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    Wednesday, 5 December 2007

    Damned if you do... the travails of source protection


    A story I had missed in the Observer a couple of weekends ago highlights well the quandary facing journalists / authors who wish to protect their sources. Its another Irish case, and involves the refusal of the author of a book on the widespread abuse of drugs in Irish society to disclose the identity of interviewees ranging through nuns, pilots, lawyers, business people, to - importantly - a Government Minister.

    The author in question, Justine Delaney Wilson, insists that she had recorded various of the interviews on which the book was based including that with the Minister. On legal advice, however, she destroyed the tapes. This is standard practice to avoid the risks of forced documentary disclosure under legal discovery powers, as it allows the journalist to retain such information only in their head.

    With heads pushed resoundingly into the sand, many and various luminaries - including the Justice Minister - have condemned Delaney Wilson and challenged the authenticity of her work. Her inability to produce the evidence is treated as confirmation that it never existed, and is taken to undermine her account. This stance is almost laughable for its complacency and obvious discrepancy with lived experience.

    Although it looks like she will not face legal sanction, the percussive criticism she has endured has - ironically - served to focus attention on the question of her credibility as a journalist. Her experience highlights the dilemma faced by journalists who aspire to the ethical route of protecting confidences. Either they must elect to suffer personal punishment (legal or otherwise), or risk damage to individual informants, journalists' relations with sources generally, and social understanding of important issues.

    Or maybe she's just a self-promoting charlatan...

    Monday, 3 December 2007

    Nought but her Chanel No 5?: Kidman sues for harm to commercial interests

    The MediaGuardian carried an interesting story on Friday focused on a suit brought by Nicole Kidman against the Daily Telegraph. The newspaper reported that a Jo Malone perfume, and not that advertised for Chanel by Kidman, is in fact the actress' favourite. The piece had also suggested that Chanel was unhappy at the apparent undermining of its brand.

    Its an interesting case because, while Kidman is clearly interested in defending her future access to lucrative contracts, a jury would be asked whether the - presumably false - suggestion that Kidman prefers the second perfume can be considered defamatory (her lawyers considered that it was 'grossly' so). It might reasonably be asked in what way the suggestion lowers the estimation of her in the minds of right-thinking members of the community. Might she ask the jury to infer from the newspaper piece some supposed slur on her honesty? Is this just a warning shot, or are we in for a second Kidman courtroom moment following her recent testimony in an Australian libel action brought by a paparazzo? Doth she protect so much in order to avoid liability for breach of contractual obligations?

    Alteratively, it might be possible to envisage an action in passing-off for false association with the second product... (?) This approach would clearly - and preferably - bring us unquestionably into commercial territory (although there is no link between the newspaper and the other provider). Not that defamation actions can't also protect business / commercial reputations...

    Why Can't the British Media Report the EU Accurately?

    In a discussion at the LSE this evening, Anthony Gooch (of the European Commission), Charles Grant, Derek Scott (of Open Europe), and John Kampfner (of the New Statesman) waxed entertainingly on this perennial debate. Of particular note for the purposes of this blog, was a divergence of opinion between two of the protagonists on the question of Press regulation.

    Grant was concerned at the unwillingness of the PCC to insist on corrections of factual misinformation plied on European matters in newspapers. He had earlier highlighted seven lies fabricated by Euro-sceptic newspapers. Its not difficult to understand the Commission's reticence. By adjudicating on complaints over accuracy in politically-charged reporting and commentary (where one man's 'fact' is another's 'interpretation', and yet another's 'kernal of truth' amidst the bunkum), it would be exposing itself to critical retaliation one way or the other.

    That said, of course, an insistence on accuracy comprises Clause 1 of the Editors' Code, and the PCC regularly applauds its own supposed capacity to secure the printing of corrections with 'due prominence' (its an aside, but - somewhat tendentiously - the PCC measures this by reference to the page on which corrections are published rather than column inches devoted). Perhaps fortuitously, the obligation to act is obviated by the absence of any directly affected party. The PCC refuses to respond to 'third party complaints' (108 such complaints were 'not investigated' on this basis between April and September of this year), and the European Commission refuses to act as a putative affected party.

    In keeping with his position, however, Kampfner considered the very idea of greater regulation of the Press to be 'dangerous and counter-productive'. He suggested that the Government would like nothing better than to increase constraints on the media. In support of his point, he cited the restrictiveness of Official Secrets legislation - on which the New Statesman is currenly fighting a case - notwithstanding the very great distance between requiring correction of erroneous material and mandated secrecy.

    On the substance of the debate, Kampfner made the most convincing points. He emphasised his view that the lived experience of everyday people - based on foreign holidays, better food, the rise of Chelsea FC on the back of foreign imports, and Ryanair - would likely contribute much more to any emergent sense of the European demos than newspaper contribution to often contrived 'debate'. He also stated a profound preference for the 'feral beasts' decried by Tony Blair over any connivance to ignore corruption and to fail to challenge those exercising power (using the supposed strawman of US journalistic capitulation to authority) .

    Friday, 30 November 2007

    Copyright: term of protection and fair use

    Victor Keegan offered a - somewhat slanted - discussion of the appropriate term of copyright protection in the Guardian yesterday, highlighting the tension between corporate protection of value and wider social creativity sides of the argument. Its a nice read.

    Also - loosely - related to copyright (but more particularly related to my new-found ability to embed YouTube clips), is this entertaining video on tampering with digital imagery



    Publicity is the very soul of justice: John Battle (ITN) at the LSE

    Earlier this week, John Battle - Head of Compliance at ITN - spoke at the LSE on the theme of the courts, the media and open justice in 21st Century Britain. He has been vocal on this theme elsewhere in recent months. In an engaging discussion, he highlighted the impact of the 2005 Protocol on publicity and the criminal justice system on the reporting of the courts in England and Wales, and asserted that the change was perhaps the most significant in this area in his lifetime. It is hard to disagree; the Protocol has allowed broadcasters to publish evidence footage, and newspapers to publish stills, that formerly would have been simply unavailable. The upshot is that the general public is more immediately and poignantly informed of the matters presented to the courts.

    Examples of the sorts of materials available under the protocol can be seen in the following YouTube videos which aggregate material from the news and current affairs coverage of the Jean Charles de Menezes. Evidently, its a far cry from the old-style journalist-outside-court retelling of legal events, and as a result the news reporting of court proceedings has risen significantly...





    Battle's presentation deliberately left a number of important questions hanging: what motivated the DPP in opening mass-mediated access to the courts in this way? why have defence teams been so content to permit such access to go ahead? what objection now can there be to sensible, measured court coverage? why has the Ministry of Justice not moved more quickly on the question of broadcast coverage of trials after the recent pilot recordings of Court of Appeal proceedings (it is mooted that proceedings of the new Supreme Court will be televised)? what now is the role for the general law of contempt of court arising from media publication?

    Monday, 26 November 2007

    Strasbourg activism sees reputation identified as privacy right

    The Strasbourg court has delivered two judgments in the last month or so focused on national defamation laws, and in particular on the question as to whether there exists a 'right to reputation' protected under Article 8 ECHR. On both occasions, in Lindon v France and Pfeifer v Austria, the court concluded that reputation is so protected.

    For some, this is a welcome conclusion for the rebalancing that it implies must be undertaken as between freedom of expression and reputation in cases such as Reynolds or Jameel. For others, it is based upon a basic misunderstanding of the origins and purpose of Article 8. I'm hoping to speak more to this dichotomy in the next weeks. Meanwhile, Jonathan Coad of Swan Turton has comment pieces on both cases (1,2).

    The Future of Broadcasting: public service in a digital age

    Last Wednesday, Ed Richards of Ofcom spoke at LSE on the above topic - there's useful summary of the discussion and context on Charlie Beckett's blog.

    Gossip? Moi?: Independent piece on the Faustian pact

    Henry Deedes has a suitably gossipy piece in the Independent today on relations between celebrities / public figures and journalists. Its a suitably tantalising foray over ground covered at greater length (but perhaps not as much depth?) by Jessica Callan in recent times.

    You say tomato...: rights allocation on either side of The Pond

    Two stories on content rights agreements on the MediaGuardian site today are worthy of juxtaposition.

