Keep It Legal

Libel morals

2009-06-05T10:06:00.001Z

Here’s a libel roundup of recent cases.

• The BBC is paying the Muslim Council of Britain’s head for comments made by Charles Moore on BBC1’s Question Time.

• Michael Owen gets damages and costs from The Daily Express for saying is career as a footballer is over.

• The British Chiropractice Association got £100,000 from Dr Simon Singh for saying it “happily promoted” “bogus” claims by chiropractitioners. He is appealing.

• Michael Parkinson is threatening to sue a local paper for comments made about his dead dad by a cousin.

The morals of these sad tales are:

• Don’t mess with touchy organisations; and

• Don’t mess with fading football stars.

What a pity that these sensitive people can’t use the media to defend themselves. Or, in the case of Owen, the football field.

Moore’s case is the most worrying. The BBC did not consult Moore about making the payments to the head of the Council, as he explains in The Spectator. He could sue the BBC for libel as it is, by implications, saying that he got it wrong.

He already refuses to pay his TV licence fee as long as Jonathan Ross is employed by the Beeb.

Odds shortening for Mosley against News of the World

2009-05-08T13:56:00.004Z

The News of the World has revealed that it deliberately did not contact Max Mosley before running its story about his S&M session. It even held the story over for the second edition so that its Sunday rivals would not get a sniff of it too early.

The reason why it did not contact him? The NoW thought Max would go for an injunction and the story was too important to “be injuncted”, as the NoW editor said.

Sinking defence
That may well sink the NoW defence in the case of libel which Mosley is bringing. Part of the Reynolds defence is that the publication should contact the subject and include the gist of the subject’s story in their story. And it surely has to be a Reynolds defence because:

• it was not justified (not a Nazi S&M session);

• not fair comment (it was an allegation);

• not a review (what a fine cut of cloth in his German uniform); and

• the NoW clearly did not have consent.

Reynolds again
Just to remind you of the tests for a Reynolds defence and how the NoW case might stack up against it:

• The seriousness of the allegations: serious charges which are untrue cause more harm; the Court has already in the privacy issue ruled that it is a serious allegation.

• Is it of public interest: No, said the High Court, it was private.

• Are the sources good ones? They took part in the S&M session.

• Has the publication tried reasonably to verify the information: Perhaps.

• Is the information of sufficient status? No, it’s private.

• Is there an urgency to publish? No.

• Did the publication get a comment from the subject. No, it deliberately did not.

• Did the article include the gist of the subject’s story? No.

• Is the tone quizzical rather than accusatory. Are you joking? It’s the NoW.

• There may be circumstances about the publication such as the timing. Err.

Not all of these tests have to be met: but only 3 out of 7 is not really enough.

Max could have told the NoW it was not a Nazi S&M fest at all, just a regular S&M fest. The NoW could then have run the story with his denial, as long as he did not go for an injunction.

Will the NoW fight the libel action? It is facing £900,000 legal fees for fighting the privacy case as well as the £60,000 in damages Max won.

And the judge who heard the privacy action, Mr Justice Eady, is the same one who hears libel cases.

The odds against the NoW are lengthening.

Libel Tourism

2009-05-06T11:07:00.001Z

The Home secretary Jacqui Smith is threatened with a libel action by US “shock jock” Michael Weiner, also known as Michael Savage in his radio show.

And known by whom in England and Wales? Who had heard of him before this? So what reputation did he have? None. So there’s no reputation to damage.

He wants £200,000 personally from the Home Secretary for the libel he says is caused by bracketing him with other unsavoury characters.

Ironic, in the English sense, given that the US Congress and many US states are trying to pass laws which would stop the libel actions on English courts affecting authors in the US.

What’s libel tourism for one is libel tourism for all.

Pirate Bay still a battle scene

2009-04-17T14:58:00.002Z

Pirate Bay’s four founders will not go down without fighting despite the decision against them today in Sweden. They have shifted the servers of their Bit-torrent-based service to other countries outside Sweden where today they were fined £2.5 million for copyright infringement and face a jail sentence of a year.

Their forthright attack on copyright has been the target of the music industry since it was set up in 2004. And what a provocative name they gave their service.

Pirate Bay topped 25 million users, a large chunk of them in China.

