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Who is a fit and proper person?

September 22, 2011

Over at the Inforrm blog, there is a great piece on the ‘fit and proper’ ownership test in the Ofcom code. It outlines that in many areas of UK regulation, like pensions and HM Revenue and Customs, there also exists a ‘fit and proper person test’. Like the Ofcom test, all are without definition. The test has certainly come to the fore of the argument over phone hacking lately, and it would be interesting to see if it is ever used in a proper argument levelled at News Corp. Is it a real test? Or a hangover from the competition regulation of the 1980’s?

 

It reminded me of an article I read in Private Eye over a year ago when Richard Desmond had tabled a bid for Channel 5. Eye mentioned that the fit and proper test existed, and then read out a litany of complaints, findings and fines that have been levelled at the Express Newspapers group, the pornographic TV channels that Desmond owns and himself. The article asked how can a person who has been fined by Ofcom himself then go on to own a televisions channel (and a terrestrial one at that – it has much higher obligations on the licence than a digital channel).

 

I then came across this Guardian article featuring some complaints made to Ofcom about Channel 5 showing sexually ambiguous adverts before the watershed.

 

It would have been fascinating to read the complaints (I shall now go searching!) and see whether it was the nature of the adverts (They are a little… naughty, while at the same time being perfectly innocent. Oh we all love innuendo!) or the fact that it was homosexual activity being advertised, ie did Mary Whitehouse write all the complaints?

 

In any case – it does seem that the fit and proper test is not even a factor being considered, taking into account Desmond’s history. Although it is worth pointing out that he has funded a paediatric eye hospital; so perhaps if there was no hospital, no licence. But since he did good, too, then it’s all ok!

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Blagging Databases: Future Targets

July 12, 2011

I haven’t written a blog post in a long time and since the Notw stuff has all blown up again, I think it is time for one.

 

The ‘news’ that Milly Dowlers phone was ‘hacked’ did not surprise me. Neither did any of the the other victims of it. I had heard rumblings about similar targets months ago, in one report here or a blog there. What was so surprising was that it took Tom Watson MP on TV to make it national news. As soon as he said it, the cat was truly out of the bag. It is most likely with the consultation period on the BSkyB takeover nearing it’s end that served as a pressure cooker on the story, causing it to come to a head, also.

 

The initial inquiry managed to prove the PCC inept at cleaning out their own house, as their report pretty much asked very nicely that newspapers include a reminder of the PCC editorial code in their employment contracts. The information commission’s report seemed to want the PCC to go further, but had little power to persuade them to do that. The ICO’s report also gave a ‘blaggers guide’ as part of their evidence, explaining how to hack a mobile phone, utility bill information or whatever. It was just all about blagging, a skill as old as time that relies on the weakest part of any security system – the human element.

 

Those reports, combined with the Police’s useless investigation thankfully only pacified certain people for so long.

 

But the easy accessibility of these databases was a red flare of danger to many people. So where else may your details be kept that nefarious journo’s have access to?

 

The Joseph Rowntree Foundation’s report on the ‘Database State’ will make grim reading for anyone worried. It finds that ‘a quarter of all 46 databases across major government departments are almost certainly illegal under human rights law’. Did you ever suspect that? There are problems in many, not just to their accessibility but also to the information they hold. There are some pretty established databases like the national fingerprint one (one of the few OK ones), and then the more evil ones like ONSET, a database calculating when and which children are likely to offend in the future.

 

Please give it a little skim, but don’t blame me for the nightmares!

 

 

How to reform the PCC

May 26, 2011

This is an essay I wrote for my Media, Entertainment and Sport module, arguing about reform of an aspect of the law on privacy.

Essentially, I outline why the PCC has failed, and what we can do in it’s place.

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The law surrounding privacy in the UK is complex and is derived from many sources. It is also liable to great controversy and publicity: most likely because the media have a high stake in its regulation and application. Any reform would have to take into account the conflicting ideals and laws and extrapolate a workable outcome that helps to grant individuals protection over personal matters while not hampering the right to free speech.

UK common law has held that there is no tort of invasion of privacy, even at the lament of the courts1 and this has since be affirmed even in the light of the Human Rights Act 1998 (HRA).2 So is privacy protected at all?