    On one hand, the BBC has reached an agreement with Pact (the Producers Alliance for Cinema and Television) regarding the allocation of rights as between the corporation and producers of interactive new media content in future contracts. Under the agreement, producers will retain ownership of their content ideas. There's little detail avialable at present, but according to the Guardian the basic aim is to emphasise and reward creativity. The agreement shifts the sector's business model from old style agency/cost plus to one based on IP generation, and should help generate a real secondary market in interactive content. Pact negotiates terms of trade with all public service broadcasters in the UK. Last June, it entered agreements with the BBC, ITV and C4 on the exploitation of media content across the full range of platforms.

    On the other hand, the strike by writers in the US continues although new talks have been mooted for today. The talks will be aimed at reaching an accord on the fair level of payments for the use of writers' work on new media platforms such as the internet and mobile phones, as well as on derivative products such as DVDs. For evidence of actors' dumb (?) solidarity, see these on YouTube. Also, see these for general background on the dispute (1,2,3,4), and this on what it means for us (!).

    Wednesday, 21 November 2007

    Californication?: Chilli Peppers sue series producers

    I learnt first from the Sun (which loves to find stories relating to this show as it allows lurid copy - apparently its a bit steamy...) , and latterly from the Telegraph, Digital Spy, the NME, and the BBC that the Red Hot Chilli Peppers are to sue the producers (among others) of the David Duchovny series Californication on account of its apparent 'borrowing' of the title from the band's song / album. The show airs on Channel 5 in the UK.

    The band claim that the album was the signature piece of their discography. Good as it was, for me you can't beat Blood Sugar Sex Magik...

    Tuesday, 20 November 2007

    New targets and old: more on the advertising to kids debate

    Consumer group Which? has renewed its critique of the current approach to restricting junk food advertising to kids (1,2). It has conducted further research to demonstrate that the existing rules do not prevent children from seeing a large number of adverts for foods high in fat salt and sugar. This latest round of comment seems very much an exercise in keeping the issue in the public imagination: we been here before.

    Meanwhile, in a new development - again based on a research report - alcohol advertising has returned to the agenda as a potential next target for restriction. This is notwithstanding a relatively recent - ie 2005 - change in the rules governing alcohol advertising. The research, which was the fruit of a joint Ofcom and Advertising Standards Authority effort, found that drink suppliers have shifted advertising spend away from tv since 2005 (-26.2%), that children and young adults are being exposed to fewer alcohol advertisements on tv in consequence, that there has been a significant decline in the proportion of young people saying that they feel alcohol adverts are aimed at them, but that many young people do feel advertisements make drinks look appealing and would encourage people to drink. It has been reported that Gordon Brown is to meet with the head of the industry lobbyist the Portman Group to discuss indutry attitudes.

    By way of a coda, in the Sunday Telegraph Juliette Garside reflected industry perspectives and explained that restrictions on advertising flowing from concerns re children's welfare could have disastrous consequences for advertising income.

    None shall pass?: libel tourism challenged in the US

    Last week, the Guardian noted that a challenge was being brought in the New York state court of appeals by author Rachel Ehrenfeld against a defamation judgment delivered by the UK courts. A consolidated amicus brief has been entered by all the major UK newspaper groups. The case was being described as the most important First Amendment litigation for 50 years. For a great survey of the background, see this from cearta.ie.

    Ehrenfeld is seeking declarations that under US law Mahfouz could not prevail in a claim of libel against her, and that Mr Justice Eady's judgment is unenforceable there. The case could have an impact on the resurgent phenomenon of 'libel tourism'.

    Babies crying: where's the news in that?

    Since the climactic events of the summer (1,2), there has been a continuing trickle of allegations of fakery against the BBC. Most of these are mundane, but one levelled last week is more important (1,2). In a report on the first birth of quintuplets in Britain for five years, the BBC added audio of the babies crying to a video released by the hospital which had no such track. The babies in fact were depicted with respirators in their mouths. Other broadcasters ran the footage without embellishment, and the hospital cried foul.

    The BBC has issued a mea culpa of sorts: "we received the film without sound and although we don't believe viewers were materially misled, we should not have added sound to the pictures". Its hardly Goebbels-style misrepresentation, but immediately the event raises the question of what other 'improvements' the BBC has made to news items over time.

    A Last Hurrah?: Christian group seeks BBC blasphemy prosecution

    The Guardian is reporting today that the group Christian Voice is hoping to bring an action for blasphemous libel before the High Court against Mark Thompson - the director general of the BBC - and Jonathan Thoday, producer of the award-winning Jerry Springer: The Opera musical. This would be the first such case since the famous Gay News case of 1977 (Whitehouse v Lemon [1979] 2 WLR 281).

    The group considers that the screening of the musical by the BBC in January 2005 was blasphemous, for example because in it Jesus says he is 'a little bit gay' and is depicted as a 'perv in a nappy', Mary rants at Jesus for abandoning her by dying on the cross, Jesus is told by Satan to 'f*** off', God emerges as an old fool who needs therapy, and Jerry Springer becomes an alternative saviour. Per Lord Scarman in Gay News, blasphemy is "any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established".

    In its May 2005 response to complaints regarding Jerry Springer: the Opera, Ofcom concluded that while "a large number of people were deeply offended by the transmission... the show was an important work and commentary on modern television". The regulator had received 8860 complaints, of which a large proportion (just under half) were the product of a large scale internet campaign. It also received 210 comments in favour of the broadcast.

    Rights-organisation Liberty is acting as an intervener in the case. It contends that "blasphemy laws should be shelved in dusty archives, not used as a tool to bring mischievous prosecutions against the Arts", and that "thirty years have passed since the last blasphemy prosecution, making the law ripe for repeal". It plans to argue that argue that the law violates Article 10 ECHR and that blasphemy should be decriminalised because of its lack of legal certainty.

    This law has long been considered problematic. In 2003, a Lords Committee recommended the abolition of the offence. In a 1986 report, the Law Commission highlighted the breadth of the law (the difficulty of assessing whether particular comments fall within it), the narrowness of the law (the application only to Anglican Christian beliefs), and the irrelevance of the speaker's intent as key concerns. It is noteworthy that both Gay News and this case are founded upon private prosecutions. Of course, the existence of the offence informed the debate surrounding the introduction of the Racial and Religious Hatred Act 2006, which created offences involving stirring up hatred against persons on religious grounds.

    Saturday, 17 November 2007

    Changing perspectives: political advertising on disability

    In the early part of this week, a number of newspapers carried the story that the disability charity Leonard Cheshire is to launch an advertising campaign using new Aardman Animations characters (1,2,3,4). The campaign, Creature Discomforts, has been launched online (although its server was down last time I checked - in the meantime you can meet the six characters here) and hoarding and television advertisements are purportedly to follow.

    This is interesting because were the campaign aimed at changing the way in which those with disabilities are viewed in society it should presumably be barred from broadcast platforms as a 'political' advert. Alternatively, it may just be intended to highlight difficulties facing the handicapped, by holding an only slightly distorted mirror up to society. Is there a difference; would there be a point to the campaign if not to change perspectives? Are we seeing a shift in the acceptability of such messaging?

    Of course, some years ago an accommodation was reached by the broadcasters and charities which provided that so long as the charities kept their messages factual they would be permissible. So, they can for example represent starving African children in an attempt to raise donations but can't suggest that Western policies - or those of local governments - have any bearing on the predicament faced. That is, objectionably, if charities could cast their missives in the form of commercial advertisements - pay us for a guilt-free conscience - everything was fine from the regulatory perspective.

    Incidentally, the challenge launched by animal welfare group Animal Defenders International to the rights-compliance of the s.319/321 ban on political advertising is due to be heard by a House of Lords panel comprising Lord Bingham, Baroness Hale, Lord Carswell, Lord Brown and Lord Neuberger on 17-18 December. The group is seeking a section 4 HRA declaration of incompatibility with the Convention right to freedom of expression.

    Wednesday, 14 November 2007

    EC Framework Review Proposals Published

    The EC has published the new proposals for a revised Framework Directive which sets out the framework for European Telecommunications regulation and would replace the 2002 Framework. Lots of detail to go through here, but there is apparently no major strategic shift in the proposals.