The outcome from the decision of the Swedish courts is:

• You can run but you cannot hide – the owners of content continue their struggle to defend what they have invested in having created;

• You can hide but you cannot run – the founders of Pirate Bay will remain free as they appeal but they remain under Swedish law despite the fact that they have migrated the servers for the service;

• MTV will be heartened by the decision in its titanic battle with You Tube/Google;

• The dog that did not bark: The Swedish Court’s decision is further evidence that the WIPO attempts to unify IP across the globe is successful, whatever the development of technology.

There will be no end to this struggle between content owners and content users set off by the first copyright act as long ago as 1709.

Separate publication online uphead

2009-03-13T15:05:00.002Z

A European court ruling has underlined that there is a separate publication in online archives.

The European Court of Human Rights (ECHR) has in its formal statement ruled that the UK libel law, which says an Internet archive of a paper publication is a separate publication, is OK. Publishers, editors, writers and sources can therefore be sued twice: once for on paper and once for the online archive of the paper.

This has been the position of UK courts for a long time. It all goes back to an 1840s case: the Duke of Brunswick. Now it involves The Times and a Russian. The Russian objected to an article in the paper headed “Second Russian Link to Money Laundering”. The Russian sued. Then sued again for the article appearing in the online archive.

This is a restriction on the freedom of speech to have an online article, argued The Times. Such archives are mighty useful, says the ECHR. But they are a separate publication.

The Times pointed to the US law which chucked out the Duke of Brunswick ruling as long ago as the 1940s. In US law there is only one publication, not two separate ones.

The Telegraph has been hit by this double dipping in the past. So be warned: take it out of the archive when there’s a problem.

Pity the ECHR didn’t take the opportunity to really examine English and Welsh libel law. It could have done us all a service. But then the anti-European papers would be screaming about European interference: quite an irony.

Double publication online and on paper unheld

2009-03-11T14:51:00.002Z

A European court ruling has underlined that there is a separate publication in online archives.

The European Court of Human Rights (ECHR) has ruled in a new judgement that the UK libel law, which says an Internet archive of a paper publication is a separate publication, is OK. Publishers, editors, writers and sources can therefore be sued twice: once for on paper and once for the online archive of the paper.

This has been the position of UK courts for a long time. It all goes back to an 1840s case: the Duke of Brunswick. Now it involves The Times and a Russian. The Russian objected to an article in the paper headed “Second Russian Link to Money Laundering”. The Russian sued. Then sued again for the article appearing in the online archive.

This is a restriction on the freedom of speech to have an online article, argued The Times. Such archives are mighty useful, says the ECHR. But they are a separate publication.

The Times pointed to the US law which chucked out the Duke of Brunswick ruling as long ago as the 1940s. In US law there is only one publication, not two separate ones.

The Telegraph has been hit by this double dipping in the past. So be warned: take it out of the archive when there’s a problem.

Pity the ECHR didn’t take the opportunity to really examine English and Welsh libel law. It could have done us all a service. But then the anti-European papers would be screaming about European interference: quite an irony.

Copyright going strong since 1709

2009-03-03T11:35:00.002Z

It’s remarkable that the fundamentals of a law passed in 1709 is still fit for the 21st century. I’m talking about copyright.

The PPA has got its act together to respond to the Government’s Copyright the Future document.
Copyright fit for purpose
Basically it says that IP, particularly copyright, is “fundamentally fit for purpose in the digital age”. Any large reforms would cause uncertainty.

The first copyright act I can trace was passed in England in 1709. It was part of then opening up of society after the 1688 Glorious Revolution. I bang on about that on my media law courses. They didn’t think they were going to get a dose of English history, but they do.

We have to see copyright historically. The Act was passed in 1709 to protect the property of printers/publishers. And it is still about property, whatever the media. That’s why the PPA says it is still fit for purpose.

Book plug
You can see more on this in the chapter “Inequalities in the Globalised Knowledge-based Economy” which I wrote in the book “The Myths of Technology”. Published by Peter Lang.

The PPA is right in saying that copyright needs to be clarified rather than torn up. Where is the real boundary to be set? The boundary between “the public” which needs protection and “the public” which wants to use material.

WIPO sets copyright framework
The UK could not contemplate wholesale changes in copyright because we are a member of the World Intellectual Property Organisation. And WIPO has set out the copyright framework which is being implemented worldwide.

Attack on Pirate Bay next step in copyright wars

2009-02-19T14:24:00.002Z

Media owners are taking a step further in their attack on alleged copyright infringers. They are going after the popular Swedish site web site.

