Event: IBC Legal’s 7th Annual Social Media & the Law 2013 – navigating the legal challenges of exploiting social media and user-generated content

Date: 28^th November 2013, Millennium Knightsbridge Hotel, London

Registration: For full details and to register visit: http://www.ibclegal.com/FKW82436MJBP [Quote VIP Code FKW82436MJBP for a 10% discount]

Speakers:

CHAIR: Luisa Edwards, Head of Commercial Team – EMEA Legal, GOOGLE

KEYNOTE: Oliver Heald MP, Solicitor General

SPECIAL ADDRESS: Caroline Criado-Perez, Journalist & Author, THE WOMEN’S ROOM

Speakers:

• Jaimie Barnard, General Counsel, Digital & Privacy, Global, UNILEVER
• Alistair Barter, Senior Policy Officer, Business & Industry Group, INFORMATION COMMISSIONER’S OFFICE (ICO)
• Prof. Ian Walden, Head Institute of Computer and Communications Law Centre for Commercial Law Studies Queen Mary, UNIVERSITY OF LONDON
• Heather Rogers QC, DOUGHTY STREET CHAMBERS
• Gill Phillips, Director of Editorial Legal Services, GUARDIAN NEWS & MEDIA LIMITED
• Luc Delany, CEO, INTERNATIONAL SOCIAL GAMES COALITION
• Steve Kuncewicz, Head of IP & Media, BERMANS, Author, Blogger and Columnist
• James Blendis, General Counsel and Company Secretary,EE (Orange/T-Mobile)
• Anna Wilson, Digital Strategist, JUICE DIGITAL (PART OF TANGERINE PR)
• Amanda Coleman, Head of Corporate Communications, GREATER MANCHESTER POLICE
• Gabrielle Guillemin, Legal Officer, ARTICLE 19
• Ashley Hurst, Partner, OLSWANG LLP
• Gideon Benaim, Partner, MICHAEL SIMKINS LLP
• Paul Garland, Partner, KEMP LITTLE LLP
• Richard Folsom, Associate, KEMP LITTLE LLP

For full details and to register visit:

http://www.ibclegal.com/FKW82436MJBP

[Quote VIP Code FKW82436MJBP for a 10% discount]

We’re in a contradictory and disconcerting place at the moment. Three years ago we saw the abolition of criminal libel and blasphemy and the word ‘insulting’ is to be removed from the Public Order Act.

However, there has been increasing use of criminal law in relation to social media – sometimes in disproportionate ways, as in the ‘Twitter joke’ trial. Concerns have also been raised about the consistency and severity of sentencing, especially in relation to sick jokes and political – albeit distasteful – comment.

It appears, as Professor Ian Cram has argued, that much energy is spent on ‘shoehorning new practices and behaviour into existing legal categories’. It is encouraging that the CPS now acknowledges these tensions with its sensible, if vague, interim guidelines.

A more nuanced consideration of social media use and the public interest is certainly needed. But there is another area to emphasise too: education. As the CPS rightly identifies, children ‘may not appreciate the potential harm and seriousness of their communications and a prosecution is rarely likely to be in the public interest’.

That lack of appreciation may apply to many adults too. Better public legal education around media is needed to prevent genuinely harmful communication acting against the public interest, especially in relation to breaches of reporting restrictions, threats of violence and harassment.

via BBC – Blogs – College of Journalism – Social media and the law: a case to regulate or educate?.

Ignorance is no defence, but given that Starmer suggested that a leading QC hadn’t thought about the sophistication of the issues (a charge which the lawyer in question is robustly defending – on Twitter, of course), what hope for the public at large?

I’ve been interested in the idea of public legal education (PLE) for social media users for a while (see my blogger project in 2010, for example) – initially around civil law (defamation, privacy, contempt) and more recently, criminal offences (Malicious Communications Act 1988; Communications Act 2003; Contempt of Court Act 1981).

The court order issue, mentioned on Radio 4 this morning, is the really interesting one for me. In 2010, I wrote about the lack of clarity around blogging and reporting restrictions; the situation hasn’t much improved since then, although people are probably more aware of the risks through increased media discussion.

Jon Harman (@colmmu) is also interested in this area, and has posted some quick thoughts on his Tumblr blog:

On one hand whilst “ignorance” is not a defence, do we have an education system currently capable of raising digital literacy and the laws that relate to it, do we need to do more in public legal education or even state education given that most people do not actively seek to break these laws, they are just unaware? When we had restricted systems of publishing we had mechanisms to filter and check, we had the basis of journalism training wedded to media and publishing laws – but that’s not possible in this new landscape

His suggestion? A legal Siri … Read in full here.

