iCLIC at the University of Southampton is hosting an event on ‘Enrolling Internet Intermediaries in the Law Enforcement Process’ on 17-18 September 2015 Registration details at this link.
About the event
Service providers are now playing an increasingly active role in the process of law enforcement, whether to protect intellectual property rights, enforce data subjects’ rights, or prevent the spread of malicious and offensive content. Have law-makers managed to strike the right balance between Internet intermediaries’ rights and duties? Is international law equipped to deal with the increasing transnational interaction between law enforcement and service providers?
Hosted by the University of Southampton’s Interdisciplinary Core on Law, Internet and Culture (iCLIC), you are invited to join researchers, legal practitioners, digital rights advocates and NGOs to debate these key issues. Our exciting list of speakers includes the Honourable Mr Justice Arnold, Professor Luciano Floridi, Professor Frank Pasquale, Hugh Tomlinson QC and Professor Ian Walden.
Discussion topics include:
Intellectual Property Law Enforcement
Internet intermediaries and the Right to Be Forgotten: Balancing rights and business
Law Enforcement Transnational Access to Data
Internet Intermediaries’ Security Obligations
The Roles and Responsibilities of Search Engines
Internet Intermediary Defences and Immunities
Internet Intermediaries’ Liability Regimes: a medley of domestic hot topics
Terrorism-related content and Internet Intermediaries
Delegates will be given a detailed review of recent developments and hot topics relating to the roles and responsibilities of Internet intermediaries in the fields of intellectual property law, media law, privacy and data protection law, and information security and surveillance law. The conference will take place at the University of Southampton Highfield Campus on Thursday 17th and Friday 18th September 2015.
This guest post by Eerke Boiten, University of Kent, considers the implications of granting an individual the right to be de-listed from online search results: should new articles about de-listed content be removed too?
The UK’s data privacy watchdog has waded into the debate over the enforcement of the right to be forgotten in Europe.
The Information Commissioner’s Office issued a notice to Google to remove from its search results newspaper articles that discussed details from older articles that had themselves been subject to a successful right to be forgotten request.
The new reports included, wholly unnecessarily, the name of the person who had requested that Google remove reports of a ten-year-old shoplifting conviction from search results. Google agreed with this right to be forgotten request and de-linked the contemporary reports of the conviction, but then refused to do the same to new articles that carried the same details. Essentially, Google had granted the subject’s request for privacy, and then allowed it to be reversed via the back door.
The ICO’s action highlights the attitude of the press, which tries to draw as much attention to stories related to the right to be forgotten and their subjects as possible, generating new coverage that throws up details of the very events those making right to be forgotten requests are seeking to have buried.
There is no expectation of anonymity for people convicted of even minor crimes in the UK, something the press takes advantage of: such as the regional newspaper which tweeted a picture of the woman convicted of shoplifting a sex toy. However, after a criminal conviction is spent, the facts of the crime are deemed “irrelevant information” in the technical sense of the UK Data Protection Act.
It’s clear Google does not like the right to be forgotten, and it has from early on sent notifications to publishers of de-listed links in the hope they will cry “censorship”. Certainly BBC journalist Robert Peston felt “cast into oblivion” because his blog no longer appeared in search results for one particular commenter’s name.
It’s not clear that such notifications are required at all: the European Court of Justice judgment didn’t call for them, and the publishers are neither subject (as they’re not the person involved) nor controller (Google in this case) of the de-listed link. Experts and even the ICO have hinted that Google’s efforts to publicise the very details it is supposed to be minimising might be viewed as a privacy breach or unfair processing with regard to those making right to be forgotten requests.
The Barry Gibb effect
De-listing notifications achieve something similar to the Streisand effect, where publicity around a request for privacy leads to exactly the opposite result. I’ve previously called the attempt to stir up publisher unrest the Barry Gibb effect, because it goes so well with Streisand. So well, maybe it oughta be illegal.
Some publishers are happy to dance to Google’s tune, accumulating and publishing these notifications in their own lists of de-listed links. Presumably this is intended to be seen as a bold move against censorship – the more accurate “List of things we once published that are now considered to contain irrelevant information about somebody” doesn’t sound as appealing.
In June 2015, even the BBC joined in, and comments still show that readers find salacious value in such a list.