In equity, there exists a claim for a breach of confidence. Megarry J in Coco v. AN Clark (Engineers) Ltd3 gave the classic definition and at the time, it was thought that any successful claim for a breach of confidence would have to establish a pre-existing relationship between the parties. This has now been swept aside by Lord Goff in AG v Guardian Newspapers Ltd No.24 when he described situations where private information can accidentally come into another’s hands, and still be liable to claim if it is published. Traditionally this claim was used to protect trade and industrial secrets but has been used in recent years by public figures to protect personal information.5

In the case of Campbell v MGN Ltd6 the use of private information relating to individuals changed, and moved away from trade information towards of a claim of ‘misuse of private information’. Lord Nicholls stated ‘a duty of confidence’ and confidential information did not sit comfortably, and so the essence is of a tort of misuse of private information. 7

In Campbell the court diverted from a breach of confidence and into a new area of misuse of private information that according to Pinto ‘move[d] English jurisprudence more in line with the way the European Court of Human Rights analyses cases.8

There now exists a two-part test as to whether there is a misuse of private information: i) is the information private, as in likely to be protected by Article 8? Then ii) Should Article 8 yield to Article 10 on balance? This was what Buxton LJ asked in McKennitt v Ash.9

Neither Article has precedence over the other,10 and both are qualified. Judgements have to be made on a case-by-case basis.

Our current system operated by the courts awarding damages against parties who publish private information results in retrospective control of the media. One problem with this is cost. Cost has always been a large problem in these actions, both for the claimant and the defendant.11 Costs is one area many parties argue is in need of reform. Cases for breach of privacy and defamation can have astronomical figures associated with them.12 This prevents access to justice for everyone but the well heeled. If even Max Mosley makes a loss of £30,000 then what for the man on the Clapham Omnibus? The actual law seems settled on privacy actions now that cases should be decided on their facts. Do privacy actions still need to be decided by the courts?

The print media publishes most private information stories in the UK. One could point to the looser Editor’s Codes the regulatory body impose. Print media is regulated by the Press Complaints Commission (PCC). The PCC is a self-regulatory body that responds and adjudicates on complaints made by the members of the public. However, it has regularly faced criticism that it ‘lacks teeth’13 in its remedies and investigations. It has been under increased fire since the phone-hacking scandal resurfaced14 and it is hard to see how it will emerge with much integrity remaining. Jonathan Coad argues vehemently15 against it, supporting a private members bill16 which aimed to ensure that when a newspaper had published inaccuracies, corrections received due prominence. This involved the setting up for a statutory body to oversee the complaints.

To find an area that needs reform, it is important to look at where media is heading in the future. A continuing trend one can point to is media convergence. With the advent of Digital Terrestrial Television, IPTV and online video, it is now hard to point to a media outlet and state under whose authority they lie. Should Ofcom regulate print media’s websites instead of the PCC? Are newspapers allowed to broadcast video under the PCC’s rules or Ofcom’s? This is where the necessary area of privacy reform lies: in the regulation of the newspapers.

The law itself seems to have sailed into clear water in as much as decisions on a case-by-case basis can do, and now the prohibitive aspect of the law is cost. Most comes from anything around the courts. So how are other professions regulated without the courts? Regulatory bodies. Many regulatory bodies in in the UK oversee important aspects of our society like the General Medical Council or the Employment Tribunals Service. These can be said to be trusted even more after the Woolf reforms which promoted alternative dispute resolution.

The author argues that the PCC should be abolished and it’s regulatory duties be carried out by Ofcom.

Any regulation of the press would need to take into account the differences between print and broadcast media. A person can receive broadcast material passively. Although the passive nature of broadcast could be argued to have diminished recently by the increase in plurality by digital radio and digital television: broadcast media comes to a person whether they act to continue receiving it or not. With the print media, a person has to actively purchase a newspaper, read each article. This vital distinction would have to be taken into account by any regulatory body and would mean that the broadcast media would still be held to a higher standard than the print.

Ofcom argues that it approaches complaints regarding privacy from a different standpoint from the PCC:17 in that Ofcom has to take privacy into account as a starting point as per their fairness and privacy procedures but the PCC allows privacy intrusions if the Editor can justify it18 or there are public interest justifications. The two bodies approach privacy from two very different standpoints. These two standpoints need to be closer together, as there is so much crossover between stories and outlets, the older distinctions have faded away.

Ofcom mentioned the increase of media convergence at paragraph 49-51 of its report.19 It stated that it was pleased the PCC had chosen to regulate print media websites but was unsure where the law stood in relation to live streaming at the time. This and other points of convergence have led to a blurring of the lines between the remit of the PCC and Ofcom. It leaves uncertainty for a complainant, in that if they feel their privacy is breached, they are likely to have two varying outcomes depending on which regulator was contacted. This uncertainty and overlap should not exist.

