Book launch: ‘Private Power, Online Information Flows and EU Law: Mind The Gap’

angela-daly-eu-bookBook launch at: The Conservatory, Bloomsbury Publishing Plc 
50 Bedford Square
London
WC1B 3DP
6pm – 8pm, 31 January 2017

This event is FREE but registration is required on Eventbrite.

Speaker: Angela Daly

With guest speakers: Professor Chris Marsden, University of Sussex; Dr Orla Lynskey, London School of Economics and Political Science

About the Book

This monograph examines how European Union law and regulation address concentrations of private economic power which impede free information flows on the Internet to the detriment of Internet users’ autonomy. In particular, competition law, sector specific regulation (if it exists), data protection and human rights law are considered and assessed to the extent they can tackle such concentrations of power for the benefit of users.

Using a series of illustrative case studies, of Internet provision (including the net neutrality debate), search, mobile devices and app stores, and the cloud, the work demonstrates the gaps that currently exist in EU law and regulation. It is argued that these gaps exist due, in part, to current overarching trends guiding the regulation of economic power, namely neoliberalism, by which only the situation of market failure can invite ex ante rules, buoyed by the lobbying of regulators and legislators by those in possession of such economic power to achieve outcomes which favour their businesses. Given this systemic, and extra-legal, nature of the reasons as to why the gaps exist, solutions from outside the system are proposed at the end of each case study.

Praise for the Book

‘This is a richly textured, critically argued work, shedding new light on case studies in information law which require critical thinking. It is both an interesting series of case studies (notably cloud computing, app stores and search) that displays original and deeply researched scholarship and a framework for critiquing neoliberal competition policy from a prosumerist and citizen-oriented perspective.’ – Professor Chris Marsden, University of Sussex.

Case Preview: PNM v Times Newspapers, Open justice and the privacy of suspects – Hugh Tomlinson QC

In this guest post, Hugh Tomlinson QC previews an appeal to the Supreme Court in a case that considers where the balance lies between rights to privacy and the principle of open justice. The post was first published on the Inforrm blog

On 17 and 18 January 2017, a seven judge Supreme Court will hear the claimant’s appeal against the decision of the Court of Appeal in the case of PNM v Times Newspapers ([2014] EWCA Civ 1132).

That Court had upheld the judge’s view that, on the basis of the “open justice principle”, information mentioned in open court concerning a person who was arrested but not charged could be reported.  

Background

The claimant was one of a number of men arrested in March 2012 in connection with a Thames Valley Police investigation into allegations of child sex grooming and prostitution.  The claimant was released on bail and was subsequently notified that he was to be released without charge.

Nine men were charged and a criminal trial took place at the Central Criminal Court between January and May 2013.  The claimant was not a party or witness at the criminal trial.  On 25 January 2013 order under section 4(2) of the Contempt of Court Act 1981 was made prohibiting publication of any report which referred to evidence which may identify or tend to identify him.

On 14 May 2013, seven of the defendants were convicted of numerous serious sexual offences.  A further order under section 4(2) of the Contempt of Court Act 1981 was made on the claimant’s application.  It prohibited disclosure of details of applications made to the Court by Thames Valley Police (which concerned certain of the claimant’s property).

The claimant’s full name was mentioned in open court when a police officer said that a witness had failed to pick him out on an identification parade.  He was also mentioned in the course of cross-examination, in speeches and in the summing up.

At the conclusion of the criminal trial the Judge declined to discharge the section 4(2) order until the decision was made as to whether the claimant would be charged.  In July 2013 the police notified the claimant that he was not going to be charged.   The Times and the Oxford Mail applied to discharge the section 4(2) but, before he had handed down his ruling, the claimant applied to the High Court for an injunction.

By an application made on 15 October 2013 against the Times, the Oxford Mail and two journalists, the claimant sought an order to prevent publication of the fact of his arrest on suspicion of committing serious sexual offences against children and associated information because of the fear of the damage such publications may cause to him and his family, including his children.

