorrow. Nevertheless, Mark, we will grieve. There will never be another Mark Rogers. It's been an honour knowing you and working with you and a privilege to call you my friend. I will treasure those gifts.

Update: A memorial service for Mark will be held at Oxford University's Harris Manchester College, in the College Chapel at 2.30 pm on Tuesday 2 August.

The service will be conducted by Revd. Dr. Ralph Waller, Principal of Harris Manchester, and there will be refreshments afterwards in the college. The family are asking that there be no donations of flowers but instead donations are requested for the Sobell House Hospice Charity. Mark spent his final weeks being cared for in Sir Michael Sobell House, which is a specialist unit for adults with life threatening illness. Donations are being coordinated by the funeral directors: P.L.Barrett, 81 Ock Street, Abingdon, Oxfordshire, OX14 5AG, tel. +44 (0)1235 520 808, and can be sent to them with a note that the donation is in memory of Mark Rogers.

Aaron Swartz arrested

2011-07-20T10:28:00.003+01:00

Aaron Swartz has been arrested for breaching JSTOR's terms and conditions and for breaking into MIT's network to do so. The indictment states:

"11. Between September 24, 2010, and January 6, 2011, Swartz contrived to:

a. break into a restricted computer wiring closet at MIT;

b. access MIT's network without authorization from a switch within that closet;

c. connect to JSTOR's archive of digitized journal articles through MIT's computer network;

d. use this access to download a major portion of JSTOR's archive onto his computers and computer hard drives ;

e. avoid JSTOR's and MIT's efforts to prevent this massive copying, measures which were directed at users generally and at Swartz's illicit conduct specifically; and

f. ellude detection and identification;

all with the purpose of distributing a significant proportion of JSTOR's archive through one or more file sharing sites."

It also says "Swartz used MIT's computer networks to steal well over 4,000,000 articles from JSTOR."

Firstly copying is not stealing. Secondly the Ars technica article above points to some evidence that Swartz has previously used large volumes of legal articles for research. Thirdly there does not appear to be any evidence that he intended to distribute the articles on file sharing sites. Without knowing all the details I would guess that, despite his committment to openness, Aaron Swartz understands the legal issues and penalties too well to have any such intention.

So, again without knowing all the details it is hard to say definitively, but this looks more like a bureaucratic over-reaction to rule breaking than a serious criminal case. Yet the consequences, should it go to trial and the court conclude malign intent, are extremely draconian. It will bear watching closely and hopefully Aaron Swartz's friends in the legal, digital rights and academic communities will guide him carefully through it.

Update: Demand Progress has a support Aaron petition.

Update 2: The charges are -
1. wire fraud (18 USC sections 1343 and 2);
2. computer fraud (18 USC sections 1030(a)4 and 2);
3. unlawfully obtaining information from a protected computer (18 USC sections 1030(a)(2), (c)(2)(B)(iii) and 2);
4. recklessly damaging a protected computer (18 USC sections 1030(a)(5)(B), (c)(4)(A)(i)(I),(IV) & 2);

Update 3: According to Wired, JSTOR did not want a prosecution and it wasn't them that called in the police. They got all the downloaded files back but the federal prosecutors and the New England Electronic Crimes Task Force see an opportunity to pursue a high profile computer crime case. It looks like it is the MIT police and the feds who are the prime movers behind the case rather than JSTOR. It would be interesting to know who made the original complaint though.

News International and the Browns

2011-07-12T15:24:00.004+01:00

The Guardian's front page story today is about News International's systematic and comprehensive targeting of the Brown family in the years they were resident in Downing Street.

NotW journalist on the BBC's Newsnight last week: "what better source of uh getting the truth is to listen to someone's messages". Ignore the grammatical slip. The sheer casualness of his perspective is notable - I've included the video clip below so you can make your own judgment (the quote comes about 10 seconds in). He actually seems to live in a universe where he sees nothing wrong with kind of nefarious "news" gathering activities that newspaper (and, little doubt, others as the 2005 ICO report, What Price Privacy Now makes clear) engaged in.

<p>&amp;amp;amp;lt;p&amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;lt;p&amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;p&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;p&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;lt&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;br&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;lt&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;br&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;lt&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;br&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;lt&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;br&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;lt&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;br&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;lt&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;br&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;lt&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;br&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;span style="background: none repeat scroll 0% 0% yellow;" class="goog-spellcheck-word"&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;Contrac&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/span&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/p&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;lt;/p&amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;amp;lt;/p&amp;amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;lt;/p&amp;amp;amp;gt;</p>

Contrast NotW-ville with what the European Data Protection Supervisor, Peter Hustinix, said in a speech last week at the University of Edinburgh, on the (different but related) subject of online behavioural advertising.

