Quis custodiet ipsos custodes? its a veritable roundabout

The Maclean Bill on restricting the applicability of the FoI regime to Parliament is to gain a Second Reading in the House of Lords on 21 June. The Bill which was passed by the Commons earlier this month is purportedly intended to protect constituents' correspondence with MPs from disclosure, although this supposed justification is deeply contested (an 'Early Day Motion' set down by Simon Hughes MP in the Commons which protests - somewhat belatedly - the move to limit the Act has achieved 55 signatories to date).

Meanwhile, in a (suspiciously) leaked letter Alastair Darling has bemoaned the impact of the FoIA on the policy development process, outlined the case for protections for MPs correspondence, and signalled that - in a neat completion of the circle - the Information Commissioner is under scrutiny by Ministers. This may be part of a wider campaign to undermine the FoI regime, perhaps (tacitly?) supported by the PM-designate on the back of sore recent experiences and more deep-seated opposition.

For his part, in a recent speech the Information Commissioner indicated that while he agrees that something should be done about vexatious requests (the purported intent behind the government's own (stalled) moves to revise the FoI regime), he feels that much can be achieved simply by applying existing safeguards. He hoped that FoI could be seen as a 'fixed feature of 21st century democracy' and not as a 'battleground'. The problem of course is that those in government (with both a 'G' and a 'g') have much to lose from the exposure that the mechanism allows.

Future's bright? an optimistic take on citizen journalism / social media

The Guardian today has an interesting - if optimistic - piece by Nathalie McDermott on the emancipatory aspect of new media (and the media literacy training necessary to achieve it)

Bleak outlook? report suggests VirginMedia no substitute for BSkyB

A lot's been happening over the past few weeks in the Sky-Virgin stand-off. A report prepared by investment bank UBS and widely reported in the media today (1,2,3) has suggested that VirginMedia's failure to agree a deal with BSkyB for the provision of its basic channels may ultimately cost it getting on for 1/2 million subscribers. Nonetheless, while Sky's share price may have risen on the news, in the context of ongoing regulatory probing its a fair guess that its executives will have been less buoyant (Sky have purportedly been looking to offload / swap its stake in ITV for the equivalent in Channel 5). Interestingly, the UBS report also found that 14% of customers "appear to have an ideological aversion to Sky and are unlikely ever to subscribe".

That said, VirginMedia - where the Board and executives have themselves been under stress (rumours of takeover bids, uncertainty over executives' contracts, the threat of boardroom upheavals, allegations of rebuffed peace deals etc) - dismissed the report as outdated. So, maybe the news tonight is neither good nor bad... just old.

The case of Chavez against RCTV (freedom of expression vs. public service broadcasting)

The following guest posting was submitted by Masters student Diego Gonzales-Crespo. It focuses on the decision of the Venezuelan government not to renew the concession to broadcast enjoyed by a private operator (on the basis of an alleged lack of impartiality), and the replacement of this channel with a new PSB. We'd like actively to encourage comment and counterpoint. For background details, see this from the Financial Times, this from the Committee to Protect Journalists, and this from Z Magazine.

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Over the past 6 months the Venezuelan-socially-inspired government has announced that it will not renew the concession of Channel 2 concessionaire 1BC Group which owned Radio Caracas Television (RCTV). According to the government the concession is due next May 27, 2007. RCTV has had a long tradition in the development of media ever since the birth of television. Venezuelans like me can truly remember the impact of RCTV in the lives of people. But that is besides the point, so one thinks, especially when you find the true reasoning behind the government in renewing the TV plant’s concession rights and to publicly fund a public service broadcasting television station (TVes) to be its substitute.

In an inauguration speech the newly appointed president of TVes seemed to give importance of the idea of nationality (venezolaneidad, or venezolaniticity) and the promotion of idea of socialism in contrast to capitalism. A lot of things had happened between the starting point and where it truly ends making me think about real politik of governments and their pursuit of control over media outlets.

