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

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

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

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

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

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

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

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

The Nottingham Post gives its readers two reasons.

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

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

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

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

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

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

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

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

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

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

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

Applications open…Senior Lecturer/Lecturer in Law & Director: Information Law and Policy Centre

As readers of this blog might already be aware our first Director, Dr Judith Townend, has moved on to a new post at the University of Sussex. This means the Information Law and Policy Centre is now looking for a new Director…

“The Institute of Advanced Legal Studies of the School of Advanced Study is now seeking a Lecturer/Senior Lecturer in Law and Director: Information Law and Policy Centre.

“The role will be responsible for developing the research promotion and facilitation, teaching/training and public engagement for the Information Law & Policy Centre.

“This position is offered at 3 years in the first instance with the possibility of permanent extension after this period.”

For more information and details of how to apply visit the University of London’s vacancy page.

The close date for this role is at midnight on Sunday, 23 October 2016. 

Pokémon Go has revealed a new battleground for virtual privacy

Pokemon go and virtual privacyAndres Guadamuz, University of Sussex

People have been lingering outside Boon Sheridan’s house all through the night. The designer lives in an old church in Massachusetts that has been designated a “gym” in the new smartphone game Pokémon Go. Because the game requires players to visit places in the real world, Sheridan now has to put up with people regularly stopping outside his building to play.

It has got to the point where he has started wondering if there is anything the law can do in situations like this. He wrote on Twitter: “Do I even have rights when it comes to a virtual location imposed on me? Businesses have expectations, but this is my home.” This problem of virtual activities impinging on physical spaces in only likely to grow with the increasing popularity of the augmented reality used in games such as Pokémon Go to overlay digital landscapes on real ones. But there may be a way to deal with this before it becomes a serious legal problem for more people.

Pokémon Go encourages players to interact with their actual environment by using realistic maps of their surroundings as part of the game. Certain landmarks, monuments and public buildings are tagged as “stops”, where players can collect items, and some public spaces including churches, parks and businesses are tagged as “gyms”, where users can battle each other.

It is the tagging element that has prompted a few interesting legal questions about the role of augmented reality. The game’s developer, Niantic, is using a combination of data from Google Maps and user-generated tags collected from an earlier game called Ingress. This data is used to identify real-life spots as either a stop or a gym. But what happens when the data mistakenly identifies a house as a public space, as happened to Sheridan?

As it turns out, Niantic offers people the chance to highlight problems with a location. And in the grand scheme of things, whether a person’s house is mis-tagged in a game does not seem like something worthy of new laws, particularly when the developer offers to correct any errors. But Pokémon Go is just the beginning. The game has proven the potential of augmented reality to appeal to a very large audience, so we can expect many other applications of the technology to come our way.

The wild success of location-based gaming may bring about a horde of imitators, so expect a new generation of augmented reality gaming to hit the app stores soon. And the technology’s potential also goes beyond gaming so we can expect more mainstream applications of geo-tagging and location-based interaction, especially with the growth of wearable technology such as fitness trackers. You can imagine that soon we will have a world in which ever house, every car, even every person could come with an added virtual tag full of data. The potential for innovation in this area is staggering.

But what if your house is tagged in a global database without your permission and you value your privacy so do not want any passersby to know that you live there? Or what if a commercially-sensitive database identifies your business with incorrect data and you cannot reach the developer or they refuse to amend it? People looking for businesses in your area may miss you and go to a competitor that is correctly listed. Even more worrying, what if your house was previously occupied by a sex offender and is tagged in an outdated database with that information?

The problems would go far beyond what is happening with Sheridan’s house. These cases could have real negative effects on people’s lives, privacy, or business prospects.

The potential for trouble will be worse with the launch of apps that allow users to tag public or private buildings themselves. Why will abusers and trolls bother spray-painting a house, when they can geo-tag it maliciously? Paint washes away, but data may be more difficult to erase.

My proposal is to extend data protection legislation to virtual spaces. At the moment, data protection is strictly personal as it relates to any information about a specific person, known as a data subject. The data subject has a variety of rights, such as having the right to access their data and rectify and erase anything that is inaccurate or excessive.

Protecting objects

Under my proposal, the data subject’s rights would remain as they are, but the law would contain a new definition, that of the data object. This relates to data about a specific location. The rights of data objects would be considerably more limited than those of a data subject. But classifying them like this would take advantage of the data-protection mechanisms that already exist for when someone is intrinsically linked to a location.

In other words, just tagging a location on an augmented reality database wouldn’t violate the data protection. But mis-tagging a location as a public space in a way that could impinge on people’s enjoyment of that location could trigger action by the regulator to have the tag amended, removed or even erased. This would be especially useful for private spaces such as Sheridan’s house. If the app developer fails to make a change to the data, the property owner could make a request to the data protection authority, who would then force developers to change the data – or face fines.