The regulation of the press by this new body should be free for the complainant, not award damages but fine instead and require an apology given equal prominence in the publication to the original story. This would underline that breached privacy is priceless, not profitable.

Arguments that are likely to come against any area of media reform that involves bringing the PCC under Ofcom would be likely to revolve around claims that the freedom of the press is at risk, with the Government controlling the stories and that it is a waste of public funds to pay people to do what is already done for free.

The first argument would be likely to cite the MP expenses scandal as a story that perhaps wouldn’t have broken if the Government were in charge of the media. But it is important to work out that this story had a high public interest – public money was being used for fraud. Even though the information was private, the money was not and any misappropriation of public funds would be likely to satisfy a public interest defence. This story would still have broken, because there is no need for prior notification and as the cat would be out of the bag, following the presumption against prior restraint, the importance of the story would have been hard to ignore.

With regards to the public money argument, the extra funds needed could just be diverted from the papers that currently fund the PCC as a form of tax. It would also save money in freeing up of court time from injunction and privacy hearings.

The law of privacy is fairly settled after Campbell, which adapted privacy law to the ECHR. The main problem with the area that all sides agree on is cost. To cut cost, the legal bills must be cut. To do this without hindering free speech involves a changing of the regulatory system to allow for publication but ensure adequate redress is made if a breach of privacy occurs. Although bringing the regulation of the press under a public body could be highly controversial to some, most likely those in the media, it seems that the PCC has lost the trust placed in it by the public. It either needs to work very hard to regain that trust or accept it has failed to regulate the press sufficiently and impartially and work alongside the Government in establishing a fair system that works. Allowing for increased media convergence in any area of reform is key to enable the new system to function in the future; so bringing it under the wing of Ofcom would be the best way forward. In the future it will be hard to differentiate between different types of media and so any independent news print regulatory body would fall by the wayside.

The trade off between cost and freedom of speech can be overcome if the law is taken as settled. There is nothing in the proposed reforms that prevents judicial review, and so the public body would still be subject to scrutiny. Ofcom adopting the PCC’s role will be the best way to reduce costs. The press may have to accept that it needs tighter regulation to bring back trust the public has lost in it20 and move forward to a more informed society that trusts its newspapers.

1Kaye v Robertson [1991] FSR 62.

2Wainwright v Home Office [2003] UKHL 53.

3[1969] RPC 41, 49.

4[1990] 1 AC 109, 281.

5Barrymore v News Group Newspapers Ltd. [1997] FSR 600 and HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776.

6[2004] UKHL 22.

7ibid [14].

8 Timothy Pinto, ‘Tiptoeing along the catwalk between Articles 8 and 10: Naomi Campbell v Mirror Group Newspapers Limited’ Ent LR (2004) 15(7) 199, 202.

9[2006] EWCA CIV 1714, [11].

10Re: S (FC) [2004] UKHL 47, [17] Lord Steyn called it ‘the ultimate balancing act’.

11 M Mosley, ‘The protection of privacy’ (lecture, University of East Anglia, 2 March 2010), <http://www.uea.ac.uk/law/News/ml10032011&gt; accessed 15th March 2011. His bill for Mosley v News Group Newspapers Ltd. [2008] EWHC 1777 (QB) was £510,000 yet received a total award of £480,000.

12University of Oxford, ‘A Comparative Study of Costs in Defamation Proceedings Across Europe’ <http://pcmlp.socleg.ox.ac.uk/sites/pcmlp.socleg.ox.ac.uk/files/defamationreport.pdf&gt; accessed 15th March 2011.

13Matthew Bell, ‘The Tory peer who wants to convince us the PCC has teeth’ London, 22nd November 2009 <http://www.independent.co.uk/news/media/press/the-tory-peer-who-wants-to-convince-us-the-pcc-has-teeth-1825265.html&gt; accessed 15th March 2011.

14Andrew Grice, ‘We failed on phone hacking, admits chair of press watchdog’ London, 4th February 2011 <http://www.independent.co.uk/news/media/press/we-failed-on-phone-hacking-admits-chair-of-press-watchdog-2203840.html&gt; accessed 15th March 2011.