Pirate Bay holds no files of its own. It’s called a tracker: a site where users can search for the locations where they can get downloads of music, films etc. The choice of title mayn have angered the copyright owners even more.

This is a step well beyond the Viacom v YouTube action still groaning on in the USA. No trial date has yet been set for this one. They are still going through the lengthy “discovery” period.

Is tracking infringing copyright?

Pirate Bay only has an index of where the files of films etc can be downloaded from. Is the keeping of an index of material which may infringe copyright also an infringement? That’s the question to be decided by Swedish courts now that four men behind Pirate Bay have been dragged into court.

Implications for media owners:
• If the case against Pirate Bay is won, there will be greater incentives to go after trackers;
• Find out who is tracking your material.

The implications for the trackers such as Pirate Bay:
• Move your servers around as fast and as anonymously as you can, as Pirate Bay has already done.

The implications for the rest of us:
• The struggle between the owners of copyright and the users will continue, ever fuelled by the changes in technology.

Jack opens the privacy Pandora box

2009-01-27T15:03:00.002Z

Jack Straw, the justice minister, has opened up a review of privacy. He wants to “nudge” judges presumably towards restricting the defence of privacy.

As for “judges” read Mr Justice Eady. He heard the Mosley case which prompted this review.

As for the reason for opening up the review, read Paul Dacre, editor in chief of the Daily Mail.

There are so many currents flowing around this issue that it will be confused. Dacre dislikes the European project and most of what it stands for. The Human Rights Act (HRA) is part of that European project – bringing it into UK law was one of the first things the first Blair government did.

But Dacre is also a newspaper editor who wants to defend the press.

Here I leap to the defence of Justice Eady. He is interpreting the law passed by Parliament. It was clear when the HRA was passed that UK privacy would go more in the direction of continental European privacy. That’s explicitly what Parliament told Eady and his fellow judges to do.

Should we be able to know what Mosley does in his spare time? Yes, if it is as described by the original reporting in the News of the World. No, if it was a bit of innocent S&M. (Innocent S&M? Is that an oxymoron?)

Confused? You will be. There are too many side issues on this topic for it to be debated/reviewed without confusion.

Here are some principles by which this review should be conducted:

• Single cases make bad law: don’t change the law because of single prominent cases.
• Distinguish between public and private people: if you head an organisation which seeks privacy you can’t throw the full blanket of privacy over your life.
• Always have juries: involve the public in judicial decision making in all such cases because juries are often, not always, more clued up than judges or editors in chief.
• Look at the motives of all contributors to the review – and think the worst.

Don’t expect this battle to end – it will be a continuous fight. Free speech is never an absolute. Yet the powerful would like the public to know as little as possible about their affairs.

Top 10 tips for media law online

2008-10-28T10:08:00.000Z

Here’s 10 top tips for online media law.

1 Don’t rely on the news statements of other writers. GO TO THE ORIGINAL source/press release etc when you can. It’s often only a click away. And you may get a better story. You certainly could get a different story.

2 Don’t forget that HYPERLINKS AND PIX CAN CHANGE THE MEANING of a story. A general rant about a sector with a link to a story with a mention of a specific company can be dangerous. And a pic can give a particular meaning.

3 Don’t forget that because you CAN you may NOT HAVE PERMISSION to copy. It’s easy to copy. And the material is still on the original web site. But it can be a copyright infringement.

4 Don’t forget indifference to the copying of your material can lead others to steal your IP. You need to DEFEND your content. Otherwise you don’t have anything original.

5 Don’t forget that the visitor to your site needs to see things in CONTEXT. If it is meant to be funny, make sure they would see it like that. If serious, then be serious. The context can change the meaning.

6 Don’t forget to MODERATE or not to moderate forums etc. There should be no in between. If you do a bit of moderation then you may be liable as the publisher of it all. And don’t forget to say clearly whether moderated or not.

7 Don’t forget that what seems OK on the Internet CAN LOOK BAD IN COURT. The High Court is accepting that some forums are like chatting in a bar. With give and take. But don’t rely on it.

8 Don’t forget the difference between AN ACCUSATION AND REASONABLE GROUNDS FOR SUSPICION. If you say he did it, you may have to prove it. If there’s reasonable grounds for suspicion, say so. And say what they are.

