Category Archives: News media

New approach to media cases at the Royal Courts of Justice is a welcome development

Guest post by Dr Judith Townend.

This is an edited version of an article which first appeared in Communications Law journal, volume 23, issue 1 (Bloomsbury Professional) and PA Media Lawyer.

In 2012 Mr Justice Tugendhat, ahead of his retirement in 2014, made a plea for more media specialist barristers and solicitors to consider a judicial role: “As the recruiting posters put it: Your country needs you.”

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He emphasised the particular burden of freedom of expression cases, which require judges, for example, to consider the rights of third parties, “even if those third parties choose not to attend court” and to provide reasons for the granting of injunctions at very short notice.

Without expert knowledge of the applicable law, this is no easy task. Fortunately, media law cases have not fallen apart with the respective retirements of Sir Michael Tugendhat and Sir David Eady, and recent specialists to join the High Court include Mr Justice Warby in 2014, and Mr Justice Nicklin in 2017 – both formerly of 5RB chambers.

The arrival of Mr Justice Warby, who was given the newly created role of Judge in charge of the Media and Communications List, has provided a welcome opportunity to propose changes to the procedure of media litigation in the Queen’s Bench Division, where the majority of English defamation and privacy claims are heard.

Since taking on responsibility for the cases involving one or more of the main media torts – including defamation, misuse of private information and breach of duty under the Data Protection 1998 – Mr Justice Warby has spoken about his hopes and plans for the list, and also conducted a consultation among those who litigate in the area, as well as other interested parties.

The consultation considered the adequacy of Civil Procedure Rules and Practice Directions; the adequacy of the regime for monitoring statistics on privacy injunctions; and support for the creation of a new committee.

As a socio-legal researcher rather than legal practitioner, my interest was piqued by the latter two questions.

For some time, I have been concerned that efforts by the Judiciary and the Ministry of Justice to collect and publish anonymised privacy injunction data have been insufficient, and also that the availability of information about media cases could be improved more generally.

My own efforts to access case files and records in 2011-13, to update research conducted by Eric Barendt and others in the mid 1990s, and to interrogate assertions of defamation’s “chilling effect”, proved largely unsuccessful and I was astonished how rudimentary and paper-based internal systems at the Royal Courts of Justice appeared to be.

Although public observers are entitled to access certain documents – such as claim forms – the cost and difficulty in locating claim numbers prohibits any kind of useful bulk research which would allow more sophisticated qualitative and quantitative analysis of media litigation.

I jumped, therefore, at the opportunity of the consultation to raise my concerns about the injunctions data, and to support the creation of a new user group committee.

My submission, with Paul Magrath and Julie Doughty, on behalf of the Transparency Project charity, made suggestions for revising the injunctions data collection process, including the introduction of an audit procedure to check information was being recorded systematically and accurately.

Following the consultation, Mr Justice Warby held a large meeting at the Royal Courts of Justice for all respondents and other interested parties at which he shared a table of proposals from the consultation, provisionally ranked as “most feasible”, “more difficult” and “most difficult”.

The last category also included proposals which would require primary legislation, which would be a matter for Parliament rather than the Judiciary.

I was pleased that our initial proposals on the transparency of injunctions data have been deemed practical and feasible in the first instance.

Also considered achievable are some of the proposals related to case management and listings, updating the pre-action protocol (PAP), the Queen’s Bench Guide, and civil practice directions in light of developments in privacy, data protection and defamation litigation and press regulation (not least to reflect the Defamation Act 2013).

This meeting also established the creation of a new Media and Communications List User Group (MACLUG) to which a range of representatives have been appointed.

The group comprises members of the Bar and private practice solicitors (including both claimant and defendant specialists), in-house counsel, clerks, and a costs practitioner.
Additionally, I have joined as a representative of public interest groups – i.e. those engaged in academic research and third sector work. The new committee met for the first time at the end of 2017, and members have formed smaller working groups to take forward the “feasible” proposals, which will be discussed with our respective constituencies in due course, and where relevant, eventually proposed to the Civil Procedure Rule Committee to consider.

In a speech to the Annual Conference of the Media Law Resource Center in September last year Mr Justice Warby identified his overall aims for the “big picture” and landscape of media litigation: to resolve disputes fairly, promptly, and at reasonable cost.