15Jonothan Coad ‘The Press Complaints Commission – are we safe in its hands?’ Ent LR (2005) 16(7) 167

16The Right of Reply and Press Standards HC Bill 2004-2005 [39]

17Culture, Media and Sport Committee, Self-regulation of the press (HC 2006-2007 HC 375) ev. 94

18Press Complaints Commission ‘Code of Practice’ (January 2011)

19Self-regulation of the press, ev.97

20 Natalie Hart, ‘Who do you trust?’ (YouGov Poll, 23rd September 2010) <http://today.yougov.co.uk/life/who-do-you-trust&gt; accessed 15th March 2011

Why are Super-Injunctions more evil than Osama Bin Laden?

May 7, 2011

Why does everyone who has a voice that other people listen to (media) forget about Article 10 of the European Convention on Human Rights? Or Article 8 for that matter?
The super-injunction paddy by the collective media rattles on, despite being interrupted by the death of OBL, a referendum and a royal wedding. They won’t let the matter drop.
Article 10 protects freedom of expression in signatory countries (of which we are one since 1956). It is qualified, not an absolute right like 3 and 4. Before article 10 sits 8, the ‘to respect for one’s private and family life, his home and his correspondence’.
In plenty of case law, the articles have been found to have no precedence over the other. Lord Steyn called it ‘the ultimate balancing act’ in Re: S (FC) (A Child) [2004] UKHL 47, at [17]. Indeed, 10 has had the more favourable treatment, being treated as the starting point above 8 in defamation cases.

The media keep saying that ‘judges have introduced a privacy law by the back door’. THEY HAVEN’T!. It has been part of our law since 1956 (albeit, more firmly since the HRA in 1998) and shall continue to be. Ian Hislop was not bothered about kiss and tell stories being injunction-ed, but seems to want more serious stories to have greater protection. But they do, in the form of Article 10. The more in the public interest a story is, the greater it’s chance of being published. Tabloid kiss and tells may well be what the public are interested in, but that doesn’t make it a story of public interest as the saying goes. John Terry’s injunction mainly failed because the Judge thought he was more worried about his commercial interests than his family, and so rightly lifted it. In these cases, it may be very amusing to look at the football and know who has a good barrister, but all it takes is a quick search of Twitter to find out who these people are (interestingly Twitter had *forgotten* many tweets on the subject when I searched it, telling me that no one had ever used the phrase ‘super-injunction’ on the site). After another 30 seconds of searching I still found the answers I was looking for. So surely the injunction cannot stand any more? Once it is out, it is out and we should be able to dissect it. For whose benefit, however, remains to be seen.

It seems that super-injunctions are here to stay, and the media will keep on referring to them as the devil himself. It is certainly an impressive feat that in a busy few weeks of news, they seem to have attracted more vitriol than the dead Sheik of Al-Qaeda.
Strange times.

Why is ‘dickhead’ not libellous?

April 12, 2011

In Smith v ADVFN [2000] EWHC 1797 it was found that calling someone a ‘dickhead’ on an Internet message board was not libel. Why not? Calling someone ‘impotent’ has been held to be (Cruise v Express Newspapers), calling Liberace gay was once a libel (they actually called him a lot of things, none *really* that offensive). It would be an interesting question today: is calling someone gay damage?

So why was calling a person a dickhead not libel? Well, it seems that it was just insulting and vulgar, which had no real substance or true grounds for damage. But it is interesting that there have been much less insulting terms used to describe people that have been found to amount to libel, like the Liberace case.

It seems that the law still takes into account what is at the core of defamation: reputation. Thomas Paine said that ‘Reputation is what men and women think of us; character is what God and angels know of us’. Calling someone a dickhead on the Internet seems rather tame when it comes to the worst examples of trolling.

But was it the medium, the Internet, which gave more weight to the defence, rather than the term? There is the famous ‘Godwin’s Law’ which states that the longer an internet discussion continues, the likelihood of a mention of Hitler or the Nazi’s increases. It would be likely that comparison to a Nazi in a national newspaper would lead to a libel suit, so why is the Internet different? Trolling and abusive commenting now seems par for course, which is a shame in my opinion. Maybe excessive trolling could be actionable, in a case where it can materially affect an opinion. Strange and high bars to enforce, yes. Bringing in debates about Internet governance, yes. That is not forgetting the problems with proving who is writing anything! But, like boxing as an anomaly in the criminal law, the Internet sits anomalous in defamation.

Anyway, food for thought!

Who cares about Twitter’s Birthday?

March 28, 2011
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On the 21st March 2011, Twitter celebrated its fifth birthday. If that was news to you, then you must have been off the grid for the past seven days. This birthday seems to have permeated most media organisations, from the obligatory article on the BBC website to it being covered on Channel 4’s 10 O’clock Live. Why has Twitter got all this attention?

