Land Of The Free? Not so much – UK Tweeters deported from USA

Picture the scene – you’re planning a holiday in Los Angeles as a getaway from Coventry. Understandably excited (you’re escaping the UK, after all), you want to share your plans with your friends if for no other reason than to make them jealous and, as you’re one of the “Twitterati”, you send out this tweet to one of your followers:

“Free this week, for quick gossip/prep before I go and destroy America.”

Not long after, you send another tweet talking about “digging up Marilyn Monroe”. Then you think nothing more of it, charge up your iPod (other generic MP3 players are available) for the flight and get ready to arrive at Los Angeles International Airport. Touching down and meandering through immigration with your Visas filled out correctly, it soon becomes clear that you’re not in Kansas any more (although, for the purposes of this post, you COULD be) and that they take this kind of thing pretty seriously around here – imagine the look on my face in 1992 when my Dad was stopped during our first family holiday to Florida and questioned for a good hour or so over both the Iraqi and Libyan visas stamped in his Passport. (He’s an engineer, by the way, and NOT an Arms Dealer.) To put it bluntly, US Immigration has no sense of humour.

Still, if you’ve done nothing wrong, then you have nothing to hide and surely you’ll breeze through Visa Control with the usual sense of incredulity at the sheer amount of information held in your Biometric Passport. Then, you’re arrested and held under armed guard for twelve hours before being put on the first flight back to the UK, having been denied entry to the Land Of The Free after being identified as a possible “threat” by Homeland Security. It sounds like the script for a particularly low-budget episode of “24”, but this happened to Leigh Van Bryan and Emily Bunting around two weeks ago. Explanations as to the fact that his second tweet referred to a joke from “Family Guy” and that “destroy” was UK slang for partying fell on very deaf ears and, after an overnight stay in the cells, both Bunting and Van Bryan were heading back to the sunny Midlands.

You’d like to think that something similar would never happen here, but anyone familiar with the “Twitter Joke Trial” would tell you otherwise. Currently under appeal in the High Court, this case saw Paul Chambers convicted of the offence of “misuse of a public electronic communications system” under the Communications Act 2003 after sending this tweet:

“Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!”

Surely we can take a joke, regardless of how high tensions may be over terrorism? Surely anyone monitoring Chambers’ feed would realise that this post wasn’t meant to be taken seriously? You’d think so, but not long after the now-infamous Tweet, Chambers was arrested in late 2009 for offences under Section 51 of the Criminal Law Act 1977 – making a hoax bomb threat. It’s a serious offence that, as in any criminal case, has to be proven beyond reasonable doubt, but it also requires the Prosecution to show that the defendant intended to cause at least one other person to believe that a bomb was about to go off. in the end, Chambers was bailed and eventually charged under section 127 of the Communications Act 2003 for using a public electronic communications network (a definition which includes Twitter, Facebook and any other Social Network) to send a message of “indecent, obscene or menacing character”. This offence does not need to relate to any specific threat and the prosecution does not need to show that anyone even received the message – a far easier conviction to secure.

Chambers was convicted and fined after a Judge found his tweet to be “menacing” and his life has since changed in ways he couldn’t imagine. As well as the sheer waste of tax payers’ money in bringing a prosecution that seems to have not been so much about the public interest but more about heavy-handed and baffling deterrence, Chambers now has a criminal record and a career that’s been set back to square one. You may say that he deserves it, but surely the Police could have just cautioned him and sent him on his way? Many agreed, and the #iamspartacus hashtag was born – thousands retweeted his message to make the point that this case simply went too far and that civil liberty is as important on the web as it is to the Occupy London tent protesters.

