Category Archives: News media

Workshop summary: Evaluating legal responses to threats to news in a digital environment

On the 3rd November 2015, a workshop was held at the Institute of Advanced Legal Studies (IALS) in London, to discuss potential legal responses to threats to the production of news in a digital environment. Particular attention was paid to copyright.

The workshop was an output of a two-year study funded by the AHRC, entitled ‘Appraising Potential Legal Responses to Threats to the Production of News in a Digital Environment’.

The co-Principal Investigators in the study are Professors Lionel Bently of Cambridge University and Ian Hargreaves of Cardiff University. The Research Associate is Dr Richard Danbury.

Present were academics, representatives of news publishers, and representatives of digital information businesses.

On the basis of the discussions that unfolded during the workshop, Richard Danbury has now compiled a report. This can be downloaded in PDF format at this link below.

R Danbury – Public Summary of London Workshop

 

New report: The impact of charity and tax law/regulation on not-for-profit news organizations

A new report on the impact of charity and and tax law/regulation on not-for-profit news organisations has been published by the Reuters Institute for the Study of Journalism at the University of Oxford, and the Information Society Project at Yale University.

It compares the regulatory systems of Australia, Canada, Ireland, the UK and the US and documents the challenges for not-for-profit organizations involved in the production of news and journalism.

The UK (England and Wales) chapter was written by the director of the IALS Information Law and Policy Centre, Dr Judith Townend, partly based on her previous work for the University of Westminster’s AHRC funded project on media power and plurality.

The report can be downloaded in PDF format at this link.

About the report

The advent of digital media means that many news organisations are re-thinking their business models, and facing new challenges.

But one sector which has seen growth, is the not-for-profit start up industry. In a new report, published jointly by the Reuters Institute and the Information Society Project at Yale University, Robert G. Picard, the RISJ’s North America Representative and colleagues examine the legal framework in which these operate in.

Picard, along with Valerie Belair-Gagnon and Sofia Ranchordás (both Yale University), studies the challenges thrown up by legal systems which don’t include journalistic activities within the concept of ‘charitable status’.

“Legal and regulatory definitions of charitable purposes hinder news organisations from achieving charitable and tax exempt status and receiving the associated benefits in Australia, Canada, Ireland, the United Kingdom, and the United States,” says Picard.

Drawing on the regulatory systems of Australia, Canada, Ireland, the UK and the US, the report sets out to gain a clearer understanding of the legal frameworks for charitable and tax exempt status for news organisations and the distinct challenges that may hinder their development.

See more at this link.

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.

Robin Callender Smith: Pictures of celebrities’ children now clearly off limits for media – unless parents consent

In this guest post, originally published on The Conversation UK, Professor Robin Callender Smith, Queen Mary University of London, considers the recent Court of Appeal decision in Weller v Associated Newspapers ([2015] EWCA Civ 1176)

Pictures of bonny Prince George may well become a lot less common following a landmark ruling.  Media pictures of the children of celebrities are now clearly off limits – unless their parents consent to publication.

The Court of Appeal has confirmed a High Court decision last year giving three of Paul Weller’s children total of £10,000 damages for breaching their right to privacy. This will have far-reaching adverse effects on the freedom of the UK media.

Using such pictures is not illegal at the moment but the Weller ruling indicates how expensive it could be for the media if this decision is ignored by picture editors. The ruling clarifies that it is not just very young children of celebrities who are protected but also older, teenage children as well.

This issue has been rumbling for just over ten years, since J K Rowling’s 19-month-old son David was photographed with in Edinburgh while the family were walking to a local café. His parents successfully sued the Sunday Express magazine and the agency that supplied the images on David’s behalf.

A family day out

In the Weller case the three children had been photographed in public with their parents out together on a shopping trip, eating in a cafe in Los Angeles. The photographs had upset the children and – because of the celebrity status of their parents – their publication had security implications. Weller had asked the photographer to stop taking the photographs. But in October 2012 the Mail Online used seven of the pictures under the headline “A family day out”. Taking and publishing such pictures in California is lawful, but in the UK the law was less clear. Weller therefore sued the Mail in the UK.