"Before 1995, the confidentiality of communications was a widely practiced rule. Interception or monitoring of communication was only allowed under strict conditions, subject to a series of safeguards."

Unfortunately now it seems confidentiality of communications is a widely ignored rule. Interception or monitoring of communication is commonplace on and offline.

Contrast NotW-ville also with the shock generated over 50 years ago by the illegal wiretapping of a phone conversation between a UK barrister Patrick Marriman and his client, a known and self confessed criminal, Billy Hill. (See the Pathé News clip from 1957, http://www.britishpathe.com/record.php?id=33047)

Now return to NotWville in News International County which also houses neighbouring Sunville, from where in October 2006, Mayor Brooks contacts the Browns to say she has obtained details from the medical file of their four-month-old son, Fraser, which revealed his cystic fibrosis. Without even touching on the ethical issues here it would seem that the very least breach of legal protocol involved in Ms Brooks obtaining such confidential medical details would have been a contravention of the Data Protection Act; though Mr Brown's adviser, David Muir, speculates in the Guardian that "it was obtained by what appeared to be illegal methods." And yet it gets worse. According to Marina Hyde, also in the Guardian today:

"I've been speaking to a source close to Gordon Brown at the time of the story, who recalls that it was served up with a chaser of threat.
"Gordon insisted - despite a heavy brow-beating from Rebekah - that he was not willing to let his son's medical condition be the stuff of a Sun exclusive," recalls this source. "So he put out a statement on PA to spike their scoop and make clear that despite his condition, Fraser was fit and healthy. The Sun were utterly furious, and Brown's communications team were told that if Gordon wanted to get into No10, he needed to learn that was not how things were done."
Yes, how DARE the then-chancellor refuse to accept that his child's health was not technically a commercial Murdoch property? I'd like to tell you there's a sick bag located in the rear pocket of the seat in front of you. But I'm afraid you're on your own."

I'd like to be able to say this is unbelievable, a blip, an outlier. But sadly it is all too believable and "normal" for the tabloid press. Sadly too, as a victim, Mr Brown was complicit in facilitating this social, media, market and political normalisation of deviance that not only accepts but approves of invasion of privacy as a virtue. One of the mantras of Blair/Brown Nu Labour was "nothing to hide nothing to fear". An unethical press is just one of the malevolent, emergent ecosystems that springs from that nasty political game and society's parallel and negligent lack of attention to awareness of, respect for and the need to protect and defend personal privacy in our leaky information age.

BBC HD DRM FoI response

2011-07-09T09:49:00.001+01:00

The BBC has responded to my latest HD DRM freedom of information request. They've sent 33 documents and released some previously redacted material which they consider no longer sensitive "due to the passage of time." But they are continuing to withhold key information in relation to communications with rights holders. Covering response letter:

"Mr Ray Corrigan

Sent by email to: request-74209-950772a7@whatdotheyknow.com

8th July 2011

Dear Mr Corrigan,

Freedom of Information Act 2000 – RFI20110637

Thank you for your request under the Freedom of Information Act (the Act) received by email on 6th June 2011, asking for:

“full and complete copies of all the BBC communications with Ofcom relating to the Ofcom
consultation 'Content management on the HD Freeview platform'

In particular could you send me:

(a) A full copy, including the redacted sections noted on page 1 and 7, of the 'BBC response to
Ofcom consultation of 22 January 2010'
(b) A copy of the BBC submission to Ofcom of 8 December 2009 on this same matter”
The following table lists the documents being disclosed in this response. In the table the names of
people referred to are as follows:

• Alix: Dr Alix Pryde, Controller BBC Distribution (now Director, BBC Distribution)
• Graham: Graham Plumb, Acting Controller BBC Distribution (during absence of Alix)
• James: James Jackson, Head of Broadcast Infrastructure, BBC Distribution
• Ofcom: Usually refers to David Harrison, Strategy & Market Developments, Ofcom, but
refer to the individual documents for where this differs.

