Category: Cyberlaw

Defamation and internet publication in the Irish Supreme Court

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| Cyberlaw, Defamation

In Coleman v MGN Limited [2012] IESC 20 (15 March 2012) (here and here), Denham J held:

10. The claim is now one of internet publication based on the jurisprudence in the linked cases of eDate Advertising GmbH v. X (C 509/09) and Martinez v. Société MGN Limited (C 161/10) referred to as Martinez. It was submitted that the Daily Mirror is on line every day. Counsel admitted that there was no evidence of such publication or of a person accessing such a site. His submission related to an additional site, and not to UKPressOnline which is an archival site, and which formed the substantial subject of the additional affidavit. Counsel submitted that the Daily Mirror being on line it is presumed that there would be hits on the site. Thus, the case hinges on the issue of publication on the internet. …

12. The case is now one where it is the plaintiff’s case that the defamation was published on the internet. Specifically he referred to the Daily Mirror on line. There was also reference to UKPressOnline, which is an archival website, to which institutions, such as academics, have access if they subscribe, but there is no general access other than to a thumbnail miniature of part of the article and photograph.

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Is internet access a human right?

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| Cyberlaw, Digital Rights

A recent United Nations Human Rights Council report examined the important question of whether internet access is a human right.  

Whilst the Special Rapporteur’s conclusions are nuanced in respect of blocking sites or providing limited access, he is clear that restricting access completely will always be a breach of article 19 of the International Covenant on Civil and Political Rights, the right to freedom of expression.

But not everyone agrees with the United Nations’ conclusion. Vinton Cerf, a so-called “father of the internet” and a Vice-President at Google, argued in a New York Times editorial that internet access is not a human right:

 The best way to characterize human rights is to identify the outcomes that we are trying to ensure. These include critical freedoms like freedom of speech and freedom of access to information — and those are not necessarily bound to any particular technology at any particular time. Indeed, even the United Nations report, which was widely hailed as declaring Internet access a human right, acknowledged that the Internet was valuable as a means to an end, not as an end in itself.

via ukhumanrightsblog.com

See also the excellent post by Paul Barnal:

First of all, and perhaps most importantly, I didn’t like the headline, which stated baldly and boldly that ‘Internet Access is not a Human Right’.

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Great post by @AndrewDMurray on The IT Lawyer blog: New Approach to Privacy (on AMP v Persons Unknown http://ht.ly/858g5)

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| Cyberlaw, Defamation

You cannot ask Torrent Trackers or the providers of Torrent Clients to block as they essentially cannot do so due to the nature of BitTorrent. What you can do though is prevent people from seeding Torrents if they are within the jurisdiction of the Court. Matthew surmised (and I agreed) that as AMP is not a celebrity (or in any way famous) anyone sharing the images was likely to know her personally either from her circle of acquaintances at home (ex school colleagues etc) or from University. These people would be based in the UK (England & Wales) and would be the key to seeding the Torrent. Take out the key Seeders and the Torrent would pretty much wither on the vine. 

via theitlawyer.blogspot.com

Update: The judgement is now available on Bailii.

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Network Neutrality in the EU and Canada

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| Competition Law, Cyberlaw

Net Neutrality. All Bits are Created Equal. It's not just a good idea. It ought to be the LAW. via Finest DailyNet neutrality matters. The basic principle of equal access to the internet – and consequent absence of discriminatory restrictions upon or priorities for ISPs, governments, classes of content, kinds of equipment, or modes of communication – is crucial to the preservation of online freedom, ensuring that the internet remains a free, open, and democratic forum of communication. Much of the debate has concentrated on the position in the US, especially after the recent Federal Communication Commission‘s (controversial) Open Internet initiative. However, the Canadian Radio-television and Telecommunications Commission had already issued its (equally controversial) internet traffic management review; and the EU has recently conducted a public consultation on The open internet and net neutrality in Europe.