Children in the UK are presumed to have privacy rights and their rights are given higher protection than those of adults. Use of their images in the media without parental consent and in situations where they have a reasonable expectation of privacy therefore amounts to a misuse of private information. But this ruling has changed what “reasonable expectation of privacy” means, particularly when applied to the children of celebrities.

In April 2014 the original judge (Mr Justice Dingemans) held that the three children did have a legitimate expectation of privacy because, although their activities took place in a public area – shopping and eating in a cafe visible from the street – they were the activities of a family enjoying private family time. Weller’s daughter Dylan, who was 16 when the photos were taken, received £5,000 and her ten-month-old twin step-siblings John Paul and Bowie received £2,500 each.

The 2014 decision was then challenged by Associated Newspapers, the Daily Mail’s publisher, but as of today the ruling stands. This precedent means that celebrity parents now have extra power to control how the images of their children appear in the UK media: all children are protected in situations where they have a reasonable expectation of privacy. What constitutes being “reasonable” is debatable – so there may still be litigation about this in the future.

Price or pixels

Hannah Weller, the twins’ mother and the stepmother of Dylan, is campaigning for a change in the law to protect all children, not just those of celebrities. Her Campaign for Children’s Privacy calls for legislation to protect children’s privacy by preventing the media from publishing photographs of children without consent from parents or a legal guardian. Where a child is identified, and there is no parental consent or public interest, the child’s facial image should be pixellated.

Even so, it is not only the children of celebrities who benefit from this ruling. Picture editors would be foolhardy to ignore it. So it doesn’t matter whether the photographs are of royal children such as Prince George and Princess Charlotte or simply of Jack and Jill throwing snowballs or splashing in the sea. Where the children have a reasonable expectation of privacy and there is no parental consent then pictures which include the children’s faces cannot be published unless their faces are pixellated. This will also put a stop to the media “scraping” children’s photographs from social media sites following disasters or other high-profile events.

From the media’s point of view this decision is going to make the job of picture editors – and photographers generally – more difficult and complex. Demanding to see parental consent forms is not something that fits easily into the cycle of news production – and pixellation generally spoils the look of any picture.

And of course, the law of unintended consequences may result in some celebrities, who would welcome publicity, not having their pictures featured if there is a child in the frame who cannot be photoshopped out.

The ConversationRobin Callender Smith is Visiting Professor in Media Law, Queen Mary University of LondonHis book Celebrity and Royal Privacy, the Media and the Law will be published by Sweet & Maxwell on 31 Dec 2015.

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

Eerke Boiten: Privacy watchdog takes first step against those undermining right to be forgotten

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.

The arrival of the right to be forgotten, or more accurately the right to have online search results de-linked, as made explicit by the EU Court of Justice in 2014, does not entail retroactive censorship of newspaper reports from the time of the original event. But the limited cases published by Google so far suggest that such requests have normally been granted, except where there was a strong public interest.

Stirring up a censorship storm

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.

[youtube https://www.youtube.com/watch?v=nVyeNZCENZA?wmode=transparent&start=0]

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.

Eerke Boiten is Senior Lecturer, School of Computing and Director of Academic Centre of Excellence in Cyber Security Research at University of Kent.

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

The Conversation

Upcoming event, 19 October 2015, 6.30pm: Whose Investigatory Power Is It Anyway? Security, Source Protection and Surveillance

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

The Broadgate Tower, 20 Primrose Street, London EC2A 2RS

Book your place here

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.

PANEL:

  • 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

CHAIR:

  • Dr Judith Townend, Director, Information Law and Policy Centre, Institute of Advanced Legal Studies, University of London

ORGANISER:

The Media Society, in association with the Information Law and Policy Centre, Institute of Advanced Legal Studies

With grateful thanks to our host Reed Smith LLP

TICKETS

Students – £5.00, Media Society Members – £10.00, Guests – £15.00.