Doc Ref Date and time From To Subject
A3 04 Sep 2009 14:33 Alix Ofcom Email chain regarding Ofcom's publication of BBC letter regarding Mux B licence amendment
A4b 04 Sep 2009 14:33 Alix Ofcom Attachment to above doc ref A3. Includes BBC letter of 27 Aug 2009
A2 14 Sep 2009 13:08 Alix Ofcom Email chain advising BBC of progress of Mux B licence amendment
J13 24 Nov 2009 14:01 Ofcom James Email chain setting up conference call. There are no records about the call itself.
J12a 26 Nov 2009 10:35 Ofcom Graham Email chain regarding interim content management provisions, pending the consultation. I have not been able to locate the document "Letter to David
Harrison.pdf" mentioned in this email
J12b 26 Nov 2009 10:35 Ofcom Graham Attachment to above doc ref J12a (response from Ofcom)
J11 07 Dec 2009 09:18 Ofcom James Email chain regarding BBC's response to Ofcom letter of 9th November. I have been unable to locate a copy of the 9th November letter.
J3a 08 Dec 2009 18:51 James Ofcom Email giving BBC's response to Ofcom letter of 9th November. Note that the final version of attachments contained herein are published in the Ofcom
consultation to which you refer on the page labelled as page 49 (page 52 of the pdf file) here:
http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/summary/condoc.pdf
J3b 08 Dec 2009 18:51 James Ofcom Attachment to above doc ref J3a. Covering letter. The third attachment to the email is identical to this first one. This is the document you refer to in part
(b) of your enquiry
J3c 08 Dec 2009 18:51 James Ofcom 2nd Attachment to above doc ref J3a. Response to Ofcom letter of 9th November
J2a 16 Dec 2009 19:42 James Ofcom Email giving slight modifications to document J3b
J2b 16 Dec 2009 19:42 James Ofcom Attachment to above doc ref J2a. This is a marked-up version showing the changes.
J2c 16 Dec 2009 19:42 James Ofcom 2nd Attachment to above doc ref J2a. This is the clean version without mark-up
J2d 16 Dec 2009 19:42 James Ofcom 3rd Attachment to above doc ref J2a. This is a redacted version of doc ref J2c. Note that it was the un-redacted version which ultimately made it into the
Ofcom consultation. The only redaction is the text "$100" in section 2.1. At the time it was thought that the total manufacturing cost of HD PVR devices
might be commercially sensitive, given that no manufacturer had released such a machine to market at that time.
J1a 22 Dec 2009 16:20 James Ofcom Email giving more slight modifications to document J3b
J1b 22 Dec 2009 16:20 James Ofcom Attachment to above doc ref J1a. This is a marked-up version showing the changes.
J1c 22 Dec 2009 16:20 James Ofcom 2nd Attachment to above doc ref J1a. This is the clean version without mark-up
J1d 22 Dec 2009 16:20 James Ofcom 3rd Attachment to above doc ref J1a. See same comments on redaction as per document ref J2d.
G1 22 Jan 2010 13:45 Graham Ofcom Email advising Ofcom of BBC blog on subject of HD content management
G2 01 Feb 2010 15:58 Graham Ofcom Email chain setting up meeting to discuss progress of consultation
J18 01 Apr 2010 20:21 James Ofcom Email of BBC's response to consultation, and Ofcom acknowledgement thereof.
J10b 01 Apr 2010 20:21 James Ofcom Attachment to above doc ref J18. Cover sheet for consultation response
J10c 01 Apr 2010 20:21 James Ofcom 2nd attachment to above doc ref J18. This document is the un-redacted version of the BBC's response to the consultation. Some sections of this
document continue to be redacted under section 43(2) of the Act although we are now able to release some of the information that was previously
redacted. See explanation in FOI
J9a 08 Apr 2010 18:37 James Ofcom Email giving the redacted public version of the BBC's response to the consultation
J9b 08 Apr 2010 18:37 James Ofcom Attachment to above doc ref J9a
J17 19 Apr 2010 15:16 Ofcom James Email seeking clarification on content BBC would not be able to show in HD without content management, in response to doc ref J18 above.
J8a 30 Apr 2010 18:44 James Ofcom Email response to doc ref J17 above.
J8b 30 Apr 2010 18:44 James Ofcom Attachment to above doc ref J8a. Some sections of this document have been redacted under section 43(2) of the Act. See explanation in FOI letter.
J6 10 Sep 2010 11:15 James Ofcom Email seeking Mux B licence amendment confirmation
A1a 10 Sep 2010 11:35 Ofcom Alix Email enclosing Mux B licence amendment
A1b 10 Sep 2010 11:35 Ofcom Alix Attachment to above doc ref A1a
J5 10 Sep 2010 17:43 James Ofcom Email thanking Ofcom for doc ref A1a above.

Please note that nothing should be read into the fact that the document reference numbering
system used above is missing some numbers. In compiling this response a number of duplicate
emails were received from different sources, and also some emails were located which contained
only part of an email chain that was included in its entirety elsewhere in a different email. All of
these duplicate emails and duplicate partial email chains were removed from this response after I
had allocated them a reference number, hence the missing numbers, but no information has been
removed in this process.

Most of the emails contain personal contact details (email addresses and phone numbers) of the
people involved, and these contact details have been redacted.