After the interruption of the constitutional order in April 2002 (as determined by a final decision of the Supreme Court of Justice, later criticized by the government as a turd), the government made direct accusations to RCTV of transmitting cartoons and not divulging newsworthy material indispensable to the institutional order and the protection of the constitutionally elected government. In short, RCTV collaborated directly and was partial to the attempted coup against elected president Hugo Chavez Frias in April 2002.

According to the views of [Golding and Elliot] impartiality has to do with a disinterested approach to news lacking in motivation to shape or select material according to a particular view or opinion whilst objectivity to a complete untainted capture of the world. In this sense, the government alleges RCTV was partial. Without any previous administrative proceedings (allegedly breaching due process) the government publicly announced that it will not renew the concession of RCTV on sovereignty grounds, and announced the creation of a public service broadcasting network. Now with TVes, the government of Venezuela has a collection of media outlets, totalling almost to 5 different directly publicly funded media outlets. (VTV Channel 8, Telesur, ANtv and different community television stations).

RCTV supporters have rallied throughout the streets of Caracas, even unveiling the biggest poster in Latin America for the protection of freedom of expression. The true meaning, they fear, is that the government is sending a message to all media outlets including journalists, either they support the government or they will be shut up, -or down as in the case of RCTV. They argue that this would be a breach of freedom of expression, but also to the protection of private property. RCTV attorneys filed a constitutional action before the Supreme Court of Justice but to no [political] avail. The Court seems to be on Chavez’s behalf. Even though it seems that due process has been violated when the President has announced in different public scenarios and even made a mockery that he will not renew the concession. Additionally, this has created impasses with the Secretary of the Organization of American States (OAS), the Latin American Press Council, including a group of representatives of the European Council.

The question in my mind, is how can a government truly justify the renewal of a concession right legally granted? The answer can not be acquired rights, but also has to shy away from the scarcity rationale, especially when you consider that the government already controls and publicly funds more than enough media outlets. Concerning the argument of the public service broadcasting for the creation of the new formed TVes, it assumes, according to [Born and Prosser – (2001) Modern Law Review, 64, 5], the promotion of citizenship, universality and quality of services and output. So far the government has tried to spin the argument of freedom of expression into the need for the promotion of the venezolanicity and socialist ideas to contrast capitalism. In my views not enough justifications for more public service broadcasting while hiding its true intentions. That is a message to everyone else…don’t be like RCTV.

Diego Gonzales-Crespo

'All that's required for evil to flourish': MPs go beyond the pale on FoI

Were it not so depressingly predictable, last week's decision by MPs to exempt themselves from the application of the freedom of information regime would be amazing (1,2,3,4). The shift involves the passage of the Freedom of Information (Amendment) Bill that removes the two Houses of Parliament from Schedule 1 which lists the public authorities subject to the 2000 Act. As noted in the Observer, "backers of the amendment say they are protecting communications between MPs and their constituents. Letters sent in confidence, they say, should not be made public. That is true. But as a justification for changing the law, it is spurious. MPs could have sought clarification from the information commissioner that their private correspondence is covered by data protection law, which would make it safe from disclosure".

Descriptions of the move include the following: 'squalid', 'betrayal' and 'abuse of power', 'disgraceful', 'a symbol of MPs’ contempt for the public and for open democracy' and 'energis[ing] the image of politicians as worthy of paltry public trust' . I haven't been able to find positive adjectives anywhere.

Indeed, listening to the voxpops and interviews over the weekend, it has been striking how few MP-commentators have agreed publicly with the move. Almost all such people of course were not present for the vote itself and so can now claim to be as dismayed as the rest of us (the amendment bill was passed by only 98 MPs). They, unlike us, however, have been in a position to prevent this outcome and their failure to do so leaves them at least partly culpable.

