BT, TalkTalk lose DEA appeal Part 2

I've been thinking further on the BT DEA Court of Appeal decision, BT Plc and TalkTalk Telecom Group Plc -v- Secretary of State for Culture, Olympics, Media and Sport and others on Tuesday. This post will focus primarily on the data protection element of the case.

In my previous post I mentioned the Court's questionable assumption of balance in the text of the legislation and the associated lack of understanding of the technology. The other thing that concerns me about the decision was the selective perspective on legislative histories of the relevant legal instruments.

Then Secretary of State for Business, Innovation and Skills Peter Mandelson's road to Damascus like revelation, following a holiday with some rich friends and including a meeting with a well known entertainment mogul, that the UK 'needed' a 3 strikes regime, quickly led to the ill thought out Digital Economy Bill. This got rushed through parliament in the wash up of legislation before the last election becoming the controversial Digital Economy Act (DEA). The possibility of balance in the final text of the statute was effectively blown out of the water by the unseemly, unprecedented haste with which it was rushed through, the almost complete lack of parliamentary scrutiny of the bill and the universal lack of understanding amongst parliamentary representatives about what it was all about.

Let's look at some of the detail of that in the context of the data protection element of the case. As previously mentioned BT and TalkTalk challenged the act on four grounds.  Firstly in relation to the technical standards directive and secondly the ecommerce directive. These aspects of the case I covered in my first post. Ground 3 of the challenge was based on the data protection directive and the privacy and electronic communications directive.

On the data protection directive the Court focuses on Article 8(1) and 8(2)(e)

"SPECIAL CATEGORIES OF PROCESSING

Article 8

The processing of special categories of data

1. Member States shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.

2. Paragraph 1 shall not apply where: ...

(e) the processing relates to data which are manifestly made public by the data subject or is necessary for the establishment, exercise or defence of legal claims. "

In High Court last year judge Parker originally concentrated his analysis of the data protection directive angle on the processing of personal data by copyright owners. As explained by Lord Justice Richards in the Court of Appeal decision this week:

"75. For reasons given at [152]-[157], the judge concentrated on the processing of data by the copyright owners, i.e. the processing involved in their identifying apparent infringements, together with relevant IP addresses and subscriber details, for the purpose of compiling copyright infringement reports: it was accepted that subsequent processing by the ISPs, including the sending of notifications and the completion of copyright infringement lists, would be compatible with the directive. The judge proceeded on the basis that the data processed by the copyright owners would be “personal data” and that, because of what might be revealed by the nature of the unlawfully copied digital material identified by the exercise, some of it would be special category data falling within Article 8(1). He held at [159]-[161], however, that such processing would fall within the exception in Article 8(2)(e). In particular:

“159. The Defendant and the Interested Parties rely on Article 8(2)(e) …: the processing is necessary for ‘the establishment, exercise or defence of legal claims’. That would appear to be the precise purpose of the contested provisions of the DEA: the copyright owner will be able, through the procedures under the DEA, to establish not only that there has been an infringement of copyright but also who is responsible for the infringement.”

So the judge bypassed the ISP processing of the personal data and concentrated on that done by copyright owners.  He then concluded the data at the heart of the case was covered by article 8(1) privacy protection provisions but that article 8(2)(e), the right to pursue legal claims, was an absolute get out clause which facilitates fishing expeditions to detect copyright infringement via mass invasion of privacy.  Contrary to European Court of Justice recommendations in the Promusicae case in 2008 (which I'll get to a little later in the context of the privacy and electronic communications directive) Judge Parker effectively decided that copyright protection trumps privacy.

BT argued that a substantial number of cases triggered by the DEA would not involve legal claims because it was estimated that 70% of ISP customers receiving warning letters would act to stop infringement associated with their account at that point.