    Of note: no EC retreat following Ed Richards robust objection to the proposed single telecoms authority for Europe. Commissioner Reding sets out some detail of the proposed 'European Telecom Market Authority', making it clear that the Commission position is that the proposed authority will work alongside the existing national regulators. I will ask him more about this at a public event at LSE next week.

    Now the proposals go into the co-decision procedure: they will be debated by the European Council and Parliament and we can expect to see some vigorous lobbying from national regulators.

    Tuesday, 13 November 2007

    Canadian court develops media public interest defence to defamation action

    The Court of Appeal for Ontario today extended to domestic media organisations the protection of the qualified privilege / media public interest defence to defamation action developed in the UK in Reynolds and Jameel.

    The background to the case, Danno Cusson v Quan and Others (2007) ONCA 771, is fairly well-known. The plaintiff, a policeman, had been lauded as a hero after volunteering in the rescue effort after the 9/11 attacks in New York. Subsequently, the defendants published a number of articles suggesting that in fact the plaintiff had misrepresented himself to the New York police as being a member of the Royal Canadian Mounted Police; that he might have compromised rescue operations by misrepresenting himself and his dog as being properly trained for K-9 rescue efforts; that he had been asked to leave Ground Zero by the New York police, and that he faced police disciplinary charges for his conduct. The trial judge had ruled that the qualified privilege defence was not available for most of the allegations published.

    In the Court of Appeal, Sharpe J.A. explained that the Canadian law regarding the availability of the qualified privilege defence to the media was "in a state of flux and evolution" although it was thought to be "considerably limited by a series of decisions from the Supreme Court of Canada and from this court dating from the 1950s, 60s and 70s". That said, he then highlighted a "significant line of more recent authority" that justified the view that the defence was available to the media on appropriate occasions. The issue then was simply put: "should the law of qualified privilege remain frozen in its 1950s, 60s and 70s state, or should it evolve to afford the media greater latitude when reporting on matters of public interest"? One might suggest that the writing was on the wall once the question had been phrased in this way.

    After reviewing the Canadian lines of authority, Sharpe J.A. drew upon parallels in UK, Australian, New Zealand, US, and South African case law. He reflected that "while evolution of the law of defamation has produced a variety of solutions in different jurisdictions, the evolution away from the common law’s traditional bias in favour of the protection of reputation is strikingly uniform. The courts of [other jurisdictions] have all concluded that the traditional common law standard unduly burdens freedom of expression and have all made appropriate modifications to achieve a more appropriate balance between protecting reputation on the one hand and the public’s right to know on the other". Relying on section 2 of the Charter of Rights and Freedoms, Sharpe J.A. saw no difficulty in overruling the prior Supreme Court jurisprudence.

    Having asserted that "the inhibiting effect of traditional defamation law is incompatible with the climate of free and robust debate to which a democratic society aspires", Sharpe J.A. nevertheless expressed reservation at introducing a malice test to accompany an expanded QP defence. He worried that "malice is notoriously difficult to prove and the adoption of a malice standard would, as a practical matter, make recovery for most plaintiffs a remote possibility". He envisaged a "dramatic and unwarranted shift in the law that would unduly minimize the protection of the important value of individual reputation" were this approach to be pursued.

    In his mind, the new 'public interest responsible journalism defence' was a new jurisprudential creature (akin to that perceived by some of their Lordships in Jameel), and one that does not include a stand-alone malice test as would the traditional defence. Rather the responsible journalism test was deemed to have subsumed the malice question altogether, both in the UK and in Canada. Intending to adopt what he considered to be the UK approach, the appeal judge rejected the specific categorical approach of Australia and New Zealand that restricts the defence to political speech (this would "introduce a potentially troublesome distinction between various types of expression that would unnecessarily complicate the law").

    Many thanks to Andrew Kidd of the current LLM class at LSE who highlighted the case, having acted as junior counsel for one of the parties.

    Monday, 12 November 2007

    The Future of Impartiality: Is the Public Service Ethos Doomed?

    A podcast of the above Polis event, held at the LSE last week and involving Evan Davis, Emily Bell, Richard North and Roger Bolton, is available here. There is also a good overview with some interesting comment on Charlie Beckett's blog.

    Can you keep a secret?: survey on international shield laws

    Human rights group Privacy International has published the findings of a global survey of laws protecting journalists' sources. The survey demonstrates that 'shield laws' designed to allow journalists to maintain the confidentiality of sources have been adopted in around 100 jurisdictions worldwide. Interestingly, it highlights the US, Canada, the Netherlands and Ireland as noteworthy for their failure to introduce specific legal protections.

    The survey notes the potential difficulties faced by journalists in the face of the regular deployment of search warrants on media offices and journalists' homes, the use of legal and illegal surveillance, the adoption of data retention laws allowing authorities easy access to journalists communications data, and national security claims.

    The survey also offers a useful breakdown of key aspects of national laws, and an overview of international provisions and statements relevant to the area, before focusing on individual regions. Its a very helpful resource.

    [BTW, the cartoon by Cambon is from the World Association of Newspapers site]

    Friday, 9 November 2007

    The Pushmepullyou: the intractable problem with the PCC?

    Jonathan Coad of Swan Turton has renewed his longstanding critique of the Press Complaints Commission with a note drawing together a number of recent developments. He cites Heather Mills' recently launched campaign for accuracy in journalism, comments from Greenslade, evidence given by Christopher Meyer to the Culture, Media and Sport Ctte of the House of Commons, and evidence from the Commission's enforcement decisions to challenge the independence of the authority.

    Coad asserts that the PCC is obviously inadequate for its supposed role given its "systemic press bias". He concludes that it should be "allowed (sic!) to fulfil its real role as a lobby group for ensuring press freedom" while "a new independent press complaints body should deal with the complaints of the general public so that justice is not only done when complaints are made, but is seen to be done". The PCC might feel free to ignore this lone voice, in favour of purported assurances on its future from government. Except, its not a lone voice...

    Friday, 2 November 2007

    'The New Republic'?: Cass Sunstein to speak at LSE

    Its been confirmed that Cass Sunstein, Professor of Law at the University of Chicago and author of the seminal work Republic.com among much else, is to speak at LSE on 6 December. The book highlighted the potential threat to democracy arising in the risk that the Internet might prompt the (further) segmentation of society into self-reinforcing, balkanised sub-cultural groups that engaged less with unfamiliar people and ideas to the collective detriment.

    Sunstein has recently published an updated version of his 2001 text, taking account of the widespread critique and valorisation of his earlier take and recent technological developments such as blogs. Further details to follow...

    Monday, 29 October 2007

    Missing the big picture?: the misdirection of the AVMS

    Russ at OfcomWatch has highlighted an interesting article in The Times that passed me by last week. The piece is focused on the new Audio-Visual Media Services Directive (AVMS - the latest revision to the Television Without Frontiers Directive - the common position on which, incidentally, the EC Commission concurred with a couple of weeks ago). In short, it queries the rationale for content regulation in the digital age and suggests that a preferable approach would be to 'equalise down' approaches to linear (traditional pushed tv) and non-linear (ostensibly Internet tv delivered on demand) rather than extending the regulatory purview to new media.

    The piece is more eloquent than allowed above. The author, Graham Smith of law firm Bird and Bird (they of the cleverly simple - or simply clever - homepage address http://www.twobirds.com/), asks rhetorically: "does internet video herald the death of broadcast content regulation as an increasingly irrelevant anachronism?".

    Smith does not remain neutral on the question for long: "broadcast content regulation is an anomalous relic of the old days of spectrum scarcity. If convergence is thought to demand platform neutrality in content regulation, it does not automatically follow that it should be achieved by extending the remit of Ofcom. On the contrary, it can be achieved by rolling back broadcast regulation and subjecting the freed-up content only to the general law. If that is not palatable, the answer is not to extend broadcast regulation into areas in which it has no business. It is to refrain from seeking full platform neutrality in content regulation". Support is drawn from the most important, and least commented, pearl of wisdom in Tony Blair's feral beast speech regarding the unsustainability of divergent approaches to media regulation as determined by (converged) technology.