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Why the rise of wearable tech to monitor employees is worrying

Shutterstock.com

In this guest post, Ivan Manokha, Departmental Lecturer in International Political Economy at the University of Oxford, considers the use of wearable technology in the workplace and the potential privacy implications of collecting the data of employees. 

An increasing number of companies are beginning to digitally monitor their employees. While employers have always scrutinised their workers’ performance, the rise of wearable technology to keep tabs has more of a dystopian edge to it. Monitoring has become easier, more intrusive and is not just limited to the workplace – it’s 24/7.

Devices such as Fitbit, Nike+ FuelBand and Jawbone UP, which can record information related to health, fitness, sleep quality, fatigue levels and location, are now being used by employers who integrate wearable devices into employee wellness programmes.

One of the first was BP America, which introduced Fitbit bracelets in 2013. In 2015 at least 24,500 BP’s employees were using them and more and more US employers have followed suit. For instance, the same year, Vista Staffing Solutions, a healthcare recruitment agency, started a weight-loss programme using Fitbits and wifi-enabled bathroom scales. Appirio, a consulting company, started handing out Fitbits to employees in 2014.

In the UK similar projects are under consideration by major employers. And this trend will only intensify in the years to come. By 2018, estimates suggest that more than 13m of these devices will be part of worker wellness schemes. Some analysts say that by the same year, at least 2m employees worldwide will be required to wear health-and-fitness trackers as a condition of employment.

According to some, this is a positive development. Chris Brauer, an academic at Goldsmiths, University of London, argues that corporate managers will now be comparable to football managers. They will be equipped with a dashboard of employee performance trajectories, as well as their fatigue and sleep levels. They will be able to pick only the fittest employees for important business meetings, presentations, or negotiations.

It seems, however, that such optimism overlooks important negative and potentially dangerous social consequences of using this kind of technology. History here offers a word of warning.

Historical precedent

The monitoring of workers’ health outside the workplace was once attempted by the Ford Motor Company. When Ford introduced a moving assembly line in 1913 – a revolutionary innovation that enabled complete control over the pace of work – the increase in productivity was dramatic. But so was the rise in worker turnover. In 1913, every time the company wanted to add 100 men to its factory personnel, it was necessary to hire 963, as workers struggled to keep up with the pace and left shortly after being recruited.

Ford’s solution to this problem was to double wages. In 1914, the introduction of a US$5 a day wage was announced, which immediately led to a decline in worker turnover. But high wages came with a condition: the adoption of healthy and moral lifestyles.

The company set up a sociology department to monitor workers’ – and their families’ – compliance with its standards. Investigators would make unannounced calls upon employees and their neighbours to gather information on living conditions and lifestyles. Those that were deemed insufficiently healthy or morally right were immediately disqualified from the US$5 wage level.

Analysing Ford’s policies, Italian political philosopher and revolutionary Antonio Gramsci coined the term “Fordism” for this social phenomenon. It signalled fundamental changes to labour, which became much more intense after automation. Monitoring workers’ private lives to control their health, Gramsci argued, was necessary to preserve “a certain psycho-physical equilibrium which prevents the physiological collapse of the worker, exhausted by the new method of production”.

Parallels today

Today, we are faced with another great change to how work is done. To begin with, the “great doubling” of the global labour force has led to the increase in competition between workers around the world. This has resulted in a deterioration of working and employment conditions, the growth of informal and precarious labour, and the intensification of exploitation in the West.

So there has been a significant increase in the average number of hours worked and an increase in the intensity of labour. For example, research carried out by the Trade Union Congress in 2015 discovered that the number of people working more than 48 hours in a week in the UK was rising and it warned of a risk of “burnout Britain”.

Indeed, employee burnouts have become a major concern of employers. A UK survey of human resources directors carried out in 2015 established that 80% were afraid of losing top employees to burnout.

Ford’s sociology department was shut down in the early 1920s for two reasons. It became too costly to maintain it in the context of increasing competition from other car manufacturers. And also because of growing employee resistance to home visits by inspectors, increasingly seen as too intrusive into their private lives.

