Category Archives: Journalism

ILPC launches new report: ‘Protecting Sources and Whistleblowers in the Digital Age’

front-page-snippet-download-the-reportThe emergence of an everyday digital culture and the increasing use of legal instruments by state actors to collect and access communications data has led to growing concern about the protection of journalistic sources and whistleblowers.

With the support of Guardian News and Media, the Information Law and Policy Centre has published a new report to consider these developments entitled ‘Protecting Sources and Whistleblowers in the Digital Age’. The report is open access and available for download.

Authored by Dr Judith Townend and Dr Richard Danbury, the report analyses how technological advances expose journalists and their sources to interference by state actors, corporate entities or individuals.

The report also looks at how journalists can reduce threats to whistleblowing; examines the rights and responsibilities of journalists, whistleblowers and lawmakers; and makes a number of positive recommendations for policymakers, journalists, NGOs and researchers.

The report’s findings are based on discussions with 25 investigative journalists, representatives from relevant NGOs and media organisations, media lawyers and specialist researchers in September 2016.

Protecting Sources and Whistleblowers in the Digital Age was officially launched on 22 February 2017 at the House of Lords.

Alongside the report, the Information Policy Law and Policy Centre has also published a range of open access resources on journalistic sources and whistleblowing which are available here.

Addressing the challenge of anonymous sources in the digital age

Dr Aljosha Karim Schapals, research assistant at the Information Law and Policy Centre, reports from the launch of a new book by Eric Barendt, Emeritus Professor of Media Law at UCL, on anonymous speech in the context of literature, law and politics.

On 28 June, Professor Eric Barendt launched his new book ‘Anonymous Speech: Literature, Law and Politics’ at the Institute of Advanced Legal Studies (IALS). His book critically examines the arguments for and against anonymity, which in the context of online communications draw attention to complex and important moral and legal questions.

It is on this basis that Barendt started outlining the pros and cons of anonymous speech, both online as well as offline: on the one hand, the use of pseudonyms has enabled great writers such as Jane Austen to publish anonymously and to have their privacy protected on the grounds of gender and socio-economic class considerations. Furthermore, anonymity allows writers to have their work considered solely on the basis of its merits rather than the additional ‘baggage’ that comes with being an established writer.

On the other hand, however, anonymity can be used to deceive audiences or inflict harm. Barendt stressed that anonymity on the Internet can encourage more socially disinhibited behaviour leading to hate speech, threats of rape and violence as well as cyberbullying.

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Whistleblowers and journalists in the digital age

Snowden

Dr Aljosha Karim Schapals, research assistant at the Information Law and Policy Centre, reports on a research workshop hosted by the University of Cardiff on Digital Citizenship and the ‘Surveillance Society’.

A workshop led by researchers at the Cardiff School of Journalism, Media and Cultural Studies (JOMEC) on 27th June in London shared the findings of an 18 month ESRC funded research project examining the relationships between the state, the media and citizens in the wake of the Snowden revelations of 2013.

It was the concluding event of a number of conferences, seminars and workshops organised by the five principal researchers: Dr Arne Hintz (Cardiff), Dr Lina Dencik (Cardiff), Prof Karin Wahl-Jorgensen (Cardiff), Prof Ian Brown (Oxford) and Dr Michael Rogers (TU Delft).

Broadly speaking, the Digital Citizenship and the ‘Surveillance Society’ (DCSS) project has investigated the nature, opportunities and challenges of digital citizenship in light of US and UK governmental surveillance as revealed by whistleblower Edward Snowden.

Touching on more general themes such as freedom of expression, data privacy and civic transparency, the project aligns with the research activities of the Information Law and Policy Centre, which include developing work on journalism and whistleblower protection, and discussions and analysis of the Investigatory Powers Bill. Continue reading

Comment: The not-so-secret life of ‘Generation Tagged’

In this post, Marion Oswald, Helen James & Emma Nottingham from the Centre for Information Rights, University of Winchester consider the issues for children’s privacy, in light of the recent case of PJS v News Group Newspapers, being considered in the Supreme Court this week. 