There are limits to this proposal. Such a regime would only apply to companies based in the same country as the data protection regulator. So, for example, European countries wouldn’t be able to force Niantic to make changes to Pokémon Go’s tags, because the company is based in the US. There would also need to be strict restrictions on exactly what counts a data object and what is worth amending or deleting, otherwise the system could be abused.

But one thing is already certain: Pokémon Go is just the beginning of a new world of location-based data applications, and we need to find better ways to protect our digital rights in that space.

The ConversationAndres Guadamuz, Senior Lecturer in Intellectual Property Law, University of Sussex

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

Photo: Eduardo Woo, CC BY-SA 2.0

Analysing the Advocate General’s opinion on data retention and EU law

7562831366_66f986c3ea_o (1)Last week, the Advocate General published an opinion on a case brought to the European Court of Justice concerning the compatibility of the UK and Sweden’s data retention laws with EU law.

In a detailed analysis, Lorna Woods, Professor of Internet Law at the University of Essex considers the potential implications of the opinion for national data retention regimes (including the UK’s Investigatory Powers Bill) and the legal tensions which arise from the Advocate General’s opinion. This post first appeared on Professor Steve Peer’s EU Law Analysis blog.     

The Advocate General’s opinion concerns two references from national courts which both arose in the aftermath of the invalidation of the Data Retention Directive (Directive 2006/24) in Digital Rights Ireland dealing with whether the retention of communications data en masse complies with EU law.

The question is important for the regimes that triggered the references, but in the background is a larger question: can mass retention of data ever be human rights compliant. While the Advocate General clearly states this is possible, things may not be that straightforward. Continue reading

The socio-legal aspects of 3D printing: Between “chaos” and “control”

Socio-legal aspects bookNot so long ago 3D printing was being discussed alongside the internet, file sharing and digital currencies as a sign of the beginning of an era of post-control and post-scarcity.

There were fears that governments would struggle to regulate the activities of a new generation of “prosumers” (producer-consumers) and that economic and legal certainties would be challenged by an increase in the decentralised “free” supply of goods.

Last night, at the Information Law and Policy Centre, Dr Angela Daly and Dr Dinusha Mendis presented a more nuanced view of the prospects of 3D printing as a “disruptive” technology to mark the launch of Daly’s new book, Socio-Legal Aspects of the 3D Printing Revolution.

Daly, a research fellow at Queensland University of Technology Faculty of Law, shared findings from postdoctoral research at the Swinburne University of Technology considering the legal aspects of 3D printing from the standpoint of the US, UK-EU and Australian legal systems.

s200_angela.dalyDaly’s transnational lens enabled her to identify a number of divergent legal approaches to 3D printing in relation to exceptions to infringement, intermediary liability, copyright and DMCA takedowns.

She found that the legal implications of 3D printing were hard to generalise despite attempts at the harmonisation of international law. More often the legal status of 3D printing was both nationally and scenario specific. To this end, Daly noted that it would also be interesting to research how legal jurisdictions in emerging economies were tackling 3D printing.

Focussing particularly on the potential problems created for Intellectual Property law by 3D printing, Daly concluded that the technology was neither leading to “total chaos” nor “total control”.

She highlighted that 3D printing has not yet become a mainstream practice – despite entry level 3D printers selling for around £500, far fewer people own one than they do a smartphone or computer. Daly also emphasised that incumbent businesses and companies are incorporating 3D printing into their business models.

She stated, therefore, that although there was some chaos around the edges – such as the ability for people to print 3D guns – the overall picture was that from a socio-legal perspective the technology was not currently particularly ‘disruptive’.

Dinusha MendisDaly’s position was reinforced by a presentation from Dr Dinusha Mendis, Co-Director of the Centre for Intellectual Property Policy and Management (CIPPM) at Bournemouth University. Mendis has conducted research on the Intellectual Property and Copyright implications of 3D printing including work which was commissioned by the UK government’s Intellectual Property Office.

Of fundamental concern here is the potential illegal copying and use of the computer-aided design (CAD) files required to print objects in 3D. Her research identified hundreds of online platforms for the distribution of 3D printing files which were providing access to hundreds of thousands of designs.

Mendis’ research into online platforms reveals that interest in 3D printing has grown immensely between 2008 and 2014, but she identified limitations to the spread of the practice.

Potential users do not always have access to the right materials, funds to be able to purchase more sophisticated printers or the legal knowledge to license their work. Moreover, companies and businesses in this field informed her that there was currently little commercial impact on either automotive or domestic products. They predicted that 3D printing would remain limited for the next five to ten years.

For both Mendis and Daly, then, 3D printing has not yet lived up to initial hype over its ‘disruptive’ potential. Mendis recommended a ‘wait and see’ approach to UK government, concerned that legislating too hastily in this area might stifle creativity.

Nevertheless, as 3D printing technology improves and becomes cheaper, it might become the focus of increasing interest for legal scholars in the future.

