Freeview HD DRM FoI update

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?

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:

1.  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).

1.  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.

1.  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:

1.  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.

1.  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.

1.  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

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

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

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

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.




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

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

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."