"76. The appellants’ essential submission is that the judge lost sight of the fact that in a substantial proportion of cases the scheme established by the DEA 2010 is not intended to involve legal claims at all... assumption in the Government’s impact assessment for the statute that 70% of infringers would stop once and for all upon receiving a single notification from their ISP... if that is right, those cases will not get as far as inclusion in a copyright infringement list and there will be no prospect of a legal claim... “a principal aim of the measures is educational (so obviating legal action)”. In the light of those matters, Mr White submitted that the scheme would operate for the most part as an extra-judicial curtailment of copyright infringement, and he submitted that in those circumstances the processing could not be said to be necessary for the establishment, exercise or defence of legal claims and could not therefore fall within the exemption in Article 8(2)(e)."

Quite clever that - 70% of suspects will never get involved in legal proceedings so the personal data processing exception, article 8(2)(e) can't apply to these. The surveillance and processing of personal data in the case of the 70% cannot be considered to be necessary for the establishment, exercise or defence of legal claims.

Lord Richards sadly completely rejected that argument.  His explanation feels a bit like saying the ends justify the means:

"77. I do not accept that submission. In my view the processing is plainly necessary for the establishment, exercise or defence of legal claims even if the beneficial consequence of the sending of a notification by the ISP pursuant to a copyright information request will be that in the majority of cases the infringing activity ceases and no further action is required. As Mr Saini QC observed on behalf of the Interested Parties, the fact that the scheme seeks to educate users about the legal rights of copyright owners and to encourage them to desist without the need for legal action does not mean that the copyright owners are not establishing, exercising or defending their legal rights. It no more has that effect than does the sending of a letter before action to an infringer in the hope that he will desist. In my view, therefore, the judge was right to find that the processing in question in this case would fall within the exception in Article 8(2)(e)."

The mass processing, he suggests, is necessary and 8(2)(e) applies because it facilitates the sending of warnings equivalent to cease and desist letters. It's a defensible perspective but I think it avoids addressing the fishing expedition issue. I'm wondering if there is Supreme Court (doubtful) or ECJ guidance on the specific interpretation of 8(2)(e) in this kind of context that would help here?

Lord Richards then concludes his assessment of the data protection directive's impact on the case by mentioning the European Data Protection Supervisor's (EDPS) clear opinion (relating to ACTA negotiations) that mass personal data processing for 3 strikes regimes was disproportionate and in breach of EU data protection laws; but the noble Lord rounds off by stating that EDPS opinion is not binding on the Court so does not alter his view on article 8(2)(e).

"78. I should mention for completeness that the appellants placed reliance in this context on an Opinion dated 22 February 2010 of the European Data Protection Supervisor (“the EDPS”) on then current negotiations by the EU of an Anti-Counterfeiting Trade Agreement with third countries. We were told by Mr Saini that the Opinion was provided by the EDPS of his own motion and was based on the EDPS’s own understanding of what was then proposed. At paragraph 52 of the Opinion, in relation to the possible imposition on ISPs of a “three strikes internet disconnection policy”, the EDPS acknowledged that the collection of targeted, specific evidence, particularly in cases of serious infringements, might be necessary to establish and exercise a legal claim, but he cast doubt on the legitimacy of wide-scale investigations involving the processing of massive amounts of data of internet users. It is not clear that he had Article 8(2)(e) of the DPD specifically in mind, but if he did it is difficult to see why the applicability of that provision should depend on the scale of the operation. In any event the view expressed by the EDPS is not binding on us and it does not cause me to alter my own view that the processing in this case would fall within Article 8(2)(e)."

Whereas it is true that the EDPS's opinion is not binding on the UK, Lord Justice Richards casual dismissal of the scale factor here is rather worrying: "it is difficult to see why the applicability of that provision should depend on the scale of the operation". Seriously?  If the judiciary can’t understand that scale changes everything we have a potentially insurmountable problem. Yet I'm flummoxed on how to get that through to a distinguished judge in terms he would understand.