9 Don’t forget how much looser is US LIBEL. Things on US sites may not trigger a libel there which could trigger a libel here.

10 And don’t forget REYNOLDS – THE REASONABLE JOURNALISM DEFENCE. Use good sources. Get a comment from the subject and include it. Don’t adopt the story too much.

BBC faces justification nighmare

2008-10-09T09:24:00.001Z

The BBC faces the toughest of all libel challenges: the justification defence.

An IVF doctor is suing over a Panorama programme which claimed he was pressurising patients into paying for unnecessary treatment.

The BBC was going for both a Reynolds and a justification defence. But after months of legal work it has dropped Reynolds, the “responsible journalism” defence under qualified privilege.

One of the medical experts it quoted turned out to be an administrative assistant. That breaches one of the Nichols tests for Reynolds of having reliable sources who would really know.

Even before coming to court it is having to pay the other side’s costs in preparing for the Reynolds defence. The Times says £500,000 so far.

And it faces the daunting prospect of the justification defence. It will have to prove the allegations.

Justification is dangerous for three reasons:

• If the BBC losees the damages will be increased because it persisted with an untrue statement after it was told it is untrue;

• Judges can cut into witness lists to speed up the legal process; and

• When it comes to a journalist’s word and that of almost anybody else, juries tend to believe the claimant.

So, the BBC’s reputation is again on the line. I hope it does not get the type of mauling which Hutton gave it. Over to Mr Justice Eady again.

Chit-chat is slander

2008-09-01T09:48:00.001Z

Bulletin board comment on the Internet may covered by slander under English and Welsh law not libel. That’s a recent ruling by Mr Justice Eady in the High Court.
They “are rather like contributions to a casual conversation which people simply note before moving on,” he ruled.

Slander, apart from in four instances, demands that the claimant proves special damage. Special damage means actual loss of money or damage capable of being quantified in money terms. Unlike libel where the claimant does not have to prove damage. So slander cases are harder to prove than libel cases.

The four instances where the claimant does not have to prove special damage are:
• If the defendant said or implied that the claimant performed a criminal act for which the punishment could be imprisonment;
• If the claimant was said to have certain contagious diseases;
• If the defendant said of a woman that she was unchaste; or
• If the remarks were to disparage a person in any office, profession, calling, trade or business.

Eady did not rule out all blogging from libel. But where the comments are in a context of “a certain amount of repartee or ‘give and take’” then there is no libel but only slander, he ruled.

Facebook in the libel and privacy net

2008-07-27T09:48:00.002Z

Here’s one you might have missed while the Mosley case was going through.

A man has won damages of £22,000 and costs for a false entry in Fasebook. He won both libel and privacy damages, as did his company.
I can’t emphasise enough, the Internet is as much a publishing media as paper. Libel and privacy extends to the Internet just as to paper.

That might rub against the grain of the Internet’s founders and of the creative commons advocates.
But it is the law, like it or lump it.

iPodders versus Brussels

2008-07-22T09:29:00.001Z

The war over copyright continues to rage on, well past its 300th birthday.

The latest battle in the fight between openness and protection is prompted by the European Union. It is proposing to bring the protection of recordings “into line with” that of literary works. It wants member states to give 95 years to recordings, now only 50 years.

Literary works are 70 years from the death of the author. The first copyright act, in 1709, gave the copyholder just 14 years. Since then the length of copyright has been the cause of own warfare between owners and users.

On the other side of the battle against the EU is a battalion of heavy European academics. They have gone public today with a letter to The Times. They are very unhappy about two things:
They were not consulted; and
The move will alienate a younger generation that fails to see a principled basis to the extension.

So it’s the iPoders versus Brussels. In the spirit of the famous “Up Yours Delors” campaign of The Sun I have a proposal.

At a set time everybody goes outside, takes out their iPod, mobile phone etc and waves it in the direction of Brussels chanting “Bugger off Barroso”.

