Monthly Archives: December 2014

Upcoming event, 20 January 2015: Data Protection Act 1984, Freedom of Information Act 2000 – 30 and 15 years on

James Michael, Senior Visiting Research Fellow, Institute of Advanced Legal Studies, and chair of the Centre for Law and Information Policy Advisory Board, will discuss data protection and Freedom of Information past and present in his annual lecture on 20 January 2015. The event is free but you will need to register at this link.

[NB: Details of the Centre’s official launch on 24th February 2015, with an academic workshop and talk by 11KBW’s Timothy Pitt-Payne QC, will be advertised early in the new year – please email judith.townend@sas.ac.uk to indicate your interest in attending]

Details of James Michael’s annual lecture 2015

Title: Data Protection Act 1984, Freedom of Information Act 2000: thirty and fifteen years on – perspectives on the past and prospects for the future

Date: 20 January 2015, 18:00 – 20:00

About the lecture:

Those laws did not take effect in the years of their passage, but their chronological symmetry is convenient for assessment and speculation. What have been their effects and what are likely to be their futures?

Should discussion of the Data Protection Act only mean that ‘chances are you’ll find yourself in conversation with someone who is stifling a yawn’ or ‘legislation which…has had a transformative effect on our lives’ (both from the Guardian, 15 April 2011)?

Was the Freedom of Information Act ‘… a thing so utterly undermining of sensible government’ (Tony Blair, 2010) or ‘a change that is absolutely fundamental to how we see politics developing in this country over the next few years’ which ‘says a great deal about how it [government] views power itself and how it views the relationship between itself and the people who elected it’ (Tony Blair, 1996)?

The Data Protection Acts 1984 and 1998 came from the Council of Europe’s Convention and the EU Directive. The Freedom of Information Act came from comparative law, at least in part from the 1966 US law of the same name, but there now is a Council of Europe Convention on the subject. Is there any prospect for the two subjects to be addressed further by international law? If so, how could it be done, and by whom?

Speaker: James Michael, Senior Visiting Research Fellow, Institute of Advanced Legal Studies

Chair: Jules Winterton, Director, Institute of Advanced Legal Studies

Organised by: Institute of Advanced Legal Studies

Venue: Institute of Advanced Legal Studies, Charles Clore House, 17 Russell Square, London, WC1B 5DR

How to book: Register your place at IALS Events / Institute of Advanced Legal Studies.

Drawing from the public seats at the Supreme Court: ‘I see paintings and human beings’

Last week I was fortunate to attend a private view of Isobel Williams’ drawings from the UK Supreme Court, which are currently on display at Pinsent Masons LLP, near Liverpool Street. Followers of Williams’ work will know that she shares an alternative view from court. She does not offer the type of court sketches we’re used to, the sort drawn from memory and for the purposes of news reporting.

low res PM copy[1]Instead she captures the non newsworthy detail: an usher, a judge typing (pen in mouth), the portraits on display. The colours and style are unusual too.  Her current exhibition includes outlines of barristers, the judges visible through their translucent figures. She reflects and describes on her blog, poetically:

People shifting on the leather-upholstered public benches make them creak like a sailing ship. A girl in front of me has long swishy hair. My pen and brush swish on the textured paper, in her ear. She doesn’t know she is hearing the rhythm of her hair being drawn … Around the court, the Apple logo comes over loud and clear (5 November 2014)

Her approach has a relevance to the study of information law and policy, and a sub-theme of access to courts and courts communication: in ordinary courts sketches from within the courtroom are not permitted; there is a blanket ban, just as there is for taking photos or filming.  The Supreme Court is different: there is no specific legislation that prohibits this activity, and with the court’s special permission Williams occasionally draws, from the public seats and unobtrusively. In turn, she has kindly given permission for me to share some of the images from her exhibition. Below the gallery, she offers further reflections on her work:

Isobel Williams: Questions I am asked about the Supreme Court include:

Where is it? (Ask cabbies for the Middlesex Guildhall if you’re in a hurry.)

What was the jury like? (There is none.)