Upholding the spirit and letter of the law
While some reporters laugh at the idea of deleting links to articles about links, this misses the point. The ICO has not previously challenged the reporting of stories relating to the right to be forgotten, or lists of delisted links – even when these appear to subvert the spirit of data protection. But by naming the individual involved in these new reports, the de-listed story is brought straight back to the top of search results for the person in question. This is a much more direct subversion of the spirit of the law.
Google refused the subject’s request that it de-list nine search results repeating the old story, name and all, claiming they were relevant to journalistic reporting of the right to be forgotten. The ICO judgment weighed the arguments carefully over ten pages before finding for the complainant in its resulting enforcement notice.
The ICO dealt with 120 such complaints in the past year, but this appears to be the only one where a Google refusal led to an enforcement notice.
The decision against Google is a significant step. However, its scope is narrow as it concerns stories that unwisely repeat personally identifying information, and again it only leads to de-listing results from searches of a particular name. It remains to be seen whether other more subtle forms of subversion aimed at the right to be forgotten will continue to be tolerated.
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Frank LaRue, Executive Director of Robert F. Kennedy Human Rights Europe and former UN Special Rapporteur for the promotion and protection of the right to the freedom of opinion and expression (2008-14)
In this afternoon seminar hosted by the Information Law and Policy Centre at IALS, Professor Bernd Holznagel, director of University of Münster’s Institute for Information, Telecommunications and Media Law, will offer his perspective on the European Court of Justice’s decision in Google Spain SL v. AEPD / Costeja Gonzàlez, focusing on different proposals for removal criteria and procedures. It is a free event but please book your place here. The discussion will be chaired by Dr Irini Katsirea, Reader of International Media Law at the Department of Journalism Studies, University of Sheffield.
This seminar is co-organised by the Information Law and Policy Centre (Institute of Advanced Legal Studies), the Middlesex University School of Law and the Department of
Journalism Studies, University of Sheffield. During his visit to London, Professor Holznagel will also participate in an event funded by the British Academy and the Leverhulme Trust on ‘Press Regulation in an Era of Convergence’, which will be held the preceding day at Middlesex University (24th September – ticket details).
About the seminar
When: Friday, 25 September 2015 from 14:00 to 15:30 (BST)
Where: Information Law and Policy Centre, Institute of Advanced Legal Studies – 17 Russell Square. Charles Clore House. London WC1B 5DR GB – View Map
In May 2014, the European Court of Justice delivered what was celebrated as a landmark decision in a case involving Google Inc. and its Spanish establishment, Google Spain SL. The judgment stirred considerable controversy by subjecting global internet giant Google to the European data protection regime.
The ECJ advised the national court to grant the original applicant, a Spanish citizen by the name of Mario Costeja Gonzàlez, the right to demand removal of sites with content featuring his personal data from Google’s search results to queries containing his name. This was derived from the several pre-existing provisions of the 1995 data protection directive and has since been widely referred to as “The Right to be Forgotten”.
A source of major criticism is the balancing mechanism at the heart of removal decisions. While the Court provided clues on the reconciliation between data subject’s right to protection of personal data and the public interest in accessing information, many felt that the judgment fell short in considering media freedom and freedom of expression.
The contemporary discourse has revolved around the judgment’s practical implementation. On the procedural side of things, consensus has yet to be reached on whether and how to include publishers into removal decisions, on the competent authority or institution for the process and on the geographical scope of the removal.
The presentation will initially provide a basic summary of the judgment and then focus on discussing different proposals for removal criteria and procedures, touching on the issues raised above.
About the speaker
Bernd Holznagel is Professor for Constitutional Law, Administrative Law, European Law and Administrative Sciences at the University of Münster in Germany, where he is also director of the Institute for Information, Telecommunications and Media Law. He is a member of the academic advisory council of the Bundesnetzagentur (Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway). His research interests include Public Law and Regulatory Law (Media, Telecommunication, Energy, Data Protection / Security and State Aid Law).
The much anticipated judgment of the Supreme Court in Coventry v Lawrence  UKSC 50 resulted in a resounding 5-2 majority decision that the pre-Jackson CFA/ATE regime, under which the loser was at risk of paying base costs, a success fee and an ATE premium, was not incompatible with ECHR Article 6 and/or Article 1 of the First Protocol to the ECHR. This comes as no real surprise given the chaos that a contrary decision could have caused and the fact that the regime in question has now all but passed into history.