All of which were “easier said than done”, in his words. Quite so. But it is right that it should be attempted, and with judicial input where appropriate.

Mr Justice Warby’s efforts to date are to be applauded, and in particular, his open approach in addressing some of the flaws and inconsistencies of current practice, and evaluating structural and systemic issues.

That said, a committee formed by the judiciary is constrained in its remit, quite rightly. The consideration of changes to primary legislation should fall to Parliament.

It is therefore important that media law practitioners and other stakeholders should also work with the Ministry of Justice and HM Courts and Tribunals Service to inform ongoing work on courts modernisation, and push for wider consultation and involvement in reforms. A further challenge is to persuade government and parliamentarians to take on any issues requiring changes to legislation.

Part I of the Leveson Inquiry addressing, in part, the relationship between media proprietors, editors and politicians showed that the process of consultation on public policy affecting the news media has been subject to undue influence by certain private interests, and insufficiently transparent.

To this end, perhaps the new Lord Chancellor and Secretary of State for Justice, David Gauke MP, and the new Secretary of State for Digital, Culture, Media and Sport, Matt Hancock MP, might consider ways in which they can consult more openly and fairly in their development of policy and draft legislation on freedom of expression, reputation and privacy.

Dr Judith Townend is lecturer in media and information law at the University of Sussex and a member of the Queen’s Bench Division Media and Communications List User Group Committee.

Featured image: courtesy of Dave Pearce (@davebass5) on Flickr.

Call for Papers: Global Fake News and Defamation Symposium

Readers of the Information and Law Policy Centre blog are invited to submit a call for papers for the Global Fake News and Defamation Symposium on the theme of ‘Fake News and Weaponized Defamation: Global Perspectives’

Concept Note:

The notion of “fake news” has gained great currency in global popular culture in the wake of contentious social-media imbued elections in the United States and Europe. Although often associated with the rise of extremist voices in political discourse and, specifically, an agenda to “deconstruct” the power of government, institutional media, and the scientific establishment, fake news is “new wine in old bottles,” a phenomenon that has long historical roots in government propaganda, jingoistic newspapers, and business-controlled public relations. In some countries, dissemination of “fake news” is a crime that is used to stifle dissent. This broad conception of fake news not only acts to repress evidence-based inquiry of government, scientists, and the press; but it also diminishes the power of populations to seek informed consensus on policies such as climate change, healthcare, race and gender equality, religious tolerance, national security, drug abuse, poverty, homophobia, and government corruption, among others.

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The Legal Challenges of Social Media

Legal Challenges of social media imageHow has the law adapted to the emergence and proliferation of social media tools and digital technology? Furthermore, how successful has the law been in governing the challenges associated with an ongoing reformulation of our understandings of public and private spaces in the online environment?

These were the key questions discussed by a panel of experts at the Information Law and Policy Centre earlier this month. The event heralded the launch of a new book entitled the ‘Legal Challenges of Social Media’ edited by Dr David Mangan (City Law School) and Dr Lorna Gillies (University of Strathclyde).  A number of the book’s authors provided insights into the contents of their individual chapters.

Social Media and Press Regulation

Professor Ian Walden began proceedings with a discussion of his chapter on press regulation. His chapter was informed by his own experience on the board of the Press Complaints Commission (PCC) between 2009 and 2014.

Walden started by addressing the question of what constitutes “press law”. Walden highlighted that for the most part journalists and editors are subject to the same law as most people – there is no special ‘public interest’ defence or journalistic exemption for hacking into the voicemail of a mobile phone user for example. At the same time, journalists abide (to varying degrees) to an Editors’ Code which goes beyond the provisions of the law. In this context, the online environment and social media has rendered press regulation even more complex in a number of ways.

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ECREA Communication Law and Policy Section Workshop

Readers of the Information and Law Policy Centre blog may be interested in the following ECREA event.