It is not simply a question of regulation, it is also one of protection, for citizens using this media in an uncertain legal and regulatory landscape.

I was reminded of the issue by Index on Censorship this week. The organisation has produced a policy note ahead of the Internet Governance Forum in Baku, ‘Standing up to threats to digital freedom’ [PDF], which addresses issues around online freedom of expression and in particular, online and independent media (including ‘citizen’ journalists). Its authors (Marta Cooper, Kirsty Hughes, Rohan Jayasekera and Padraig Reidy) argue:

Today more than ever, blogs and other social media publications allow the public to share and receive information, actively participate in government and get their voices heard. And as the mainstream media sheds reporting staff in a declining market, the historic role of the press in observing, reporting and calling authority to account increasingly falls to these citizen journalists.

But without the protection and legal resources of mainstream media institutions, citizen media can be easy targets for defamation actions and physical intimidation. This year Reporters without Borders recorded 123 cases where “netizens” were jailed for their online opinions in 12 countries. Nearly 70 are held in China alone. Nearly 40 Syrian citizen reporters have been killed covering the fighting in their country. Even in the US, historic First Amendment free speech rights for bloggers are under threat by federal court rulings that say they are not entitled to the same legal protection that other members of the press enjoy.

As surveillance, filtering, cyber-attacks, website blocking and filtering, content manipulation and imprisonment of bloggers increase, human rights defenders need direct support in helping them better manage their physical and digital security risks in ways that are practical, effective and relevant to their local political environment.
Online and citizen journalists must be given the same protection as mainstream and offline media organisations [pages 8-9].

This extract raises interesting questions: what kind of protection and “direct support”? How could legal resources be made available outside the mainstream media? Does media content labelled ‘journalism’ or ‘journalist’ warrant special protection (citizen, or otherwise)?

I looked at the issue of legal protection for bloggers in 2010 but the landscape has changed fast in the United Kingdom since then, with new types of prosecutions under s127 of the Communications Act 2003, for example. The issue may well fall outside the remit of the Leveson report, but it merits serious attention.

I noticed that Ben Liddicott had submitted a Freedom of Information request via WhatDoTheyKnow.com. He asked for a [1] copy of the guidance and:

• [2] “any and all currently effective guidance issued on the subject of speech making, writing of articles for newspapers, and other public education or outreach efforts, including blogging, by any members of the judiciary including magistrates”.

• [3] “minutes or notes of any internal or interdepartmental or other meeting or discussion with any other person (including email exchanges) where the same were discussed, in particular where any difference between the two sets of guidance (or absence of guidance) is discussed or justified, where the proportionality of such guidance is discussed or where the legality of the guidance or the compliance of guidance with principles of openness, human rights, international law, or with the reasonable expectations of the general public were concerned“.

The Judicial Office (an Associated Office of the MoJ, which comes within the MoJ’s remit for handling requests under FoIA) has now responded. It finds that “third paragraph of [the] request would exceed the cost limits under the legislation“.

“In this instance to identify and locate copies of minutes, notes or e-mails etc., detailing the various meetings and discussions relating to the guidance documents you have requested, we would need to manually check a significant number of paper files, and electronic records, dating back many years, and held in a variety of geographical locations. Cumulatively, in my view this work would significantly exceed the 3½ working days’ work / £600 cost limit provided for under FOIA.”

However, it has supplied the guidance [now also published on the Judiciary website] and:

• Memoranda on conditions of service and terms of service are issued to all fee-paid and salaried judicial office holders, and whilst they differ slightly depending on the type of judge, all contain standard guidance on issues relating to conduct and outside interests. By way of example, I attach an electronic copy of the Memorandum on conditions of appointment and terms of service for Circuit Judges. Paragraphs 62-76 deal with issues relating to outside interests and activities, but of particular interest to you will be paragraph 62 (General Principles), paragraphs 71-72 (lecturing, participation in conferences etc) and paragraphs 73-74 (Writing books and articles).

• An electronic copy of the Declaration and Undertaking signed by magistrates on appointment. In Section 1 you will note that a magistrate is required to undertake to be circumspect in his/her conduct and maintain the dignity, standing and good reputation of the magistracy at all times in his /her private, working and public life.

