Category: Digital Rights

Updates: Joyce, hecklers and broadcasting

| 1 Comment
| Academic Freedom, Blogging, Broadcasting Authority of Ireland, Censorship, Copyright, Cyberlaw, Digital Rights, Freedom of Expression, James Joyce, journalism, Media and Communications, Regulation, Universities

Updates logo, via Apple websiteI suppose if I spent ages thinking about it, I could find a spurious thread linking three stories that caught my eye over the last few days, but in truth there is none, except that they update matters which I have already discussed on this blog. (Oh, all right then, they’re all about different aspects of freedom of expression: the first shows that copyright should not prevent academic discussion; the second shows that hecklers should not have a veto; and the third is about broadcasting regulation).

First, I had noted the proclivity of the estate of James Joyce to be vigorous in defence of its copyrights; but it lost a recent case and now has agreed to pay quite substantial costs as a consequence:

Joyce estate settles copyright dispute with US academic

The James Joyce Estate has agreed to pay $240,000 (€164,000) in legal costs incurred by an American academic following a long-running copyright dispute between the two sides. The settlement brings to an end a legal saga that pre-dates the publication in 2003 of a controversial biography of Joyce’s daughter, Lucia, written by Stanford University academic Carol Shloss. …

More: ABA Journal | Chronicle | Law.com | San Francisco Chronicle | Slashdot | Stanford CIS (who represented Shloss) esp here | Stanford University News (a long and informative article).…

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Traffic Data Retention, Irish-style, returns to the legislative agenda

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| data retention, Digital Rights, ECHR, ECJ

AC Grayling book cover, via BloomsburyThe Communications (Retention of Data) Bill 2009, published last week, has caused a bit of a stir in this morning‘s newspapers. It will give effect to EU Data Retention Directive 2006/24/EC of 15 March 2006 (blogged here) which recently survived challenge by the Irish Government in the European Court of Justice, and it will replace the radically misconceived and deeply flawed stop-gap Part 7 of the Criminal Justice (Terrorist Offences) Act, 2005 (also here) (blogged here).

In essence, the Bill requires telecommunications companies, internet service providers, and the like, to retain data about communications (though not the content of the communications); phone and mobile traffic data have to be retained for 2 years; internet communications have to be retained for one year. This is better than it could have been, in that the Directive would have allowed 2 years for all traffic data; but it is a lot worse than the minimum of 6 months allowed by the Directive. This will impose significant costs on those obliged to retain and secure the data, and those costs will be passed on to their already hard-pressed customers. And it is likely to drive international telecommunications and internet companies to European states which have introduced far less demanding regimes.…

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European Charter on Freedom of the Press

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| Digital Rights, EU media policy, Freedom of Expression, Journalists' sources, Media and Communications
'Silvio Berlusconi and Mara Carfagna, via New York Times
Jörges hands over the Charter to Reding (Photo: EUobserver)

On 25 May 25 2009, 48 editors-in-chief and leading journalists from 19 countries adopted and signed the European Charter on Freedom of the Press in Hamburg. In ten articles, the Charter formulates principles for the freedom of the press from government interference. Yesterday, the Charter was presented to the EU Commissioner for the Information Society and Media (hat tip: European Media Blog; see EU press relase).

From the EUobserver:

European press freedom charter launched

In an effort to counter increasing worries about infringement of press freedom by governments in Europe, both within the EU and beyond, the editor-in-chief of Germany’s weekly Stern magazine [Hans-Ulrich Jörges], together with EU media commissioner Viviane Reding on Tuesday (9 June) celebrated the launch of the European Charter on Freedom of the Press … In March, the Open Society Institute‘s media programme – a pressure group focussing on media freedom in emerging democracies – criticised the European Commission in a report that argued that broadcasting across Europe, particularly in the east but also in Italy, is undergoing a “counter-reformation” – a backsliding towards overt political control after the post-Cold War period, when leaders relaxed their grip on TV and radio.