    For his part, Russ offers the additional thought that the impact of the new regulation will be minimal, in particular due to the jurisdictional opportnities open to web-based publishers.

    Inch by inch...: BSkyB offer voting remedy on ITV merger

    It has been reported over the weekend that BSkyB has offered to forego the full voting rights attendant on the 17.9% share in ITV that it has acquired (1). The Competition Commission has previously suggested that some remedy must be found to offset the impact on competition that it has perceived. The proposal was contained in a letter dated 12 October. A remedies hearing was scheduled to take place last week.

    BSkyB is keen to ensure that there is no presumption in favour of any of the possible remedies mooted in the provisional report. It is proposing to dispose of such measure of voting rights that is currently deemed to facilitate its influence by placing them in a voting trust with a respected institutional trustee. The company calculates that on the Commission's figures this could be achieved by alienating as little as 2.3% of the shares, and has generously proposed to nominate 3% (leaving 14.9% under its control, which it considers to be clearly insufficient to allow material influence). This is attractive because, as a structural solution, it would require no monitoring by the OFT.

    Clearly, this simple voting remedy is designed specifically to remove the only basis for a finding of material influence, viz by dint of the purported ability to block special shareholders' resolutions (which requires 25% of voting shares). It is a clever, and difficult to gainsay, strategy. The company has realised that on the Commission's own figures even a relatively small reduction in its voting power would allow the ITV board to proceed irrespective of BSkyB opposition. Minded of the Commission's obligation to act proportionately, it is offering a quick fix. To my mind, the Commission would have to rejigg its complaint if it is to reject such a proposal. It will be interesting to see the response.

    Predictably, not everyone agrees: Virgin Media are still advocating (baldly) a complete sell-off.

    In addition to its proposal which is without prejudice, BSkyB has also promised further evidence to contest the Commission's preliminary findings both that a relevant merger situation has been created, and that such a situation will lead to competition problems on the all-TV market.

    A non-confidential version of BSkyB's letter, along with the responses received by the Commission from other interested parties, are available on the inquiry webpage.

    Beware rhetoricians!: the sense of nonsense

    There was a nice piece by Zoe Williams in the Guardian on Friday that focused on the 'opinionator' Melanie Phillips. Quite apart from what might be considered a pleasant tone of derision for an arch anti-liberal commentator, the article offers the sensible reminder to take the messages offered with a pinch of salt. The alleged purpose of such commentators' bombast, far from contributing to a search for truth, is rhetorically to undermine any mutual commitment to finding understanding in favour of encouraging retrenchment to preconceived 'positions'.

    The ease of resort to, and difficulty of identifying the use of, such techniques by systemic and other actors is often cited as a weakpoint in Habermasian notions of communicative rationality and its relevance to working understandings of the public sphere. He is often considered 'hostile to theatre' (spectacle or rhetoric as communicative devices) and therefore somewhat divorced from reality. A better reading, however, is that his work invites a focus - in a manner not dissimilar to that of Foucault - on precisely such attempts to distort public discussion that is notionally oriented towards reaching consensus / sense.

    Wednesday, 24 October 2007

    The future of the BBC: a selection of commentary

    There has been much rumination on the future shape of the BBC in the wake of the recent announcement by the Director General Mark Thompson of proposed funding cutbacks in response to the lower than hoped-for licence fee settlement. The main strapline has been fewer programmes better programmes. Newsgathering and factual programmes have borne the brunt of the proposed cuts, although for many commentators this movement amounts only to an overdue push towards the sort of efficiency that is standard among commercial broadcasters. Needless to say, many of those working at the BBC are feeling less than secure.

    These events have brought to the fore the question of what the BBC 'is for' today and 'will be for' in the coming decades. More broadly, what is the role of public service broadcasting in the digital age? An adjunct to this debate is the question of whether the current management team have the vision to pilot the enormous organisation along a preferred course.

    What follows is a selection of the wide commentary on these themes:
    The BBC pays the price of doing too much (Philip Stevens) - BBC sums don’t add up (Charlie Beckett) - The BBC empire has grown too big (Simon Jenkins) - Too much management at the BBC (Jeff Randall) - Cuts, confusion and the Corporation (Guardian leader) - Not so much anger as grumpiness and guilty relief (Mark Lawson) - Helen Boaden: The good news or the bad news? (Ian Burrell) - The Big Question: Why is the BBC cutting jobs, and how will the upheaval affect its output? (Andy McSmith) - Is there a vision? (Owen Gibson and Maggie Brown) - Analysis (Steve Hewlett)

    Ed Richards, the CEO of Ofcom, can be heard in conversation with Damian Tambini on 'The Future of Broadcasting – Public Service in a Digital Age' at the LSE on 21 November.

    Tuesday, 23 October 2007

    Journalism - the 'surest way to anarchy': Irish court orders source disclosure

    Having resisted the temptation to highlight the relative standing of Ireland on the index of press freedom noted earlier today (8th by the way), I feel bound to herald that country's imminent demotion nonetheless. Two senior journalists on the Irish Times have been ordered by the High Court to give evidence as to the identity of their source for an article on the finances of Taoiseach Bertie Ahern (1,2,3). They face possible contempt of court charges should they fail to do so.

    The developments relate to the publication of an article in September of last year which was based in part on a letter sent by the Mahon Tribunal - a body established to probe suggestions of planning corruption, in particular involving the Taoiseach - to a benefactor of Bertie Ahern. The Tribunal is keen to learn of the source of the leaks by which it has been bedevilled; the journalists have refused to answer questions and moreover have destroyed relevant documents. This course of action was today labelled by the court as "anathema to the rule of law and an affront to democratic order". It proceeded: "if tolerated [such behaviour] is the surest way to anarchy". While such comments are clearly overblown, there is of course an imperative to protect the confidentiality of the legal process which the three-man judicial panel was not slow to recognise.

    So far the journalists have remained implacable. There has already been mention of a prospective appeal to the Supreme Court on the basis that the High Court has significantly underplayed the important of the journalist's right to protect sources and the public interest in receipt of the newspaper article.

    This is not the first occasion on which the progress of the Tribunal has resulted in freedom of expression concerns.

    UK ranks only 24th on Press Freedom Index

    The NGO Reporters Without Borders have published their annual ranking of the performance of countries on questions of Press freedom (1,2). The UK has improved slightly to 24th. Of 169 countries, Iceland and Norway are placed joint first, while Eritrea, North Korea and Turkmenistan prop up the table. Other notable placings are the USA (48th) and Russia (144th).

    The ranking is hardly scientific, but rests upon answers to a survey received from 15 freedom of expression organisations throughout the world, its network of 130 correspondents, and journalists, researchers, jurists and human rights activists. The survey contained a set of 50 questions on press freedom in their countries.

    Is that the fat lady singing?: Burstein loses out in the House of Lords

    The second defamation story from the last week concerns the rejection by the House of Lords of an attempt to appeal focused on the defence of fair comment on a matter of public interest. Composer Keith Burstein took action against the Evening Standard on account of its criticism of his opera, Manifest Destiny. Earlier this year, the Court of Appeal found that the newspaper could rely on the defence. The House of Lords considered, however, that the case "does not raise an arguable point of law of general public importance which ought to be considered by the House".

    Having failed to persuade the House of Lords of the need to consider his arguments, Burstein is apparently now hoping to present his case before the European Court of Human Rights alleging that the refusal to permit him to put his case before a jury amounts to a denial of justice (1).

    Now you see me...: court orders disclosure of Internet posters' identities

    The last few weeks have seen the culmination of a number of interesting libel actions. Last week, a number of cases focused on defamatory statements by anonymous posters on internet chatrooms (1). The cases are an interesting set as they range across scenarios in which first the host was identifiable and implicated in the errant behaviour, in which the host was identifable but not implicated, and in which the host was difficult to identify (and turned out also to be responsible for the posting).

    Two of these cases involved criticism and insult by fans of Sheffield Wednesday of the club's executive and its chairman in particular. The first saw the BBC being obliged by the High Court to hand over the names of two posters. It had taken a neutral stance on the actions, but had withdrawn the impugned postings when notified by the complainants of the questionable legality of the messages.