Redactions in Document ref J10c

This is the document you refer to in part (a) of your enquiry. Due to the passage of time, some
parts of this document which were previously redacted have now been released. However, we
continue to withhold part of paragraph 1.4, all of both paragraphs labelled 1.5 (a numbering error
in the document means that there are two adjacent paragraphs labelled 1.5), and part of paragraph
1.6. These paragraphs refer to details regarding the negotiation of broadcasting rights from
content providers and are being withheld under section 43(2) of the Act as disclosure would be
likely to prejudice the commercial interests of the BBC by revealing the tactics used in the
negotiation of Broadcast Rights when seeking to obtain content for broadcast from third parties,
which would in turn have an adverse impact on the BBC’s negotiating position and a
corresponding detriment either in the quality and scope of the Rights so obtained, or in the
increased costs of procuring those Rights.

For example, disclosure would be likely to:

• prejudice the negotiating position of the BBC in ongoing contractual Rights negotiations;
• weaken the BBC’s bargaining position with Rights holders;
• weaken the BBC’s position in a competitive environment by revealing market-sensitive
information or information of potential usefulness to competitors seeking to purchase the
same Broadcast Rights; and
• harm the ability of the BBC to obtain Broadcast Rights in the future.

As section 43 is a qualified exemption, the BBC is required by section 2(2) of the Act to consider
the public interest factors in this case. Specifically, we looked at whether in all the circumstances
of the case, the public interest in maintaining the exemption outweighs the public interest in
disclosing the information.

In favour of disclosure, we recognised that there is a public interest in the following:

• that there is transparency in the accountability of the BBC for public funds;
• that the BBC is using public money effectively, and that the BBC is getting value for money
when purchasing goods and services; and
• that the BBC’s commercial activities (including the procurement process) are conducted in
an open and honest way
On the other hand, in considering factors that might weigh in favour of the public interest in
withholding, we took into account:
• That the BBC maintains a strong bargaining position vis-à-vis Rights holders during
contractual negotiations in order to ensure that the licence fee is spent effectively;
• That the BBC’s negotiating position in ongoing contractual negotiations is not prejudiced;
• That the BBC’s position in a competitive environment is not weakened by revealing
market-sensitive information or information of potential usefulness to competitors; and
• That the ability of the BBC to obtain Broadcast Rights in the future is not harmed either in
the scope and extent of those Rights obtained or in the cost of those Rights.

I am therefore satisfied, in terms of section 2 of the Act, that in all the circumstances of the case,
the public interest in maintaining the exemption outweighs the public interest in disclosing the
information.

We are also continuing to withhold the section following Paragraph 3.4 under section 43 of the
Act (commercial prejudice). As section 43 is a qualified exemption, the BBC is required by section
2(2) of the Act to consider the public interest factors in this case. Specifically, we looked at
whether in all the circumstances of the case, the public interest in maintaining the exemption
outweighs the public interest in disclosing the information.

In line with section 17(4) of the Act, we will not explain further the application of this exemption
or the public interest test in this case, as to do so would reveal information which would itself be
exempt. However, I can confirm that I am satisfied, in terms of section 2 of the Act, that in all the
circumstances of the case, the public interest in maintaining the exemption outweighs the public
interest in disclosing the information.

Redactions in Document ref J8b

This document was part of a response to Ofcom who were seeking further details regarding the
content referred to in paragraph 1.2 of the BBC’s response to the consultation (document ref
J10c). Part of this document has been redacted under section 43 of the Act (commercial
prejudice). The information redacted is of exactly the same nature as that redacted in paragraphs
1.4 to 1.6 of document ref J10c and so the exact same public interest test applies here as that
outlined above in respect of the negotiation of Broadcast Rights.

Appeal Rights
You may request an internal review of our decision that your request exceeds the appropriate
limit. Please contact us at the address above, explaining what you would like us to review and
including your reference number.

If you are not satisfied with the internal review, you can appeal to the Information Commissioner.
The contact details are: Information Commissioner's Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF, telephone 01625 545 700 or see http://www.ico.gov.uk/

Yours sincerely,
Steve Gutteridge
BBC Distribution"

So just to repeat, they don't want to reveal communications with rights holders because:

" These paragraphs refer to details regarding the negotiation of broadcasting rights from
content providers and are being withheld under section 43(2) of the Act as disclosure would be
likely to prejudice the commercial interests of the BBC by revealing the tactics used in the
negotiation of Broadcast Rights when seeking to obtain content for broadcast from third parties,
which would in turn have an adverse impact on the BBC’s negotiating position and a
corresponding detriment either in the quality and scope of the Rights so obtained, or in the
increased costs of procuring those Rights."

And they maintain that public interest in maintaining the exemption outweighs the public interest in disclosing the information.

They are also withholding some information, the reasons for which they will not explain:

"In line with section 17(4) of the Act, we will not explain further the application of this exemption
or the public interest test in this case, as to do so would reveal information which would itself be
exempt."

But they are satisfied that "in terms of section 2 of the Act, that in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information". I'll have to go through all the documents in detail before considering the next steps. But on a first pass of the latest documents the missing part of the jigsaw remains the communications between the BBC and rights holders.