There is still some hope - in what would be another instance of the unelected House standing up for accountability, transparency and democracy in the face of a squalid 'other place' - that the House of Lords may reject the Bill (here). A mooted alternative, and to my mind one that would heap extra embarassment on the Commons, would be for the Lords to amend the Bill so as to leave itself (but not the Commons) subject to the Act (here).

Global Internet Filtering and Censorship - new research

Thank goodness for the geeks. The OpenNet initiative has launched its new site and research findings and offers a huge and unrivalled new resource for the understanding of global internet blocking. The multimillion dollar, 5 year research project was launched in Oxford Friday.

The tools available to governments that want to block politically or otherwise oppositional sites are sophisticated, growing and widely available. Many of them are provided by commercial software companies based in the US. Now we know a bit more about how some of them are used, and the OpenNet site is much improved, complete with a mechanism for testing if your site is blocked.

The OpenNet Initiative researchers are rightly careful not to offer too many instructions on how countries can censor the internet, but blocking IP addresses, tampering with the Domain Name Server, and many other means are clearly in widespread use at various points in the network at the ISP level, in corporate nets and even international exchanges. One interesting discussion was the alignment between law and the blocking action. In some cases sites are blocked legally in terms of domestic law and with a relatively transparent process (but not of course a transparent list of blocked sites). In others rule of law is an irrelevance and it appears that block lists are provided by the executive branch of government with neither transparency nor due process. This raises some difficult issues of strategy for the project.


Another key issue is the role of private actors. A good deal of internet blocking is done by providing an ISP or a search provider with a block list, or even a general set of values and orientations. At what point it is clearly the action of states and at what point the action of private companies can be difficult to pinpoint. And this raises interesting issues in terms of international law and standards on freedom of expression. Blocking by states clearly contravenes article 19 of the UN Declaration and Art. 10 of ECHR. But at what point does apparently ‘voluntary’ action by ISPs and other gatekeepers appear as private action and therefore more difficult to frame in terms of freedom of expression.

Moving testimony of individuals from Bahrain, Iran, Azerbaijan, Belarus, and Russia, (one of whom is due in court to defend his website Monday) but no one speaking from China.
Google were on the defensive. Google.com in Chinese is available, but access to it is restricted by the Chinese authorities and Google.cn sites comply with the Chinese ISP code. Following controversy in 2006 and US Congressional Hearings on the issue, practical work is going on in the background to develop a code of conduct for software companies operating in countries where privacy and freedom of expression create challenges. Google, Yahoo, Vodafone, TeliaSonera and Microsoft have all experienced a lot of problems with their attempts to enter key emrging markets such as China. As a result these and other players are developing a code of conduct which is due before the end of the year. (The code will be out for consultation soon, apparently).

This was a fertile forum and gives the OpenNet nerds some food for thought. Should they be doing more in the next wave countries for the internet? Should OpenNet be just about reporting and measuring blocking or should it get involved with Human Rights orgainsations and discourses – and with the ongoing attempts to develop CSR and self-regulation in this field?

Political advertising in Ireland

Eoin O'Dell of cearta.ie has called for the repeal of the restrictions in Irish law on the airing of political advertising. This follows the preemption of an advertisement highlighting the urgent needs of autistic children in Ireland.

While an argument can certainly be made regarding the need to protect (cosset?) the public sphere from being overwhelmed by those with the deepest pockets (see, for example, Jamie's reply to a recent post on this blog), as Eoin argues "the advertisements at issue... all demonstrate, there is little, if any, reality to the fears of public disorder or wholesale purchase of the airwaves. To the extent that these fears are justified, a far more narrowly crafted ban, directed specifically towards public disorder and drownout. But the time has come to repeal the overbroad prohibition that prevents charities... from arguing their case in broadcast advertisements". I've made a similar argument before (see (2003) 66(2) Modern Law Review 224-244), and - while it was rejected by the High Court in the Animal Defenders International case - I can't see how it is seriously contestable.