Lawyers clean up in McCann cases

2008-07-16T08:57:00.001Z

Only the libel lawyers have got any cheer out of the continuing tragedy of the McCann case.
They have been able to pick up £550,000 in damages for Robert Murat from 12 UK newspapers. And their fees. This follows a similar payout by Express Newspapers to the McCann parents for allegations that they were involved in their daughter’s disappearance.
There was a feeding frenzy in Fleet Street over the McCann case. The fierce competition between papers led reporters and editors to go well over the top.
Editors seemed to think that just because the McCanns and Murat were in Portugal they were free to speculate. They seemed to have forgotten that both Murat and the McCanns had reputations in the UK.
The feeding frenzy led them to think that acting as a herd they would be invulnerable. Now they realise they are not.
Unfortunately this incident will lead to more caution of the wrong type in the news room. Publishers may well instruct editors that caution is the watchword. The role of the press as investigators is likely to be further eroded.
The public is not best served by cautious papers which foolishly forgot their libel law.
Sue, Rabbit and Run are the winners again.
I hope they have taken the offending articles out of their online services or the libel lawyers will be after them for seconds. But to do so is an attempt to rewrite history, as if to say we never printed that story. But they did, and now they are paying.

Stony-faced Eady presides over Mosley case

2008-07-08T07:49:00.003Z

One sentence leapt out of the coverage today of the Max Mosley privacy action against the News of the World. “Mr Justice Eady sat stony-faced as he heard that the woman was known for arranging bondage sessions involving a man dressed in a judge’s gown and several girls,” wrote Dominic Kennedy in The Times.

To see what a stony-faced Mr J Eady looks like click here.

Mr J Eady presides over defamation and privacy cases in the High Court. He has taken a leading role in extending the law of privacy. He has taken the Act’s eight article “Everyone has the right for respect for his private and family life, his home and his correspondence” and applied it with vigour.

Previous form

Before the Mosley case Mr J Eady’s most extensive development of privacy was in McKennitt v Ash. In it he said a very high degree of misbehaviour would have to be demonstrated for a defendant in a privacy case to use a public interest defence. “The mere fact, that a celebrity falls short, from time to time, could not possible justify exposure.”

Will Mr J Eady consider Mosley’s behaviour as falling short? Or will he consider it part of normal behaviour, as the Mosley camp argues? The irony is if he considers it part of normal behaviour and is “broad minded” about it, then it does fall within privacy.

Just look at the photo of Mr J Eady again and place your bets.

There’s more to come because, as they say at the end of the reporting, “The case continues”.

Libel or price of Carter-Ruck a crime?

2008-06-26T14:44:00.002Z

I had to dip into one of the bibles of libel, Carter-Ruck on Libel and Slander, today and got quite a shock. “Libel is a crime,” he writes.

It must be one of the shortest sentences in all of the 737 pages of his book. I knew libel as a civil action: and knew of the 1840s Criminal Libel Act. But “libel is a crime” really hit me.

Indeed it is a crime. The 1843 Act has not been appealed. Lord Scarman, who was known for his liberality, said a criminal libel is “a grave, not a trivial libel”.

And there follows in Carter-Ruck’s book a chapter on blasphemous, seditious or obscene libel.

Surely time for all of these to be off the statute book.

Perhaps the most annoying aspect is that I had to pay for this book twice. I left a copy on a plane. Second hand copies are currently knocking out at £237 for the fifth edition. That price is a crime.

Protect your IP and survive

2007-12-10T16:36:00.000Z

Defending intellectual property (IP) is not given as much emphasis as using the IP of others or creating IP. It should have equal weight in the policies and practices of every journalist, editor and publisher.

We all know who defends IP: Walt Disney does and others don't mess with their content as a result. Publishers need to build a reputation as strong as Disney if they want to defend their property

There are six simple and quite inexpensive steps to take to defend IP in publishing.

First, develop a culture of defending IP within the company. Everybody has their role. Journalists looking at the competition's paper publications and Web sites play a key role. Every member of staff should be on the look out. Possible infringements should be flagged up right away.

Second, register the trade mark of the titles of magazines. It's quite cheap, only £200. And it can be done in a few months. The UK Government's Intellectual Property Office has some clear guidance on this.

Third, make clear the terms and conditions of use in paper publications and on Web sites. Write these in English, not the normal legalese which people cannot understand. Put them in the flannel panel of paper publications and in a small but visible slot on the home page. Say, clearly, what is in the public domain and what is not.

Fourth, keep an eye out for passing off. If you have established a presence in the market and others come to copy it, then you can act. VNU did over Computer Active and so did Red over Real.

Fifth, when you get the big interview, when you publish anything you think others will be particularly interested in, mark it clearly as your copyright. You don't have to under current copyright law, but it does give a clear warning to others that you consider it yours alone.