Wearable technology, however, does not suffer from these inconveniences. It is not costly and it is much less obviously intrusive than surprise home visits by company inspectors. Employee resistance appears to be low, though there have been a few attempts to fake the results of the tracking (for example, workers strapping their employer-provided Fitbits onto their dogs to boost their “activity levels”). The idea of being tracked has mostly gone unchallenged.

Labour commodified to the extreme

But the use of wearable technology by employers raises a range of concerns. The most obvious is the right to privacy. The use of wearable technology goes significantly further than computer systems where emails are already logged and accessible to employers.

Surveillance becomes continuous and all-encompassing, increasingly unconfined to the workplace, and also constitutes a form of surveillance which penetrates the human body. The right to equal employment opportunities and promotion may also be compromised if employers reserve promotion for those who are in a better physical shape or suffer less from fatigue or stress.

It may also be argued that the use of wearable technology takes what the Hungarian historian Karl Polanyi called the “commodification” of human labour to an extreme. Monitoring worker health both inside and outside the workplace involves the treatment of people as machines whose performance is to be maximised at all costs. However, as Polanyi warned, human labour is a “fictitious commodity” – it is not “produced” for sale to capital as a mere tool. To treat it as such risks ultimately leading to a “demolition of society”.

To protect individual rights, systems have been introduced to regulate how data that is gathered on employees is stored and used. So one possible solution is to render the data collected by trackers compulsorily anonymous. For example, one company that collects and monitors employee data for companies, Sociometric Solutions only charts broader patterns and connections to productivity, rather than individual performance.

This, however, does not address concerns about the increasing commodification of human labour that comes with the use of wearable technology and any potential threats to society. To prevent this, it is perhaps necessary to consider imposing an outright ban on its use by employers altogether.

The ConversationIvan Manokha, Departmental Lecturer in International Political Economy, University of Oxford

This article was originally published on The Conversation. Read the original article.

Call for Papers: Deadline 27/1: 4th Winchester Conference on Trust, Risk, Information and the Law

Date: Wednesday 3 May 2017
Venue: West Downs Campus, University of Winchester, Hampshire, UK
Book Online at University of Winchester Events

The Fourth Interdisciplinary Winchester Conference on Trust, Risk, Information and the Law (#TRILCon17) will be held on Wednesday 3 May 2017 at the West Downs Campus, University of Winchester, UK.  The overall theme for this conference will be:

Artificial and De-Personalised Decision-Making: Machine-Learning, A.I. and Drones

The keynote speakers will be Professor Katie Atkinson, Head of Computer Science, University of Liverpool, an expert in Artificial Intelligence and its application to legal reasoning, and John McNamara, IBM Senior Inventor, who will speak on ‘Protecting trust in a world disrupted by machine learning’.

Papers and Posters are welcomed on any aspect of the conference theme.  This might include although is not restricted to:

  • Machine learning and processing of personal information;
  • Artificial intelligence and its application to law enforcement, legal reasoning or judicial decisions;
  • Big Data and the algorithmic analysis of information;
  • Implications of the Internet of Things;
  • Machine based decision-making and fairness;
  • Drone law and policy;
  • Trust and the machine;
  • Risks of removing the human from – or leaving the human in – the process;
  • Responsibility, accountability and liability for machine-made decisions.

The conference offers a best poster prize judged against the following criteria: 1) quality, relevance and potential impact of research presented 2) visual impact 3) effectiveness of the poster as a way of communicating the research.

Proposals for workshops are also welcome.  Workshops offer organisers the opportunity to curate panels or research/scholarship activities on an aspect of the conference theme in order to facilitate interdisciplinary discussion.

This call for papers/posters/workshops is open to academics, postgraduate students, policy-makers and practitioners, and in particular those working in law, computer science & technology, data science, information rights, privacy, compliance, statistics, probability, law enforcement & justice, behavioural science and health and social care.

Abstracts for papers are invited for consideration.  Abstracts should be no more than 300 words in length.  Successful applicants will be allocated 15-20 minutes for presentation of their paper plus time for questions and discussion.