The point of all this? Big brother is watching you, now more than ever. The Police are actively monitoring social media. We are seeing more criminal cases involving web use (or misuse) than ever – recently a Manchester woman was jailed after “friending” the Defendant in a trial on which she was a Juror and only last week an academic was jailed for using the web to research a defendant in a case in which she sat on the Jury. Rioters using Facebook, Twitter or BBM to organise civil disobedience have been jailed, and appeals against their sentence dismissed. As much as the US has the Patriot Act and a number of other exceptions to civil liberties which we may see as Orwellian, criminal activity online is now more than ever being treated in the same way as it would offline, and common sense over what you Tweet is going to become far more important than your Avatar.

The Government (specifically Theresa May) have wrung their hands publicly about how to deal with the problem of criminal activity online, and there’s only one answer – education. Thoughtcrime is still fictional, and the Terrorism Act 2006 is better placed to deal with real terror threats made over the web than the Communications Act, which was introduced to deal with threatening telephone calls. As much as you shouldn’t probably say anything on Twitter that you wouldn’t say in person, isn’t the point that you have the right to say it? Simply “switching off Twitter”, as suggested during the 2011 riots, makes tracking those responsible for using it to incite or threaten even more difficult. The Tweets must still flow, but that doesn’t mean the Web is a free-for-all. It never has been, and it’s probably fair to say that someone who’s experienced that wake up call more than most is Leigh Van Bryan. The moral of the story – the law is an ass (at least in this case) and for the meantime, a Tweet in haste may give you an ample opportunity to repent at leisure, maybe even at Her Majesty’s Pleasure.

Who’s Wendi?

It’s fair to say that it was a rough 2011 for Rupert Murdoch. Not only has he had to deal with all that pesky phone-hacking business (and make a public apology to the victims) and any number of expose documentaries over how he’s (allegedly) exercised autocratic control over the British media for at least the last few decades, he’s now been convinced to come down to the level of the average attention-seeking celebrity and join Twitter.

It’s an interesting move. As you might expect, some of the messages which he’s received haven’t been completely complimentary, especially the responses to his fabulously well-thought out observation on the fact that “Brits get too many Bank Holidays for a broke country”. This alone lends weight to the idea that either he’s determined to annihilate whatever reputation he had left, or that the account is fake and he’s being impersonated.

Personally, I went for the second option until I found out that he’d been plugging Fox’s movies (has he SEEN half of them??), Fox News’ evening broadcasts and op-ed pieces in the Wall Street Journal. Surely, this had to be too specific and too worryingly close to what we imagine Murdoch’s train of thought to be for the account to actually be run by one of the Dark Lord’s minions? No – it’s real; News International have put out a statement to confirm it. They could probably understand our skepticism – fake Murdoch accounts (many of them painfully well-observed, especially when dealing with his testimony at the Leveson Inquiry) are legion and have thousands of followers, many of whom probably wondered whether Murdoch’s own tweets could ever measure up to what we thought they may say if he ever signed up.

So why has he? Is it, as many think, because he’s about to invest in Twitter? Is it as a result of a personal introduction by the site’s founders? Murdoch himself hasn’t gone into any real detail on his motives, but thankfully we’ve had someone else to shed some light on what he may be up to.

Shortly after Murdoch’s profile appeared on the site, so did one for his wife – @Wendi_Deng. Posting her first message on New Year’s Day, “Wendi” gave her husband real-time tips on which tweets he should delete (!), swapped motivational tips for the year ahead, flirted with Ricky Gervais, looked into an appearance on Piers Morgan’s CNN chat show and contacted one of the best Murdoch parody sites – @RupertMurdochPR.

The media followed her every word, each tweet looking more and more like a PR car crash in progress, safe in the knowledge that this account was also real. It had to be – it was verified by Google as “Official”. That is, until yesterday when News International announced that the account was, in fact, a fake. To be fair, it was a very good one – whoever was behind it (thought to be a British male twitter user) had a genuine grasp on when to mis-spell updates and the actual diary of Wendi Deng. as well as dripfeeding just enough fictional information on the Murdochs’ private lives to fool much of the press into thinking that this really was the simultaneous arrival of one of the world’s great power couples on social media.