It is perhaps ironic that those cases in which the “old” regime still applies were not directly the subject of this decision. What then can be inferred about the attitude of the Court to any comparable challenge in such cases, including “publication and privacy cases” as defined in the CFA Order 2013, namely, proceedings for defamation; malicious falsehood; beach of confidence involving publication to the general public; misuse of private information or harassment by a news publisher. In these cases, success fees and ATE premiums remain recoverable from an opponent, but pending the judgment in Coventry defendants have refused to make any such payments.
The Supreme Court in Coventry gave permission to the Media Lawyers Association (“MLA”) to intervene by way of written and oral submissions. This was not at all surprising given that the cornerstone of the attack on the “old” regime was the decision of the ECtHR in MGN v UK (2011) 53 EHRR 5 in which the ECtHR declared that the regime that allowed the recoverability of a success fee by the wealthy claimant in Campbell v MGN (No.2)  UKHL 61 had infringed the Art 10 rights of MGN.
The MLA sought to have the Court adopt the conclusion of the ECtHR and declare that the continuation of the “old” regime in cases in which Art 10 was engaged was incompatible with the ECHR. The problem that this submission faced (as pointed out by Lord Neuberger in argument) was that it sought a decision on a category of case which was not actually at issue in the case being decided. Accepting the force of that observation, the Court was expressly told that the intention was to use any dicta on the topic to persuade costs judges to apply MGN v UK rather than Campbell v MGN.
The main judgment is that of Lords Neuberger & Dyson (Lords Sumption & Carnwath agreeing). They consider the scope of MGN v UK at [50-52] but reject the submission that that case required a finding that the “old” regime was incompatible with Art 6. They note that that decision concerned Art 10 which is “always given particular weight by the ECtHR” and decide that the balancing exercise in that case was “of a wholly different character” to that under consideration. There is no hint of criticism of the decision in MGN v UK in Art 10 cases, but neither is there any suggestion that the contrary decision of the House of Lords in Campbell v MGN should not be followed. Lord Mance (Lord Carnwath agreeing) gave a judgment to the same effect, thus constituting the majority of 5 justices.
Lord Clarke delivered the dissenting judgment with which Lady Hale agreed. At  he expressly endorsed MGN v UK and considered that it applied beyond Art 10 cases.
So what do the judgments offer to litigants in “publication and privacy proceedings” seeking certainty about the(ir) recoverability of success fees and ATE premiums?
Having permitted submissions from an organisation which was only interested in publication and privacy proceedings, the decision not to make any express comment as to the impact of MGN v UK upon the authority of Campbell v MGN (and the decision not to explain the lack of comment) may be thought odd. It is certainly unhelpful, leaving the potential protagonists to such disputes (and the judges deciding them) in the dark as to how the majority in the highest court in the land views the issues.
Given the lack of any criticism of MGN v UK what is likely to happen if it is used to attack the still current costs recovery regime in “publication and privacy” cases, almost all of which are bound to engage Article 10?
Lord Neuberger & Lord Dyson observe at  that the real issue was whether paras 11.7 and/or 11.9 of the Costs Practice Direction could be “read down” to remedy the defects upon which the MGN v UK decision was predicated. They conclude that, even if the old regime was incompatible with the ECHR, it would not be right to do so because of the legitimate expectation of litigants and their lawyers that the regime would apply to cases which fell within it. At  they point out that doing so would “have a serious impact on many thousands of pre-April 2013 cases which are in run-off, as well as claims to which the pre-Jackson costs rules continue to apply, such as ….publication and privacy cases.”
This might be taken as an indication that the “legitimate expectation” argument would apply equally to publication and privacy cases.
Lord Mance reaches the same conclusion but without making a comparable comment.
The dissenting minority would not have allowed any legitimate expectation to trump the need to give effect to the ECHR and would have been prepared to read down or striking down paras 11.7 and/or 11.9 and thus bring into the consideration of the recoverability of success fees and ATE Premiums the means of the parties. This would mean that the balance between the rights of the CFA funded claimant under Art 6 (and Art 8) would need to be balanced on a case by case basis against the rights of the defendant (under Art 10). Thus would be avoided what might be thought the least attractive aspect of the CFA regime (that it is available to those who have no need of it) while serving the real need of access to justice for those who cannot afford it.