Dr Daithí Mac Sithigh (UEA | Lex Ferenda | @macsithigh) has written a superb paper on net neutrality in the EU and Canada ((2011) 14(8) Journal of Internet Law 3; via SSRN):

Regulating the Medium: Reactions to Network Neutrality in the European Union and Canada

Abstract: In this contribution on network neutrality, the expression-related elements of this issue are considered, including a case study of Ireland, highlighting the broad powers enjoyed by ISPs, and discussing whether the problem is a genuine one.

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Ireland’s new coalition on media, IT & IP law | Lex Ferenda

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| Cyberlaw, General

Daithí has written the post I was going to write on the impact of the new Programme for Government on media, IT & IP law. It’s an excellent post, and there is little I could usefully add. One of the key points is the promise:

We will pioneer within the EU a model of ‘fair use’ in European Copyright Law, like in the USA, which effectively permits the use of portions of a copyrighted work so long as the normal economic exploitation of the originating work is not undermined. This will allow internet companies and other digital innovators to bring their services to market.

Read Daithí’s full post here on lexferenda.com
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On Concurring Opinions this week, a symposium on Tim Wu’s “The Master Switch”

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| 1A, Cyberlaw, General

Symposium on “The Master Switch”

posted by Gerard Magliocca

I am pleased to announce that Concurring Opinions will host a symposium this week on Tim Wu’s The Master Switch:  The Rise and Fall of Information Empires. .. I’m looking forward to a fun exchange of ideas about Tim’s book, which you can purchase here.

via concurringopinions.com

 

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Fair Use: Be careful what you wish for!

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| Conferences, Lectures, Papers and Workshops, Copyright, Cyberlaw, Defamation, Digital Rights, Fair use

Google image, via GoogleA little later than promised, here are some thoughts that occurred to me at the recent seminar on Promoting innovation – Reshaping the Law for the Digital Economy (which I blogged here and here). In the same way that browsers have a constant battle between features and speed, so the modern law of copyright is faced with a similar dilemma between encouraging and rewarding innovation. It is becoming increasingly clear that it has not solved this dilemma in a particularly satisfactory way. More than that, the most popular emerging solution – the introduction of a fair use defence to EU law – may not be sufficient for current needs, let alone for future developments.

At the seminar, Johnny Ryan argued that with the rise of the internet, where everything is in perpetual beta, we are in effect are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Copyright is a feature of this period: in the 1500s, it developed to protect the publishers; in the second half of the 1600s it came under increasing pressure to protect authors, and this was codified in the Statute of Anne, 1710; thereafter, the statutory protections were slowly expanded to other creators of other original works.…

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Reshaping the Law for the Digital Economy – II – the liability of intermediaries

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| Conferences, Lectures, Papers and Workshops, Copyright, Cyberlaw, Defamation, Defamation Act 2009, Digital Rights, Fair use

Google image, via GoogleAs I said my first post yesterday, last Friday morning I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy, hosted by Google Ireland, co-sponsored by the Institute for International and European Affairs (IIEA), and chaired by TJ McIntyre. In that post, I summarized the presentations by Johnny Ryan (the internet has created a hinge in history when information is plastic and copyright law is a block upon total commerce) and Niall O’Riordan (for Google, a fair use doctrine in Ireland and Europe is an idea whose time has come). In this post, I’ll look at last Friday’s other presentations; and in tomorrow’s post, I’ll add a few comments of my own on some of the issues raised by the seminar.

Kate O’Sullivan (Director of Regulation and Public Policy, UPC Ireland) pointed out that intermediaries (such as Google, Facebook, and ISPs) are caught in the middle between content producers seeking to enforce their rights as against users, and it is not appropriate that ISPs should be judge and jury in such a cause. Section 40(3) of the Copyright and Related Rights Act, 2000 (also here) provides that the mere provision of facilities by an ISP, for example, which enable the making available to the public of copies of a work “shall not of itself constitute an act of making available to the public of copies of the work” and therefore shall not for that reason amount to a copyright infringement.…

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