Can the public attend hearings? (Yes)

Do you have to a) book or b) queue to get into hearings? (a) No, b) not in my experience – it’s for spotters and purists, not for the tricoteuses who frequent the Old Bailey for the murder.)

Sometimes, when I tell barristers that I hang around the SC a bit, they make a sour face. This came as no surprise to my niece, a barrister. ‘It’s about fear and envy,’ she said.

So why do I occasionally haunt the public seats, a Miss Flite with drawing materials, trying to be as small, unobtrusive and noiseless as possible, writing a stream-of-consciousness blog to accompany my illustrations of the passing scene? (In another context, someone said of me: ‘She sits there like a little mouse, and gets us.’)

I have a history of attaching myself to locations – under the A40, the Occupy protest camps, Crisis at Christmas, band rehearsals. I observe from a position of detachment in a place where drawing is not the point.

The court is also a building with a history and an art collection. It was built as art nouveau gothic; it accumulated awkward interior growths over time; the conversion to the Supreme Court restored daylight and produced courtrooms with everyone on the same level (read Hugh Feilden’s masterly account of that process in The Supreme Court of the United Kingdom: History, Art, Architecture, edited by Chris Miele, a beautiful illustrated book available from the court).

So what do you see from the public seats? I’d say that’s down to you. Every response will be different. Some of the tourists who wander in are clearly stricken by a primitive fear, as are some of the lawyers. I see suits, a few bespoke (they fit properly, with a kind of fluidity), most not (the padding tries to stay put when the wearer moves). I see nervous hands clenching and unclenching behind a QC’s back, out of sight of the bench. The exposure can look very lonely. I see paintings and human beings.

The Supreme Court takes its aim of open justice very seriously. It welcomes and educates the public. We are all invited to examine what goes on in our own way. I am not a court artist. I am not a lawyer. But I am a tax-payer (ergo, subsidising the court) who occasionally spends time with adults of working age who are not tax-payers, and I don’t mean non-doms. We are all consumers of the legal system even if we are not consumed by it. I take a tangential look at something which is open to everybody.

I censor myself in what I say, in what I draw, and in how I draw it. It’s a court. Is scandalising the court still an offence? I don’t want to learn the hard way.

Isobel Williams’ exhibition of Supreme Court drawings is currently at Pinsent Masons LLP, 30 Crown Place, Earl St, London EC2A 4ES, office hours Mon-Fri. She can be found on Twitter: @otium_catulle and blogs at http://www.isobelwilliams.org.uk. A guide to the exhibition is available here [PDF]. All images copyright of Isobel Williams.

Relevant links:

Can copyright save news? And should it?

In this guest post Dr Richard Danbury, research associate, University of Cambridge, looks at news business models, and asks ‘Do we need legal interventions to facilitate the production of news?’

I’m not supposed to be in the blame game, but it’s always been at the back of my mind – when did we start doing it? Why did we do it? And – not that I’m searching for a scapegoat, but who did it? It’s a question I can’t help asking, a journalistic poser akin to pondering who cut down the last tree on Easter Island: when the last tree was toppled, the island became deforested – where did they think they’d get their firewood from? The question in journalistic terms is when we started giving news away for free, where did we think the money would come from?

I got one answer earlier this autumn at the CREATe conference, in Glasgow, two days of fascinating interdisciplinary discussion about copyright and the creative industries, when Bill Thompson admitted it was him, he did it in 1996. In the Guardian’s offices. And he ended his account of his conversation with Alan Rusbridger, arguing that material should be posted free at the point of use with prophetic words. He told his editor “Money will come.” At this point Bill paused in his presentation. And then resumed with the words: “they believed me”.

This conversation is heralded by an even earlier progenitor of the news online world. In this great clip for example, from 1981, which tells the story of what was then the ‘newest form of electronic journalism’. From KRON-TV, a San Francisco-focussed channel, It’s worth a watch: complete with early 1980s hair, and the sort of computers you plug into cathode ray TVs, and the sort of modems (remember them? My children don’t) that you insert a telephone into, it tells the story of an early experiment in online news dissemination. It’s shot in that great NTSC format – ‘Never Twice the Same Colour’ as BBC editors used to say.

