Legal records and the ‘right to be forgotten’: Google Spain blog series and event

Professor Lorna Woods, University of Essex, has put together a fantastic panel of lawyers to digest and discuss the long-awaited ECJ judgment in the Google Spain case, which considers whether Google is required to remove links to a 15 year old legal notice in a Spanish newspaper, due to be handed down on 13 May. The event, on 20 May from 17:30, will be hosted by the Centre for Law, Justice and Journalism, City University London.

Current speakers include:

A series of posts about the judgment will be posted on the Human Rights Centre blog, and on on the CLJJ blog. The first post, by Lorna Woods, presents the background to the case, and highlights a number of the key issues.

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A sensible proposal for online recording of reporting restrictions

Amid concerns over proposed changes to the Contempt of Act 1981, through the Criminal Justice and Courts Bill, which would introduce new statutory powers for the removal of online material*, it seems worth highlighting some separate recommendations on contempt and court reporting, published in late March.

In February 2014 I was pleased to be invited by the Law Commission, along with my City University London colleague Claire de Than, to discuss the draft version of a new report on court reporting, part of a wider consultation on contempt of court.

The report was published on 25 March 2014 and has received some, albeit limited, media coverage. See, for example, the FT / Law Society Gazette / Press Gazette.

I won’t go into detail here (the report has a concise summary of its recommendations, quoted below), but I wanted to flag up its main points and make a few additional observations for the successful implementation of its – in my view – useful and practical recommendations.

It focuses on S4(2) postponement orders; these are specific type of restriction that orders the postponement of publication of a report of live, pending or imminent proceedings, or any part of proceedings “for such period as the court thinks necessary for that purpose“.

The report discusses the extent of these orders in some detail, raising questions over their application and ambiguity but the final recommendations focus on the recording and publication of S4(2) orders in the Crown Court; it believes that providing a list of restrictions for potential publishers will help address some of the current uncertainties and the lack of clarity with the current system.

Following a pilot, it recommends a number of practical measures, which I have annotated with my own observations:

6.1 We recommend the adoption of a publicly available online list of existing section 4(2) orders in force in England and Wales similar to that currently in place in Scotland.

This seems a straightforward and simple solution that seems to be working very effectively in Scotland.  The LC’s pilot seems effective and an easy add-on to the crown courts’ existing activity.

6.2  We recommend an addition to the standard form to make clear that where a section 4(2) order includes a prohibition on reporting the existence of the order or its terms, this does not apply to the order’s publication on the official online database

A necessary accompaniment to the proposed system. The terms of the order would not be breached if included in an online list by name (anonymised if necessary, with case number) or in a restricted access database.  This is a natural extension of what happens already. Like the report says  “under the current practice, it [the prohibition] would not apply to the act of posting a copy of the order in the court building)” (p 27).

6.3  We recommend limiting the information displayed on the publicly available online list to the name of the case in which the order has been made, and the date on which the order expires (or if the order expires on the conclusion of another case, rather than on a fixed date, then a record of this fact, and the name of the linked case).

Sensible.

6.4  We recommend that the publicly accessible list of orders be supplemented by an additional restricted database which would contain the terms of section 4(2) orders themselves.

There may be practical objections, and previous efforts to create such a database didn’t go ahead following reportedly ‘eye-watering’ estimated costs for a service operated by a commercial company (background here [£] and cited here). The database is a sensible idea, but should (a) be secure and not cost the earth  (b) be developed and overseen by the MoJ digital services team (not hosted externally) and (c) the developers should further consult the media, other types of digital publishers and data / contempt specialists about the necessary steps for registration (the report sets out initial suggestions for its operation).  An organisation like mySociety might be well-placed to develop such a system but the list and database should be hosted by a gov.uk site.

6.5  We recommend that where there are reporting restrictions in place relating to the names of parties to the proceedings, the online list will identify cases by number, with a suitably anonymised case name.

Common sense.

6.6  We recommend that for those orders whose expiry is contingent upon another event, reasonably frequent checks are undertaken by the administrator of the list to ensure that expired orders are removed from the list.

This is where I foresee practical objections being made by HMCTS / MoJ – the checking of expiry dates and the progress of linked cases is an additional task, for the courts or the list administrator. However, I think it is entirely reasonable. If journalists and other members of the public are expected under law to adhere to the terms of the order, we should be given clear and up to date information about the orders and their duration.