The following would therefore seem to summarise the position:
the Supreme Court chose not to make any specific comment on this issue;
as a matter of strict precedent, Campbell v MGN continues to govern;
the majority of the Supreme Court considers there to have been (and to be) a legitimate expectation that the existing regime on recoverability will continue to apply;
if the regime is to be modified to meet the ECtHR’s criticisms it will probably be by a more subtle means than denying recoverability to all.
Coventry & Ors v Lawrence & Anor  UKSC 50 (22 July 2015) [PDF]
William McCormick QC is a barrister at Ely Place Chambers. He was appointed Queens Counsel in 2010 following a series of substantial defamation and commercial cases and since then has developed his practice in these and other areas. This post originally appeared on the Ely Place Chambers site.
The Information Law and Policy Centre at the Institute of Advanced Legal Studies, in collaboration with the Media Society, is pleased to announce this exciting panel event, featuring Kate Allen, Director, Amnesty International UK, Rt Hon Dominic Grieve QC MP, Former Attorney General, Ewen MacAskill, Defence and Intelligence Correspondent, The Guardian, and Jessica Simor QC, Barrister, Matrix Chambers.
Whose Investigatory Power Is It Anyway?
Security, Source Protection and Surveillance
Monday October 19th 6.30 for 7pm
Reed Smith LLP
TheBroadgate Tower, 20 Primrose Street, London EC2A 2RS
David Anderson QC’s long-awaited review of surveillance law recommends legislative overhaul, including a stronger role for the judiciary, and the government has promised to “modernise” the law on communications data with a new Investigatory Powers Bill. But will the government get the balance right? What are the likely effects if some, all or none of the Anderson recommendations are followed? What are the implications for journalism and freedom of expression? How would Anderson’s recommendations affect national security and efforts to prevent terrorism? And do they address reasonable concerns about privacy rights? Meanwhile, the row continues over the NSA leaks, with whistle-blower Edward Snowden characterised as both hero and villain in the media. This special Media Society event with leading journalists, politicians and campaigners will look at the tense and complex debates within and between UK intelligence agencies, government departments and media organisations, asking who should have what investigatory powers.
Kate Allen, Director, Amnesty International UK
Rt Hon Dominic Grieve QC MP, Former Attorney General
Ewen MacAskill, Defence and Intelligence Correspondent, The Guardian
Jessica Simor QC, Barrister, Matrix Chambers
Dr Judith Townend, Director, Information Law and Policy Centre, Institute of Advanced Legal Studies, University of London
The Information Law and Policy Centre is delighted to be jointly organising this event with the Bingham Centre for the Rule of Law, on Freedom of Information and the Private Sector.
It will be hosted by the law firm Baker & McKenzie and the line up includes two Information Law and Policy Centre advisers, Martin Rosenbaum, Freedom of Information Specialist, BBC News and Timothy Pitt-Payne QC, 11BKW (who will chair the discussion). The keynote address will be given by Rosemary Agnew, Scottish Information Commissioner.
Ticket prices are set out below but a limited number of places for this event are available for staff of NGOs to attend free of charge.*
Freedom of Information: Extending Transparency to the Private Sector
Monday 28 September 2015, 17:30-19:00
Baker & McKenzie LLP, 100 New Bridge Street, London EC4V 6JA
1.5 CPD hours
This event will consider the current legal framework and the range of private sector organisations that have been brought within its scope. It will explore differences in transparency requirements for private contractors, and proposals to further extend the FOI regime to private companies providing public services. The event will provide opportunity to hear both sides of the debate surrounding this important topic and the practical implications of reforms in this area.The event will be followed by a drinks reception and networking.
Rosemary Agnew, Scottish Information Commissioner
Steve Goodrich, Open Governance Researcher, Transparency International UK
Heather Rogers QC, One Brick Court and board member, Campaign for Freedom of Information
N.B. The Academic rate also applies to staff of government and non-profit organisations.
*FREE NGO PLACES: A limited number of places for this event are available for staff of NGOs to attend free of charge as part of an initiative by the Bingham Centre for the Rule of Law to provide NGOs with access to legal education and training events. Please email the Bingham Centre’s Events Team at firstname.lastname@example.org with your contact details, your position and the NGO that you work for. We will organise your attendance, subject to availability.