The damage has already been done, said the Court of Appeal in the recent ‘celebrity threesome’ decision (PJS). Those who want to know probably already know, so the injunction preventing the identification of the individuals must be set aside. The internet and social networking ‘have a life of their own’ and the Court has its hands up in defeat when faced with publications by foreign media combined with the information retrieval power of digital technology. The individual can still claim damages for breach of confidence or misuse of private information, the Court added but this is cold comfort to those who wish to take pre-emptive steps to protect their privacy. The case demonstrates that when personal information is ‘out there’, there can be no guarantee that any privacy in such information will endure.

And that information could be about a child. This is a pressing issue for ‘Generation Z’ (a term used to categorise young people who have grown up with technology and the Internet, and who regard use of social media websites as an integral part of their private and social lives). In our research, we are concerned with the youngest members of Generation Z. These young children are often very adept at using technology, but have little awareness of the impact of social media. They will appear on social media because of the actions of others, such as parents posting photographs on a Facebook or Instagram page, or even opening a Twitter account for their baby.

Where young children feature in fly-on-the-wall reality documentaries on broadcast media, however, they can become the target of comment on social media outside of their immediate friends and family. This content is discoverable long after the original broadcast by means of the inevitable hashtag.   We might call them ‘Generation Tagged.’

We might call these young children featured in broadcast and social media ‘Generation Tagged

Recently, reality programmes have begun to feature ever younger children, often under the mantle of behavioural advice or social experimentation. Examples include ‘Boys and Girls Alone’, ‘Three Day Nanny’, ‘My Violent Child’, ‘Born Naughty?’, ‘Child Genius’ and ‘The Secret Life of 5 Year Olds’. Such programmes are now less ephemeral than in the past. They are available for long after original broadcast on the Internet via on-demand services or repeated on various spin-off channels. The associated social media interaction makes that broadcast part of the online record.

How is it that we have sleepwalked to a position where this type of privacy-intrusive programming has been accepted as the norm? Many of the dramas exposed in the programme ‘The Secret Life of 5 Year Olds’ for instance, are intensely personal: expressions of love; kisses; grief. The comments made by the professionals about the children’s characters and how their behaviour should change would, in a medical or educational context, be subject to degrees of confidentiality. The publication of a hashtag invites negative comment (as our analysis of Twitter messages demonstrated). Such comment could adversely affect the privacy and dignity of the child, particularly so if other information released about the children and their families creates a risk of jigsaw identification. Harm might occur if, for instance, a future employer sees that as a child, a job applicant was regarded as autistic or a bully.

We wonder how child welfare considerations which apply in ‘real-world’ care, education and medical environments can be so easily overcome in the world of broadcast programming. Our freedom of information requests to the educational and health bodies linked to ‘The Secret Life of 5 Year Olds’ revealed that no ethics committees or similar had considered the involvement of the staff in the programme, because the work had been done outside normal working time and/or the data associated with the programme had not been accessed by the institution for research purposes. Channel 4 relied on the so-called journalistic designation – which excludes information about journalism and creative output from the Freedom of Information Act – to refuse to confirm the details of how compliance with welfare considerations under the Ofcom broadcasting code had been achieved.

The children featured in these programmes become mini-minor celebrities in their own right but they become so due to the actions of others. Despite the unstoppable nature of social media, they should not suffer the same fate as the not-so-mysterious PJS. It cannot be acceptable that such children may be left only with the options of claiming damages after the event, or of attempting to exercise their ‘right-to-be-forgotten’ in later life. We should as a society step back and consider whether we want private childhood moments to become eternal public entertainment and the subject of public social media comment. If not, then we need a more effective way of ensuring that the ‘best interests of the child’ is hard-wired into the ethical and legal process before the privacy intrusion occurs. We call for the creation of an ‘amicus brief’ for young children in the position of those in ’The Secret Life of 5 Year Olds’. This independent expert would be required to consent to the involvement of the child in the programme (in addition to the consent of the parents being obtained) and tasked with considering not only the immediate risks but those that could arise in the future.

