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)

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

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.

• Part 1 – Michaelmas Term 2012
• Part 2 – Hilary Term 2013
• Part 3 – Easter and Trinity Terms 2013

Dominic had been diagnosed with a Neuroendocrine tumour (NETs, also known as carcinoid tumours) which are very rare, which cannot be cured by drugs, chemotherapy or radiotherapy. He writes in the Telegraph today that so far, there is no sign that, following his operation, the cancer has come back.

Together with the author Alexander Masters, he set up the iCancer campaign, which has today announced that it has reached its target for the Oncological Virus Foundation, to enable further scientific research at Uppsala University in Sweden – with the help of 3,846 donors (significantly, £1.4 million was donated by a single donor, Vince Hamilton).

Information about the next stage of the project can be found here.

More details here:

• iCancer
• Telegraph
• Uppsala University

The author of People Power, Dan Jellinek, is a journalist and co-founder of Headstar, a publisher specialising in technology and social issues (I met Dan when we briefly shared the same office space in Brighton and spoke to him about various media law related issues when he was writing the book).

Here’s the information, from the publisher’s site:

As protestors around the world risk their lives in pursuit of democracy, in the UK the word has never seemed so tarnished. Surveys regularly show our politicians are not liked, not trusted and not wanted. Voter turnout is shockingly low, and episodes such as the MPs’ expenses scandal serve to confirm the opinion that public officials are all as bad as each other.

So what is the answer?

Giving us unprecedented access to the corridors of power, Dan Jellinek provides a unique and accessible guide to democracy in Britain, explaining how its elements work – from national and local government to free speech, the internet and the rule of law – and the role that we, the public, need to play to keep the wheels turning.

If you want to know how your small actions can bring about big changes, how you can improve your lot and the lives of others, then you must read this book. Stand up and be counted. The power is in your hands.

It’s available to pre-order for 4 July here (ebook and hardback); details on the publisher’s site here.

PA Media Lawyer has highlighted that a new Rule 50 of the Employment Tribunal Regulations 2013 stipulates a new provision for “Privacy and restrictions on disclosure” (PA: subscription required).

In Mr Justice Underhill’s Review of the employment tribunal rules published in 2012 he discussed privacy, restricted reporting orders and anonymity, finding that (Meeja Law’s emphasis):

The current Rules provide a limited and sharply-defined regime governing where anonymity and restricted reporting orders can be made, deriving from the prescriptive terms of sections 11 and 12 of the Employment Tribunals Act 1996. These have been held by recent case-law to be out of step with the requirements both of the Human Rights Act and of EU jurisprudence. Our proposed new rule 55 provides for a more flexible regime which allows Tribunals to take appropriate steps to balance the important principles of open justice and freedom of expression on the one hand and of privacy and effective justice on the other. The [proposed] rule goes beyond the explicit rule-making powers conferred by the 1996 Act but we have no doubt that it is within your powers under the Human Rights Act. The complications of the different vires have regrettably made the rule rather more elaborate than we would have wished. It is perhaps worth saying that this is not a case where the requirements of the ECHR compel a British legislator or tribunal to take steps that are contrary to domestic policy: the existing regime was poorly conceived and drafted and required revision in any event.

The government’s consultation on the review [PDF] asked whether respondents agreed with the recommended approach to make the privacy and restricted reporting regime “more flexible“. Of 48 responses, 36 said yes, 4 said no and 8 were unsure. The 4 ‘nos’ were in the Business Representative organisation / TU category.

The majority of responses (75% ) to this question welcomed the new rule which is a simplification of what was considered by many to be an overly prescriptive provision. It was widely felt that a more generic rule for when the proceedings, or part of the proceedings, could be held in private would allow judges the discretion they need to decide on the most appropriate action in individual cases.

However, we did receive strong representations from groups representing the media, who felt that this new approach was contrary to the principles of open justice and out of step with the prevailing degree of openness witnessed in other courts and tribunals. These responses considered that a more flexible privacy regime represented a move towards an augmentation in the number of closed hearings, with parties putting undue pressure on judges to restrict the reporting of tribunals for fear of damage to a business’s reputation if cases were widely reported. These responses also demanded a fuller explanation of why Government was taking this approach to the privacy rules.