Finally, act to defend your IP. Send out clear and prompt emails and letters to anybody using you IP without permission. Send clear notices even to the small fry. If the individual user puts it in the public domain without your permission, you may get to the appoint where you cannot defend your property because it has been copied too much.

If you don't want to protect your IP, that's OK. Clearly mark material with the creative commons sign at whatever level you choose if you are happy that it is used by others.

In other words: Protect and survive.

Libel: man bites dog

2007-11-17T10:14:00.000Z

It's normally the journalists who get hit with libel -- often by police unions. Now the man has bitten the dog in Ireland. A journalist is suing the Garda's publication for libel.

Man bites dog did happen: it was reported on the front page of the Finanical Times on Saturday November 20th 1982:

"Dennis Morris of Council Bluffs, Iowa, bit co-worker Mark Halzer's dog critter after an argument."

We journalists and publishers complain so much about libel that we should not really use it to defend outselves. Reach for the pen and not the wig.

Web operators must disclose details of serious libel writers

2007-10-23T16:49:00.000Z

The high court will only force Web site owners to reveal the identities of anonymous contributors to blogs etc if the material is a serious libel. Material which is “barely defamatory, or little more than abusive or likely to be understood as jokes” does not warrant disclosure, the High Court ruled last week.

Contributors to Web sites using a pseudonym have a right to privacy, the Court has ruled. Their identity is also protected by the Data Protection Act.

The chairman and six directors of Sheffield Wednesday football club, along with the club itself, took an action against the owner and operator of owlstalk a Wednesday's fan site.

They wanted the identities of people who had posted 14 items on owlstalk to be revealed by Hargreaves. Hargreaves asked the court to decide who should be revealed.

Owlstalk has T&Cs which say that no posts should be knowingly false and/or defamatory. Posts written by halfpint, DJ Mortimer, xdanielx, Ian, Auckland Owl, Foot 04, Southy, paulrs, and dansky are defamatory of the claimants, they argued.

The judge ruled that he would not order Hargreaves to reveal the identity of the authors of nine of the postings. To do so would be “disappropriate and unjustifiably intrusive, because the material was not sufficiently libellous”.

One posting was only defamatory “by devising a frankly implausable meaning”. Another was “barely if at all defamatory”. Another two were “plainly intended as jokes and unlikely to be taken seriously.”

Another four were “saloon bar moanings about the way in which the club is managed .” Some had “a smidgeon of personal abuse...most unlikely to be taken seriously.” The final one was “mildly abusive and is fairly plainly comment”.

But the identities of halfpint, Ian, Vaughan and DJ Mortimer must be disclosed. Some of their postings “may reasonably be understood to argue greed, selfishness, untrustworthiness and dishonest behaviour.”

The ones that got away

These are some of the postings which slipped through the net:

“Is this more evidence that Dave Allen is nothing more than a skinflint? Even the agents can't get anything from him.”

“Whenever we are linked with signing anyone remotely good/expensive we just create paper talk for a few days then repeat numerous times until getting someone in on a loan.”

“The club's best players are being given away, endless broken promises and the chairman with the most acute Napoleon complex allegedly that I've personally ever seen.”

“All this transfer rumour is just pathetic. We all know this is made to take some pressure off 'u know who' after the stupid comments he made.”

“...increased ticket prices, where the fook has this money gone (ohh BTW I saw Dave Allen getting measured up for a new suit the other day, he especially requested bigger pockets).”

“I still can't believe the way the Brunt situation is being handled by the numpties at our club....If someone can come on here as explain why this is anything that crass incompetence, I'd like to hear it.”

It seems then that calling people numpties and skinflints is OK.

If you can't as a fan call the directors, in addition, greedy, selfish, untrustworthy and dishonest what is the English football fan to do? Watch the foorball.

McCanns go for retaliation first

2007-10-17T13:56:00.000Z

The McCanns, you must know them if not where their Maddy is, have hired lawyers. And those lawyers are tasked to warn the media not to suggest they drugged their children.

Another case of getting retaliation in first. See previous blog.

This amounts to pre-publication censorship.

Not that, I am pleased to say, the McCanns did drug their children.

But still not nice from a couple who need to media to find their child and prove themselves innocent.

Trade mark titles and defend them

2007-10-10T10:48:00.000Z

Publishers and editors should pay more attention to trade marking their titles. Not only should they look to trade mark them more often than they do, but they also need now to actively defend the trade marks they already have or get in the future.