    The second case concerned a club fan-site, Owlstalk (Sheffield Wednesday Football Club Ltd & Ors v Hargreaves (2007) EWHC 2375 (QB) - available on Casetrack and BAILII). The names of 14 posters were sought, although the judge Richard Parkes QC allowed only 5. He considered it necessary to distinguish between statements which "though legally defamatory, were so obviously designed merely to insult as not to carry a realistic risk of doing the claimant quantifiable harm" (para 12), and other more serious defamation. That is, actions must respond to statements that involve "more than a trivial attack which would not be taken seriously".

    While it seems that the BBC has avoided any potential liability on account of its neutrality and compliance, Hargreaves may face further action himself as a publisher, as it is alleged that he "permitted some users to pursue a sustained campaign of vilification... in the course of which [they] posted false and defamatory messages on the website... therefore [he] has facilitated and become mixed up in the wrongdoing of these users" (para3).

    The actions were taken in under the Norwich Pharmacal precedent. As explained by Media Lawyer (subs.), this allows litigants to seek disclosures if they can demonstrate to the court that an arguable wrong has been committed, that they need the information to protect their position, and that the party being asked to supply the information is involved in the matter, even if only innocently.

    The final, quite bizarre, case involved a website hosted in the US (dadsplace.co.uk), on which a series of defamatory messages - alleging, inter alia, drug-dealing, paedophilia, sexual assault, infidelity and corruption - were posted regarding a Sunderland housing organisation and its employees (Gentoo) (1,2,3). Some of these accusations were then repeated in leaflets published in the North-East. The action ended prematurely after a rival businessman admitted in court last week that he had been behind the website and the messages. The complainants' solicitors had spent £300k on tracing the source of the postings. The action had been brought on the basis of the Protection from Harassment Act 1997 and the Data Protection Act 1998.

    Monday, 22 October 2007

    The civilising force of publicity: televising the courts, coroners and councils

    Today a number of issues revolving around citizen access to public events have come to the fore(and not just the statistic that over 15m watched the English rugby team's long overdue (!) demise at the weekend). First, in conjunction with the local Evening Post, Bristol City Council has agreed to the webcasting of many of its meetings. Reportedly, the first such webcast secured an audience of more than 200 viewers (1 - those interested, and with time on their hands, can catch further installments on the newspaper's webpage, or perhaps they might review the Ofcom uploads on YouTube the most recent of which involves a discussion of the paper on the future of children's programming).

    Such 'attendance' figures far outstrip the paltry numbers in the public gallery at the Diana and Dodi inquest, where - notwithstanding the fairly compliant media coverage - few punters have been enticed through the doors (1). Perhaps, the media are sating appetites, or perhaps its the online updates from the dedicated webpage that are satisfying the ghoulish.

    Most importantly, though, it has been mooted that sittings of the new Supreme Court may be broadcast (1). Justice Secretary Jack Straw is said to favour such a momentous move, although he is opposed to any reemergence of the Victorian 'justice as entertainment' spectacle that might accompany televising of jury trials. A successful pilot project conducted recently involved the recording without broadcast of a number of cases in the Court of Appeal. Moreover, the conclusions of the Appellate Committee of the House of Lords - in terms of the bare result of appeals - are already broadcast as part of the proceedings of Parliament. The Supreme Court is scheduled to come into being in October 2009.

    John Battle, Head of Compliance at ITN, will speak at LSE on the theme 'Publicity is the very soul of justice': the courts, the media and open justice in 21st Century Britain' on 28 November.

    Dangerous liaisons?: two dalliances between government and media

    Two noteworthy instances of supposed government cooption of broadsheet journalists in recent days. First, the Independent was caught on adopting more than the gist of a government press notice on the EU Reform Treaty on its Thursday front page '10 myths about the EU treaty' (on which, hear Damian Chalmers and others at the LSE on this Thursday). It has since come out fighting.

    Secondly, a soon to be published narrative on the failings of the UK media to challenge received wisdoms on global problems is to highlight the role of a former Observer political editor in the preparation of the 'dodgy dossier' that formed part of the Government's strategy to justify the moves towards war in Iraq (1,2). This purported role has been denied by the journalist in question.

    Tuesday, 16 October 2007

    First rate intelligence?: Nestle lauches new 'educational' marketing strategy

    F Scott Fitzgerald's famous epigram - 'the test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function' - was brought back to my mind recently. Of course, this is not at all what Nestle are aiming at.

    The public interest?: whistle for it...

    A story I missed last week concerned the charging of a Foreign Office official for alleged breach of the Official Secrets Act. Derek Pasquill is said to have passed information to the New Statesman, the Observer and the Policy Exchange think tank, where it was deployed liberally by journalist Martin Bright. The New Stateman has gone to town (to listen to the article, try here), charging the Government with deliberately using tactics designed 'to intimidate anyone in the civil service who has reservations about dangerous policy, and who might be minded to expose it in the public interest'. They consider the prosecution to be 'an abuse of state power, designed merely to spare the embarrassment of ministers' and identify 'malice and hypocrisy at the heart of Whitehall's approach to whistleblowers'. For reasons stated, its difficult to disagree [the nice jpg is lifted from the New Stateman editorial].

    Monday, 15 October 2007

    Child's play: clever tutorial on US copyright law

    I came across this video on YouTube in an idle moment - grates a bit, but gets the message across...

    Tuesday, 9 October 2007

    'What you see is what I get': fair dealing and photographs

    Charles Swan, of niche media firm Swan Turton, has published an interesting note on the copyright protection available to news photographers following on from a US case decided in June (Fitzgerald v CBS Broadcasting - 1,2). He contrasts the US 'fair use doctrine' with the 'permitted acts' (fair dealing) equivalent in the UK, noting the general similarity but highlighting a key difference: the UK exception doesn't apply to photographs.

    Monday, 8 October 2007

    'The only show in town': Meyer on the PCC

    The Guardian has an interview with Sir Christopher Meyer in which he is forthright / confident /ebullient / self-congratulatory / blase / complacent (delete as deemed appropriate) regarding the position of the PCC, having purportedly been reassured by soundings from the Department for Culture Media and Sport. Of course, this reassurance is fair recognition for the improved performance of the PCC under Meyer's stewardship.

    The recent steamings from the palace, however, are treated as an affirmation of the wisdom of the 'friendly counsel' approach of the Commission to newspaper editors (the Mail having pulled its paparazzi shots of the royal couple). Meyer does seem to overlook the explicit threat of reversion to the courts by an exasperated prince, with its attendant risk of a collapse of trust in the regulator and an emergent hard-edged privacy law. Moreover, his claim that potential claimants now prefer the PCC to other avenues is - I am sure many practicing media lawyers would agree - hopeful at best.

    Friday, 5 October 2007

    McKennitt v Ash: the sequel proves a damp squib

    The litigation between Niema Ash and Loreena McKennitt has finally ended in a settlement, after Ms Ash agreed to forego publication of a second version of her book, Travels with Loreena McKennitt: My Life as a Friend (1). This second version had been intended to take account of her failure to persuade the courts to permit publication of the first version, but it too garnered objection from her subject. The first dispute ended earlier this year when the House of Lords rejected Ash's application to appeal the judgment of the Court of Appeal.

    Commenting on today's events and the dispute more broadly, Greenslade has perceived "a dramatic landmark as far as press freedom in general is concerned". With shades of Spycatcher, he notes that "all the bits that upset McKennitt have already been published in Canada and the United States. As so often, it is British courts that have been overly restrictive". This is important. If we are talking about breach of confidence, then when the story is out, its out. However, if we are talking about protecting privacy directly then - if its accepted that there is an intrusion in a given case, which Greenslade contests as regards this instance - there probably is some merit in seeking to limit the extent of the harm caused. Perhaps, this is an irregularity that is borne of how our courts have developed the law in this area, and one that might best be resolved by legislative intervention.