Possibly what we have here is a Court seeing a problem through the lens of the strongest possible contrast of the false privacy  v security dichotomy. When the problem is constructed as the balancing of the privacy of a single individual against the security of a whole nation or society, then the needs of the many outweigh the needs of the few.  In this case, the privacy of the individual (remember scale doesn't matter according to Lord Richards), especially a suspected pirate hiding his nefarious copyright infringing deeds and therefore unworthy of the rights of decent law abiding citizens, has to be weighed against the interests of an important industry. Do we want to protect the dirty pirate - the underlying unspoken assumption being that privacy is fundamentally about concealing bad behaviour - or the livelihoods of thousands of people dependent on that industry?  Again it's a no contest.  The greater good favours protecting the many by protecting the industry.  The abstract societal value of protecting the privacy of the individual is incalculable but nebulous. And the absence of evidence to the effect that this mass privacy invasion will help the industry is not even a factor that remotely touches the cognitive radar of the learned judge. Routine copyright warning notices or the 3 strikes regime almost inevitably bound to emerge from the DEA will not solve the industry's internet copyright infringement problem. Machines, transmission pipes and storage are getting faster, bigger and cheaper and copying is only going to increase in volume.

I got a little side-tracked there but the scale and the framing of the problem are critical when it comes to protecting privacy and finding sustainable business models for the >entertainment industry. Lord Richards took slightly less space to dispose of the BT challenge based on the privacy and electronic commerce directive than he did in the two pages of the decision dealing with the data protection directive.

The privacy and electronic commerce directive articles 5 and 6 impose obligations regarding the confidentiality of communications and traffic data.  Article 15(1) is the universal get out clause here and provides for bypassing confidentiality when it is:

"a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph."

Note that copyright protection is not included in that list of reasons to ignore privacy. However, in paragraph 80 of the judgment, Lord Richards uses the Promusicae decision from the European Court of Justice to conclude that protection of copyright can be used as an excuse to bypass privacy obligations imposed by the directive.  It is true that the ECJ in Promusicae said that article 15 could provide a route around privacy obligations when it involved "the protection of the rights and freedoms of others." The ECJ indeed clearly stated that music labels had the right to protect their copyrights. The fundamental foundation of the Promusicae decision, though, was that copyright owners rights must be balanced with the basic human rights of users of the Net. Having access to the Net is now a basic part of nearly everyone's life in the developed world and it relates to basic rights to

• free expression
• freedom of association
• education
• and employment

and the ECHR and every other serious international charter of rights says that if a law is not proportionate it is not legal.  Copyright does not trump privacy according to the ECJ.  Even with the legitimate aim of defending or protecting copyrights, the ECJ clearly instructed member state governments that they are not to endanger human rights or proportionality. Professor Lilian Edwards of Strathclyde University actually thinks that the Promusicae decision was a clear warning from the court aimed directly at the kind of 3 strikes notice and disconnect schemes the French have implemented and that might emerge from the DEA.  That Promusicae, therefore, should be used in defence of the position that protection of copyright does trump privacy is something of an anomaly.

BT's final shot on the privacy and electronic communications directive was that the the recent judgement of the European Court of Justice in Scarlet v SABAM (Case C-70/10, November 2011), negating the demand that the ISP install a copyright filtering system, supported their argument that article 15 could not be an excuse for copyright trumping privacy. Lord Richards simply responded that the Scarlet case was effectively not relevant here and rejected that argument.

I'm not going to spend a lot of time on the fourth and final ground on which BT brought the case, the Authorisation Directive, (2002/20/EC), save to say that both BT, the original judge made some fair points. Though I would question the semantic hair splitting of both sides in paragraph 97; and the concluding implicit value judgment in that same paragraph that the DEA strikes "a proportionate balance between the free market and the protection of copyright."

Now just three final points to note on the authorisation directive.  Firstly at paragraph 95, Lord Richards says:

"95...  the Commission’s comments on the French legislation which permits  measures to be taken against internet users who commit copyright infringement  online. In those comments the Commission recognised that copyright protection is a general interest objective of a kind referred to in Article 1(3). As to the  Commission’s comments on the draft Costs Order, the fact is that the United  Kingdom persisted in its reliance on Article 1(3) but the Commission took no further action, which is at least consistent with an acceptance by the Commission that Article 1(3) is applicable."

This sounds a little like deciding to take the legislative history of the directive into account when it supports the Court's perspective on the case but ignore it when it doesn't.