Abstracts for posters are invited for consideration.  Abstracts should be no more than 300 words in length.  Please note that accepted poster presenters will be required to email an electronic copy of their poster no later than a week before the conference.  Accepted poster presenters will also need to deliver the hard copy of their poster to the venue no later than 9am on the date of the conference to enable it to be displayed during the day.

Workshop proposals should summarise the workshop theme and goals, organising committee and schedule of speakers, panels and/or talks.  Proposals should be no more than 500 words.  Workshops should be timed to be 1.5-2 hours in length.

Abstracts and proposals, contained in a Word document, should be emailed to trilcon17@winchester.ac.uk.  Please include name, title, institution/organisation details and email correspondence address.  The deadline for submission of abstracts/proposals is Friday 27 January 2017.  Successful applicants will be notified by 17 February 2017.  Speakers/poster presenters/workshop organisers will be entitled to the early registration discounted conference fee of £80 and will be required to book a place at the conference by 28 February in order to guarantee inclusion of their paper/poster/workshop.

Speakers will be invited to submit their paper for inclusion in a special edition of the open access eJournal, Information Rights, Policy & Practice.

To book a place at the conference, please click here to visit the Winchester University Store and click on academic conferences.

For more information, please contact the conference team at trilcon17@winchester.ac.uk

Implementing Leveson, how the national newspaper groups use the local press as “human shields” – Hugh Tomlinson QC

In this guest post, Hugh Tomlinson QC, Chair of Hacked Off, considers the press’s response to the Government’s consultation on the implementation of Section 40 of the Crime and Courts Act 2013 – a significant component in the Leveson system of press regulation.   

nottingham-postThe local press has, over the past few weeks, been running an anti-Leveson campaign in response to the Government’s unfair and unbalanced consultation on the implementation of Leveson. The themes are familiar: local newspapers are the life blood of democracy, they didn’t do phone hacking but they will be financially ruined if section 40 is implemented.

The first two points are true but the third is not. The innocent and popular local press is being used by its guilty and unpopular national big brothers to defend the indefensible – as a “human shield” against proper regulation.

Let’s take the example of the response of the Nottingham Post. This is a daily newspaper with a circulation of 18,000 in Nottingham and the surrounding area. It provides a valuable service to the local community and is, indeed, essential to local democracy. But it is not a plucky little independent paper struggling to survive. It is owned by Trinity Mirror, a profitable newspaper group with an annual turnover of around £200 million.

It should be remembered that although there are over 1,000 distinct daily and weekly newspapers in the UK, five publishers own 80% of these titles. In other words, the typical local newspaper is not a struggling small business, but part of a larger media corporation. Many of these local newspaper owning groups are profitable, despite the severe pressures on the local press resulting from the decline in classified advertising.

Back to the Nottingham Post. This local newspaper – along with all the others owned by Trinity Mirror – has refused to submit itself to independent regulation but, instead, has joined the body created by the national newspapers, IPSO. This has, of course, not carried out meaningful regulation of any kind.

So why will the Nottingham Post not join an independent regulator? After all, it is something that opinion poll evidence shows is overwhelming favoured by the public.

The Nottingham Post gives its readers two reasons.

First, it says that if it had to sign up to a recognised regulator such as Impress it would be forced to

“commit to a potentially expensive compulsory arbitration process They could well have to find thousands of pounds to contest every case heard, as complainants queued up to cash in on minor errors when a swift apology would suffice”.

So, it is said, “potentially” a local newspaper “could well” face additional expenditure under the arbitration system offered by Impress to readers. This is, of course, not an argument available to the big national newspaper groups. An arbitration system would save them large sums in court costs – their concern is not low cost arbitration but avoiding independent and effective regulation.