With thanks to the authors for sharing this piece on our blog. Please note that posts reflect the views of individual authors.

Further resources

  • The Centre for Information Rights at the University of Winchester will be hosting the Third Winchester Conference on Trust, Risk, Information and the Law on 27th April 2016 – details here.
  • Oswald, Marion and James, Helen and Nottingham, Emma, ‘The Not-so-Secret Life of Five Year Olds’: Legal and Ethical Issues Relating to Disclosure of Information and the Depiction of Children on Broadcast and Social Media (April 3, 2016). Available at SSRN: http://ssrn.com/abstract=2758503

Needles on top of haystacks and reporting the courts in a digital age

An update on developments in digital court reporting by the Information Law and Policy Centre’s Judith Townend

How should courts be reported in the digital age? It’s a question that’s been preoccupying me for a number of years. My understanding of the technology, law and potential reforms are constantly challenged as I encounter new examples and people with varying experiences in different areas of legal work. For example, Penelope Gibbs of Transform Justice has drawn my attention to important work on the rights of children involved in judicial processes.

This week I’ve been looking at the ruling in BBC & Eight Other Media Organisations, R (on the application of) v F & D [2016] EWCA Crim 12 (11 February 2016), published following the conviction and sentencing of two 15 year old defendants for the murder of Angela Wrightson in December 2014.

In an unusual order issued by the Court of Appeal, the media was prohibited, until the verdicts in the criminal trial or further order, from placing reports on Facebook profile pages, and was instructed to disable the comment facilities on any report of the criminal trial. This was to prevent the media giving prominence to public comments on their Facebook pages – which the trial judge Globe J described as placing ‘a lot of needles’ on top of a haystack – and risk prejudicing proceedings.

In a piece for the Justice Gap (re-published on the Transparency Project) discussing the case I argue that our contemporary systems for judicial information control are lacking and muddled with serious consequences for freedom of expression, which affects both the public and media right to impart information, and the right to receive information.

I made a similar point in a paper co-authored with Dr Henry Irving for History and Policy, looking at the Incedal terrorism-related trials in 2014 and 15.

We need more guidance and clarity on how open courts should look, given the reality of digital and hybrid media of the 21st century. This will help us design fairer and more practical systems that give appropriate weight to and recognition of important rights: not only freedom of expression and open justice, but also those relating to the welfare of children, private and family life and the rehabilitation of offenders.

Further reading

Upcoming Conference: Copyright, Related Rights and the News in the EU – Assessing Potential New Laws

CIPIL University of Cambridge, hosted at IViR, University of Amsterdam

  • Date: Saturday, 23 April 2016, from 10:00 t0 17:30 (CET)
  • Location: University of Amsterdam, Agnietenkapel , Oudezijds Voorburgwal 229 – 231, 1012 EZ Amsterdam, the Netherlands
  • Registration at this link

The difficulties of commercial journalism
Like music and other branches of publishing, commercial news journalism has faced radical challenges over the last two decades. There is talk of the “death of the newspaper” and questions have been raised about the very future of journalism. While with music, books and films, the greatest threat to existing business models have been seen as the unauthorised and unremunerated home copying and peer-to-peer distribution, with commercial news journalism much of the challenge derives from the fact that advertising has not followed the shift of print-newspapers to the Internet. Such difficulties are compounded, from the point of view of news publishers, by the relatively free availability of news from other online sources. And they’ve been further compounded by the recent rise of social media, particularly Facebook, as a main route to the news.

Questions that arise
Is there sufficient rationale to alter copyright or related laws in a way that benefits news publishers? Should commercial news publishers benefit from any change in the law, given that other means exist for gathering and disseminating news? How strong is an economic case for such a right? To what extent is any economic case for change supplemented by other arguments, such as reward and natural rights arguments, and arguments about media plurality? Should European law treat news publishers in a similar way to other content producers, such as phonogram producers and broadcasters, who benefit from a related right? Would individual journalists benefit from a right afforded to news publishers, and if so, to what extent? Should news publishers benefit from levies and compensation schemes designed to benefit author-journalists?