The rules of trade marking have changed in the UK. The UK Government's Intellectual Property Office (IPO) will no longer refuse a trade mark because it is like an existing one. The original trade mark owner has to object as the application is being made.

In the past the IPO and its predecessors would check that an application for a trade mark did not clash with an existing one. Now the IPO will only check whether the mark could, legally, be registered.

So publishers and editors, or the legal offices of the publisher, need to keep a constant eye on the applications for trade marks and object quickly to any application they think infringes the trade marks they have already registered.

On the other hand, there may be a benefit for the efficient publisher over the sleepy one: the efficient publisher can now register a trade mark which is similar to their competitor if they think the competitor is not paying attention to this rule change.

You have been warned.

Civilian casulties in the copyright war

2007-10-08T09:01:00.000Z

Advantage to the copyright owners

The advantage in the long guerilla war fought by the copyright owners to protect their property has swung in their favour.

A US woman was fined $222,000 (£111,000) for the 24 songs the copyright owners said she shared illegally, reports The Times.

She was one of the few out of 26,000 people the Recording Industry Association of America (RIAA) has sued in the past four years to try to defend her case. Most of the others settled almost as soon as the legal heavies of the RIAA sued them.

The copyright owners did not even have to prove that the woman's hands were on the keyboard when the sharing was taking place.

The RIAA is not only going after individuals. It has also hit the file-sharing site Kazaa with a $100 million damages suit which Kazaa paid.

It is indeed a guerilla war. This is not the end of the war at all. It is just another, this time very public, victory for the copyright owners. People and companies who want to use the material they buy through sharing it will continue to do so.

We are not born with a notion of property. We have to be educated in it. So copyright owners are turning to ever younger people to try and educate them in what the copyright owners consider their rights of property. They are now aiming at primary schools in the USA.

The Entertainment Software Association (ESA) has proposed that children from 5 years to 8 should be “educated” in intellectual property (IP). The idea, says the ESA, is to “encourage creativity and respect for IP”. The ESA is pushing for it to be included in the curriculum. It has produced colouring books and projects to get the message over.

The ESA says: “At those ages, children are open to receiving messages, guidelines, rules of the road, if you will, with respect to intellectual property." Presumably the older generations are a lost cause for such an educational initiative. The courts are the best place for them, it seems the copyright owners have concluded.

The next round in the war is the launch of Radiohead's new album this week with its “honesty box” system. That will do little for the single mother in the USA who is likely to be bankrupted by the recording companies' actions. Another civilian victim of the long war by property owners.

It is remarkable how the old arguments are constantly used. Note that the ESA's proposed educational campaign is entitled “encourage creativity and respect for IP”. The “respect for IP” bit comes after the call to encourage creativity. Just as it did in the first copyright act in the world in 1709. It was titled “An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.” But the preamble made clear it was all about property. The preamble said a lot of people had been “of late frequently taken the Liberty or printing...” without the consent of the authors or proprietors. This has led “to their [the authors' or proprietors'] very great Detriment, and too often to the Ruin of them and their Families.”

It was books and was for 14 years. Now it is a wide range of material as long as 90 years from publication or even 70 years beyond the death of the author. In the long guerilla war the property owners have been the historical winners. But they continue to have to fight their corner or face being overrun by people who want to be creative.

Caution becomes the standard

2007-09-21T09:57:00.000Z

I've already said that if you drew a line for the amount of freedom of expression granted in the UK over time, the line would now be dipping. At present there are at least 10 areas of law which pull down this line, making the areas journalists should write and talk about smaller and smaller. Journalists are losing the contest.

Libel
English libel is the harshest in Europe. US courts will no longer look at the decision of English libel courts as they are so far out of step with the defence of freedom of speech. The libel laws can be used preemptivly. Recently a banker appointed a leading libel lawyers before any allegedly libellous material was published in order to defend his good name. Also, it can and has been used by rogues to cower the press: Robert Maxwell was a past master at this.

Copyright
This growing law curtails the right to quote extensively from other sources as information is treated more and more like property. The arguments about copyright rage on. One side says that copyright encloses the creative commons, depressing the creativity of us al. The other side says it wants a return on the content it was generated or paid to be generated.