Secondly, Lord Richards does agree with BT's counsel, Mr White, that: "all costs and charges under the DEA regime, including “relevant costs”, are to be regarded as “administrative charges” within Article 12.
What matters is substance, not form:" So the ISPs had a partial win on the authorisation directive.

Thirdly, I predict that Lord Richards final paragraph on the authorisation directive where he says:

111... I do not think that anything material is added by recourse to the principle of  non-discrimination or the desirability of technological neutrality. "

will be repeatedly taken out of context.  I confess I can't resist the temptation to be the first to do so.  This statement on its own is a simple example of the learned judge's lack of understanding of the technology.

So there you have it.  The decision was predictable though questionable in the underlying assumption of balance in the text of the legislation.  It's disappointing that that judiciary continue to have a problem understanding the technology and the difference that the scale of surveillance and data processing has on this whole landscape. We techies have to get better at explaining it to them.

What we have here is a clash of values even more than of law or of vested economic actors like telcos and the entertainment companies.  Perhaps we need a modern day Samuel D. Warren or Louis D. Brandeis to create a navigation blueprint, internet constitutional framework or just a base level equivalent understanding of the impact of the technology of the information society on our fundamental right to privacy.

BT, TalkTalk lose DEA appeal

The Court of Appeal (Civil Division) issued its judgment in the case of BT Plc and TalkTalk Telecom Group Plc -v- Secretary of State for Culture, Olympics, Media and Sport and others yesterday.

They rejected BT's and TalkTalk's challenge of the Digital Economy Act (DEA), as did Justice Parker in the High Court last April.

In many ways it was a predictable outcome but nevertheless frustrating, both for the lack of understanding of the technology displayed by the Court and the underlying assumption of "balance" in the wording of the key legal instruments on display.

The contested provisions of the DEA impose "initial obligations on ISPs to notify (s124a) customers of copyright infringement reports (CIRs) received from copyright owners; and to provide (s124b) copyright infringement lists (CILs) to content owners if an "initial obligations code" is in force. The initial obligations code could be self regulatory (s124c) - worked out between the telcos and copyright owners - or imposed by Ofcom (s124d) in the event the relevant agents can't agree amongst themselves. S124e gives a fairly detailed list of the things that the initial obligations code is supposed to cover eg CIRs, CILs, what suspect identification has to be expedited, who pays what, administrative specifics, proportionality, transparency, non discrimination and other provisions. The DEA also empowers the Secretary of State to decide rules about the relative responsibilities for costs arising from the initial obligations code.

The DEA also allows the future introduction of blocking measures or a 3 strikes regime or, more accurately, future "technical obligations" on ISPs to police copyright infringement.  The case was not concerned with these technical obligations - only the initial obligations code and the relative costs provisions.

The ISPs are exorcised by the demands the DEA initial obligations code is imposing on them.  They appealed Justice Parker's rejection of their challenge on 4 grounds.

Firstly they content the obligations (sections 124 a to e of the DEA) should have been notified to the EU Commission under the requirements of article 8(1) of the Technical Standards Directive. Lord Justice Richards (in para 24 to 45 of the judgment) rejects the claim on the basis of European Court of Justice precedents (Case C-317/92 Commission v Germany 1994 and Case C-194/94 CIA Security SA v Signalson SA and Securitel SORL 1994) which suggest that the initial obligations code, once the details are worked out, will be notifiable to the Commission under the directive, but the primary legislation from which the code is derived is not notifiable, since it's not detailed enough to be a technical standard.

BT made some sound detailed arguments on this eg when (para 34) they suggest the original judge might have been mistaken in saying "that the ISP would not be liable to receive or take action on a copyright infringement report “unless” a code was in force: “unless” suggests that there might not be a code, whereas the statute requires there to be one." This is a very fair point but on the substance of the precedents they lost the overall argument on points in relation to the technical standards directive.

Secondly they challenged on the basis of a perceived twofold breach of the Electronic Commerce Directive.