Book via Eventbrite

 

 

 

Philip Murphy: Obsessive secrecy impedes an informed discussion about the UK monarchy

In this post, originally published on The Conversation UK, Director of the Institute of Commonwealth Studies and Professor of British and Commonwealth History at School of Advanced Study, Philip Murphy, reflects on the Royal Family’s secretive handling of its records and suggests that greater openness would enable serious historical investigation. The Palace would do well, he argues, to learn from the intelligence community which has benefited from gradually opening up its archives

The debate about the access (or lack thereof) to the royal archives prompted by The Sun’s publication of a very small Princess Elizabeth performing a Nazi salute conjures up for me a certain sense of déjà vu. Because 20 years ago, the archives of the British intelligence services were surrounded by a similar smokescreen. And it caused the same sort of frustration to historians.

I began teaching an undergraduate module about the history of the British intelligence community around this time and would tell my students at the outset that essentially this was a course about “gossip” and what we could learn from “bad books” – the sort of brightly-coloured paperbacks that used to populate airport bookshops, promising shocking revelations about the glamorous world of spying.

The refusal of the intelligence agencies to release documents about their activities meant that beyond a few official accounts of the World War II and some pioneering works by the likes of Christopher Andrew and Richard Aldrich, there was very little work on British intelligence that resembled conventional academic history. The intelligence writer Stephen Dorril once described his work as a kind of “archival archaeology” – making sense of the incomplete scraps of information that reached the public domain, sometimes because government censors had simply overlooked them.

More intelligent

Since then intelligence history has changed out of all recognition. In no small measure this was because, by the end of the 1980s, parts of the intelligence community had realised that an insistence on absolute secrecy was counter-productive. It meant that the public only learned about their activities from official inquiries into their failures – and from the often ill-intentioned and ill-informed testimonies of former employees, keen to fight out old internal battles and rake over ancient grievances.

The farcical and ultimately futile attempt to prevent the retired MI5 officer, Peter Wright, from publishing his memoir Spycatcher, helped to persuade the security service to change tack. Since the 1990s it has sanctioned the gradual release of its archives. This has allowed it to boast about its achievements and to put its failures into proper historical perspective. Indeed, it has achieved the remarkable feat of making intelligence history “boring” by encouraging historians to treat the intelligence community as just another part of the administrative framework of the British state (few sets of papers are quite as dull as the minutes of the Joint Intelligence Community).

So the current silly-season sensation of the little princess’s Nazi salute shows just how much the Palace can learn from the intelligence community.

The majority of books about the contemporary monarchy bear a striking resemblance to the intelligence literature of the 1980s. Like the pre-1990s intelligence community, the Palace places entirely unreasonable restrictions on the work of professional scholars. It prohibits all but a small handful of “authorised” writers from viewing papers in the Royal Archives relating to the current reign.

In the dying days of Gordon Brown’s administration, it also managed to negotiate an absolute exemption from the Freedom of Information Act for all correspondence with government relating to the Queen, the heir to the throne and the second-in-line. This blanket of censorship covers not merely official files in the National Archives dating as far back as the 1950s, but also private collections of papers such as those of Anthony Eden at the University of Birmingham, and Harold Macmillan and Harold Wilson in the Bodleian Library, Oxford.

As a consequence, what we know about this fascinating and hugely significant part of the British state still consists mostly of reheated gossip, self-interested briefings from a range of current and former royal flunkeys, and tabloid revelations. And since the tabloids are largely interested in charting the misdemeanours of the royals (apparently from as far back as a 1930s home movie), this poses a real problem for the Palace’s image merchants.