State secrets
The UK state is one of the most secretive in a democracy. Actions taken by the executive are bound up in the red tape secrecy. The FoI Act has had only a marginal impact on this tradition. As Peter Gillman, the veteran investigative reporter, ex-Insight on the Sunday Times, says: “The jury is still out on whether the FoI will bring a significant change in the culture of secrecy affecting British government. So far we have seen the FoI's effect mostly in the battle to secure historical documents, with a mix of victories and setbacks. I suspect that government figures are now altering their practices so as to avoid embarrassing FoI disclosures in future, rather than responding to a climate of greater openness. The traditions of secrecy are so far engrained in Whitehall practices that it will take more than the FoI to reverse them.”

Confidentiality
The country has had a confidentiality law since the 1840s and it is used to silence potential publication.

Court reporting
Local and regional papers have to battle every day to fully report courts and often find the balance is weighed against them by judges. And one third of the High Court – the family division – deliberates behind closed doors just as did the old Star Chamber. There is some discussion about opening up the family courts. But as soon as it is raised government ministers have pointed to the concerns of child charities and voluntary groups about the privacy of children. It seems more than likely to us that any opening up the family court would be trumped or severally restricted by the growing concern about privacy.

Race
It is an offence to make or publish statements which are likely to create racial hatred.

Religion
It is now an offence to make statements intended to create religious hatred.

Under aged offenders
It is an offence to publish the identities of under-aged accused and offenders.

Alleged rape victim
It is an offence to publish the identities of those making accusations of rape, even if the accusations are proven false.

Privacy
There is a growing law of privacy in this country, triggered by the same Human Rights Act which formally stated the freedom of expression. As a High Court judge has recently said: “There is a balance between, on the one hand, freedom of expression and the interest of the public to receive information, and, on the other, the legitimate expectations of citizens to have their privacy protected. The shift is towards privacy.”

Good intentions
Some of these restrictions may have been passed with the best of intentions. For example, racial hatred needs to be fought. But the intentions of legislators are unimportant; it is the affect it has which matters. We see a steady erosion of the area where journalists can work. Journalists and publishers take these increasing restrictions seriously. Indeed, we see an increasing mood of caution in UK media. Caution is the watchword in many publications with a steady drip drip of damages and legal fees coming out of the budgets of publications, forcing some into bankruptcy and restricting the budgets of others.

But what of Private Eye you ask? Is this not the type of courageous journalism you are proposing. Yes it is. And the Eye proves our case. Perhaps as much a third of the turnover of this small, underfunded ,under staffed fortnightly goes on legal fees. And where does the Eye get many of its stories from? From journalists on larger-circulation and better-funded and -staffed publications who cannot get the story into their own publication because of this mood of caution among editors.

Get your retaliation in first!

2007-09-03T10:13:00.000Z

Get your retaliation in first!

“Get your retaliation in first” was an old saying of Welsh Rugby Union coaches. Edward Cahill of Barclays Capital has taken this to heart. He has appointed no less than the lawyers Mischon de Reya as his libel lawyers to make sure the press do not libel him.

Cahill was one of the architects of the “sub-prime” debt scheme which seems to be unravelling and giving bankers headaches. His lawyers will probably be doing the rounds of the business press reminding them of the full rigours of the English and Welsh libel laws.

This pre-emptive shot across the bows of the press is not unusual. It happens more than we think. Years ago, investigating a rogue called John Foulston and his Atlantic Leasing Company I experienced the same. I would interview Foulston about once every six months and he would often open up with “Good to see you Richard. You do remember that we defend the good reputation of Atlantic Leasing with the full rigour of the English libel laws. Now what's your questions?”

I can call Foulston a rogue because he is now dead. And his company, when taken over by a larger one, sucked all of the cash out of it and imploded. Foulston by then, as I recall, was long gone, sold out with a pretty package.

Not that Cahill is a rogue. Not that he was sacked. And not that Foulston's Atlantic Leasing has anything to do with the other companies of that name now trading. I am happy to make those things clear.

The word “sacked” is always a dodgy one. People are seldom sacked, especially from high profile jobs. They leave to spend more time with their family. Or are moved to special projects. I once said a senior director of IBM UK was sacked for under performing. He did not sue, but later told me he had consulted his lawyers and could have. Indeed he could. But luckily for my publishers and me he did not.

Cahill is taking a more active strategy than the IBM UK director. Pity that he feels he has to use the libel laws in this way, it amounts to pre-publication pressure. But his reputation is at stake and reputation is at the heart of libel.