It is rare that websites have their birthdays splashed across media outlets unless they belong to the outlet themselves, so why does Twitter have this special place in the hearts of all?

Well, for starters it attracts a lot of attention, and often for the wrong reasons.  Ryan Babel of Liverpool faced disciplinary action after tweeting a picture of referee Howard Webb in a Manchester United shirt after a controversial red card in an FA cup match.

England cricketers have tweeted their frustration at ECB selection and faced the wrath of the regulators.

Twitter has also been used to break injunctions granted by courts, like in the Trafigura case.

So it receives a lot of media attention and it seems that means media outlets think it is worthy of attention. But is it? It is an extremely popular website, sure and it is estimated that 140 million tweets are sent every day. What a coincidence! One million per character.

It seems fitting to put Twitter into perspective. 5 years ago, MySpace was the darling of the media, owing perhaps to it’s purchase by News International, but this week it was announced that falling figures are contributing to half of it’s workforce being made redundant.

In five years time, where will Twitter be? Facebook is nearly unrecognisable from when I started using it nearly five years ago (how cool was I?) and it is possible that it’s aims, purposes and uniqueness may well be replicated better down the line by another provider.

A word of caution, then. Five years is certainly a long, impressive time in the lifespan of a website, but it is not a be-all and end-all. It is certainly no guarantee of future success and dependency. In the mean time we all ask… What’s next?

.xxx

March 20, 2011

On the 18th March 2011, ICANN, the organisation in charge of assigning numbers and letters to the billions of IP addresses throughout the world, approved a new top-level domain, ‘.xxx’.

.xxx is intended to be used for pornographic websites, presumably to draw a line online between the adult and the general content out there. It comes in a time when internet filtering and blocking is a hot topic on everyone’s lips, with even Ed Vaizey, the Culture Minister, advocating that ISP’s block pornography at the source.

So what could this mean for the internet? Apparently there have already been 110,000 pre-registrations for .xxx domain names, so there is clearly a demand although it would be interesting to see how many of those were just cyber-squatting. For the online adult industry it is clear that being more overt would work well for them, as a type of online red-light district, and it would also make it very easy to block adult content delivered to children. This was a route that was argued by Lawrence Lessig in his book, Code 2.0 as a method of filtering in the internet, although he talked about a ‘.sex’ domain, he was pretty close.

This move comes after the US Supreme Court told ICANN (which is resident in California) that when it dropped the consultation process last year after pressure from conservative groups, it was acting beyond its remit. Indeed, ICANN is meant to be neutral, and to bow to pressure from those groups demonstrated that it could be swayed to change its mind on things, which it should not. It should be there to serve the internet and facilitate speedy use.

I, for one, think this is a good thing. With the ease at which content can be filtered to a domain, it would prevent children going where they shouldn’t. But there is a problem in the fact that none of this prevents the continuing use of any other domain by adult websites. That is a booming business. Sex.com has been valued at between $11m and $16m and has even had a book written about it. Maybe the only other website to have that kind of attention offline is Facebook. If .xxx is intended to be a filtering tool then there needs to be legislation in every country in the world banning adult content from using any other domain. It is also worth asking – where is the line drawn? Would the Sun’s Page 3 website be required to make the switch? Or does it have to be more hardcore than that? Should profane content be required to move or just pornographic?

The problem that then comes after these filtering ideas is that this technology and division could not just be used against pornographers, but it could be seen as a restriction on free speech everywhere. The IWF came upon controversy a few years ago when it blocked an image of a minor on Wikipedia, and found it had to back down. That type of controversy shows that there is an active body that would resist any similar regulation.

It seems that in opening this avenue, ICANN might have opened a can of worms that it is not prepared or intended to deal with. But, with the internet and pornography so closely linked in the mind of the public (Avenue Q’s ‘The Internet is for Porn’ or Dr. Cox from Scrubs ‘I am convinced the internet is full of porn and if it was banned there would only be one website left, and that would be called “bring back the porn”’) it is hard to justify turning a blind eye to it’s regulation. It seems that .xxx will have a long and troublesome early life, and it will create controversy for years to come. But we should all have faith in the Internet and the people who use it. Pornography is not the only purpose of it, even if it is cited as being between 40% and 12% of the Internet (the author would like to think it is the latter). A future with even more Internet pornography seems nightmarish, but even then I think we will all still be stuck on Facebook.