Bill’s point here is prefigured, fifteen years earlier, by David Cole of the San Francisco Examiner, one of the first hacks to post news online. In his short interview he comes out with the glorious snippet: “we’re not in it to make money – we’re probably not going to lose a lot, but we aren’t going to make much either”.

And that, of course, is the rub. Has it yet been worked out how to make money from online distribution of news? Sort of – by changing business models, perhaps. Or having a close look at Buzzfeed. But not quite.

The problem is well-known, and multi-faceted. It’s well-known, for example, that part of the problem is this issue of giving something away for free that costs money to produce. If your readers or audience can get it for free, why should they pay you for it? You can’t compete, as they say, with free.  (Though sometimes, perhaps, you can.) Clearly, according to the video, this aspect of the problem as posed by online delivery didn’t appear that acute in 1981. This was largely because accessing the news online in 1981 wasn’t free. As the outro in the studio smugly observes, downloading the online newspaper in 1981 took over two hours and cost $5 an hour, and so didn’t pose much competition for the 20 cents paper edition. Not in 1981 it didn’t. But now – well, such smugness went years ago.

But there are other aspects to the problem, and in this respect the 1981 clip carries on giving. At the end of the report the user, Richard Halloran (wonderfully described on screen as “Owns Home Computer”) observes that a benefit of the brave new way of delivering news is that it can be copied.  And here we move away from the problem of giving news away for free, to the problem of copying news. The ability to copy news poses difficulties from those paying money for news to be generated, and hoping to make money from its being distributed. In fact, it’s not the ability to copy news and save it onto a piece of paper, which Mr Halloran sees as the future, but the facility provided by online distribution to copy news quickly, readily, completely and in such a way that further dissemination is easy and of negligible cost. Paper need not come into it.

What’s to be done – if anything – about that? This question – or these questions – are a focus of the AHRC funded research project into how and whether there should be legal interventions to facilitate the production of news, and in particular the preservation of revenue for news producers by use of copyright, in the digital environment.

The project, of which I’m research associate, is being carried out under the joint auspices of Cardiff School of Journalism, Media and Cultural Studies and Cambridge University’s Centre for Intellectual Property and Information Law. It’s overseen by Professors Ian Hargreaves and Lionel Bently. The aim is to try and look at one aspect of this problem of news producing institutions can turn a profit in the online era.

The aspect we’re focussing on is what legal interventions could be employed, and whether they’re merited. The focus is particularly on copyright. The starting point is to research what copyright-based laws have already been used or proposed that are intended to enhance or protect the revenue of news producing institutions.

Some examples: in this country, there’s the example of the “Meltwater” litigation, which has led to, or at least reinforced, the conclusions that headlines and short text extracts may well be subject matter capable of copyright protection. This at first sight may lead to a cause of action, and hence potential revenue, from online news distributors such as Google News and commercial news aggregators such as Meltwater.

The UK litigation was shaped by developments elsewhere, which also affect the possible ability of news producers to make money. Most notably the Meltwater litigation drew on Danish cases which made their way up to the Court of Justice of the European Union, in the Infopaq I and Infopaq II. These cases examined the legality of a media monitoring organisation that scanned newspapers, converted the scans to text and then searched the text. The cases considered the ambit of an EU directive which on some readings provided an exemption to copyright liability – and hence a reason why news institutions should be prevented from deriving revenue for the reuse of the news they produce. The cases are summarised here.

Elsewhere, the German government last year passed a law which provided press publishers with an ancillary right to their product, should it be copied by aggregators. Google seems to have responded by making Google News opt-in, rather than pay publishers a levy. A recent Spanish law, passed in November and in force next year may not fall foul of this, as legislators have drafted it as an inalienable right – the law is discussed here.