A one day conference at IViR will seek to address these questions. The conference is part of a two-year, AHRC funded project at CIPIL, Cambridge University, entitled Appraising Potential Legal Responses to Threats to the Production of  News in a Digital Environment, which the IViR will kindly host and facilitate.

The conference brings together an interdisciplinary combination of academics and practitioners to discuss the issue. Representatives from news producing, publishing and disseminating organizations, both traditional and online, have been invited and speakers will include Andrew Hughes from the NLA Media Access. Academic speakers include Lionel Bently and John Naughton from Cambridge; Bernt Hugenholtz and Mireille van Eechoud from IViR; Ian Hargreaves from Cardiff University; Raquel Xalabarder (UOC Barcelona) and Jan Hegemann (FU Berlin).

For further information contact:
Dr Richard Danbury
Centre for Intellectual Property and Information Law,
University of Cambridge
Rmd59@cam.ac.uk

David Goldberg: Dronalism in the Year of the Drone

Dr David Goldberg is a member of the Advisory Board of the Information Law and Policy Centre. He has recently authored the following: [1] ”Journalism, drones, and law” in A. Koltay (ed), Comparative Perspectives on the Fundamental Freedom of Expression (Wolters Kluwer 2015); [2] ”Droning on About Journalism: Remotely Piloted Aircraft and Newsgathering” in A. Završnik (ed), Drones and Unmanned Aerial Systems (Springer 2015); [3] “Dronalism: Journalism, Remotely Piloted Aircraft, Law and Regulation” in Florida International University Law Review, Vol 10 (2); and [4]Regulators Should let ‘Dronalism’ Take Off” in Media Asia December 2015. In 2013, he co-authored Remotely Piloted Aircraft Systems and Journalism (Reuters Institute for the Study of Journalism). In this guest post, he argues in favour of the use of drones in journalism.

Hands up who has heard of John Silva? Not many, I bet! Silva was chief engineer for Los Angeles station KTLA-TV. In 1958, he outfitted a helicopter with a TV camera and changed television news coverage forever. Fast forward 50+ years and a drone/remotely piloted aircraft (the issue of what to call the gizmos is so yesterday) is simply an analogous newer bit of kit in a (photo) journalist’s toolbox.

In my opinion, drones both can and should be allowed to be used inter alia for the purposes of newsgathering, journalism and media production: should because basically they assist newsgathering. In itself, the drone is nothing, it’s just a flying donkey. It’s what you strap on to it, e.g., a camera or data sensor, that makes a drone useful in the context of journalism/newsgathering (aka “dronalism”). As such, its deployment is protected under Article 10 ECHR (the only drone application to engage a human right?), because its use, just like a camera, for street photography facilitates newsgathering. Overly precious concerns about a subject’s identity disclosure using a device which might be difficult to spot would do well to defer to the 2015 decision of the European Court of Human Rights in Haldimann and Others v Switzerland, which found for journalists using covert filming techniques.

More generally, it has become something of a cliché to say that 2016 is the “year of the drone”. But, less reported (actually, not at all?) than yet-another-scare-story (is the industry even approached for a quote in those cases?) is the ongoing government-initiated “Public Dialogue on the use and deployment of drones in the UK”. In due course, the conclusions will be posted here (the full report is likely to be published in June). For now, one industry insider reports back from a recent cross-government working group on remotely piloted aircraft meeting:

“‘The public’s overwhelming feeling is they are excited by drone technology, they are not concerned by state, military or commercial use as ‘they know what they are doing’”.

The category of concern is the recreational/consumer user and not even the hobbyist who is likely to be a member of a group or club with a sense and culture of professionalism and rule-following.

To return, finally, to dronalism, here’s a thought: it doesn’t fit into any of the aforementioned categories! As the amicus curiae brief by News Media in the US National Transportation Safety Board Huerta v Pirker litigation states, “the publication of news is not a ‘commercial’ activity comparable to the sale of goods and services”. That activity and the activities pursuant to it are protected – that conclusion should hold whether with regard to US constitutional concerns or the European fundamental rights regime.