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    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

    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 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...

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