The Future of Media Content:
Interventions and Industries in the Internet Era
15 – 16 September 2017

The “Communication Law and Policy” and “Media Industries and Cultural Production” Sections of the European Communications Research and Education Association (ECREA) invite you to their 2017 joint workshop on The Future of Content: Interventions and Industries in the Internet Era, hosted by the University of East Anglia’s School of Politics, Philosophy, Language and Communication Studies. This unique opportunity will bring together those investigating the processes of production and distribution with those studying the policy and regulation governing those processes.

Renowned Prof Eli Noam from Columbia University, NY will deliver the keynote address. A keynote panel of industry and policy actors will additionally set the tone for a day and a half of research-based discussions on trends and challenges.

Media and communications industries have changed dramatically over the past decade and both businesses and policy makers are struggling to adapt. Legacy media companies engaged in cultural and news production are trying to change their business models in a manner that will allow them to survive in the face of increased competition for advertising income and the constraints of having a new breed of intermediaries between them and their audiences.

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Submissions to the Law Commission’s consultation on ‘Official Data Protection’: Guardian News and Media

The Law Commission has invited interested parties to write submissions commenting on the proposals outlined in a consultation report on ‘official data protection’. The consultation period closed for submissions on 3 May, although some organisations have been given an extended deadline. (For more detailed background on the Law Commission’s work please see the first post in this series). 

The Information Law and Policy Centre is re-publishing some of the submissions written by stakeholders and interested parties in response to the Law Commission’s consultation report (pdf) to our blog. In due course, we will collate the submissions on a single resource page. If you have written a submission for the consultation you would like (re)-published please contact us

Please note that none of the published submissions reflect the views of the Information Law and Policy Centre which aims to promote and facilitate cross-disciplinary law and policy research, in collaboration with a variety of national and international institutions.

The fourteenth submission in our series is the response submitted by Guardian News and Media. The executive summary outlines that Guardian News and Media is “very concerned that the effect of the measures set out in the consultation paper (‘CP’) would be to make it easier for the government to severely limit the reporting of public interest stories”.

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(Previous submissions published in this series: Open Rights GroupCFOI and Article 19The Courage FoundationLibertyPublic Concern at WorkThe Institute of Employment RightsTransparency International UKNational Union of Journalists, and English Pen, Reporters Without Borders and Index on Censorship, the Open Government NetworkLorna Woods, Lawrence McNamara and Judith Townend, Global Witness, and the British Computer Society.)

No, the internet is not actually stealing kids’ innocence

Child with phone

In this guest post, Professor Sonia Livingstone, (London School of Economics and Political Science), assesses the evidence behind claims in the media that the internet is harming children and young people. Her article is relevant to the Information Law and Policy Centre’s annual conference coming up in November – Children and Digital Rights: Regulating Freedoms and Safeguards.

The news is constantly awash with stories reporting on – and arguably amplifying – public anxieties over youth and media. The anxieties concern violence and video games, gaming addiction, internet and mental health, and teen suicide.

For example, child psychologist Michael Carr-Gregg recently linked the sexualisation of children and their easy access to online pornography to an increase in sexual and indecent assault allegations at school.

His argument reprised some familiar problems that are common in media panic stories about the supposed loss of childhood innocence.

Problems with the evidence

There are four common steps that are neatly illustrated by Carr-Gregg’s argument: the claim of a media cause, an outcome harmful to youth, evidence that these are causally linked, and a mediating factor that can make or break the causal link.

  1. Children are increasingly immersed in pervasive and damaging messages from the media (online, social and mainstream) that objectify women and legitimate sexual assault. The existence of such messages is not in doubt. But children’s immersion in them and their implied lack of critical media literacy is.
  2. Sexual assaults among school students are increasing. The increased reporting of such assaults is also not in doubt. However, it’s unclear whether this is a genuine increase in assaults or an increase in their reporting due to greater awareness.
  3. Exposure to pornography is causally responsible for the increase in sexual assaults among children. This is often the crucial missing link in such media accounts; there is simply no evidence cited to support this claim.
  4. Parents (and society) are unaware of and should be better prepared for the pervasive influence of sexualised media on their children. Again this is likely exaggerated, although not greatly in doubt. But whether it makes a difference to children’s vulnerability to damaging messages or to actual assault has not been established.

But, for each step, the evidence for media harm is insufficient.