    PCC clears newspaper's use of YouTube footage showing juvenile criminality

    In its second ruling on the use of video footage by newspapers online, the PCC has dismissed a father's claim that a newspaper's use of YouTube video of his son's criminal misbehaviour breached clause 6 (Children) of the Editors' Code (1). The footage showed the boy and others throwing firebombs at a passing train; it has been uploaded to YouTube by the children themselves. The Northwich Guardian had embedded the footage in its online provision, and used stills in its print edition.

    The Commission explained that the Code does not include a blanket ban on publishing photographs or stories about children without consent. It considered that it was in the public interest to publicise the incident in question, which was of a serious and anti-social nature and had been committed by individuals who were over the age of criminal responsibility. Together with the fact that the footage had been placed voluntarily in the public domain by the complainant’s son, this justified the conclusion that the information was not private. The NG's action had been "an entirely legitimate journalistic exercise".

    The Commission also noted that "it would have been contrary to any common sense or fairness for the Commission to afford greater protection to the youths in this case than to other law-abiding children... [given the] circumstances where innocuous pictures taken of children in public places do not normally breach the Code". This nods in the direction of the High Court ruling in the recent JK Rowling case, although this judgment is subject to appeal. Moreover, the Commission was rightly adamant that it should do nothing to undermine the right of the Press to scrutinise anti-social or criminal activity outside of situations were specific legal restrictions applied (eg contempt).

    Crowngate report sees demise of BBC1 controller

    The Guardian is reporting that Peter Fincham, the controller of BBC1, has resigned following the publication of the Wyatt report into the 'Crowngate' affair. He was joined on the job market by Stephen Lambert of RDF (the firm at the centre of the affair). The BBC has also instituted a further range of measures in order to improve its future performance.

    The Wyatt report focused on two primary matters: how did the footage of the Queen come to be
    shown at a BBC1 press launch? and, why did the BBC wait so long to correct the story and issue an apology? It appears that Fincham's mistake was to have delayed in issuing a correction from 5pm on the relevant day until the following morning. Lambert has previously admitted being more immediately at fault, and it has been surmised that the BBC has warned RDF that it would not deal with it while the executive remained in post.

    The trailer at the root of the matter can be seen here, while the Wyatt report is available here.

    Thursday, 4 October 2007

    Fashion statement: clothing as expression worthy of protection

    Eoin O'Dell has a nice piece on cearta.ie regarding the risks of expressing oneself sartorially, at least in the US, and the protection that might be afforded by rights instruments. It brings to mind interesting questions that trouble me from time to time: why are media products often considered to be 'special' artefacts in political debate because of their contribution to 'culture'? Might not a ceramic jug, ornate mirror, or ragged trouser similarly express something of value?

    Should the Wolf think no one is listening? Middleton bleats again

    The Daily Telegraph carried a piece yesterday highlighting a letter sent by Prince Charles' solicitors to the PCC warning of legal action as a prospective, if last, resort should the perceived harassment of Ms Middleton not cease. The solicitors are said to have filmed the disturbing activities of the paparazzi outside her London home to support any complaint.

    This isn't the first time Middleton has raised the issue of paparazzi harassment. In July, she complained to police, while in April she pulled a complaint made to the PCC. The article includes a quote from a 'senior industry source': "essentially, they will be trying to guarantee that photographs of Miss Middleton can be taken only on her terms. I am afraid it does not work that way". I'm afraid the mood music suggests that it might soon, and maybe should...

    Mistaking plagiarism for copyright (for TV format protection)

    Mark Lawson gets it wrong on the ideas-expression dichotomy in the Guardian when comparing Raymond Blanc's Restaurant with Alan Sugar's Apprentice. But others have long made the case for - and mooted options regarding - the protection of TV formats under UK and EC law (1,2,3) (...under French law? - 1,2; Australian law? - 1), not least resulting from the sheer scale of the international trade (£1.6B in 2004 according to FRAPA and ScreenDigest).

    Wednesday, 3 October 2007

    Fall out from BSkyB

    Chairman of the Competition Commission has been widely reported as indicating a preference for a sale of shares by Sky as the putative remedy to the provisional competition problem identified by the Commission yesterday. This should be read as a general preference, rather than something specific to this case. The notion is that behavioural remedies require ongoing surveillance and therefore increase the regulatory burden. The Commission is bound, however, only to intervene to the extent necessary and so if BSkyB can make a reasonable case that it will be true to its word behavioural remedies it will be (eg coherence with Chairman's action on major votes). Sky might yet have the last laugh over the crowing Branson. The OFT would nonetheless have residual powers to review the effectiveness of the remedy agreed.

    It also reported that a non-executive director of the company has mooted legal action to seek redress if it is forced to sell. This is a nonsense. The argument goes that Sky adhered to the letter of the law by not exceeding the 20-20 media ownership rule, and so shouldn't now have the rug pulled from under it. The obvious problem is that two different areas of law apply to transactions of this sort, and one can't pick and choose that by which one will be bound. It would always be open to Sky or others to lobby the government for a change to the framework as it stands, but failing that...

    Journalism in the public interest?

    In a post yesterday, Greenslade took issue with recent News of the World shenanigans dressed up as investigative reporting. Its a nice illustration of the old trope: 'public interest = interesting to public?'

    Tuesday, 2 October 2007

    Shades of Tynan: US student newspaper 'tests freedom of the press'

    The MediaGuardian carried a story today regarding a US student newspaper 'op-ed' that included the (unbawdlerised) thought '...F@*! Bush'. Whether he was having a laugh, or seriously endeavouring to test the limits of free speech in modern day USA the young journalist in question has apparently kicked off quite a storm (1,2).

    Chicken Lickin bad!: Commission (provisionally) finds competition problems

    The Competition Commission announced today its provisional findings in respect of the merger between BSkyB and ITV arising from the former's acquisition of a minority shareholding in the latter. Its bad news for the Murdoch business, as the Commission has identified a substantial lessening of competition attendant on the loss of rivalry between the two companies in the 'all-TV market'. The provisional findings have now been opened for comment, and the Commission is also consulting on possible remedies (albeit that only a summary note of the report and the notice of possible remedies are available as yet). It expects to offer its final advice to the Secretary of State in December.

    Interestingly, the Commission reached three specific findings. First, it confirmed that a merger had taken place. It agreed with the OFT that "the size of BSkyB’s holding both in absolute and relative terms was such that on the basis of past voting patterns it would be likely to be able to block special resolutions proposed by ITV’s management".

    Secondly, it reached the conclusion that the competition limb of the assessment was implicated. This finding was based on the logic that free-to-air services (FTA) pose a constraint on BSkyB’s pay-tv offering; that the BBC and ITV are both key to the strength of FTA, and that consequently the merger allows BSkyB the incentive and the opportunity to influence ITV’s future strategy in such a way as to minimize the constraint imposed on its pay-tv (para 16 - summary). It gave a number of examples of potential influence (paras 18-19). Notably, the counterfactual used was an independent ITV, and not an ITV subsumed within Virgin Media (although such a possibility was countenanced in consideration of future competitive constraints on BSkyB). Moreover, the Commission concluded that there was not likely to be any competitive detriment in the advertising, bidding for sports rights, or news provision markets (paras 22-28).

    Importantly though, and thirdly, the Commission also considered that the media public interest consideration in question (s.58(2C) of the Enterprise Act 2003) had not been breached. The Commission acknowledged the importance of the wider regulatory framework and noted that "existing regulatory mechanisms reduced the scope for influence over editorial decisions by owners of television channels which broadcast news". In addition, the Commission identified that journalistic and editorial ethics and controls - the "strong commitment to editorial independence" - would see resistance to attempts at interference by owners with news output. It considered that the level of control acquired by BSkyB would not allow it any significant measure of influence over ITN (in which ITV holds a 40% shareholding), and so the number of 'news voices' would be unaffected (paras 30-43).

    As regards remedies, the Inquiry Group has mooted requiring full divestiture of the shareholding, partial divestiture, or partial divestiture combined with behavioral remedies (for example, restricting BSkyB's freedom to vote as it may wish or ability to seek board representation in future).