What will be the effects of these laws? Clearly, however, this is only one aspect of the issue. Interesting questions remain on the horizon as to whether such interventions are merited, evaluated not only with reference to the jobs that newspapers provide and the revenue they generate for the country, but also with reference to the effect of such interventions on our society. This, of course, is a tricky area. Some may argue that, as the internet has seen the development of a Fifth Estate, an internet-based form of democratic accountability, interventions to protect the Fourth Estate are unnecessary. Others may argue that other effects of the internet, such as the echo-chamber, which unhealthily curtails the stream of information flowing to people in society, and narrows rather than broadens their horizons, mean intervention is indeed necessary. Such arguments are to some extent well-ventilated, such as here and here, and will pose food for thought.

What may be lacking is a consideration of the type of content that copyright might protect, and an evaluation of its effect on society. In other words, perhaps copyright should not be quite as agnostic as it sometimes appears about the nature of the content it protects.

But for the moment we have at least answered a simpler question and discovered one piece of the puzzle, with Bill’s account of the earliest years of Guardian online. Perhaps they were right to believe him. Perhaps money will come.

Richard DanburyRichard Danbury is research associate on the AHRC-funded study: “Appraising Potential Legal Responses to Threats to the Production of News in the Digital Environment”. Contact: Rmd59@cam.ac.uk / @richarddanbury

More information about the study can be found on project pages at: the Centre for Intellectual Property and Information Law (CIPIL), University of Cambridge; Cardiff School of Journalism, Media and Cultural Studies (JOMEC); and CREATe.

Related links:

Update: Google reports (11 December) that as a result of a new Spanish intellectual property law [PDF], it will “shortly have to close Google News in Spain”. In a blog post, Richard Gingras, Head of Google News, says: “This new legislation requires every Spanish publication to charge services like Google News for showing even the smallest snippet from their publications, whether they want to or not. As Google News itself makes no money (we do not show any advertising on the site) this new approach is simply not sustainable. So it’s with real sadness that on 16 December (before the new law comes into effect in January) we’ll remove Spanish publishers from Google News, and close Google News in Spain.” Also see short commentary, with more detail of the Spanish IP law reform, on IPKat here.

 

 

The challenge of obtaining DNA evidence: exchanges between EU member states and fundamental rights protection

This guest post by Joaquín Sarrión Esteve,  Assistant Professor, University of Valencia and IALS Visiting Fellow, discusses legal issues around biometric data, based on a seminar presentation in November 2014.

Biometric data represent particular challenges in the fight against globalized crime. New technologies help us to identify persons, using fingerprint/palm print identification, iris identification, face recognition or DNA technology, for example.

The exclusivity of DNA facilitates its use for both paternity investigation, and identifying persons in criminal investigation, by obtaining the DNA or genetic profile.

We can use what is called the non-coding DNA for criminal investigation, which provides a characteristic of each individual. It is an anonymous code distinguishing feature and it can be useful for identifying the identity but it does not provide information on the physical or phenotypic traits of the individual (called the coding DNA ), although we also use the sex characteristic provision. The problem is that science allows the conversion of non-coding DNA to coding DNA.

The exchange of DNA data between EU Member States can help a lot in the fight against globalized crime. In this sense, the EU Legal Framework is based on the assumption of Prüm Convention regime: Council Decision 2008/615/JHA of 23 June 2008 (known as Prüm decision), Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA; and Council Decision 2010/482/EU of 26 July 2010 on the conclusion of the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Prüm decisions.

Anyway, the goal of using DNA data is to obtain valid evidence for a criminal process [in general, a national criminal process]. And to do it, the DNA evidence must be obtained with respect to fundamental rights and legal guarantees in the three stages: the sample collection, the extraction of DNA profile and its treatment in a criminal database (Cabezudo Bajo, 2011).

Really, the problems in relation to this goal arise at three levels: the technical conditions, the interpretation of the results, and finally the respect of fundamental rights in the realization of the DNA evidence.