The local press is being used to advance an argument against section 40 to shield the national press from the full operation of the balanced Leveson for audited self-regulation. But the argument does not work, even for the local press. There are four reasons for this:

  • As the use of the word “potentially” shows, there is no evidence whatever that the arbitration process will be expensive for the local press. The claim is pure scaremongering. Of the 140 IPSO complaints brought against local newspapers over the past 2 years only 14 could even theoretically give rise to a legal claim – at most there are likely to be a handful of arbitration claims against the local press. Bad claims would be weeded out by the arbitrator at an early stage. The likely additional cost to local newspapers would be negligible.
  • The suggestion that “minor errors” would give rise to arbitration claims is a deliberate misrepresentation – an arbitration claim can only be brought if there is a legal “cause of action” such as defamation or privacy. “Minor errors” do not give rise to legal claims.
  • Arbitration is cheap. That is its most obvious virtue. At Impress a claimant will pay less than £100, while a newspaper’s costs need not rise above a few thousand – a tiny fraction of court costs.
  • The Royal Charter contains specific provision to protect local newspapers against even the costs of arbitration – where they have been caused serious financial harm the PRP can allow a recognised regulator to proceed on the basis that that the local and regional press need not participate in the arbitration system. This provision was inserted into the Royal Charter specifically to assist the local press – but they never mention it.

Second it is said, that IPSO has refused to seek recognition by the PRP

“for the simple reason that it believes it would be submitting to state regulation”.

This is nonsense. The PRP is not a “regulator” at all – it is simply a body that audits regulators to determine whether they come up to proper standards. Seeking recognition from the PRP is not, in any sense, “submitting to state regulation”. What is more, the national press (who control IPSO) have no principled objection to “state recognition”. As Lord Justice Leveson pointed out, the Irish Press Council is underpinned by statute and has “been accepted without demur” by the leading UK newspaper publishers, including Trinity Mirror. There is no “objection of principle”

The Nottingham Post, dancing to the tune of its Trinity Mirror masters, has no proper arguments against the implementation of section 40. Although the Post did not engage in phone hacking and the wholesale abuse of victims, its ultimate owners did. The Post is one of many local and regional papers acting as “human shields” – providing the excuses to justify a last-ditch attempt by the national newspaper groups to avoid participating in a proper system of regulation.

Hugh Tomlinson QC is the Chair of Hacked Off, the campaign for a free and accountable press which is urging supporters to respond to the Leveson implementation consultation.

This post first appeared on the Inforrm blog. It does not represent the views of the Information Law and Policy Centre or the Institute of Advanced Legal Studies. 

Network Neutrality: From policy to law to regulation

network-neutrality-coverBook launch at the Institute of Advanced Legal Studies
Charles Clore House
17 Russell Square
London WC1B 5DR
6pm – 8pm, 9 February 2017

This event is FREE but advanced booking is required on the IALS Events Calendar

Speaker: Professor Christopher T. Marsden: Professor of Internet Law, (University of Sussex Law School)

Discussants: Dr Angela Daly, Vice-Chancellor’s Research Fellow, (Queensland University of Technology Faculty of Law); Research Associate, Tilburg Institute of Law, Technology and Society; Professor Ian Walden, Professor of Information and Communications Law, (Queen May, University of London.)

Net neutrality is the most contested Internet access policy of our time. This book offers an in-depth explanation of the concept, addressing its history since 1999, its engineering, the policy challenges it represents and its legislation and regulation.

Various case studies are presented, including Specialized Services and Content Delivery Networks for video over the Internet, and the book goes on to examine the future of net neutrality battles in Europe, the United States and developing countries, as well as offering co-regulatory solutions based on FRAND and non-exclusivity.

It will be a must-read for researchers and advocates in the net neutrality debate, as well as those interested in the context of communications regulation, law and economic regulation, human rights discourse and policy, and the impact of science and engineering on policy and governance.

This seminar will be followed by the book launch of “Network Neutrality: From Policy to Law to Regulation” by Christopher Marsden, (Manchester University Press, 2017).

Freedom of Information at 250: now on Storify

Last week, Article 19 held the ‘Freedom of Information at 250‘ event at the Free Word Centre. The aim of the event was to commemorate, celebrate and scrutinise the adoption of the first freedom of information law in Sweden and Finland in 1766.