Stubborn secrecy

This obsessive secrecy also impedes an informed and rational discussion about the nature of constitutional monarchy. In many respects, we know far less about how this institution operated in our lifetimes than our grandparents did. The 1950s saw the publication of official biographies of George V by Harold Nicolson (1952) and of George VI by John Wheeler-Bennett (1958). Both authors were under strict instructions to exercise discretion about the private lives of the Queen’s father and grandfather. They were, however, able to be fairly candid about their political attitudes and interactions with government. The sheer longevity of the Queen means we have no such authoritative accounts of the political role of the Palace in the 1960s or 1970s.

Some of those who make a living peddling royal gossip have been quick to defend the Palace’s refusal to make its papers more freely available, arguing – ironically – that the royal family has a right to privacy. Yet it is precisely the mixture of the personal and the political that makes constitutional monarchy so intriguing. And for the past 60 years it has been impossible to disentangle the institution of monarchy in the UK from the remarkable personality of the Queen herself.

A measured and duly sensitive policy of opening up royal papers from the current reign would be in everyone’s interests. It would allow the monarchy to become the object of serious historical investigation rather than simply gossip and scandal. Isn’t it time we stopped learning our royal history from The Sun?

Philip Murphy is Director of the Institute of Commonwealth Studies and Professor of British and Commonwealth History at School of Advanced Study. This article was originally published on The Conversation. Read the original article.

Open Letter to Google From 80 Internet Scholars: Release RTBF Compliance Data

I am among the signatories of a letter from 80 academics  to Google, asking for more data and transparency on ‘right to be forgotten’ or de-listing decisions and policy, following the ECJ’s judgment in Google Spain v AEPD and Mario Costeja González in May last year. Importantly, this letter unites scholars with a range of views about the merits of the ruling: some think it rightfully vindicates individual data protection/privacy interests. Others think it unduly burdens freedom of expression and information retrieval. Many think it depends on the facts. But we all believe that implementation of the ruling should be much more transparent. The letter was published in full on the Guardian site and reported (with a response from Google) here. Professor Ellen Goodman has published it on Medium here. Hats off to Julia Powles, University of Cambridge, Faculty of Law (@juliapowles) and Ellen P. Goodman, Rutgers University School of Law (@ellgood) for pulling it together in time for the anniversary of the decision’s publication. More academic commentary can be found here.

The letter in full

What We Seek

Aggregate data about how Google is responding to the >250,000 requests to delist links thought to contravene data protection from name search results. We should know if the anecdotal evidence of Google’s process is representative: What sort of information typically gets delisted (e.g., personal health) and what sort typically does not (e.g., about a public figure), in what proportions and in what countries?

Why It’s Important

Google and other search engines have been enlisted to make decisions about the proper balance between personal privacy and access to information. The vast majority of these decisions face no public scrutiny, though they shape public discourse. What’s more, the values at work in this process will/should inform information policy around the world. A fact-free debate about the RTBF is in no one’s interest.

Why Google

Google is not the only search engine, but no other private entity or Data Protection Authority has processed anywhere near the same number of requests (most have dealt with several hundred at most). Google has by far the best data on the kinds of requests being made, the most developed guidelines for handling them, and the most say in balancing informational privacy with access in search. We address this letter to Google, but the request goes out to all search engines subject to the ruling.


One year ago, the European Court of Justice, in Google Spain v AEPD and Mario Costeja González, determined that Google and other search engines must respond to users’ requests under EU data protection law concerning search results on queries of their names. This has become known as the Right to Be Forgotten (RTBF) ruling. The undersigned have a range of views about the merits of the ruling. Some think it rightfully vindicates individual data protection/privacy interests. Others think it unduly burdens freedom of expression and information retrieval. Many think it depends on the facts.

We all believe that implementation of the ruling should be much more transparent for at least two reasons: (1) the public should be able to find out how digital platforms exercise their tremendous power over readily accessible information; and (2) implementation of the ruling will affect the future of the RTBF in Europe and elsewhere, and will more generally inform global efforts to accommodate privacy rights with other interests in data flows.