    If these provisional findings and remedies are confirmed and followed by the government, the upshot looks bleak for BSkyB. Notwithstanding James Murdoch's claim that the purchase had been undertaken with the long view in mind, the investment will have been a disastrous one (somewhere (?) in the Sunday papers this week the shareholding was estimated to have fallen in value by well over £100m since its purchase). Moreover, presumably just to stick the knife in, Richard Branson was to be found in the Observer mulling the continuing possibility of a Virgin-ITV tie-up. [Interestingly, the following excerpt is taken from the interview: "Asked if he detects a new willingness to take on Murdoch in government circles, he says: 'I think there may be a government in power that wants to do what's right (my emph.) - and that is a brave thing to do.' "].

    The Secretary of State is obliged to follow the Commission's conclusions on the competition question (if they remain unrevised when given to him), but can decide the matter differently on the media policy ground (which in this case could presumably only involve an exacerbation of the negative finding).

    Monday, 1 October 2007

    Fake Photo or Fake Politics? Purnell - predictably - criticised re faked photograph

    After lecturing broadcasters last month, Culture Secretary James Purnell has become embroiled in a fakery row all of his own after his (non-)agreement to the merging of a PR photo of himself with an earlier one of other local MPs and executives outside a Tameside hospital (1,2). Elevating the event from being a mildly humourous postscript to a summer of deception revelations (and in what can only have been an effort to damage their own credibility), a number of Conservatives swiftly pronounced that Purnell's position had somehow become 'untenable'. That said, Purnell's lame response, (or was that here?) almost seemed to lend weight to the calls (see the Guardian for the faked photo itself.

    The really big weekend deception story, of course, was that extras had been used on a bus in the filming of Nigella Lawson's latest series... devastating!!

    Thursday, 27 September 2007

    Trelford on the PCC and the D-A Notice

    In an interesting recent rumination, Donald Trelford - erstwhile editor of the Observer and currently columnist for the Independent - listed a number of "praiseworthy developments" at the PCC but highlighted its continuing susceptibility to calls for its demise. His prescription: embrace change don't fight it.

    Another interesting point made by Trelford in recent weeks concerns the D-notice system. Quoting from a piece in the Independent: "Many people, even on newspapers, are surprised that the D-notice system still exists, having assumed that it died with the collapse of Communism. Yet the Defence, Press and Broadcasting Advisory Committee, consisting of editors and civil servants, functions much as it ever did. Now a history of the D-notice system, right back to its origins in 1912, is being written by its former Secretary, Admiral Nick Wilkinson. A prevalent myth about the system is that governments can "slap a D-notice" (now called a or D-A Notice) on a story and thereby censor it... In reality it's an advisory system, which editors can choose to ignore. I had to put some Americans straight on that one recently, when they consulted me about a feature film they were planning... I doubt if my words of warning will stop them. "

    Advertising salvation: Channel 4 carries first mainstream religious advert

    Lest it pass unnoted, earlier this month Channel 4 carried its first ever advertisement placed by a mainstream religious group (1,2). The advert promoted the Alpha course (it can be found on YouTube). Now, can the promulgation of religious viewpoints be considered 'political'...

    OFT to review the ITV CRR remedy

    ITV has persuaded the OFT to review the remedy that was imposed on the broadcaster in order to secure the merger of Carlton and Granada (1,2,3). The announcement of the review had been trailed for some time (1,2), and can have come as no surprise.

    For further comment on the review, see:

    - Brand Republic: Politics of the media: Will Michael Grade win his battle over CRR? - Stephen Foster
    - Media Week: What is the case for reform of CRR? - Emma Barnett
    - Daily Telegraph: Should ITV be unleashed from its advertising straitjacket? - Mathew Horsman

    Catch-up (August): PCC makes first internet video ruling

    In mid-August, the PCC proffered its first ruling on the use of a video on a newspaper's internet site (1,2). In a case echoing that of teacher Angela Mason (1,2), a child took mobile phone video footage of the behaviour of her peers which was subsequently released to a number of newspapers. The Scottish Sun and Scottish Daily Mirror ran the story with captures from the footage on which pupils' identities had been obscured, but the Hamilton Advertiser uploaded the uncensored footage to its website. The PTA complaint to the PCC alleged breach of privacy and damage to the school's reputation (without proper checks having been made by the newspaper); the newspaper contended a public interest justification.

    The PCC's decision was something of a curate's egg for the newspapers concerned. It accepted that there was a public interest dimension, but concluded that the Advertiser's failure to take steps to conceal pupils' identity or to obtain proper consent from those filmed outweighed this argument (see here). Separate claims against the other newspapers was rejected as identities had been concealed (here and here).

    The case was especially interesting as the first case involving online video content since the PCC's determination in February of this year that the regulation of such content should be left to it rather than placed in the hands of broadcast regulators as had been mooted by the EC Commission.

    Catch-up (August): BBC to sell off BBC Resources

    The BBC has decided to sell-off its resources subsidiary (1,2,3). Such a move had previously been forestalled after a strike-averting agreement with unions. This pact was to hold until January 2007, when, unsurprisingly, it was quickly announced that the sale was back on. It has now been set rolling. The relationship between the BBC and its commercial services has been one focus of concern for the BBC Trust.

    Catch-up (August): what a DRaMa!

    The Technology Guardian carried a couple of interesting notes re developments in the copyright technology and DRM world in mid-August. The first on copyright recognition software, and the second on questionable dealing by Google re DRM-protected video clips.

    Wednesday, 26 September 2007

    Catch-up (August): JK Rowling no Princess Caroline

    In early August, Joanne Murray (aka JK Rowling) lost her case against a picture agency which had been aimed at protecting the privacy of her child. According to the Guardian, a picture showing Rowling, her husband, and their son appeared in the Sunday Express magazine to illustrate an article about her approach to motherhood and family life. While the newspaper settled the claim, the picture agency involved had contested it. Mr Justice Patten contended that a right to control the use of images taken in public places when not on 'public' business would amount to the accordance of a publicity right that was purportedly not recognised in English law. Of course, this is almost precisely what one might have thought has been bestowed by the Strasbourg jurisprudence. The case is to proceed to the Court of Appeal, where we might expect the next stage in the faltering development of the tort of misuse of private information - or at the very least a right good barney!!

    Catch-up (August): Darth Murdoch and the evil empire

    A topic on which I've strenously avoided comment here in protest at the outpourings of righteous self-regard among newspaper commentators is that of the ultimately successful purchase by News Corporation of Dow Jones (Wall Street Journal). A couple of snippets did tickle me however: first, the fact that one member of the Board established to vouchsafe editorial independence for the WSJ was deemed a News Corp accolyte on the strength of tenuous - but nonetheless terrible - links, and secondly, Murdoch's - justified - complaint that he had been subjected to lambast of degrees generally reserved for genocidal tyrants (and here). Its hard not to agree that commentators sometimes - or almost invariably in respect of Murdoch and his scions - get things just a tad out of proportion.

    Wednesday, 19 September 2007

    Catch-up (August): C4 criticised for providing a platform for extremism

    In early August, Channel 4 faced criticism for the decisions to allow extremist Islamists to air their views in Dispatches programmes broadcast in January and August (1,2,3). The Director of the latter programme defended the decision on the basis that "journalism has a duty to reflect and not condemn the views of [such] people" and that "in denying them a voice, it is contributing to the radicalisation of British Muslims". Complaints were made to the police, and an investigation as to whether any incitement to hatred had occurred (perpetrated by either the interviewees or the programme makers themselves) (1,2). It also emerged, perhaps strangely, that the police and Crown Prosecution Service were to make a complaint to Ofcom (1). Channel 4 was robust in its defence of the programmes and criticism of the police (1). It was supported by the Conservative Party among others (1,2).

    Later in August, Channel 4 was ordered by the court to hand over unbroadcast footage from the second programme to police in aid of an investigation into Abu Mohammed (the radical in question) (1).

    Catch-up (August): the residual damage of the Danish cartoons furore

    At the beginning of August, the Financial Times carried an interesting reflection on the aftermath of the Danish cartoons row borne out of a report of a meeting between nine leading cartoonists.

    Tuesday, 18 September 2007

    Catch-up (August): Lords committee critical of BBC Trust

    In early August, the House of Lords Communications Committee published its first report - that on the creation of the BBC Trust and specifically the manner in which the current Chairman, Sir Michael Lyons, was appointed (1). The Committee was disturbed that the appointment had not been subject to parliamentary oversight nor debated in Parliament (a democratic deficit that it hoped would be reduced by Government in the longer term); they were also conducting their review in the wake of Michael Grade's defection to ITV.