Judge Bonello's concurring dissent in Al-Skeini

2011-07-07T13:11:00.001+01:00

Judge Giovanni Bonello's officially concurring but substantially dissenting opinion in the European Court of Human Rights (ECHR) case of Al-Skeini and Others v. the United Kingdom should be read by everyone. It's relatively short, very accessible and one of the most scathing and explosive critiques by a judge of the UK government in particular but also the ECHR that I've ever read. I hope he won't mind me reproducing it in full here.

"
CONCURRING OPINION OF JUDGE BONELLO
1.  These six cases deal primarily with the issue of whether Iraqi civilians who allegedly lost their lives at the hands of United Kingdom soldiers, in non-combat situations in the United Kingdom-occupied Basrah region of Iraq, were “within the jurisdiction” of the United Kingdom when those killings took place.
2.  When, in March 2003, the United Kingdom, together with the other Coalition forces invaded Iraq, the Coalition Provisional Authority (CPA) conferred upon members of that Authority the fullest jurisdictional powers over Iraq: “The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives”. This included the “power to issue legislation”: “The CPA shall exercise powers of government temporarily”.¹
3.  I fully agreed with the findings of the Court, but I would have employed a different test (a “functional jurisdiction” test) to establish whether or not the victims fell within the jurisdiction of the United Kingdom. Though the present judgment has placed the doctrines of extra-territorial jurisdiction on a sounder footing than ever before, I still do not consider wholly satisfactory the re-elaboration of the traditional tests to which the Court has resorted.
Extra-territorial jurisdiction or Functional jurisdiction?
4.  The Court’s case-law on Article 1 of the Convention (the jurisdiction of the Contracting Parties) has, so far, been bedevilled by an inability or an unwillingness to establish a coherent and axiomatic regime, grounded in essential basics and even-handedly applicable across the widest spectrum of jurisdictional controversies.
5.  Up until now, the Court has, in matters concerning the extra-territorial jurisdiction of Contracting Parties, spawned a number of “leading” judgments based on a need-to-decide basis, patchwork case-law at best. Inevitably, the doctrines established seem to go too far to some, and not far enough to others. As the Court has, in these cases, always tailored its tenets to sets of specific facts, it is hardly surprising that those tenets then seem to limp when applied to sets of different facts. Principles settled in one judgment may appear more or less justifiable in themselves, but they then betray an awkward fit when measured against principles established in another. Issa flies in the face of Banković and the cohabitation of Behrami with Berić is, overall, quite problematic.
6.  The late Lord Rodger in the House of Lords had my full sympathy when he lamented that, in its application of extra-territorial jurisdiction “the judgments and decisions of the European Court do not speak with one voice”. The differences, he rightly noted, are not merely ones of emphasis. Some “appear much more serious”.²
7.  The truth seems to be that Article 1 case-law has, before the present judgment, enshrined everything and the opposite of everything. In consequence, the judicial decision-making process in Strasbourg has, so far, squandered more energy in attempting to reconcile the barely reconcilable than in trying to erect intellectual constructs of more universal application. A considerable number of different approaches to extra-territorial jurisdiction have so far been experimented with by the Court on a case-by-case basis, some not completely exempt from internal contradiction.
8.  My guileless plea is to return to the drawing board. To stop fashioning doctrines which somehow seem to accommodate the facts, but rather, to appraise the facts against the immutable principles which underlie the fundamental functions of the Convention.
9.  The founding members of the Convention, and each subsequent Contracting Party, strove to achieve one aim, at once infinitesimal and infinite: the supremacy of the rule of human rights law. In Article 1 they undertook to secure to everyone within their jurisdiction the rights and freedoms enshrined in the Convention. This was, and remains, the cornerstone of the Convention. That was, and remains, the agenda heralded in its preamble: “the universal and effective recognition and observance” of fundamental human rights. “Universal” hardly suggests an observance parcelled off by territory on the checkerboard of geography.
10.  States ensure the observance of human rights in five primordial ways: firstly, by not violating (through their agents) human rights; secondly, by having in place systems which prevent breaches of human rights; thirdly, by investigating complaints of human rights abuses; fourthly, by scourging those of their agents who infringe human rights; and, finally, by compensating the victims of breaches of human rights. These constitute the basic minimum functions assumed by every State by virtue of its having contracted into the Convention.
11.  A “functional” test would see a State effectively exercising “jurisdiction” whenever it falls within its power to perform, or not to perform, any of these five functions. Very simply put, a State has jurisdiction for the purposes of Article 1 whenever the observance or the breach of any of these functions is within its authority and control.
12.  Jurisdiction means no less and no more than “authority over” and “control of”. In relation to Convention obligations, jurisdiction is neither territorial nor extra-territorial: it ought to be functional - in the sense that when it is within a State’s authority and control whether a breach of human rights is, or is not, committed, whether its perpetrators are, or are not, identified and punished, whether the victims of violations are, or are not, compensated, it would be an imposture to claim that, ah yes, that State had authority and control, but, ah no, it had no jurisdiction.
13.  The duties assumed through ratifying the Convention go hand in hand with the duty to perform and observe them. Jurisdiction arises from the mere fact of having assumed those obligations and from having the capability to fulfil them (or not to fulfil them).
14.  If the perpetrators of an alleged human rights violation are within the authority and control of one of the Contracting Parties, it is to me totally consequential that their actions by virtue of that State’s authority, engage the jurisdiction of the Contracting Party. I resist any helpful schizophrenia by which a nervous sniper is within the jurisdiction, his act of shooting is within the jurisdiction, but then the victims of that nervous sniper happily choke in blood outside it. Any hiatus between what logical superglue has inexorably bonded appears defiantly meretricious, one of those infelicitous legal fictions a court of human rights can well do without.
15.  Adhering to doctrines other than this may lead in practice to some riotous absurdities in their effects. If two civilian Iraqis are together in a street in Basrah, and a United Kingdom soldier kills the first before arrest and the second after arrest, the first dies desolate, deprived of the comforts of United Kingdom jurisdiction, the second delighted that his life was evicted from his body within the jurisdiction of the United Kingdom. Same United Kingdom soldier, same gun, same ammunition, same patch of street - same inept distinctions. I find these pseudo-differentials spurious and designed to promote a culture of law that perverts, rather than fosters, the cause of human rights justice.