"(1) that the effect of the contested provisions is to render ISPs potentially “liable for the information transmitted”, contrary to Article 12, and (2) that the contested provisions amount to restrictions on the freedom to provide information society services from other Member States, “for reasons falling within the coordinated field”, contrary to Article 3."

Lord Richards quotes liberally from the original High Court judgement of Justice Parker here.  Justice Parker basically liberally praised the balance of the legislation (eg. he explained he was concerned about "doing violence" to the language and thereby "upsetting the careful balance represented by the text"); whilst saying that making an ISP police copyright infringement is not the same as making them liable directly or vicariously for copyright infringement.  So forcing ISP into incurring costs of policing does not trigger making them liable as "mere conduits" and therefore article 12 of the directive doesn't apply. It's a defensible and possibly even clever position but the notion that it is "balanced" is too deferential to the legislature and a long way out of sync with such evidence as is available regarding the proportionality of the mass surveillance the DEA facilitates. Lord Richards uses paras 46 to 60 of the judgment to do little more than agree with that position.

The argument in relation to article 3 of the ecommerce directive, which excludes copyright from its scope, was slightly more convoluted. Basically BT argued that the DEA was not a copyright statute so therefore not excluded from section 3. The government argued and the judges agreed that it was a law related to copyright and therefore excluded. There was an argument too about whether the copyright and related rights directive provided an upper limit on what member states could do with copyright law (BT's position) or whether it was a baseline ("a minimum harmonising measure") and didn't prevent the enactment of more restrictive measures. BT lost that one too.

"70. At the time when the Electronic Commerce Directive was adopted, “copyright” in the Annex to the directive must in my view have had its normal meaning, encompassing all aspects of the law of copyright under national laws, and cannot have had the elaborate meaning attributed to it by the appellants. At that time there was no harmonising directive at the Community level in the field of copyright protection. It would be unrealistic to impute to the Community legislature, at least in the absence of clear, express language to this effect, an intention to give “copyright” a meaning related to provisions of a copyright directive that had not yet been adopted. But if “copyright” did not have the appellants’ meaning at the outset, I do not see how it can have come to acquire that meaning subsequently. The later adoption of the Copyright Directive cannot of itself have had the effect of changing the meaning of the expression. It would have needed an express amendment of the Electronic Commerce Directive to achieve that result, but no such amendment has ever been made.

71. In my judgment, that is sufficient to dispose of the appellants’ case under Article 3 of the Electronic Commerce Directive."

Ground three of the appeal was on the basis of the data protection directive and the privacy and electronic communications directive. My perspective on that central element of the case and ground 4 in relation to the authorisation directive will be the subject of a later post.

Do authors still need publishers?

I've been in touch with the publisher of my first book, Springer, about writing another one, this time on systems failures in regulating the internet.  I would like to release it under a creative commons licence and price it at less than £15.

Springer was one of the first big publishers to try open access publishing as far back as 2004, primarily with academic journals. They describe their perspective on open access thus:

Open access publishing makes articles published in a journal freely and permanently available online. Open access journals operate in the same way as traditional journals, including stringent and thorough peer-review. The only difference is the business model, whereby a fee is levied upon publication. Articles are then freely available and can be redistributed and reused as long as the article is correctly attributed.

And this short video gives a decent overview:



The company is fairly new to releasing books under creative commons licences but told me that if I wanted to go down that route there would be an initial fee and that the print version of the book would be priced at £44.95.

By coincidence I was reading Anthony Horowitz's article in yesterday's Guardian, Do we still need publishers? when the further details came through from Springer by email.  The fee would depend on the number of pages in the book.  The minimum fee would be €15,000 if the book was shorter than 200 pages; and €75 per page for longer books.  So a 312 page book (like my first) would cost €23,400.

On Springer's open access journals there appears to be a reliance on authors' academic institutions providing the up front publishing fee. So it was a natural question from Springer's perspective to ask whether the Open University would be interested in providing some funds for me to publish my book with them under a creative commons licence. The answer, given the funding squeeze on universities in the UK, is no.