Google reports that it has received over 250,000 individual requests concerning one million URLs in the past year. It also reports that it has delisted from name search results just over 40% of the URLs that it has reviewed. In various venues, Google has shared some 40 examples of delisting requests granted and denied (including 22 examples on its website), and it has revealed the top sources of material requested to be delisted (amounting to less than 8% of total candidate URLs). Most of the examples surfaced more than six months ago, with minimal transparency since then. While Google’s decisions will seem reasonable enough to most, in the absence of real information about how representative these are, the arguments about the validity and application of the RTBF are impossible to evaluate with rigour.

Beyond anecdote, we know very little about what kind and quantity of information is being delisted from search results, what sources are being delisted and on what scale, what kinds of requests fail and in what proportion, and what are Google’s guidelines in striking the balance between individual privacy and freedom of expression interests.

The RTBF ruling addresses the delisting of links to personal information that is “inaccurate, inadequate, irrelevant, or excessive for the purposes of data processing,” and which holds no public interest. Both opponents and supporters of the RTBF are concerned about overreach. Because there is no formal involvement of original sources or public representatives in the decision-making process, there can be only incidental challenges to information that is delisted, and few safeguards for the public interest in information access. Data protection authorities seem content to rely on search engines’ application of the ruling’s balancing test, citing low appeal rates as evidence that the balance is being appropriately struck. Of course, this statistic reveals no such thing. So the sides do battle in a data vacuum, with little understanding of the facts — facts that could assist in developing reasonable solutions.

Peter Fleischer, Google Global Privacy Counsel, reportedly told the 5th European Data Protection Days on May 4 that, “Over time, we are building a rich program of jurisprudence on the [RTBF] decision.” (Bhatti, Bloomberg, May 6). It is a jurisprudence built in the dark. For example, Mr. Fleischer is quoted as saying that the RTBF is “about true and legal content online, not defamation.” This is an interpretation of the scope and meaning of the ruling that deserves much greater elaboration, substantiation, and discussion.

We are not the only ones who want more transparency. Google’s own Advisory Council on the RTBF in February 2015 recommended more transparency, as did the Article 29 Working Party in November 2014. Both recommended that data controllers should be as transparent as possible by providing anonymised and aggregated statistics as well as the process and criteria used in delisting decisions. The benefits of such transparency extend to those who request that links be delisted, those who might make such requests, those who produce content that is or might be delisted, and the wider public who might or do access such material. Beyond this, transparency eases the burden on search engines by helping to shape implementation guidelines and revealing aspects of the governing legal framework that require clarification.

Naturally, there is some tension between transparency and the very privacy protection that the RTBF is meant to advance. The revelations that Google has made so far show that there is a way to steer clear of disclosure dangers. Indeed, the aggregate information that we seek threatens privacy far less than the scrubbed anecdotes that Google has already released, or the notifications that it is giving to webmasters registered with Google webmaster tools. The requested data is divorced from individual circumstances and requests. Here is what we think, at a minimum, should be disclosed:

  1. Categories of RTBF requests/requesters that are excluded or presumptively excluded (e.g., alleged defamation, public figures) and how those categories are defined and assessed.
  2. Categories of RTBF requests/requesters that are accepted or presumptively accepted (e.g., health information, address or telephone number, intimate information, information older than a certain time) and how those categories are defined and assessed.
  3. Proportion of requests and successful delistings (in each case by % of requests and URLs) that concern categories including (taken from Google anecdotes): (a) victims of crime or tragedy; (b) health information; (c) address or telephone number; (d) intimate information or photos; (e) people incidentally mentioned in a news story; (f) information about subjects who are minors; (g) accusations for which the claimant was subsequently exonerated, acquitted, or not charged; and (h) political opinions no longer held.
  4. Breakdown of overall requests (by % of requests and URLs, each according to nation of origin) according to the WP29 Guidelines categories. To the extent that Google uses different categories, such as past crimes or sex life, a breakdown by those categories. Where requests fall into multiple categories, that complexity too can be reflected in the data.
  5. Reasons for denial of delisting (by % of requests and URLs, each according to nation of origin). Where a decision rests on multiple grounds, that complexity too can be reflected in the data.
  6. Reasons for grant of delisting (by % of requests and URLs, each according to nation of origin). As above, multi-factored decisions can be reflected in the data.
  7. Categories of public figures denied delisting (e.g., public official, entertainer), including whether a Wikipedia presence is being used as a general proxy for status as a public figure.
  8. Source (e.g., professional media, social media, official public records) of material for delisted URLs by % and nation of origin (with top 5–10 sources of URLs in each category).
  9. Proportion of overall requests and successful delistings (each by % of requests and URLs, and with respect to both, according to nation of origin) concerning information first made available by the requestor (and, if so, (a) whether the information was posted directly by the requestor or by a third party, and (b) whether it is still within the requestor’s control, such as on his/her own Facebook page).
  10. Proportion of requests (by % of requests and URLs) where the information is targeted to the requester’s own geographic location (e.g., a Spanish newspaper reporting on a Spanish person about a Spanish auction).
  11. Proportion of searches for delisted pages that actually involve the requester’s name (perhaps in the form of % of delisted URLs that garnered certain threshold percentages of traffic from name searches).
  12. Proportion of delistings (by % of requests and URLs, each according to nation of origin) for which the original publisher or the relevant data protection authority participated in the decision.
  13. Specification of (a) types of webmasters that are not notified by default (e.g., malicious porn sites); (b) proportion of delistings (by % of requests and URLs) where the webmaster additionally removes information or applies robots.txt at source; and (c) proportion of delistings (by % of requests and URLs) where the webmaster lodges an objection.

As of now, only about 1% of requesters denied delisting are appealing those decisions to national Data Protection Authorities. Webmasters are notified in more than a quarter of delisting cases (Bloomberg, May 6). They can appeal the decision to Google, and there is evidence that Google may revise its decision. In the remainder of cases, the entire process is silent and opaque, with very little public process or understanding of delisting.

The ruling effectively enlisted Google into partnership with European states in striking a balance between individual privacy and public discourse interests. The public deserves to know how the governing jurisprudence is developing. We hope that Google, and all search engines subject to the ruling, will open up.

Jef Ausloos
Researcher
KU Leuven, ICRI/CIR — iMinds

Paul Bernal
Lecturer in Information Technology, Intellectual Property and Media Law
UEA School of Law

Eduardo Bertoni
Global Clinical Professor. New York University School of Law
Director of the Center for Studies on Freedom of Expression and Access to Information -CELE-
Palermo University School of Law

Reuben Binns
Researcher
University of Southampton

Michael D. Birnhack
Professor of Law
Tel-Aviv University, Faculty of Law

Eerke Boiten
Director of Cyber Security Centre
University of Kent

Oren Bracha
Howrey LLP and Arnold, White & Durkee Centennial Professor
University of Texas School of Law

George Brock
Professor of Journalism
City University London

Sally Broughton Micova
LSE Fellow & Acting Director, LSE Media Policy Project
London School of Economics and Political Science

Ian Brown
Professor of Information Security and Privacy
University of Oxford, Oxford Internet Institute

Robin Callender Smith
Professorial Fellow in Media Law, Centre for Commercial Law Studies
Queen Mary University of London

Caroline Calomme
MJur candidate
University of Oxford

Ignacio Cofone
Researcher
Erasmus University Rotterdam

Julie E. Cohen
Mark Claster Mamolen Professor of Law & Technology
Georgetown Law

Ray Corrigan
Senior Lecturer in Maths, Computing and Technology
Open University

Jon Crowcroft
Marconi Professor of Communications Systems
University of Cambridge, Computer Laboratory