Bush, Blair and the Bombing of Al-Jazeera

On Saturday, the Guardian reported that an MP is to table questions to the Prime Minister in Parliament this week regarding suggestions that President Bush considered bombing the headquarters of the Arabic television satellite station al-Jazeera. This notion was first reported widely in UK newspapers in 2005 after the leaking of a minute of a conversation held between Tony Blair and Mr Bush in the White House in 2004.

Trial by new media? Ofcom, the BBC and the Church of Scientology

The BBC is to air a Panorama programme at 2030 this evening which focuses on the Church of Scientology, and perhaps unsurprisingly the Church is hoping to get its defence in first. It has posted plenty of footage on YouTube of the BBC reporter - John Sweeny - 'losing it' and otherwise acting in a purportedly outlandish / inappropriate manner during his investigation. It has also alleged that the BBC breached the Ofcom Code on more than 100 separate occasions. This link brings you to an excerpt from BBC News24 which shows the footage and in which the editor of Panorama sets out to explain and defend the programme. You'll also find plenty of the other material linked.

Impact of social media...

I came across this on YouTube and thought it was good fun...

Legal constraints on citizen-journalists in France

There's an interesting article by Graham Holliday on the Press Gazette site on new legal constraints in France on the taking and uploading of pictures of the 'riot-control' activities of law enforcement officers by 'citizen-journalists'. The piece highlights the uncertainty of the relevant law and the inconsistency of its application (insistence by police officers that snappers delete camera / phone files).

'Bolting horses'?: media constrained after OSA convictions

Last week saw the conviction of two men - one a civil servant and the other an MP's researcher - for breach of the Official Secrets Act 1989 (1,2,3). The pair were imprisioned for six and three months respectively. In 2005, the first defendant had passed a four page memo of discussions between Tony Blair and George Bush in the Oval Office to the second defendant in the hope that its contents would be made more widely known (it was hoped that the details would encourage support for Mr Bush's Democrat challenger John Kerry). The second defendant had slipped the memo into the papers of his MP employer. On finding it, the MP promptly returned the memo to the government.

In addition to sentencing the two defendants, the judge imposed a permanent injunction against publication of details of the leaked memo or of comments made by one defendant in court. This was notwithstanding the fact that such information was either stated in open court or had previously been reported and was therefore already in the public domain. In an almost farcical concession, the judge - Mr Justice Aikens - accepted that the public domain information could be republished, but only if this was done without reference to the immediate proceedings.

The case highlights two things. First, the absence of any public interest defence to the OSA. This was confirmed by the House of Lords in the Shayler case (for Shayler's own take on the saga which culminated in this way, see Spies, Lies and Whistleblowers). Whether he is considered to have been roguish, misguided or heroic, the first defendant was acting in accordance with his conscience: constitutional patriot or criminal?

The second point of interest is the extent to which British judges seem intent on trying to hold back the incoming tide in respect of the control of information already in the public domain. The NGO Article XIX commented that the "gagging order is illegitimate and defies common sense, since the basis for [the allegation based on the released information] has previously been widely reported and continues to be reported by foreign media which are freely accessible online. It recalls the 1991 Spycatcher case, in which the European Court of Human Rights found the United Kingdom in breach of the right to freedom of expression for imposing an injunction on the memoirs of a former agent, when the book was already freely available in the United States, rendering the injunction inutile". See also, Peter Preston in the Guardian commenting on the decision to prosecute, and the Observer comment on John Humphreys' Today programme ambush of the Attorney General on the same question (Nov 2005).

There is also a faint echo of the famous Ponting case - a 'perverse verdict' in which a defendant who was clearly guilty was exonerated by the jury hearing his case - the convictions were achieved only by majority verdict. This means that one or possibly two of the jurors considered the defendants not guilty.

Buffer's Guide to Web-TV

Raymond Snoddy has offered an overview of the emergence of IPTV in the Independent this morning - its a nice summary for the uninitiated...