Practical issues
My main concern is that despite the seemingly smooth running of the pilot this sensible proposal will be blocked by administrative obstacles.

A key question for me, footnoted in the report, is who will run this list. The LC suggests (p. 32, footnote 8):

Any one of a number of public bodies or private contractors could be tasked with administering this database. This is an operational matter and outside the scope of this report’s recommendations.

However, the operational running costs appear to have been the main block the last time a reporting restrictions database was proposed. As the Scottish list shows (set up within a matter of hours and it takes a couple of hours each week to maintain), a list can be implemented cheaply, easily and without fuss (and the pilot suggests that there would be no more than 120 orders per month across the whole of England and Wales, p 25). A database is slightly more complicated, but shouldn’t cost ‘eye watering’ sums. It would make sense to task its development to government digital services (see the MoJ digital services team blog for other activity around opening up data) and keep it as cost and time effective as possible.

According to the report, “publication of court reporting restrictions is an issue which is currently under consideration as part of wider plans to replace Court Service IT systems” (p 35). However, this could take a long time and is a much broader endeavour than that discussed in this report. I agree with the authors of the report, that the LC’s proposed “system of uploading material for publicising section 4(2) orders remains a valuable interim measure in the short term“.

And, eventually, it could be rolled out more widely.

In the longer term, the system proposed here could represent an important stepping stone towards a more comprehensive system for the publication of all court reporting restrictions, which would clearly be a desirable final outcome. (P35)

One of the main problems with the current communication of courts activity is that there are inadequate data monitoring procedures and inefficient systems for court record keeping and public accessibility, which vary between different types of court. This can be partly explained by the part-privatisation of public legal information, which relies on external providers to disseminate public courts information. In an age of cheap and fast digital publishing, it is essential that this changes over time, towards a more open and fair system, which provides information at source and recognises a public right to receive information about daily courts activity. This report makes valuable recommendations which are a step in the right direction.

I’ll be writing about this, and the recording of restrictions in more depth, in due course (and conducting some research in Australia on ‘suppression orders’). Please free to leave comments below, or share thoughts by email.

*The proposals in the bill do relate to different recommendations made by the Law Commission in a previous report; for the full context see Criminal Justice and Courts Bill – Commons Library Research Paper pp. 42-44 and 47, 20 February 2014.

Posted in academic research, access to justice, contempt of court, courts, media law, press freedom, reporting restrictions | Tagged , , , , | 1 Comment

The impact of libel and privacy on UK-based online journalists, bloggers and hyperlocals – some survey data

Last November I had the opportunity to attend an event organised by the Humboldt Institute for Internet and Society in Berlin, which is facilitating some fascinating research on global internet policy issues across different areas of law, governance and business.

The Institute hosts an online journal, the Internet Policy Review, which is exactly the type of open access publication I think universities should be cultivating, with an efficient and thorough peer review process.

They kindly published my article this week, which discusses the nuances of the chilling effect and presents some of the data from my surveys conducted during 2013, among bloggers and hyperlocal publishers.

I’m very grateful to all the participants in my survey who informed this article and my wider doctoral research. I am thinking about publishing the data in due course on this blog in a different format (perhaps separate from the analysis). I would welcome any thoughts and suggestions.

Thanks to the IPR and to Julian Staben, a fellow chilling effects researcher, for the original invitation to Berlin (one research highlight of that trip was discovering that there is no simple translation for the ‘chilling effect’ in German).

A few of the key points from the IPR article, which can be read in full here, are set out below:

The article presents findings from online surveys among over 200 journalists and ‘hyperlocal’ and community news bloggers in England and Wales, which explored their legal resources and support, the impact of libel and privacy on their work, direct legal experiences (such as receipt of a threatening letter), and their overall perception of the chilling effect over a five year period (2008-12).