Research on children’s exposure to pornography

The conclusions of a recent detailed 20-year review of the research on children’s exposure to pornography were:

  • Some adolescents – more often boys, “sensation seekers” and those with troubled family relations – tend to use pornography. This in turn is weakly linked to gender-stereotypical sexual beliefs that can be pejorative to women.
  • There is a link between exposure to pornography and sexually aggressive behaviours in boys. But, for girls, pornography use is related to experiences of sexual victimisation.
  • However, because of various “methodological and theoretical shortcomings”, the claim of causality cannot be considered conclusive.

These findings echo those from a recent meta-analysis, which found that sexting behaviour was positively related to sexual activity, unprotected sex and one’s number of sexual partners. However, the relationship was weak to moderate.

In general, research is clearer that online pornography can be problematic as an experience for adolescents rather than as a cause of sexually violent behaviour.

For instance, a 2016 UK study found that children report a range of negative emotions after watching pornography. On first exposure, children express shock, upset and confusion. They seem to become desensitised to the content over time.

Also complicating matters is the importance of allowing for adolescents’ right to express and explore their sexuality both online and offline, as well as the finding that one reason they seek out pornography is that society provides little else in terms of needed materials for sexual education. But some have made a great start.

What, then, should be done?

The evidence in support of effective public interventions is as limited as evidence of the harm these are designed to alleviate.

Still, the precautionary principle provides some legitimation for intervention – and there are solutions to be tried. For example:

  • In a recent report, my colleagues and I proposed a series of possible legislative and industry strategies. Several have potential to reduce harm without unduly restricting either adults’ or children’s online freedoms.
  • In another report, we focused on the importance of better digital literacy and sexual education in schools, as well as constructive awareness-raising and support for parents.
  • In the 2017 report by the House of Lords, the focus was on improving the co-ordination of strategies across society, along with learning from the evaluation of what works and, more radically, introducing ethics-by-design into the processes of content and technological production to improve children’s online experiences in the first place.

But if a mix of thoughtful strategies is to be implemented, tested, refined and co-ordinated, we need an open environment in which policy is led by evidence rather than media panic. We must also become critical readers of popular claims about media harm.

In terms of identifying causes, we should ask why the finger of blame is always pointed at the media rather than other likely causes (including violence against women, or problems linked to growing inequality or precarity).

In terms of identifying outcomes, are we so sure that problems among the young are really rising? Or that the internet can engender addiction in the sense that drugs or gambling can?

The ConversationWhile such doubts have validity, it would also seem implausible to claim that the unprecedented advent of internet and social media use on a mass scale in Western cultures has had no consequences for children, positive or negative. The challenge is to ensure these consequences benefit children and the wider society.

Sonia Livingstone, Professor of Social Psychology, London School of Economics and Political Science

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

Any reform to the law on Official Secrets must provide robust protection for public interest disclosures and open justice

Lorna Woods, Lawrence McNamara and Judith Townend – affiliated members of the Information Law and Policy Centre – comment on the Law Commission’s proposals to reform ‘Protection of Official Data’. This blog post accompanies their submission to the Law Commission’s consultation, and is part of our series documenting the submissions.  

With the election now in the past, the wheels of government are beginning to grind again. While most eyes are on Brussels, it is important that the bright lights of Brexit do not draw attention away from other work that is resuming and ongoing. Among it, the Law Commission will continue its project that considers the revision of the laws on Official Secrets, with its final proposals expected later this year.

The initiative to consider existing law on the ‘Protection of Official Data’ – primarily the Official Secrets Acts 1911-1989 – began with the Cabinet Office when it referred the project to the Commission in 2015. A 315-page consultation paper with provisional recommendations was published by the Commission in spring 2017. It will be the Government that will decide how to proceed, and whether to introduce new draft legislation, once the final recommendations are made.  (No reference to Official Data or Official Secrets was made in the Queen’s Speech).

The Law Commission, which came under – perhaps unanticipated – fire from the media and NGOs for the nature of the proposed reform plans and a perceived lack of consultation before the first report was published, has since been engaging with a wider range of groups and individuals through in-person meetings. It has also published a ‘myth-buster’ on Twitter in response to some of the reports, and shared more explanatory material ahead of meetings.