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Creative Commons in Ireland: Cimín Cruthaitheach in Éireann

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| Copyright, Digital Rights, Irish Law, Language

Creative CommonsThere is a tension at the heart of creativity. On the one hand, I might be moved by the muse to write/paint/create something interesting (I know, if you’ve read anything on this blog, you might wonder if that muse has ever struck, but bear with me). If I am, the law is likely to reward me for doing so by giving me a copyright (or similar intellectual property right) in what I have written/painted/created. On the other hand, the muse might strike you in such a way as to develop what I have done (entirely plausible, if you ask me), but my copyright protection can make this hard for you. You could email me and ask me if I’d let you do it, and I’d probably say yes. But now, multiply this a million million fold, to take into account everyone who has copyright and everyone who wants to develop a copyrighted work. Asking for individual permission every time becomes a logistical nightmare. So, Creative Commons has filled the gap, by drafting licences which any copyright holder may use to determine how others may exercise their copyright rights. If you look below the last post at the bottom of this page, you will see that I use just such a licence to allow you to use and share the contents of this blog, provided that you do so for non-commercial reasons and give me an attribution.…

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Who will keep the keepers? II

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| Cyberlaw, Digital Rights

It never rains but it pours. Having recently blogged about about Emily Laidlaw’s article on search engine accountability, I’ve just come across the similarly important article by Oren Bracha and Frank Pasquale on Federal Search Commission? Access, Fairness, and Accountability in the Law of Search 93 Cornell Law Review 1149 (2008) (pdf). They robustly argue that general-purpose search engines are better characterized not as media outlets (contrast Finklestein) but as common carriers (quite a common argument in the online context), that they should therefore come under common law duties that govern public utilities (appropriately adapted), and that – by analogy with the Federal Communications Commission (FCC) – a new regulatory framework (the Federal Search Commission (FSC) of the title) should be established. They conclude:

Search engines, in whatever form they might assume, will continue to be a major part of our informational environment in the foreseeable future. The normative concerns associated with their unique position of power are here to stay. A properly designed regulatory approach may do much to ameliorate these concerns. Courts should not end the debate over the contours of such an approach before it begins.

Hear, hear! However, if online search requires an FSC in the US, then it will require equivalents in other jurisdictions as well.…

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Who will keep the keepers?

| 5 Comments
| Cyberlaw, Digital Rights, Juvenal

Cover of the IJLITomment on this blog that the Roman poet Juvenal asked Quis custodiet ipsos custodes? (who will watch the watchers?). Emily B Laidlaw, in her fascinating article, Private Power, Public Interest: An Examination of Search Engine Accountability, raises the parallel question of who will keep the keepers? In the vast new information age bequeathed to us by the internet and the world wide web, gatekeepers are those who enable – and control – our access to that information. At present, they are all private entities, and even if they wish to do no evil, there is no reason why they should actually do some good, let alone act in the public interest. Laidlaw’s analysis therefore focuses on the important issue, who will keep the (gate)keepers; here’s the abstract:

As information becomes a critical commodity in modern society, the issue is raised whether the entities that manage access to information, that are tools for public discourse and democracy, should be accountable to the public. The Internet has transformed how we communicate, and search engines have emerged as managers of information, organizing and categorizing content in a coherent, accessible manner thereby shaping the Internet user’s experience.

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Data retention ironies

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| data retention, Digital Rights, ECJ, EU media policy, Privacy

I can’t make up my mind whether it’s ironic or not that the European Court of Justice has upheld the Data Retention Directive on Safer Internet Day.

I’ll let Digital Rights Ireland tell the story:

European Court upholds data retention… for the time being

The European Court of Justice has given its decision today in the Irish Government challenge to the Data Retention Directive – [Case C-301/06] Ireland v. Parliament and Council (Press Release | Judgment). Unsurprisingly (in light of the Advocate General’s Opinion) it has held that the directive was properly adopted as an internal market measure (by qualified majority voting) rather than as a criminal matter (requiring unanimity). Where does this leave us and our case?

While it’s a pity to see the Directive upheld, the Government’s challenge was a very narrow one, dealing only with the essentially technical matter of the legal basis for the Directive. The Government didn’t raise and the ECJ wasn’t asked to decide on the fundamental rights issues. Indeed it expressly stated:

The Court notes at the outset that the action brought by Ireland relates solely to the choice of legal basis and not to any possible infringement by the directive of fundamental rights resulting from interference with the exercise of the right to privacy.

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Something must be done – III

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| Digital Rights, IFCO, Privacy, Regulation

House of Commons postern, via the Commons site.The two earlier posts (here and here) to which this is the third related to harmful use of the internet, especially relating to children; while another series of posts (here, here and here) related to the regulation of video games. In the same vein (but coming to it late – apologies) is a report published last month by the UK’s House of Commons Select Committee on Culture Media and Sport, entitled Harmful content on the Internet and in video games. There is a balanced comment by Simon Walden in guardian blogs; see also BBC | OUT-Law | The Register | Times Online). Commenting on the Report, Light Blue Touchpaper says:

You will discern a certain amount of enthusiasm for blocking, and for a “something must be done” approach. However, in coming to their conclusions, they do not, in my view, seem to have listened too hard to the evidence, or sought out expertise elsewhere in the world …

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