There are a lot of very smart, hard working and dedicated people at Springer but, even if universities were not facing financially straitened circumstances, €20k+ up front for publishing a book is not a good business proposition.  Hopefully my friends at Springer will find a more viable and sustainable model for publishing creative commons and open access books.  Until then I'll have to look for another publisher if I want to CC my next book.

Anthony Horowitz, by the way, concluded we do need publishers and he values highly the important values and standards they bring to the table.

"I asked my own publisher, Jane Winterbotham, why I needed her and she came straight back with the reply. She said she'd call me next Tuesday...

Jane is a brilliant editor ... without Walker, Alex Rider would never have seen the light of day...

...my feeling is that in some indefinable way, having a publisher raises the bar...

Publishers do, I think, provide an imprimatur, a sort of quality control... I don't like being what Apple calls "talent". I'm an author. And I write books, not "content"...

... traditional publishers have less to fear from the digital revolution than they think... For me, the digital revolution offers fantastic opportunities – if you grab hold of them."

The outline of the book I sent to Springer was -

Systems failures in regulating the Net

1. Systems

• What's a system?
• The internet: a complex system
• Our system of governance and regulation

2. Systems failures

• ICT systems failures
• Regulatory systems failures
• Internet regulatory failures
• A pattern emerges: Vaughan’s normalisation of deviance

3. Decision making on Net regulations

• Garbage cans rule: technological ignorance of policymakers
• The shift key circumvention tool
• Rationality drought
• Reactionary politics: "Events, my dear boy, events"
• Think tanks and grand plans
• Media, politics and the criminal justice system: a case study in phone hacking
• Benjamin Franklin v hacking
• Money - republic lost

--->      normalisation of deviance in the institutions of regulation

4. Copyright rehashed

• The internet and piracy as progressive taxation
• Innovation not lawsuits
• BT v Secretary of State for Business on the Digital Economy Act
• BBC HD DRM saga
• Golan v Holder - Eldred all over again?
• EU term extension 2011
• Google book settlement
• ECJ SABAM v Scarlett
• Post SABAM web filtering alive and kicking
• SOPA and PIPA: social network activism a temporary blip?
• The economics of copyright
• Robert Heinlein, 1939 thought for the day

5. Crime

• The 24 hour news cycle and politicians
• Cybercrime
• Something must be done. 
• We've done something.
• Something has been done
• EU stupid plans to mandate web blocking
• Cybercrime booming business in economic hard times
• McKinnon and O'Dwyer
• Legislate in haste, repent at leisure

6. Erosion of liberty bit by bit, byte by byte

• Privacy a thing of the past: the nothing to hide fallacy
• Social networks: anti privacy architectures and norms
• Stolen phones and consequences: AMP v Person's Unknown [2011] EWHC 3454 (TCC)
• US Supreme Court and medical privacy: Sorrell v. IMS Health Inc.
• Teaching hospitals and the Gordian knot of medical privacy
• No data protection on NHS Choices
• EDPS and the data retention directive
• R v Commissioner of Police of the Metropolis on DNA and fingerprint retention
• Free speech and the intermediaries as choke points
• Net neutrality and/or co-regulation
• Great firewall of China… + UK + US + …
• How Islamophobia has become socially acceptable
• Wikileaks and Bradley Manning: saint or sinner
• Search & seizure: US v Jones on GPS tracking
• School fingerprinting and the ASCL: convenience and deviance
• UK, the Human Rights Act and the European Court of Human Rights
• A patent on what?! IBM, Apple, Google, Amazon, Facebook, Intel, Microsoft and Turing
• Judge Bonello’s last stand
• A UK bill of rights or a constitution for cyberspace?

7. End runs and trade negotiations

• GATT, WTO, TRIPS
• WIPO treaties
• Cybercrime treaty
• EU Directives
• ACTA: transparency lost & Commissioners at war

8. Avoiding normalised deviance in regulating the Net

• Understand the technology and science
• Fundamental principles of social regulation apply
• Law and cyberspace
• ---> Sagan's Demon Haunted World: Science as a Candle in the Dark

Judge rules TV Shack O'Dwyer should be extradited

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

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 2011 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

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

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

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

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

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)}