  • The surveys expose a spectrum of interpretations; at one end respondents appear unaffected by libel because of their ignorance and lack of awareness of the potential risks; at the other there is even evidence of excessive self-censorship because of their legal knowledge and experience
  • In the general survey,  under 10% of respondents had access to legal advice for their own publication or website, compared to just under half of the journalists and online writers contributing to third party publications. Only a very small number have media law insurance for their own publication, either a personal blog or more substantial operation: 3% in both general and hyperlocal groups
  • Broadly speaking, hyperlocals seemed less affected by legal issues than respondents in the general sample and were more likely to say that they don’t ever change or abandon stories because of libel and privacy
  • The surveys suggest that the majority of encounters with defamation and privacy law take place outside the courts, with few formally recorded legal actions brought against publishers
  • The hyperlocal sample indicated that unofficial claims were being resolved in ways that did not involve court. Of the small minority that reported libel threats, most were not pursued further by the complainant
  • The data indicates that the number of journalists and bloggers changing or abandoning material is greater than the number actually receiving threats of legal action, with a small minority experiencing a formal claim issued in court
  • There is no one ‘chilling effect’. Despite its generalised use in relation to libel in media and judicial discourse, it clearly means different things to different people. While the chilling effect is very real to some writers, they interpret it in different ways, offering definitions based on variable components, such as access to resources, legal knowledge and personal experience

The article offers suggestions for future research and policy initiatives. There is, for example, scope for further systematic and comparative research to develop this analysis of the chilling effect, especially in a globalised media environment. In regards to policy development, there is a need for innovative public legal education and training initiatives for members of the public and online writers; and the development of more proportionate and relevant libel and privacy dispute resolution methods for small and individual publishers.

Read article in full here (including a note on methodology)

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SLS Media & Communications Section: Call for Papers 2014

The Society of Legal Scholars has opened its call for papers for the Media & Communications section of the 2014 SLS Annual Conference, to be held at the University of Nottingham from 9th – 12th September.

Full details can be found here on section convener Daithí Mac Síthigh’s blog.

 

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Promotion: IBC Defamation and Privacy Conference 2014

Event promotion

IBC Legal Presents the 21st Annual
Defamation & Privacy 2014  

Speakers include:

• Andrew Caldecott QC, Head of Chambers, One Brick Court
• Heather Rogers QC, Doughty Street
• Hugh Tomlinson QC, Matrix Chambers
• Antony White QC, Matrix Chambers

• IPSO Representative TBC
• Michael McManus, Executive Director (Transition), PCC
• Pia Sarma, Editorial Legal Director, Times Newspapers Limited
• Adam Cannon, Editorial Legal Director, Telegraph Media Group
• Gill Phillips, Director of Editorial Legal Services, Guardian News & Media Limited
• Prash Narik, General Counsel, Channel 4
• John Battle, Head of Compliance, ITN
• Dr Martin Moore, Director, The Media Standards Agency
• Dr Evan Harris, Associate Director, Hacked Off
• Valierie Nazereth, Head Editorial Legal Group, BBC
• Jonathan Heawood, Director, IMPRESS]

• Mark Lewis, Partner, Taylor Hampton Solicitors
• William Bennett, 5RB
• Rupert Earle, Partner, Bates Wells Braithwaite
• Mark Scodie, Associate, Bates Wells Braithwaite
• Ellen Peart, Partner, BCL Burton Copeland
• Louis Charalambous, Partner, Simons Muirhead Burton

All registrations received by Friday 21st February save £200.

Register at:

• Online: visit http://www.ibclegal.com/FKW82452MJLB
• Call IBC on +44 (0)20 7017 5503
• Email professionalcustserv@informa.com

VIP Code: FKW82452MJLB for 10% discount

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Upcoming event, 24 January 2014, Oxford: The challenges of citizen journalism – Technology and the law

I’m off to Oxford on Friday for this event hosted by The Programme in Comparative Media Law and Policy: The challenges of citizen journalism: Technology and the law.

According to the details on the website all are welcome to attend. In order to reserve a place please contact louise.scott@csls.ox.ac.uk.

Friday, 24 January, 2014 – 09:30 – 18:00, Wolfson College, Oxford

Citizen journalism has come to international prominence as it enables ordinary citizens to reach out to wide audiences with a speed and global reach which has never been seen before, giving voice to alternative stories and perspectives.  The rise of such outlets has changed traditional patterns of production and consumption of news, the relationship between professional and non-professional media, the dynamics between the media sphere and communities/societies, and eventually challenges the definition, obligations and legal safeguards of journalists.

The conference aims to bring academics and practitioners from various backgrounds to discuss the social and legal implications of this phenomenon from different geographical and cultural perspectives, in order to address the complex interplay between new technologies, that span their effect at the global level, their impact in various social contexts, and the different legal responses at the national and regional level.