The goal of my research is to identify the requirements for the respect of fundamental rights in the use of DNA technology in the third stage, because the exchange of DNA data between EU Member States is located at the third stage. Nevertheless, another problem is that to obtain valid DNA evidence using EU exchange data, we need to respect fundamental rights in the three stages. In other words, it is necessary to look at all three stages to identify the requirements of one in isolation.

Moreover, we live in the European legal space, in a context of legal systems with different levels which are increasingly interlinked (Gómez Sánchez, 2011: 20), and therefore we need to use a European multilevel constitutionalism approach to identify fundamental rights and standards that we need to respect (European Convention on Human Rights, EU Fundamental Rights, EU Member States Fundamental Rights) and in order to achieve the goal of obtaining valid DNA evidence.

More information:

  • Download a Powerpoint presentation of Joaquín Sarrión’s research at IALS at this link

References:

M. J. Cabezudo Bajo (2011): “Valoración del sistema de protección del dato de ADN en el ámbito europeo”, Revista General de Derecho Europeo, 25.

M. J. Cabezudo Bajo (ed) (2013): Las bases de datos policiales de ADN ¿son una herramienta realmente eficaz en la lucha contra la criminalidad grave nacional y transfronteriza, Dykinson.

Y. Gómez Sánchez (2011): Constitucionalismo multinivel. Derechos fundamentales, Sanz y Torres.

J. Sarrión Esteve (2014),  “Derechos fundamentales afectados en la toma de muestras biológicas para la obtención de una prueba de ADN válida y eficaz, desde el punto de vista del Derecho interno y del Derecho de la Unión Europea.”, Revista de Derecho y Genoma Humano / Law and the Human Genome Review, Extra 1.

 

Digital Evidence and Electronic Signature Law Review goes open access

Cover PageThe journal Digital Evidence and Electronic Signature Law Review has made the transition to an open access and an online-only format for its latest edition. 

Articles in  Volume 11: 2014 cover electronic evidence and electronic signature issues in several jurisdictions and in international contexts:

  • Zee Kin Yeong on Electronic discovery in Singapore
  • Christoph Gasser on Electronic legal correspondence in Switzerland
  • Ronald Yu and Paul Taylor on Hong Kong’s new electronic discovery procedures
  • Dr Khaled Aljneibi on The scope of electronic transactions and electronic evidence in the courts of the United Arab Emirates
  • Gareth Norris on The influence of computer generated animations on juror decision making
  • David Silva Ramalho on The use of malware as a means of obtaining evidence in Portuguese criminal proceedings
  • Timothy Tion on Electronic evidence in Nigeria
  • Aniello Merone on Electronic signatures in Italian law
  • Franco Ruggieri on Security in digital data preservation
  • Aida Ashouri and Caleb Bowers on Digital Evidence and the American Servicemembers’ Protection Act
  • Aida Ashouri, Caleb Bowers, and Cherrie Warden on An Overview of the Use of Digital Evidence in International Criminal Courts
  • Tommy Umberg and Cherrie Warden on Digital Evidence and Investigatory Protocols

The 2014 edition also features translations of important recent cases in the field, legislation translation, book reports and details of current research into aspects of electronic evidence and electronic signatures.

In particular, this issue includes an important case on data protection and electronic signatures, translated from the Lithuanian. Data Protection supervisors across the world will probably study this case closely, given its effect on digital certificates and the data that can be included in such a certificate. This is the second case on electronic signatures to date, the first one being a Canadian case relating to the hand-held devices used to ‘sign’ for parcels and such like that are delivered, full details of which are set out in Electronic Signatures in Law (3rd ed, Cambridge University Press, 2012), chapter 10.

This Open Access version of Digital Evidence and Electronic Signature Law Review, which was established in 2004, has been developed by Stephen Mason (founder, publisher and general editor) with the Institute of Advanced Legal Studies (IALS) on the School of Advanced Study’s Open Journals System.

The complete run of back issues of Digital Evidence and Electronic Signature Law Review is also published online by IALS in SAS Open Journals at http://journals.sas.ac.uk/deeslr.

Source: IALS – Digital Evidence and Electronic Signature Law Review Volume 11: 2014 is born digital.