For more detail on recent developments, see Damian's recent post.

'An Unworkable Fudge': Dyke on the BBC Trust

Greg Dyke - the former Director-General of the BBC - has offered stinging criticism of the design of the new governance structures regulating the activities of the BBC, and in particular of the role of the BBC Trust. He was speaking last week before the parliamentary Select Committee on Culture, Media and Sport. His evidence was reported in the MediaGuardian, but has yet to published on the Committee's own webpage.

Dyke considered that the BBC would not be able to implement strategic decisions quickly enough because they have to be approved by the BBC Trust. He contrasted the launch of Freeview in 2002, with the delay in the approval of the (comparatively limited) iPlayer. Certainly, processes such as the public value test are lengthy, and there is the suspicion that complaint to the Trust has already become a standard delaying tactic for competitors of the BBC.

Dyke expressed further concern that the creation of the arms-length BBC Trust has left the corporation and its Director General without an adequate champion in public debate. He suggested that retention of a BBC Chairman and the establishment of an independent regulator - OfBeeb - would have been preferable. He also commented on the settlement on the licence fee, which he thought was about what could have been expected. Elsewhere, it has recently been reiterated that the BBC's tactics in those negotiations has won it few friends in government.

Tomorrow, Ed Richards - Chief Executive Officer of Ofcom - is due to be offering evidence to the same Select Committee on its public service media content inquiry. The inquiry has already received evidence (reported on the Ctte's webpage) from a range of interested parties, including the BBC, C4, ITV, and representatives of the radio sector. The session may shed further light on the public service publisher concept.

Freedom of expression in Ireland

A little late, but at the end of March the Irish Supreme Court offered an important (3-2 majority) judgment concerning freedom of expression in the context of claims to confidentiality of material published / to be published by the Press. The Mahon Tribunal - a body established in 1997 to investigate planning corruption - had sought to challenge the refusal of the High Court to award a general permanent injunction against the publication of material deemed by the Tribunal to be confidential. The body has been mired in controversy and much-dogged by leaks (1,2). It was unsuccessful in its action (1,2,3).

The majority judgment delivered by Fennelly J. included much comment on the centrality of freedom of speech - even irresponsible and offensive speech - in a democracy, and is worthy of a read on that basis alone. It may also cross-fertilise the equivalent debate in the UK. For example:

"The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest. I have no doubt that much of the material which appears in the news media serves no public interest whatever. I have equally no doubt that much of it is motivated, and perfectly permissibly so, by the pursuit of profit. Publication may indeed be prompted by less noble motives."

"The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that the news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle."

Mahon v Post Publications [2007] IESC 15

Losing the plot: comment on Douglas v Hello!

Simon Jenkins has a piece in the Guardian, well more of a tirade, on the Douglas v Hello! case. Its entertaining at least, but underneath all the bluster of the article, it seems to me that Mr Jenkins has two real complaints (both of which are valid enough):

First, he doesn't like the inane rich or the flaunting of their ridiculous privileges (or perhaps he's upset by the system that aggrandises such people to such an extent).

Secondly, he's fearful of the emergence/development of a privacy law incrementally through the courts, and not - if at all - in Parliament. In the latter forum (at least in theory) debate could be informed by the full raft of issues rather than just those incidentally presented to a court on a given day. Of course the concern there is that even if a privacy law was clearly necessary, one couldn't rely on politicians to produce it given their in hoc-edness to the Press.

It never rains but it pours...

Following the publication of the two judgments arising from the Browne case yesterday, today has seen the publication of the House of Lords speeches from the Douglas v Hello! appeal. This scion of the lengthy saga is primarily concerned with the tort of economic loss (and as such was pursued by OK! rather than the Douglases, but it may contain relevant comment. For the meantime see here for commentary (1,2,3) and here for the judgment, and I'll post a note of any relevant extracts anon.

A big week for PSB broadband?