Programme

9.30-10.30 Keynote Speech

Lim Ming Kuok – Assistant Programme Specialist, Communication and Information Sector, UNESCO

10.30-12.30 Citizen Journalism and new technologies: opportunities and challenges for news dissemination in the digital era

Chair: TBC

  • Kevin Anderson, Freelance journalist and digital strategist
  • Mike Rispoli, Communications Manager, Privacy International
  • Solana Larsen, Managing Editor, Global Voices

12.30-13.30 Lunch

13.30-15.30 The social contexts of citizen journalism: the place for individual news disseminators within societies and communities

Chair: Iginio Gagliardone, Research Fellow, PCMLP, University of Oxford

  • Libby Powell, Co-founder and CEO, Radar
  • Kristin Skare Orgeret, Professor, Oslo and Akershus University College of Applied Sciences
  • Solana Larsen, Managing Editor, Global Voices

15.30-16.00 Coffee Break

16.00-18.00 Citizen journalism between rights and responsibilities: towards new legal and ethical standards?

Chair: Jacob Rowbottom, Fellow in Law, University of Oxford

  • Tarlach McGonagle, Senior Researcher, University of Amsterdam
  • Judith Townend, Freelance journalist and Ph.D. candidate, City University London
  • Jim Boumelha, President, International Federation of Journalists
  • Peter Noorlander, Chief Executive, Media Legal Defence Initiative

All are welcome to attend, in order to reserve a place please contact louise.scott@csls.ox.ac.uk.

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Job opportunity: Legal officer at the Media Legal Defence Initiative (MLDI)

MLDI is currently advertising for a legal officer. Here’s the information:

Based in London, we work worldwide through a network of partner organisations and individual lawyers. We have cases pending before various national courts as well as at international human rights tribunals including at the UN and African and European human rights mechanisms. We also support litigation by our partner organisations in countries such as Uganda and Azerbaijan. Altogether our portfolio comprises more than 400 cases.

We are looking for a Legal Officer to strengthen our team. This is an exciting opportunity to join a growing and dynamic organisation that is recognised as a leader in the legal defence of journalists worldwide.

For a full job description and person specification, please click here.

Candidates should send a CV, writing sample and covering letter, including two references, to recruitment@mediadefence.org, quoting “MLDI – LO” in the subject line.

The closing date for applications is 26 January 2014. Interviews will be held during the first two weeks of February. Only candidates short-listed for interview will be contacted. Please note that this job has been advertised before; if you have already applied, there is no need to do so again.

via MLDI is Looking for a Legal Officer to Join its Team | Media Legal Defence Initiative.

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Monitoring the effect of changes to defamation statute and procedure

The Defamation Act 2013 is now in force. In a press release the government claims it “reverses the chilling effect on freedom of expression current libel law has allowed, and the prevention of legitimate debate we have seen in the past”.

In response, the Inforrm blog has asked:

Does the Act “reverse the chilling effect on freedom of expression of current libel law” or is it damp squib which will make defamation cases more complex?

It’s a big question. It might be more realistic to hope the unwarranted deterrence of legitimate expression is reduced. The answer would need to be informed by a good deal more data than is currently available, to compare defamation related activity pre and post reform. The court records only provide very limited information about the way in which publishing activity is detrimentally affected by defamation costs and procedure.

To understand perceived chilling effects (most invidious when protected expression is deterred for fear of legal sanction and associated costs – see Schauer 1978, PDF) it is necessary to look at claims that are discontinued or settled before a hearing, complaints that are settled before ever reaching court and beyond that threats of legal action that never materialise (see Barendt et al 1997).

Further still, there is the anticipated fear of legal action and costs based on past experience, or the experience of others. Additionally, behavioural change as a result of the new Act and associated procedure might not be immediately obvious (if claims involving causes of action accrued prior to commencement of the Act can still be brought under the old law till late 2014).

It would be beneficial to researchers and policymakers if more anonymised data were made available (by the judiciary/MoJ, media companies and defamation specialist firms) about claims, complaints settled before they reach court, and abandoned threats [more on this here].

It’s encouraging to see the Master of the Rolls emphasise the importance of Alternative Dispute Resolution [PDF]. I’ve heard it suggested that claimants are often far more concerned about an apology and correction than damages (though costs add up fast once litigation is underway); if so, it would make sense to find alternative avenues for resolving disputes more quickly and cheaply.

This would both help protect publishers from illegitimate threats, as well as providing suitable redress for legitimate claimants. Resolving complaints in fair and effective ways through affordable and sensibly designed alternative routes does not necessarily have to prevent access to justice – for both defendants and claimants.