• An electronic copy of the Guide to Judicial Conduct. You will see at paragraph 3.1, dealing with impartiality, that “A judge should strive to ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants, in the impartiality of the judge and of the judiciary. You will also note at 3.4 that judicial office holders are warned against the expression of views out of court that would give rise to issues of perceived bias or prejudgment in cases that might later come before them. Also of interest will be paragraph 3.10, section 4 (Integrity) and Section 5 (Propriety).

• An electronic copy of Media Guidance for the Judiciary. Although this is aimed primarily at judicial office holders who are approached to appear on television and radio programmes or to give interviews to the press, you may find the guidance useful as it also touches upon the issue of speeches, and letters to newspapers etc.

See:

• Correspondence on WhatDoTheyKnow.com
• Original post on Meeja Law
• What prompted concerns about extra-judicial blogging and how should new guidance be interpreted? – Judith Townend « Inforrm’s Blog

“…judicial office holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.”

This has been well-documented and discussed by magistrate Trevor Coultart, Lucy Reed at Pink Tape, LegalCheek, the UK Human Rights Blog, NearlyLegal, ObiterJ and dozens of blog commenters and tweeters. The anonymous author of the Magistrate’s Blog, continues to reserve judgement. A WDTK user, Ben Liddicott, has submitted an FoI about the guidance here.

I  wondered what had prompted the guidance and contacted the judiciary press office with some questions (listed below). They directed me to the published guidance [PDF] and gave a little more detail although not any specific examples.

According to a spokesman for the Judicial Office,

“The guidance was issued because judges were concerned about the use of blogs by judicial office holders (both judges and magistrates).

“It is not appropriate to provide examples in response to the specific questions beyond the guidance itself; each judge/magistrate should use his or her own judgement.

“The guidance was agreed by the Magistrates Liaison Group: chaired by the Deputy Senior Presiding Judge (Lord Justice Gross)  and attended by the Chief Magistrate,  the Magistrates Association and the National Bench Chairs Forum.”

My questions

• Does the guidance mean a member of the judiciary can publish online under their real name but must not state their position (even if this information can be found online?). If so, what type of issues are they permitted to comment or report on (procedural issues, legal developments, for example) ?

• What about material published by an individual prior to becoming a member of the judiciary, which can still be accessed online? Are they required to remove it once in office?

• What was the particular impetus for the introduction of this guidance and what specific considerations (about the balance between the risks and freedom of expression, for example) were made?

Further reading on “extra-judicial” activity:

• ‘Judicial Perspectives on Open Justice & Security‘, Lawrence McNamara, in Justice Wide Open. June 2012.

• ‘Lord Neuberger’s seven principles empower judges to speak‘, Guardian.co.uk, Lawrence McNamara, March 2012.

• Holdsworth Club 2012 Presidential Address: Where angels fear to tread, Speech by Lord Neuberger of Abbotsbury, Master of The Rolls. March 2012.

Guidance

This guidance is issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals. It applies to all courts and tribunal judicial office holders in England and Wales, and is effective immediately.

Definitions
A “blog” (derived from the term “web log”) is a personal journal published on the internet. “Blogging” describes the maintaining of, or adding content to, a blog. Blogs tend to be interactive, allowing visitors to leave comments. They may also contain links to other blogs and websites. For the purpose of this guidance blogging includes publishing material on micro-blogging sites such as Twitter.

Guidance
Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary.

Blogging by members of the judiciary is not prohibited. However, judicial office holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.

The above guidance also applies to blogs which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered.

Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action. It is also recommended that all judicial office holders familiarise themselves with the new IT and Information Security Guidance which will be available shortly.

August 2012, www.judiciary.gov.uk

Image: courtesy of @yiyinglu*

Lord Justice Leveson’s enormous task is to examine the culture, practices and ethics of the media, with a special emphasis on the “press”.

This is because it was serious concerns about the behaviour of UK national newspapers that instigated the national Inquiry into media relationships with the public, the police and politicians.

A second part, if takes place, will more specifically look at “unlawful or improper conduct within News International, other newspaper organisations and… other organisations within the media, and by those responsible for holding personal data”.

Given the Inquiry’s remit, the media core participants are national newspaper groups and only a small amount of oral evidence has been taken in regards to online-only media: blogs, global websites, search engines and social media services (eg. representatives from Google and Facebook, Camilla Wright of PopBitch, and the legal blogger David Allen Green).