The BBC Trust has given final approval to the revised BBC proposal to provide 'Iplayer': a seven day 'watch again' TV catchup service. And ITV chose this week to unveil an ad-funded 30 day catch up service on ITV.com.

For those of us that see on-demand as a crucial space for the evolution of PSB, these seemingly dry decisions are worthy of a little more consideration.

What is now clear is that the PSB services proposed this week are very basic and severely restrict local storage, sharing and re-use. It is unfortunate that the more ambitious and radical creative archive service that the BBC has led is mired in a delayed investigation of public value and market impact, because there are strong reasons to believe that it is in these kinds of services (rather than such basic broadcasting led, DRM laden services) that real public interest innovation is likely to occur.

If PSBs had more vision, they would capitalise on their unique position as curators of the audiovisual canon of our culture and drag PSB into the current century. If this week's services are the best that UK PSBs can offer we might look back in a few years and wonder whether putting the treasure trove of BBC content would have been done more quickly and openly by Google. After all, Google books has partnered with The British Libary and Oxford's Bodleian Library to open up access to books.

A footnote: as Joost, (an ad funded commercial distribution platform from the makers of Skype) opens up its Beta testing ahead of its September launch we can see that video on demand is likely to make a breakthrough this year, and not just for the PSBs. But which users will benefit? Ofcom's updated report on the availability of Broadband in the UK shows rapid growth. More than half of UK adults have broadband at home. But the real question is 'how broad'? the low levels of access to fibre and problems of distance from exchange for DSL services mean that UK 'broadband' tends to be less broad than that deployed in other countries. Increased use of video services is likely to make this abundantly clear. And as video use increases, this 'broader band divide' will be much more obvious than it currently is, particularly in rural areas.

Not coming soon to a small screen near you...

The Guardian is carrying a story concerning an ad campaign that is to run in a number of Caribbean countries, and which aims to persuade governments not to support Japan's plans to resume commercial whaling. A snippet of it can be watched on the Guardian site - but don't expect to see anything similar on UK (or Irish) tv screens anytime soon, as 'we the people' are still deemed too infantile to decode commercially-sponsored political messages broadcast on tv or radio (see Animal Defenders International v Secretary of State for Culture Media & Sport [2006] EWHC 3069 (Admin) and an earlier post of mine).

Browne judgments available on BAILII database

Todays High Court and Court of Appeal judgments in the privacy case of Browne v Associated Newspapers Ltd are available on the BAILII database ([2007] EWHC 202 (QB) and [2007] EWCA Civ 295 respectively). They were published today after the House of Lords refused leave to appeal. The Mail on Sunday has wasted no time in detailing the saga on its webpages. It has also published a full statement in response to that published by Lord Browne (which also appears on the newspaper's site). Unsurprisingly, the story is also discussed widely in the MSM (eg. 1,2,3,4), and elsewhere.

The case concerned the attempt by Lord Browne - the erstwhile Chief Executive of BP - to sustain an injunction to preempt the intended publication of a series of revelations offered to the MoS by his former boyfriend. On one telling, the issues transmuted from being a 'boring story about misuse of company funds' (albeit one that the MoS insists involved "issues of great importance to shareholders and employers (-ees?) of BP") to a 'warts-an'-all' expose after the peer was 'economical with the actualite' of how he and his partner had met.

This duplicity before the court has now been used to justify the telling of the full story. It has also offered the Mail on Sunday an opportunity to highlight what it considers to be "deeply worrying questions about the system of secret court hearings which is increasingly being used by the rich and powerful to prevent the public knowing the truth about their activities". It perceives "a matter of great concern that such hearings are being used to create a privacy law, made by judges sitting alone and in secret, without reference to Parliament". It also hopes to see Lord Browne prosecuted for perjury on account of what the High Court judge disparagingly labelled Browne's "white lie". From excerpts quoted in various places, it seems the judges may have offered a few choice words - I'll extract and post any important or otherwise notable aspects of the judgments anon.