However, this has not assuaged concerns, with strong reservations about the proposals expressed in a range of written industry and third sector written submissions, a number of which are available online.

We are among those who have met with the Law Commission since publication of its report, and in our written submission we focus on aspects of the consultation that relate to freedom of expression and the public interest: the public interest defence; the Independent Statutory Commissioner model; and access to court proceedings. We also address the related issue of the conduct of trials.

In important respects our position on these issues is often substantially at odds with the Law Commission’s provisional views. In summary:

  • We reject the Commission’s view that the difficulties surrounding a public interest defence outweigh its benefits. We recommend that there should be a public interest defence in official secrets offences for all those engaged in journalism in the public interest, including sources;
  • We recommend that any reformed system should not rely solely on an independent Statutory Commissioner (as the Commission suggests). It should instead adopt the Canadian model of an Independent Commissioner in addition to a public interest defence for official secrets offences;
  • We agree that the Commission’s proposed test of necessity for closing public access to proceedings is an improvement on the current law, but we argue that the proposed change alone falls short of what is required to adhere to the rule of law;
  • We disagree with the Commission’s tentative suggestion that the availability of closed material procedures in civil cases, now permitted under the Justice and Security Act 2013, should prompt a wider review of the ways that fair trial rights and safeguarding of secrets is balanced in criminal cases. On the contrary, there is no good reason at this point in time to embark on a wider review of criminal process and national security issues.

Our full submission can be read at this link.

As a research exercise, independent from the official consultation, the Information Law and Policy Centre at the Institute of Advanced Legal Studies is continuing to publish submissions on this topic: if you or your organisation would like to share yours in this way, please contact Dr Daniel Bennett at daniel.bennett@sas.ac.uk.

Professor Lorna Woods is professor in law, University of Essex; Dr Lawrence McNamara is a reader in law, University of York and senior research fellow at the Bingham Centre for the Rule of Law; and Dr Judith Townend, is a lecturer in media and information law at the University of Sussex.

They are also affiliated to the Information Law and Policy Centre (ILPC) at the Institute of Advanced Legal Studies. The views expressed by the authors in this report are made in a personal capacity and do not represent the views of the ILPC.

Submissions to the Law Commission’s consultation on ‘Official Data Protection’: English Pen, Reporters Without Borders and Index on Censorship

The Law Commission has invited interested parties to write submissions commenting on the proposals outlined in a consultation report on ‘official data protection’. The consultation period closed for submissions on 3 May, although some organisations have been given an extended deadline. (For more detailed background on the Law Commission’s work please see the first post in this series). 

The Information Law and Policy Centre is re-publishing some of the submissions written by stakeholders and interested parties in response to the Law Commission’s consultation report (pdf) to our blog. In due course, we will collate the submissions on a single resource page. If you have written a submission for the consultation you would like (re)-published please contact us

Please note that none of the published submissions reflect the views of the Information Law and Policy Centre which aims to promote and facilitate cross-disciplinary law and policy research, in collaboration with a variety of national and international institutions.

The ninth submission in our series is the joint response submitted by English Pen, Reporters Without Borders and Index on Censorship. Their joint submission was accompanied by a press release calling for the inclusion of a ‘public interest defence’ as part of the reforms.   

(Previous submissions published in this series: Open Rights Group, CFOI and Article 19, The Courage FoundationLibertyPublic Concern at WorkThe Institute of Employment RightsTransparency International UK and the National Union of Journalists.)

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Social media is nothing like drugs, despite all the horror stories

File 20170615 23574 1yaztx7
Nothing like Instagram. (cliplab.pro/Shutterstock

 

In this guest post, Andy Przybylski (University of Oxford) and Amy C Orben (University of Oxford), consider the impact of social media use on children and associated media coverage. Their article is relevant to the theme of the Information Law and Policy Centre’s annual workshop, Children and Digital Rights, to be held in November.

Letting your child use social media is like giving them cocaine, alcohol and cigarettes – all at once, or so we’re told. If you have been following recent press reports about the effects of social media on young people, you may well believe this. But there is no scientific evidence to support such extreme claims.

The real story is far more complex. It is very difficult to predict how social media will affect any specific individual – the effect depends on things like their personality, type of social media use and social surroundings. In reality, social media can have both positive and negative outcomes.