Understandably, during 26 weeks of sittings in courtroom 73 of the Royal Courts of Justice, Lord Justice Leveson has focused on the issues that led to the Inquiry and concentrated on national newspaper brands. He now has to make recommendations “for a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government, while encouraging the highest ethical and professional standards”.

It is at this point that one might consider the giant tweeting/Facebooking/Googling elephant in the regulatory / legal room, albeit outside the Inquiry’s official remit.  While Lord Justice Leveson’s recommendations will attempt to deal with the abuses of power that led to the Inquiry, what about the other digital media sphere that becomes ever more powerful (but with less clearly identifiable agents of power)? The one where circulations aren’t declining and business models collapsing …

It is not simply a question of regulation, it is also one of protection, for citizens using this media in an uncertain legal and regulatory landscape.

How will online media be controlled in future?

“Although current problems with some sections of the press are serious, it is no good setting up in the 21st century a system which solves only the problems of the 20th” Max Mosley, written submission to the Leveson Inquiry, July 2012 [PDF]

For the ordinary person it is social media rather than the “press” which is likely to have a more immediate and direct impact on his or her own daily life (for usage stats see: Pew 2012; Ofcom 2012) – at best, online interaction is positive experience garnering new social and professional connections, at worst, it leads to mucky disputes and harmful publications.

Instantaneous publications can cause chaos in both work and social spheres. In some cases, an online communication can lead to criminal convictions or expensive civil litigation.

Legal risks

There are numerous legal risks for Twitter users tweeting from and to the UK, as Luke Scanlon has laid out in this excellent summary on Out-Law.com (one of the best online legal resources around).

But are existing laws and regulatory models really suitable for dealing with the troublesome and damaging communication of 2012, which might include racist content, defamatory allegations, prejudicial statements about a court case, privacy infringements, data protection and copyright breaches (etc.)?

In a comment piece for the Guardian about the ‘Twitter joke’ case, Professor Ian Cram found that “judges and lawyers expend much intellectual energy on shoehorning new practices and behaviours into existing legal categories” and identified a challenge, to “show why tweets, blogs and other conversational forms of electronic speech should lie beyond the reaches of traditional criminal offences”.

While the High Court unanimously allowed the appeal in Chambers v DPP ([2012] EWHC 2157 (QB)), Cram is cautious about the ruling:

“Our high court is declaring alongside [Judge Frank] Easterbrook that there is no law of cyberspace; there is no law of the horse. Its disinclination to evaluate the appropriateness of legal concepts and criminal offences developed in the pre-Twitter era is disappointing, even if largely to be expected.”

Similarly, Jacob Rowbottom has raised concerns  in the Cambridge Law Journal and argues that the principles of European free speech jurisprudence “do not give sufficient protection to casual conversations and ‘everyday’ expression”.

Regulatory systems

What about the existing regulatory systems? The short answer is that they are numerous and messy. As Lara Fielden sets out in a recent report for the Reuters Institute for the Study of Journalism, there are numerous regulators dealing with different types of content in an incoherent fashion. In her view, there is a “conflict between converging media content and static standards regulation”.

“… such regulatory incoherence risks undermining public trust across the broadcast, print, video on demand, and online media platforms, and public confidence in the sources of information on which citizens depend in order to make informed, democratic choices…”

The legal and ethical practice around online media is fast-moving but little has been recommended in terms of its management and protection for users and consumers. There has been some noisy discussion around “trolls” (news reports wrongly conflated entirely different legal cases with the provisions of the Defamation Bill; as set out by Francis Davey here; Padraig Reidy here).

Max Mosley, whose primary legal opponent was a national newspaper, has made some very broad-ranging recommendations for the regulation of the online sphere, in a submission to the Leveson Inquiry. He proposes a Tribunal for regulating the press, but adds that “…[E]ventually, the Tribunal should cover all activity on the internet in the UK…”

While he prioritises a tribunal for the press [PDF], before one for the internet (press regulation can be reformed quickly, but the internet would require “complex legislation”), he suggests that eventually: “as part of the UK internet statute, the Tribunal’s remit would be extended to cover the internet in the UK. This would include a power to suspend an individual’s access to the internet in addition to the Tribunal’s other relevant powers …” (He also has ambitions for EU-wide law and international conventions, but UK statute is his starting point) [p 8].