Posted in academic research, blogging, defamation, digital open justice, freedom of expression, human rights, media law, media law resources | Tagged , , | 1 Comment

Upcoming event, 26 October 2013: The internet and the law conference

A few more details about Saturday’s event organised by the National Union of Journalists and the Media Reform Coalition (I’m chairing the libel panel). 

Just days before the Privy Council is due to sign off the Royal Charter on press regulation, the National Union of Journalists (NUJ) together with the Media Reform Coalition are holding a one-day conference in Goldsmiths, University of London, to look at various aspects of how the law relates to the internet.

Donnacha DeLong, who was President of the NUJ during the Leveson Inquiry; Victoria McEvedy of the Open Rights Group, who campaigned to clarify the impact of the Crime and Courts Bill on websites; and Jake Rowbottom of the Oxford University Faculty of Law will discuss the Royal Charter and how it relates to the internet in the final session, chaired by Angela Philips, senior journalism lecturer at Goldsmiths, University of London, and member of the Media Reform Coalition.

The first session of the day will look at the issue of libel, what changed in the recent reforms of libel law and what issues remain controversial. David Osler, a journalist who was accused of libel in 2010 in a case that was thrown out of court, and Dave Morris, one of the defendants in the infamous McLibel case, will be joined by Mark Scodie, a solicitor with Bates Wells & Braithwaite London LLP). Judith Townend, a freelance journalist and researcher who runs the Meeja Law website (http://meejalaw.com/) will chair the session.

There will also be a session on the law surrounding abuse and threats online, looking at some of the recent revelations of vicious abuse and threats against many users of Twitter and other social media, women in particular. Jennifer Perry, an expert on digital stalking, and former Met Police officer Hamish Brown MBE will discuss the issue in a session chaired by Professor Yuri Obata, visiting International Researcher at Goldsmiths.

Tickets for the event are £30 for a standard ticket, £10 for unemployed people and OAPS and free for members of the NUJ and students and staff at Goldsmiths, University of London.

They can be booked online at https://nujinternet.eventbrite.co.uk/

Address:

New Academic Building, Goldsmiths University of London, London SE14 6NW (nearest tube/rail stations: New Cross and New Cross Gate).

Full timings:

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A note

I am extremely sad to learn of the deaths of two people I had come to know through my research, and both contributed so much to their respective professional fields.

Walter Greenwood, described by HoldtheFrontPage as the ‘doyen of journalism training’, co-edited the invaluable journalism law text McNae’s for over 30 years. There are numerous tributes online, with affectionate comments from the many journalists he worked with over the years, following his death aged 87.

‘Walter’s enthusiasm was infectious, and his depth of knowledge awe inspiring’, said one. When I met him in person last year, following email correspondence, that was the impression I had too. Despite being well over retirement age he was still deeply engaged with media legal issues and his passion for the topic shone through. Press Association described how,

Although [his colleague, John] Brownlee retired some time ago, Greenwood never did, and his interest in the law and in the work of training journalists never dimmed.

When asked to recite a sentence of more than 30 words while being assessed following a recent stroke, Greenwood told his fellow law tutor Pat Hagan: “I gave them the briefest of introductions to the law of defamation.”

Also see the NCTJ’s tribute here.

John Tulloch, who died after a long illness aged 67, was also warmly remembered by colleagues. He was founder of the Lincoln School of Journalism and  head of the school from 2004-2012. I first met him at a journalism event in 2009 and since enjoyed a number of conversations with him over email and at subsequent conferences.

He gave an excellent and thought-provocative paper at last year’s Institute of Communication Ethics conference, which is published in a recent issue of Ethical Space.

In 2012 he gave me permission to feature his article on ‘Oiling a very special relationship – journalists, bribery and the detective police’ on Meeja Law here.

His ICE and Lincoln colleague, Professor Richard Lance Keeble has written a wonderful tribute here.

It quotes Dr Fiona Thompson, director of ICE, who said, “In ancient Greek writings, a term was used – dikaios – which means a just and honest man or, as Rudolf Bultmann translates it, ‘the quality and situation of being turned in the right direction’ – that’s what John did, turned us in the right direction.”

I only knew Walter and John a little, but was inspired by the work of both and very grateful to them for the time they took answering my questions and sharing ideas.

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