Media reports that compare social media to drug use are ignoring evidence of positive effects, while exaggerating and generalising the evidence of negative effects. This is scaremongering – and it does not promote healthy social media use. We would not liken giving children sweets to giving children drugs, even though having sweets for every meal could have serious health consequences. We should therefore not liken social media to drugs either.

For a claim to be proved scientifically it needs to be thoroughly tested. To fully confirm The Independent’s headline that: “Giving your child a smartphone is like giving them a gram of cocaine, says top addiction expert”, you would need to give children both a gram of cocaine and a smartphone and then compare the effects. Similarly, you would need to provide millennials with social media, drugs and alcohol to test The Conversation’s headline that: “Social media is as harmful as alcohol and drugs for millennials”. But ethical guidelines at universities were put in place so that such studies will never be done.

The diversity of social media

But maybe news headlines should be discounted – as exaggerations are often used to grab the readers’ attention. But even when ignoring these grand claims, the media coverage of social media is still misleading. For example, reports that talk about the effects of social media are often oversimplifying reality. Social media is incredibly diverse – different sites providing a host of different features. This makes it extremely difficult to generalise about social media’s effects.

A recent review of past research concluded that the effect of Facebook depends on which of the platform’s features you use. A dialog with friends over Facebook messenger can improve your mood, while comparing your life to other people’s photos on the Newsfeed can do the opposite. By treating all social media sites and features as one concept, the media is oversimplifying something that is very complex.

Focusing on the negative

Past media coverage has not only oversimplified social media, but has often only focused on social media’s negative aspects. But scientific research demonstrates that there are both positive and negative outcomes of social media use. Research has shown that Facebook increases self-esteem and promotes feeling connected to others. People’s physiological reactions also indicate they react positively to Facebook use.

By contrast, it has also been found that social media can decrease well-being and increases social anxiety. An analysis of 57 scientific studies found that social media is associated with slightly higher levels of narcissism. This array of conflicting evidence suggests that social media has both negative and positive effects. Not just one or the other.

The amount matters

The effect of social media also depends on the amount of time you spend using it. In a recent study we conducted of more than 120,000 UK teenagers, we found that moderate social media use is not harmful to mental health.

We compared the relationship between screen time and well-being. We found that those who used screens a moderate amount – between one and three hours each day – reported higher well-being compared with those who didn’t use social media at all and those who used it more than three hours a day. So, unlike drugs, those who practise abstinence do not appear to fare better.

The ConversationRecent media reports may have made parents unnecessarily anxious about their child’s use of social media. A flashy quote or headline can often distract from the real challenges of parenting. It’s time the media covered not only the bad, but also the beneficial and complex sides of social media. The effects of social media cannot be summarised by comparing social media to drugs. It is just not that simple.

Andy Przybylski, Associate Professor and Senior Research Fellow, University of Oxford and Amy C Orben, College Lecturer and DPhil Candidate, University of Oxford

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

Submissions to the Law Commission’s consultation on ‘Official Data Protection’: National Union of Journalists (NUJ)

The Law Commission has invited interested parties to write submissions commenting on the proposals outlined in a consultation report on ‘official data protection’. The consultation period closed for submissions on 3 May, although some organisations have been given an extended deadline. (For more detailed background on the Law Commission’s work please see the first post in this series). 

The Information Law and Policy Centre is re-publishing some of the submissions written by stakeholders and interested parties in response to the Law Commission’s consultation report (pdf) to our blog. In due course, we will collate the submissions on a single resource page. If you have written a submission for the consultation you would like (re)-published please contact us

Please note that none of the published submissions reflect the views of the Information Law and Policy Centre which aims to promote and facilitate cross-disciplinary law and policy research, in collaboration with a variety of national and international institutions.

The eighth submission in our series is the response submitted by the National Union of Journalists (NUJ). The NUJ’s submission was accompanied by a press release arguing “that editorial matters relating to national security, official secrets and the public interest are decisions best left to journalists.”

(Previous submissions published in this series: Open Rights Group, CFOI and Article 19, The Courage FoundationLibertyPublic Concern at WorkThe Institute of Employment Rights and Transparency International UK)

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