    Catch-up (August): defamation statistics confirm the trans-atlantic convoy

    Statistics on defamation actions in the year to the end of May 2007 released by Sweet & Maxwell indicated that 30% of cases were brought by 'celebrities' to defend their reputations, and that of these a significant number involved (predominantly US) forum-shoppers. The research also indicated that 13% of all defamation cases were related to allegations of links to terrorism. A further purported trend - the increase in online defamation - was mentioned, although apparently not borne out by the statistics on reported cases.

    Catch-up (August): mobile tv in the doldrums

    The query as to the future uptake of mobile tv- aired recently by Anthony Lilley - was filled out in an article published in the TechnologyGuardian. This highlighted research indicating a paucity of numbers of people accessing tv services over mobile platforms in the UK; it also cited sufficient counter-evidence, however, to leave the debate open for now. The article also noted the decision of the EC to encourage further uptake of the DVB-H technology.

    Wednesday, 12 September 2007

    Catch-up (August): more on trust and deception in broadcasting

    Early August witnessed the lingering aftermath of the the melee of developments on the trust in broadcasting. The primary matter was that concerning the Paul Watson documentary on the demise of an Alzheimer's sufferer (Malcom and Barbara: Love's Farewell), and the 'misrepresentation' concerning the final moments of the piece (1,2). ITV was heavily criticised for its role amid mutual recriminations between the broadcaster and film-maker, while it transpired that the truth as to what the final scenes depicted emerged on a Times weblog.

    The really big noise in this respect in August came at the Edinburgh television festival, at which Jeremy Paxman - in the 2007 McTaggart Lecture (see here for clips and here for the transcript) - offered an indictment of the events and practices that had drawn broadcasting into the mire over the summer months. He considered that, "...there is a problem. Potentially, it is a very big problem. It has the capacity to change utterly what we do, and in the process to betray the people we ought to be serving. Once people start believing we’re playing fast and loose with them routinely, we’ve had it", and then went to offer what he labelled "a manifesto, a statement of belief" (for more, see the speech itself.

    Of course, there's also been much commentary on what Paxman had to say:
    - After the trust has gone - executives reflect on a turbulent year for TV - Chris Tryhorn
    - The BBC has squandered trust. But we will win it back - Mark Thompson
    - 'We need some proportionality: Ramsay is not the first person to lie about a fish' - Jana Bennett
    - Tough lessons for a BBC going through tough times - Observer leader
    - Will Paxman's speech change anything? - Steve Hewlett
    - We can trust the BBC - if only they'd stop talking about it - Peter Preston
    - Trust with the BBC is betrayed - David Elstein
    - Froth away, Paxo - but it’s viewers who will put TV in order - Rod Liddle
    - Give us some roughage in our TV diet - Paul Hoggart
    - Television's Faustian pact - Georgina Born
    - Agenda Benders - John Cole

    ... and finally, Paxman in conversation with John Humphries on Today.

    Wednesday, 5 September 2007

    Catch-up (July): trust and deception in broadcasting

    The key issue in the media policy context to have arisen over the summer months has been the impact of revealed deceptions / misrepresentations / falsehoods in programming - exacerbated by the premium rate calls scandals - on public faith and trust in broadcasting and broadcasters. Others have written much important comment on this theme and the following consists largely of links to such consideration (Adrian Monck has been typically incisive, and I understand that he is soon to publish a monograph on the topic, while Polis will be hosting a debate towards the end of this month).

    Before listing useful links to developments on this theme drawn from July, its worth noting that there is a sense of typically ritualistic self-flagellation in some broadcasters' commentary. At least as regards the BBC, it is no doubt important that misdeeds are publically acknowledged, contrition demonstrated, and new leafs obviously turned. However, by being so loudly self-critical, such apologia open the door to outside criticism that is perhaps self-interested and/or over-strenuous. I can't help but call to mind the long-standing relative statistics on public trust in different media and how the traditional distinction between different forms must stick in the craw of print journalists.

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    In one of our last posts before our prolonged sojourn, we noted briefly the emerging story of the Queen, the photographer, and the non-existent royal tantrum. This event kicked off the whole shebang; for some basic elucidation, see here, here, here and here. Subsequently, it emerged that RDF had shown the correct footage to the palace, while providing the doctored version to everyone else, including foreign customers. Both the BBC and ITV froze future commissioning from RDF (1,2), with predictable consequences for the company's share price (1,2). Stephen Lambert of RDF admitted personal responsibility (1,2) after initial mootings indicated either that the footage was not for airing or comment (when it palpably was) or laid the blame on the much-erring 'junior researcher'.

    The fiasco prompted the BBC to launch a more general review of the extent of deception in its programming (1,2) and an ethics training programme - Safegarding Trust - for staff (1), amid fears that there existed a systemic, perhaps necessary culture of trickery and misrepresentation (1,2,3). The BBC Trust issued a statement in which it criticised the editorial failings at the BBC and indicated that on receipt of the Director-General's final report in the autumn it would consider if any additional and separate measures are necessary. For his part the Director-General, Mark Thompson, sent an email to all staff lambasting breaches (several staff were suspended on this account) and also published a statement announcing the creation of an editorial standards board. For some commentators, the series of events raised important 'boundary' issues for regulators (1).

    Through the BBC review, and by other means, a number of other instances of deception across British TV quickly came to light, augmenting the general sense that broadcasting in toto was more about manipulation than representation, more art than science. Notable among the other instances were the allegation that survivalist Bear Grylls stayed in hotels (1,2) and faked a grizzly encounter (1) during the making of his Ch4 series; 'f*****g action man', Gordon Ramsay, misrepresented a fish used in his Ch4 cooking programme as having been speared by himself when they had been caught by a guide (1,2), and 'live' footage from Ch5 series Killer Shark Live was found to have been pre-recorded (1).

    It is difficult not to agree that such instances are hardly worth writing home about. Where there may be more of an issue, of course, is in cases where either the monarchy (?) or news and politics - serious issues - are involved. One such instance of manipulation in these areas was uncovered in July when the Treasury complained that a Newsnight piece on attempts to secure an interview with Gordon Brown had mis-sequenced footage (1,2) to imply that a press office official had sought deliberately and disproportionately to frustrate efforts (although the BBC maintained that only the chronology and not the meaning of the piece was distorted, an apology was subsequently offered). Another instance which was just emerging as the month drew to a close concerned the 'dying moments' of a man suffering from Alzheimer's depicted in a documentary by Paul Watson (1,2,3).

    Of course, the existence of such a culture of deception was contested, both as regards the BBC specifically and with respect to TV more generally. For some, any such fraud as had occurred was 'a long way from Conrad Black', while for others it resulted from 'a mixture of hubris and hysteria among young television programme makers'. Most commentators preferred a severely critical take (Rod Liddle, Michael Grade, Ray Snoddy).

    Two general strands of commentary also resulted from the deception rows. First, the impact of the disclosures on trust in broadcasters, and the BBC in particular, and secondly, discussion of the future for the BBC. As regards levels of trust in and credibility of broadcasting, a survey conducted by ICM for the Guardian indicated, unsurprisingly, that trust in the BBC had diminished. This point was emphasised by many commentators (1). BBC executives were reportedly given one year to rectify matters (1).

    On the latter theme, there was much reiteration of the importance of the BBC (Simon Jenkins,Greg Dyke et al), albeit with some desire for it to return to its 'core mission' (Alice Thomson). Howard Davies (incidentally, Director of the LSE) considered that the trust problems highlighted weaknesses in the governance arrangements created for the BBC. This view was subject to predictable criticism (1,2).

    And the most important lesson of the whole piece?... lemmings, according to Marina Hyde, don't commit mass copy-cat suicides (!!) - the impression that they do was created in 1958 by a Disney documentary called White Wilderness, after filmmakers herded them off a precipice to enliven what was panning out as a rather dull study. Other lowpoints in the recent history of fakery were also pointed out in the Guardian.

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