16.  In my view, the one honest test, in all circumstances (including extra- territoriality), is the following: did it depend on the agents of the State whether the alleged violation would be committed or would not be committed? Was it within the power of the State to punish the perpetrators and to compensate the victims? If the answer is yes, self-evidently the facts fall squarely within the jurisdiction of the State. All the rest seems to me clumsy, self-serving alibi hunting, unworthy of any State that has grandiosely undertaken to secure the “universal” observance of human rights whenever and wherever it is within its power to secure them, and, may I add, of courts whose only raison d’etre should be to ensure that those obligations are not avoided or evaded. The Court has, in the present judgment, thankfully placed a sanitary cordon between itself and some of these approaches.
17.  The failure to espouse an obvious functional test, based exclusively on the programmatic agenda of the Convention, has, in the past, led to the adoption of a handful of sub-tests, some of which may have served defilers of Convention values far better then they have the Convention itself. Some of these tests have empowered the abusers and short-changed their victims. For me the primary questions to be answered boil down to these: when a State ratifies the Convention, does it undertake to promote human rights wherever it can, or does it undertake to promote human rights inside its own confines and to breach them everywhere else? Did the Contracting Party ratify the Convention with the deliberate intent of discriminating between the sanctity of human rights within its own territory and their paltry insignificance everywhere else?
18.  I am unwilling to endorse à la carte respect for human rights. I think poorly of an esteem for human rights that turns casual and approximate depending on geographical coordinates. Any State that worships fundamental rights on its own territory but then feels free to make a mockery of them anywhere else does not, as far as I am concerned, belong to that comity of nations for which the supremacy of human rights is both mission and clarion call. In substance the United Kingdom is arguing, sadly, I believe, that it ratified the Convention with the deliberate intent of regulating the conduct of its armed forces according to latitude: gentlemen at home, hoodlums elsewhere.
19.  The functional test I propose would also cater for the more rarefied reaches of human rights protection, like respect for the positive obligations imposed on Contracting Parties: was it within the State’s authority and control to see that those positive obligations would be respected? If it was, then the functional jurisdiction of the State would come into play, with all its natural consequences. If, in the circumstances, the State is not in such a position of authority and control as to be able to ensure extraterritorially the fulfilment of any or all of its positive obligations, that lack of functional authority and control excludes jurisdiction, limitedly to those specific rights the State is not in a position to enforce.
20.  This would be my universal vision of what this Court is all about – a bright line approach rather than case by case, more or less inspired, more or less insipid, improvisations, cluttering the case-law with doctrines which are, at best, barely compatible and at worst blatantly contradictory – and none measured against the essential yardstick of the supremacy and universality of human rights anytime, anywhere.
Exceptions?
21.  I consider the doctrine of functional jurisdiction to be so linear and compelling that I would be unwilling to acquiesce to any exceptions, even more so in the realm of the near-absolute rights to life and to freedom from torture and degrading or inhuman treatment or punishment. Without ever reneging on the principle of the inherent jurisdiction of the occupying power that usually flows from military conquest, at most the Court could consider very limited exceptions to the way in which Article 2 and Article 3 are applied in extreme cases of clear and present threats to national security that would otherwise significantly endanger the war effort. I would not, personally, subscribe to any exceptions at all.
Conclusion
22.  Applying the functional test to the specifics of these cases, I arrive at the manifest and inescapable conclusion that all the facts and all the victims of the alleged killings said to have been committed by United Kingdom servicemen fall squarely within the jurisdiction of the United Kingdom, which had, in Basrah and its surroundings, an obligation to ensure the observance of Articles 2 and 3 of the Convention. It is uncontested that the servicemen who allegedly committed the acts that led to the deaths of the victims were under United Kingdom authority and control; that it was within the United Kingdom’s authority and control whether to investigate those deaths or not; that it was within the United Kingdom’s authority and control whether to punish any human rights violations, if established; and that it was within the United Kingdom’s authority and control whether to compensate the victims of those alleged violations or their heirs. Concluding that the United Kingdom had all this within its full authority and control, but still had no jurisdiction, would for me amount to a finding as consequential as a good fairy tale and as persuasive as a bad one.
23.  The test adopted by the Court in this case has led to a unanimous finding of jurisdiction. Though I believe the functional test I endorse would better suit any dispute relating to extra-territorial jurisdiction, I would still have found that, whatever the test adopted, all the six killings before the Court engaged United Kingdom jurisdiction. I attach to this opinion a few random observations to buttress my conclusions.
Presumption of jurisdiction
24.  I would propose a different test from that espoused by the domestic courts to establish or dismiss extra-territorial jurisdiction in terms of Article 1, in cases concerning military occupation, when a State becomes the recognised “occupying power” according to the Geneva and The Hague instruments. Once a State is acknowledged by international law to be “an occupying power”, a rebuttable presumption ought to arise that the occupying power has “authority and control” over the occupied territory, over what goes on there and over those who happen to be in it – with all the consequences that flow from a legal presumption. It will then be incumbent on the occupying power to prove that such was the state of anarchy and impotence prevailing, that it suffered a deficit of effective authority and control. It will no longer be for the victim of wartime atrocities to prove that the occupying power actually exercised authority and control. It will be for the occupying power to rebut it.
25.  I was puzzled to read in the domestic proceedings that “the applicants had failed to make a case” for United Kingdom authority and control in the Basrah region. I believe that the mere fact of a formally acknowledged military occupation ought to shift any burden of proof from the applicants to the respondent Government.