In response, in March 2013, the Government said (Meeja Law’s emphasis):

It is not the Government’s intention that the new rules on privacy should restrict the ability of the media and other commentators to report on proceedings where it is appropriate to do so. The old rules on privacy and restricted reporting were designed to deal with specific instances where hearings should be held in private, and covered proceedings that involved, for the main part, allegations of sexual misconduct or disability discrimination. Mr Justice Underhill felt that it was important that his review brought the provisions on privacy in Employment Tribunals more into line with the requirements of the Human Rights Act 1998 and jurisprudence of the European Court of Human Rights and new rule (new rule 60) is therefore less prescriptive. Whilst the suggested changes to the rules widen the existing legislative provisions in this area, and give judges more discretion and flexibility in the rules for deciding whether anonymity or restricted reporting orders are required, such power already exists (see the case of F v G [2012] ICR 246). In F v G, the Employment Appeal Tribunal said that where anonymisation or reporting restrictions are needed to protect a party’s rights under article 8 of the European Convention on Human Rights, an Employment Tribunal can use its general powers under rule 10 to order such privacy measures. Nonetheless, it is not the intention that simply because a power is stated explicitly in the new rules it will be exercised substantially more frequently than it currently is. In making these recommendations, Mr Justice Underhill has sought to balance the needs for open justice on one side with the need for privacy and an effective tribunal system on the other.

…

Government believes that Mr Justice Underhill’s suggested rule on privacy and restricted reporting strikes the difficult balance between the need for the justice system to be as open as possible whilst also ensuring that judges have the provisions they need to manage sensitive cases in the most efficient and effective way. The new rule on privacy is much simpler to understand for all parties, and provides judges with the clear case management powers they need to approach sensitive claims on a case by case basis. However, Government recognises the concerns of the media around this amendment, and agrees that it should not become the normal practice of tribunals to hold proceedings in private. As it is now, reporting should only be restricted where it is in the interests of justice to do so. To address these concerns the new draft of the rules makes clear that in making a decision on privacy, the tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.

These provisions are now Rule 50 in the The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, entitled “Privacy and restrictions on disclosure” (Meeja Law’s emphasis):

50.—(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.

(2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.

(3) Such orders may include—

(a) an order that a hearing that would otherwise be in public be conducted, in whole or in part, in private;

(b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record;

(c) an order for measures preventing witnesses at a public hearing being identifiable by members of the public;

(d) a restricted reporting order within the terms of section 11 or 12 of the Employment Tribunals Act.

(4) Any party, or other person with a legitimate interest, who has not had a reasonable opportunity to make representations before an order under this rule is made may apply to the Tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing.

(5) Where an order is made under paragraph (3)(d) above—

(a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification;

(b) it shall specify the duration of the order;

(c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and

(d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing.

(6) ”Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998(22).

via The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

The theme was ‘The challenges of complying with evolving standards’, and the other speakers included: Martin Hoskins, data protection consultant; Judith Jones, Group Manager, Government & Society, Information Commissioner’s Officer; Robert Bond, Head of Data Protection and Information Security at Speechly Bircham; and Lynne Wyeth, Head of Information Governance, Leicester City Council.

It provided a fascinating insight into the regulatory and legal challenges ahead (especially in view of the EC’s draft General Data Protection Regulation*), both in terms of the theoretical framework and practical issues on the ground for DP officers (whose number is set to increase, if EC proposals go ahead).

I attempted to give a bit of context to the Centre for Law, Justice and Journalism’s ‘Open Justice in the Digital Era’ project and the privacy-related issues we have stumbled upon, in discussing potential recommendations for more efficient and systematic digitisation of courts information.

In a few bullet points, here’s the gist:

• The premise of ‘Open Justice in the Digital Era’ is simple: enhancing freedom of expression and open justice through digital dissemination of courts data
• Inspired by other initiatives opening up governmental data (e.g mySociety’s WhatDoTheyKnow, TheyWorkForYou etc.)
• But: very little useable data exists at source. It’s public (sort of) but no-one seems to have taken a particularly systematic approach to opening it up
• Our project ran two events in 2012, with view to forming recommendations in due course
• Some of the ideas discussed (not recommendations at this stage) include:
  • The publication of ‘noticeboard’ court lists
  • The publication of court results (see William Perrin and discussion on Information Rights and Wrongs / HonestlyReal)
  • The publication of court documents such as all statements of case, judgments, orders, witness statements and written submissions
  • A reporting restriction notification system (see Scottish courts online system)
  • Wider availability of judgments and judgment summaries (opened under an Open Government Licence)
• Some of this material would be fairly straightforward to open up online, but some suggestions – particularly those around court lists and sentencing data – raise thorny issues for Data Protection, Rehabilitation of Offenders and the ‘Right to be Forgotten’, a concept included in the draft Regulation
• Publication of legal information has grown up in a piecemeal fashion in the digital era – part privatized, with few central guidelines. A lot of the way material is published has its roots in journalistic / law reports convention, developed in a pre-internet world, when personal digital records would have been the stuff of dystopia novels
• At present, it’s all very inconsistent – there has been some opening up of courts information around the web (some efforts have encountered data protection objections – see Wigan World’s update, for example)
• The way courts material is handled is raising questions across Europe. In Spain, for example, the National Court (AN) has referred to the European Court of Justice with questions about a search engine result for a debt case, in relation to the Right to be Forgotten
• In 1955, Lord Denning described how a member of the public is entitled to report all that he has seen and heard in the public press. Now, the public doesn’t need the press to do it, but how should it be managed, when it has such a powerful effect on an individual’s digital identity (not only defendants, but victims and witnesses too**)?
• A couple of key questions about the current state of play: Is it logical to allow a private company to access and publish the data in closed/open databases, but not a not-for-profit organisation, or individuals? It is logical, or even possible, to publish courts data online but make it non-indexable by Google?
• In forming recommendations  we must consider these difficult issues around individuals’ privacy rights
• To discuss them is not to be hostile or obstructive to the right to freedom of expression: it is merely being responsible and ethical in our practice. We need to look at both sides of the privacy/freedom of expression coin, in order to assess the best ways of opening up information in the public interest and securing it when it’s legitimate to do so
• A coherent approach to the management of courts data is needed and the MoJ and judiciary should be giving this issue the attention it deserves

*A vote on on the lead rapporteur’s report regarding amendments to the Proposed Regulation, scheduled for 29 May, has been postponed, as a result of the high number of amendments to consider.

**As I was reminded in the questions following my talk. Other responses from the group raised even more uncertainties and questions. More views and problematic scenarios are welcome below…

The Guardian is attempting to overturn the Attorney General’s veto of the publication of Prince Charles’ correspondence with seven Government departments. An application for judicial review was heard over two days last week by the Lord Chief Justice, Lord Judge, with Lord Justice Davis and Mr Justice Globe.

Full Law and Media Round Up – 13 May 2013 at Inforrm’s Blog.

A system of arbitration is at the heart of Lord Justice Leveson’s recommendations, and different versions are included in the the government’s draft Royal Charter and the industry’s own proposals [PDF].

The suggestion is that an arbitration service could deal with libel and privacy complaints that would otherwise go to court.

Last minute amendments to the Crime and Courts bill (now Act) would allow for bloggers to opt into the regulatory arbitration system and receive costs benefits.

Additionally and separately, recommendations have also been made for Mediation and Early Resolution in defamation disputes.

However, there is very little solid data about the nature and quantity of legal claims made against the media, including small bloggers. Because the majority of libel claims, for example, are believed to be resolved out of court, there is no complete record of disputes.

In short, little is known about bloggers’ and journalists’ actual legal experiences and opinions.

In an effort to build a better picture and to help inform the development of new alternative dispute resolution mechanisms, I am launching a survey as the final part of my doctoral project at the Centre for Law, Justice and Journalism (CLJJ), City University London.

This questionnaire is open to all types of journalists and online writers who expect their readership to be predominantly based in England and/or Wales.

Please take part and share your experiences and encourage your colleagues and friends to participate as well.

All data will be collected anonymously with no identification of organisations or individuals.

The questionnaire can be found here:

• https://www.surveymonkey.com/s/medialawsurvey

Many thanks for your help! If you have any questions you can email me (judith.townend.1@city.ac.uk) or tweet me (@jtownend).

About the project

This survey is part of Judith Townend’s doctoral project at the Centre for Law, Justice and Journalism (CLJJ), City University London. The research project, which has been given ethical approval by the CLJJ, explores how journalists and online writers are affected by libel and privacy law, as well as other social and legal factors. It will draw attention to the issues faced by online writers and journalists, and help inform the development of resources in this area.

About this questionnaire

• The questionnaire is open to all types of journalists and online writers who expect their readership to be predominantly based in England and/or Wales.
• It should take between 10 and 30 minutes to complete, depending on your experiences and views. Some questions require an answer so you can be taken to the next relevant question.
• All data will be collected anonymously with no identification of organisations or individuals.
• The information you have submitted will included in a final report to be published in 2013/14, which may be used for future online and print publications.
• Please contact Judith Townend with any questions, or to obtain the final results.

Contact details:

Judith Townend, c/o Peter Aggar, Centre for Law, Justice and Journalism, City University London, Northampton Square, London EC1V 0HB, Tel: +44 (0)20 7040 8167

E-mail: judith.townend.1@city.ac.uk