Further Reading

A. Daly (2016) Socio-Legal Aspects of the 3D Printing Revolution, Palgrave MacMillan: UK
D. Mendis (2015) A Legal and Empirical Study into the Intellectual Property Implications of 3D Printing.
D. Mendis (2014) “Clone Wars”: Episode II – The Next Generation: The Copyright Implications relating to 3D Printing and Computer-Aided Design (CAD) Files. Law, Innovation and Technology, 6 (2), 265-281.
D. Mendis (2013) ‘The Clone Wars’ – Episode 1: The Rise of 3D Printing and its Implications for Intellectual Property Law – Learning Lessons from the Past?,  European Intellectual Property Review, 35 (3), 155-169.

The Body of Law: An exhibition of drawings by Isobel Williams

Isobel artThe Supreme Court welcomes and informs the public, but how does an artist interpret the coded theatre of the hearings?

Isobel William’s new exhibition of drawings, sketched from the public seats of the Supreme Court with the court’s permission, and other locations, offers an unusual perspective on the workings of open justice.

The exhibition includes her impressions of cases concerning image rights, the extent of the Terrorism Act and the Naked Rambler, for example.

Isobel’s work is being displayed at Senate House in June and July. The exhibition is free to the public and can be found on the 2nd floor.

The exhibition is part of the public engagement programme at the Institute for Advanced Legal Studies exploring and promoting the ‘humanity of law’, that is exploring law’s place in the arts and humanities, and role in shaping society and culture. The Information Law and Policy Centre has been involved in a number of IALS events on this theme exploring the work of judges and barristers.

We have previously featured Isobel’s work on the blog, documenting her 2014 exhibition at Pinsent Masons LLP and her drawings of the Information, Law and Policy Centre launch event.

You can find out more information about Isobel’s drawings on her blog and on her website.

A  guide to the exhibition can be found here (PDF).

Visiting the exhibition:
This exhibition will be on during June and July, Mon-Fri 9am-5.45pm, Sat 9.45am-5.15pm, 2nd floor foyer, Senate House, Malet Street, London WC1E 7HU 

Upcoming event, 21st April 2016: ‘Judgecraft and Emotions’

The focus of the Information Law and Policy Centre’s work at the IALS is law and regulation relating to the control and flow of data and media, but we are also concerned with the way in which law is accessed and the study of law as a humanity discipline, and have been involved in a number of IALS events that look at the ‘Humanity of Law’ including the work of judges and barristers.

Our latest event on this theme considers ‘judgecraft and emotions’, and will take the form of a conversation between our chair and two guest speakers.  We hope you can join us.

Those interested in this topic may also wish to take a look at the Judicial Images project, an initiative of the LSE and Birkbeck University of London, and also this upcoming conference at St Mary’s University Twickenham, ‘(In)visibility, Law and Culture’ (5-6 September 2016).

Title: Judgecraft and Emotions
Date: 21/04/2016 – 18:0019:30
Institute: Institute of Advanced Legal Studies
Venue: Institute of Advanced Legal Studies, 17 Russell Square, London WC1B 5DR

Dr Ruth Herz and Ann McAllister. Chair: Professor Lisa Webley

In this unusual event, two judges – one from the UK, one from Germany – reflect on their professional experiences and, in particular, the emotional dimension to their work. Their informal conversation will consider the emotional and ethical challenges of their role, and their own take on topics such as judicial diversity, court modernisation initiatives and the role of the media in the pursuit of justice.

Dr Ruth Herz was a judge in the District Court of Cologne’s Youth Court for over thirty years, until 2006. She also spent four years playing the role of the judge in one of Germany’s most popular reality TV shows, ‘Das Jugendgericht’ (‘The Youth Court’) with a daily audience of over two million viewers across Europe. She is currently a visiting professor in the School of Law, Birkbeck, University of London.

Ann McAllister was a barrister specialising in property law for many years. In 2004 she was appointed a Recorder with criminal, civil and chancery tickets. In 2006 she was appointed a full time Deputy Adjudicator to the Land Registry, a specialist tribunal dealing with property disputes. This tribunal is now known as the First Tier Property Chamber and Ann is a judge of this Tribunal.

Professor Lisa Webley is Professor of Empirical Legal Studies at the University of Westminster, where her research interests include the legal profession, dispute resolution and the legal system. She has carried out funded empirical research for a number of public bodies and organisations and undertakes academic and professional consultancy work, including consultancy for City law firms. She is a Research Fellow at the Institute of Advanced Legal Studies, University of London, and Course Director and principal teacher on the Institute’s two week intensive Introduction to Legal and Empirical Research Methods course for MPhil/PhD students.

REGISTRATION:  This event is FREE but advance booking is requested.  To book your place via the IALS Eventbrite page, please click here.

For additional information please contact ials.events@sas.ac.uk.