26.  And it will, in my view, be quite arduous for an officially recognised “occupying power” to disprove authority and control over impugned acts, their victims and their perpetrators. The occupying power could only do that successfully in the case of infamies committed by forces other than its own, during a state of total breakdown of law and order. I find it bizarre, not to say offensive, that an occupying power can plead that it had no authority and control over acts committed by its own armed forces well under its own chain of command, claiming with one voice its authority and control over the perpetrators of those atrocities, but with the other, disowning any authority and control over atrocities committed by them and over their victims.
27.  It is my view that jurisdiction is established when authority and control over others are established. For me, in the present cases, it is well beyond surreal to claim that a military colossus which waltzed into Iraq when it chose, settled there for as long as it cared to and only left when it no longer suited its interests to remain, can persuasively claim not to have exercised authority and control over an area specifically assigned to it in the geography of the war games played by the victorious. I find it uncaring to the intellect for a State to disclaim accountability for what its officers, wearing its uniforms, wielding its weapons, sallying forth from its encampments and returning there, are alleged to have done. The six victims are said to have lost their lives as a result of the unlawful actions of United Kingdom soldiers in non-combat situations - but no one answers for their death. I guess we are expected to blame it on the evil eye.
28.  Jurisdiction flows not only from the exercise of democratic governance, not only from ruthless tyranny, not only from colonial usurpation. It also hangs from the mouth of a firearm. In non-combat situations, everyone in the line of fire of a gun is within the authority and control of whoever is wielding it.
Futility of the case-law
29.  The undeniable fact is that this Court has never, before today, had to deal with any case in which the factual profiles were in any way similar to those of the present applications. This Court has, so far, had several occasions to determine complaints which raised issues of extra-territorial jurisdiction, but all of a markedly different nature. Endeavouring to export doctrines of jurisdiction hammered out in a case of a solitary air-strike over a radio station abroad (Banković) to allegations of atrocities committed by the forces of an occupying power, which has assumed and kept armed control of a foreign territory for well over three years, is anything but consequent. I find the jurisdictional guidelines established by the Court to regulate the capture by France of a Cambodian drug-running ship on the high seas, for the specific purpose of intercepting her cargo and bringing the crew to justice (Medvedyev), to be quite distracting and time-wasting when the issue relates to a large territory outside the United Kingdom, conquered and held for over three years by the force of arms of a mighty foreign military set-up, recognised officially by international law as an “occupying power”, and which had established itself indefinitely there.
30.  In my view, this relentless search for eminently tangential case-law is as fruitful and fulfilling as trying to solve one crossword puzzle with the clues of another. The Court could, in my view, have started the exercise by accepting that this was judicial terra incognita, and could have worked out an organic doctrine of extra-territorial jurisdiction, untrammelled by the irrelevant and indifferent to the obfuscating.
Indivisibility of Human Rights
31.  The foregoing analysis is not at all invalidated by what is termed the “indivisibility of human rights” argument which runs thus: as human rights are indivisible, once a State is considered to have extra-territorial “jurisdiction”, then that State is held to be bound to enforce all the human rights enshrined in the Convention. Conversely, if that State is not in a position to enforce the whole range of Convention human rights, it does not have jurisdiction.
32.  Hardly so. Extraterritorially, a Contracting State is obliged to ensure the observance of all those human rights which it is in a position to ensure. It is quite possible to envisage situations in which a Contracting State, in its role as an occupying power, has well within its authority the power not to commit torture or extra-judicial killings, to punish those who commit them and to compensate the victims – but at the same time that Contracting State does not have the extent of authority and control required to ensure to all persons the right to education or the right to free and fair elections: those fundamental rights it can enforce would fall squarely within its jurisdiction, those it cannot, on the wrong side of the bright line. If the “indivisibility of human rights” is to have any meaning at all, I would prefer that meaning to run hand in hand with that of the “universality of human rights”.
33.  I believe that it ill suits the respondent Government to argue, as they have, that their inability to secure respect for all fundamental rights in Basrah, gave them the right not to respect any at all.
A vacuum of jurisdiction?
34.  In spite of the fact that, as a leading partner in the Coalition Provisional Authority, the United Kingdom Government were “vested with all executive, legislative and judicial authority”³ over that part of vanquished Iraq assigned to them, the United Kingdom went a long and eloquent way in its attempt to establish that it did not exercise jurisdiction over the area assigned to it. It just stopped short of sharing with the Court who did. Who was the mysterious, faceless rival which, instead of it, exercised executive, legislative and judicial authority for three years and more over the area delegated to the United Kingdom? There unquestionably existed a highly volatile situation on the ground, pockets of violent insurgency and a pervasive, sullen resistance to the military presence.
35.  However, in the Basrah region, some authority was still giving orders, laying down the law (juris dicere - defining what the binding norm of law is), running the correctional facilities, delivering the mail, establishing and maintaining communications, providing health services, supplying food and water, restraining military contraband and controlling criminality and terrorism as best it could. This authority, full and complete over the United Kingdom military, harassed and maimed over the rest, was the United Kingdom’s.
36.  The alternative would be to claim that Basrah and the region under the United Kingdom’s executive, legislative and judicial responsibility hovered in an implacable legal void, sucked inside that legendary black hole, whose utter repulsion of any authority lasted well over three years. A proposition unlikely to find many takers on the legal market.
Human rights imperialism
37.  I confess to be quite unimpressed by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”. It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.
38.  Personally, I would have respected better these virginal blushes of some statesmen had they worn them the other way round. Being bountiful with military imperialism but bashful of the stigma of human rights imperialism, sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy. For my part, I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war. And then, if necessary, bear with some fortitude the opprobrium of being labelled human rights imperialists.
39.  I, for one, advertise my diversity. At my age, it may no longer be elegant to have dreams. But that of being branded in perpetuity a human rights imperialist, I acknowledge sounds to me particularly seductive."