Participants also discussed the relevance and significance of the law today and the future of freedom of information, in a national and global context.

There was a range of speakers on the day including Maurice Frankel and Des Wilson from the Campaign for Freedom of Information (CFOI), the new Information Commissioner, Elizabeth Denham, and Lord James Wallace of Tankerness, former member of Scottish Government, who piloted the Freedom of Information Act through the Scottish Parliament.

We have collected a number of tweets from participants at the event using #FOI250 and published them on Storify to help capture the flavour of the discussions which took place.

The collection documents the two moderated discussions and the evening panel. There is also a list of resources and reaction at the end of the collection. Click here or on the image below to view the Storify collection.

foi250-event-storify

Freedom of Information at 250 was an Article 19 event held at the Free Word Centre with the support of the Information Law and Policy Centre at the Institute of Advanced Legal Studies, and the Embassies of Sweden and Finland.

The Competence of the European Union in Copyright Lawmaking

competence-of-eu-in-copyright-lawmakingBook launch event at the IALS
6pm – 8pm, 15 Dec 2016

Register online at Eventbrite to book your free ticket

Speaker: Dr Ana Ramalho, Assistant Professor of Intellectual Property, Maastricht University

Discussant: Professor Lionel Bently, Herchel Smith Professor of Intellectual Property and Director of the Centre for Intellectual Property and Information Law, University of Cambridge.

In this seminar Ana Ramalho will discuss her new book, which inquires into the competence of the EU to legislate in the field of copyright and uses content analysis techniques to demonstrate the existence of a normative gap in copyright lawmaking.

To address that gap Ana Ramalho proposes the creation of benchmarks of legislative activity, reasoning that EU secondary legislation, such as directives and regulations, should be based on higher sources of law.

In the book she investigates two such possible sources: the activity of the EU Court of Justice in the pre-legislative era and the EU treaties. From these sources Ana Ramalho establishes concrete benchmarks of legislative activity, which she then tests by applying them to current EU copyright legislation.

This provides examples of good and bad practices in copyright lawmaking and also shows how the benchmarks could be implemented in copyright legislation. Finally, Ana Ramalho offers some recommendations in this regard.

This seminar will be followed by the book launch of “The Competence of the European Union in Copyright Lawmaking: A Normative Perspective of EU Powers for Copyright Harmonization” by Ana Ramalho

How the UK passed the most invasive surveillance law in democratic history

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In this guest post, Paul Bernal, Lecturer in Information Technology, Intellectual Property and Media Law at the University of East Anglia, reflects on the passage of the Investigatory Powers Bill. The legislation was recently passed in Parliament and given Royal Assent on 29 November 2016.

You might not have noticed thanks to world events, but the UK parliament recently approved the government’s so-called Snooper’s Charter and it has now become law. This nickname for the Investigatory Powers Bill is well earned. It represents a new level and nature of surveillance that goes beyond anything previously set out in law in a democratic society. It is not a modernisation of existing law, but something qualitatively different, something that intrudes upon every UK citizen’s life in a way that would even a decade ago have been inconceivable. Continue reading

Information Law and Policy Centre’s annual workshop highlights new challenges in balancing competing human rights

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Our annual workshop and lecture – held earlier this month – brought together a wide range of legal academics, lawyers, policy-makers and interested parties to discuss the future of human rights and digital information control.

A number of key themes emerged in our panel sessions including the tensions present in balancing Article 8 and Article 10 rights; the new algorithmic and informational power of commercial actors; the challenges for law enforcement; the liability of online intermediaries; and future technological developments.

The following write up of the event offers a very brief summary report of each panel and of Rosemary Jay’s evening lecture.

Morning Session

Panel A: Social media, online privacy and shaming

Helen James and Emma Nottingham (University of Winchester) began the panel by presenting their research (with Marion Oswald) into the legal and ethical issues raised by the depiction of young children in broadcast TV programmes such as The Secret Life of 4, 5 and 6 Year Olds. They were also concerned with the live-tweeting which accompanied these programmes, noting that very abusive tweets could be directed towards children taking part in the programmes.

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