Angela Daly
Postdoctoral Research Fellow, Swinburne University of Technology
Research Associate, Tilburg University — TILT

Richard Danbury
Postdoctoral Research Fellow
University of Cambridge, Faculty of Law

Leonhard Dobusch
Assistant Professor on Organization Theory
Freie Universitaet Berlin

Lilian Edwards
Professor of Internet Law
University of Strathclyde

Niva Elkin-Koren
Professor of Law
University of Haifa

David Erdos
University Lecturer in Law and the Open Society
University of Cambridge, Faculty of Law

Gordon Fletcher
Senior Lecturer in Information Systems
University of Salford

Michelle Frasher
Non-resident Visiting Scholar, Fulbright-Schuman Scholar
University of Illinois, European Union Center

Brett M. Frischmann
Professor of Law
Benjamin N. Cardozo School of Law

Martha Garcia-Murillo
Professor of Information Studies
Syracuse University

David Glance
Director, UWA Centre for Software Practice
University of Western Australia

Ellen P. Goodman
Professor of Law
Rutgers University

Andres Guadamuz
Senior Lecturer in IP Law
University of Sussex

Edina Harbinja
Law Lecturer
University of Hertfordshire

Woodrow Hartzog
Associate Professor, Samford University, Cumberland School of Law
Affiliate Scholar, Stanford Law School, Center for Internet & Society

Andrew Hoskins
Professor
University of Glasgow

Martin Husovec
Legal Advisor, European Information Society Institute
Affiliate Scholar, Stanford Law School, Center for Internet & Society

Agnieszka Janczuk-Gorywoda
Assistant Professor
Tilburg University — TILEC

Lorena Jaume-Palasí
PhD candidate and Lecturer
Ludwig Maximilians University

Bert-Jaap Koops
Professor of Regulation and Technology
Tilburg University — TILT

Paulan Korenhof
Researcher
Tilburg University — TILT

Aleksandra Kuczerawy
Researcher
KU Leuven, ICRI/CIR — iMinds

Stefan Kulk
Researcher
Utrecht University

Rebekah Larsen
MPhil candidate
University of Cambridge, Judge Business School

David S. Levine
Associate Professor, Elon University School of Law
Visiting Research Collaborator, Princeton Center for Information Technology Policy
Affiliate Scholar, Stanford Law School, Center for Internet & Society

Michael P. Lynch
Professor of Philosophy and Director, Humanities Institute
University of Connecticut

Orla Lynskey
Assistant Professor of Law and Warden, Sidney Webb House
London School of Economics and Political Science

Daniel Lyons
Associate Professor of Law
Boston College Law School

Ian MacInnes
Associate Professor, School of Information Studies
Syracuse University

Robin Mansell
Professor, Department of Media and Communications
London School of Economics and Political Science

Alan McKenna
Lecturer
University of Kent Law School

Shane McNamee
Research Assistant, Research Centre for Consumer Law
University of Bayreuth

Maura Migliore
LL.M. candidate, Centre for Commercial Law Studies
Queen Mary University of London

Christian Moeller
Internet Policy Observatory, Center for Global Communication Studies, Annenberg School for Communication, University of Pennsylvania
University of Applied Sciences Kiel

Maria Helen Murphy
Lecturer in Law
Maynooth University

Andrew Murray
Professor of Law
London School of Economics and Political Science

John Naughton
Professor, Wolfson College
University of Cambridge

Abraham Newman
Associate Professor, School of Foreign Service
Georgetown University

Kieron O’Hara
Senior Research Fellow, Electronics and Computer Science
University of Southampton

Marion Oswald
Senior Fellow, Head of the Centre for Information Rights
University of Winchester

Pablo A. Palazzi
Professor of Law
San Andres University

Frank Pasquale
Professor of Law
University of Maryland Carey School of Law

Richard J. Peltz-Steele
Professor
University of Massachusetts Law School

Julia Powles
Researcher
University of Cambridge — Faculty of Law

Artemi Rallo
Constitutional Law Professor and Former Director, Spanish Data Protection Agency
Jaume I University