In his opinion, “…it must be able to deal promptly with internet problems right down to local level – for example bullying among schoolchildren on Facebook” [p 13]:

“There is a tendency to see the internet as ungovernable, a medium outside the law. This is nonsense. In time the rule of law will apply to the internet as it does elsewhere. National laws followed by international conventions are bound to come.

“Our new regulator must be able to offer remedies as and when they become available (as some already are). Although current problems with some sections of the press are serious, it is no good setting up in the 21st century a system which solves only the problems of the 20th. Our regulator must have the ability to deal with the internet, right down to micro level. This will increasingly be where the problems lie.” [p 13.]

It’s an ambitious remit for a national tribunal and Mosley’s proposals, if taken forward, would be likely to invoke criticism in various quarters; a vigorous consultation beyond the Inquiry would be needed to address these concerns.

Lord Justice Leveson has a big enough task thinking about news media, in particular the newspapers and their websites. These difficult questions around social media regulation and the “law of cyberspace” are more likely to fall to the next major review of the media, whenever that may be.

* This illustration is published with the kind permission of Yiying Lu, the designer of Twitter’s famous ‘fail whale‘. In fact, the original piece, Lifting A Dreamer, featured an elephant.

MediaAcT is a European research project comparing media accountability and transparency systems and examining digital engagement, such as blogging. MediaWise (which in its words “has been warning about unethical behaviour by tabloid journalists and calling for reform of the regulatory system for almost 20 years”) based at the University of West England, was involved in surveying UK bloggers (I’m looking forward to reading results) and is now investigating the possibility of a media accountability platform (see below).

Gilles Bruno, a media blogger based in France, has posted details of the event on his L’Observatoire des Medias site, including a list of participants. He’s also created a Twitter list here. Participants came from a number of different countries, including Germany, Austria, France, Norway and of course, the UK.

On Friday, we shared experiences and thoughts on blogging about media and journalism, touching on regulatory, legal and accountability issues.

Why blog – to set the agenda, earn a living, challenge the mainstream? And what are the quality control issues?

A nice perk was the conference’s location: right by Bristol’s Millennium Square – a fantastic place to watch the Olympic Opening Ceremony along with hundreds of others.

NUJ widget

On Saturday, Gary Herman introduced us to the NUJ’s kitemark widget. In my view [I was involved in some of the discussion when I sat on the New Media Industrial Council] it’s a good resource for NUJ members. A site badge provides a way of showing that you’re part of the NUJ, and shows the code members have signed up to. However, as I said at the conference, I don’t think it can possibly solve a wider dispute mediation problem (and, as I understand it, I don’t think the NUJ intends it to). I think any process dealing with those would require significantly more investment of resources and time.

Corrigo

Corrigo, dreamed up by German online journalists Tobias Reitz  and Kersten A. Riechers is a nifty sounding concept for a browser add-in, allowing user annotation of news articles. Their presentation provoked a lively discussion about Corrigo’s likely success in holding journalism to account and problems they might encounter. I’ve seen the launch of numerous accountability tools over the years and many have failed to grow or build a significant user base (Google’s Sidewiki is the most obvious example) but I don’t see that as any reason to stop the conversation and the continual experimentation with technology to develop the media correction process. (Incidentally, Craig Silverman, founder of  Regret the Error and Poynter blogger has an excellent post on improving journalistic corrections on social media here). I do, however, think there will be important legal and ethical considerations to think about: how will they moderate and manage editorial control of user contributions, for example?  Good luck to Tobias and Kersten and I look forward to hearing more on their progress.

Accountability platform

Then to a more interactive session, in which we were asked to think about “creating an international forum for and about bloggers – to share techniques, achievements, problems etc.” This would be part of the MediaAct project. Ideas discussed included the possibility of translating material within a network of European bloggers and developing research among citizens. From a UK perspective, I already feel overloaded with the mass of critical material out there – I’m not sure another media watchdog blog is necessary. Neither do I see the point of replicating information that is already easily accessible online. What would be helpful would be snippet translations in a number of European languages pointing us to stories and initiatives in other countries (and in my area of interest, media legal developments) and greater development of a inter-blogger network – perhaps through more events like the one in Bristol. Additionally, clear objectives need to be defined: in terms of who the target audience for the forum or platform is, what does it want to help bloggers achieve, and how can it do this in a practically useful and time/resource efficient way?

We finished the day with a general discussion on freedom of expression in the online environment. I’ve collected some of the tweets in this Storify. I’ll report further developments on the project in due course.

Thanks to Mike Jempson and Wayne Powell at MediaWise for an excellent weekend.