Pachelbel Rant

2011-07-04T15:03:00.002+01:00

Clearing out my mailbox due to repeated system warnings I'm approaching its limit, I re-discovered the Pachelbel Rant by Rob Paravonian this afternoon.

That's:

Friends Forever (Vitamin C)
Cryin' (Aerosmith)
One Tin Soldier (Coven)
Hook (Blues Traveler)
Basket Case (Green Day)
Push (Matchbox 20)
Good (Better than Ezra)
Machinehead (Bush)
With or Without You (U2)
Torn (Natalie Imbruglia)
Skater Boy (Avril Lavigne)
We're Not Gonna Take It (Twisted Sister)
Laverne and Shirley theme song (Cyndi Grecco)
No Woman No Cry (Bob Marley)
Let It Be (The Beatles)

All sample Pachelbel's Canon in D.

I wonder what the Bridgeport Music, Inc. v. Dimension Films court would have made of it? For the uninitiated, this was the case where the court said that samplling one note of music might be acceptable but if you wanted more than one note get a licence. Of course the copyright in Pachelbel's music would have expired except that copyright didn't exist for music when he wrote it in the 17th century. Does that mean the first to sample it when it was rediscovered in the 20th century now holds the copyright and could sue the other samplers?

The rant would be a great video to open a copyright talk though.