Giovanni Sartor
Professor of Legal Informatics and Legal Theory
European University Institute

Evan Selinger
Associate Professor of Philosophy
Rochester Institute of Technology

Sophie Stalla-Bourdillon
Associate Professor in IT law
University of Southampton

Konstantinos Stylianou
Fellow, Centre for Technology and Society
FGV Direito Rio

Dan Jerker B. Svantesson
Professor
Bond University Faculty of Law

Damian Tambini
Research Director and Director of the Media Policy Project
London School of Economics and Political Science

Judith Townend
Director, Centre for Law and Information Policy
Institute of Advanced Legal Studies

Alexander Tsesis
Professor of Law
Loyola University School of Law

Siva Vaidhyanathan
Robertson Professor, Department of Media Studies
University of Virginia

Peggy Valcke
Professor of Law, Head of Research
KU Leuven — iMinds

Alfonso Valero
Principal Lecturer, College of Business Law & Social Sciences
Nottingham Law School

Brendan Van Alsenoy
Researcher
KU Leuven, ICRI/CIR — iMinds

Joris van Hoboken
Research Fellow
New York University School of Law

Asma Vranaki
Postdoctoral Researcher, Centre for Commercial Law Studies
Queen Mary University of London

Kevin Werbach
Associate Professor of Legal Studies & Business Ethics
University of Pennsylvania, The Wharton School

Abby Whitmarsh
Web Science Researcher
University of Southampton

Tijmen Wisman
PhD candidate and Lecturer
VU University Amsterdam

Lorna Woods
Professor of Internet Law
University of Essex

Nicolo Zingales
Assistant Professor
Tilburg University — TILEC

SLS Media and Communications: Call For Papers

The deadline for papers for the Media and Communications section at this year’s annual Society of Legal Scholars conference (University of York, 1st-4th September 2015) has been extended to 31st March 2015 24th April 2015. Here is the Call for Papers, prepared by section convener Dr Paul Wragg. He says that abstracts can be sent directly to P.M.Wragg@leeds.ac.uk and please feel free to get in touch with him to discuss ideas and proposals before submitting an abstract, if you would prefer.

The Media and Communications section will meet in the second half of the conference on Thursday 3rd and Friday 4th September. If you are interested in presenting a paper, please submit an abstract by Tuesday 31st March.

All abstracts must be submitted through the EasyChair conference system. If you have not used this system before, you will need to create an account before making your submission.

I would welcome proposals for papers on any area of media and communications law, including (but not limited to): media regulation; defamation; privacy; breach of confidence; telecommunications law; media ownership and pluralism; the laws, practices and codes affecting journalism (e.g. contempt of court, subterfuge, court reporting, recognition/status of journalists); the control of marketing, advertising, and sponsorship contract and rights issues affecting the media and communications sectors (for example, television coverage of sporting events); image rights; universal design / access in relation to communications language and minority rights and the media whether they address this year’s conference theme (Law’s Subjects: Subject to Law) or not. Alternatively, if you would like to propose a topic of current interest for a panel or roundtable discussion, please do get in touch to see if this can be arranged.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference. With this in mind, I would be grateful if you could let me know if you are also responding to calls for papers from other sections.

Please note that whilst you need only send a proposed title and abstract at this stage, speakers are encouraged to submit a full paper via EasyChair before the conference. The SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career. The Prize carries a £250 monetary award and winning papers are published in Legal Studies. To be eligible:

• speakers must be fully paid-up members of the SLS;

• papers must not exceed 11,000 words including footnotes (as counted in Word);

• papers must be uploaded to EasyChair by Monday 24th August; and

• papers must not have been published previously or have been accepted or be under consideration for publication.

via SLS Media and Communications – 2015 Call For Papers | Lex Ferenda.