It turned out that, rather than being an attempt to publicly embarrass either News International or the Murdochs, the profile was set up out of boredom and as a joke in response to the hype surrounding Rupert joining the network. Everything simply got out of hand after the profile was verified and a News International employee apparently confirmed that @Wendi_Deng was real, and the actual user took to pointing the finger at Twitter for giving it the blue tick of approval in the first place.

So what now? Will the real Wendi Deng stand up and take back her Twitter profile? Will she sue? Can she sue? Many Lawyers will tell you that there’s no such thing as a freestanding “image right” just as much as there’s no freestanding right to privacy – they’re protected by a patchwork of different laws governing confidential & private information, data protection and passing off.

If the profile used a photograph which was genuinely private and or confidential in nature, breached Deng’s Article human right to respect for her private and family life or otherwise gave rise to a “reasonable expectation of privacy” then she may be able to force it and/or the account down either under UK law generally or Twitter’s own terms of use. From memory, the photo was taken in a public place by a photojournalist and so having it removed on the grounds of privacy will be difficult. More to the point, whoever took the photograph will be the actual owner of the copyright in it (if not his employer) and so he or she may want to think about taking action to have it removed, although this is doubtful as it’s taking on a life of its own and may be handy to refer to in a portfolio – “Oh, you took THAT photo”..

But surely Wendi can take action over the use of her name without permission? Celebrities have been signing up to endorsement deals for years, so isn’t this the same thing? Eddie Irvine set the precedent on “false endorsement” cases in 2002 as part of a dispute with Talksport which saw them altering an image of him to look as if he was holding a branded Talksport radio and used it in an advertising campaign. This case found that, if the celebrity in question can show either goodwill or a sufficient reputation at the time in question and that the conduct in dispute would create a false message that they did endorse the produce or service among a significant number of users or customers then they could claim either damages or an injunction. This case changed the commercial protection of a celebrity’s image through the Court, but it’s of little use here as the profile isn’t endorsing anything in particular apart from her “husband”. She can’t sue for Trade Mark infringement either, as she hasn’t registered one in relation to her name (although she now might….).

What Wendi could do is to fall back on Twitter’s own terms of use. Its general terms of use are clear enough: “You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others.” Look into it further and you’ll come across the “Impersonation Policy” – “Impersonation is pretending to be another person or entity in order to deceive. Impersonation is a violation of the Twitter Rules and may result in permanent account suspension.” Again, pretty clear..at least until you read the next sentence: “Twitter users are allowed to create parody, commentary, or fan accounts. Please refer to Twitter’s Parody Policy for more information about these accounts. Accounts with the clear intent to confuse or mislead may be permanently suspended.”

The account wasn’t a parody or fan account (and anyway, Twitter has a reputation for standing up for them and anything else covered by US first amendment rights)- it was a very accurate impersonation. You’d imagine that Twitter may take action off their own bat to shut down the profile (especially if Murdoch really is looking to invest) and as of this afternoon it looks as if it has as the username @Wendi_Deng “does not exist”. Her creator may simply have had enough of the attention. He got that attention at least partly because the profile had been verified by Twitter, who should be the most embarrassed by the whole episode, which although relatively harmless has shown up serious flaws in the “Verified Profile” system – if it worked properly then how was the profile ever created?

This probably won’t scare celebrities away from Twitter, and I’d imagine that the scramble for some kind of digital watermark for high-profile users is already underway. Many will take comfort from the fact that the UK Courts aren’t shy from awarding damages in defamation and/or privacy cases when Tweets go too far, and libel may have been a very useful fallback for the Murdochs if the profile had stayed up.

For now, though, the whole episode is a case study in gullibility and proof that for your average public figure, building a new audience on social media even if your traditional media career is winding down is easy if you know how and what to tweet – the revitalising effect of Twitter on Stephen Fry’s public image (despite several hissy fits) should be proof enough. Now, if you’ll excuse me, I’m off to register my name on every single social network I can think of before someone squats on it. It may be worth something one day. And, if you’re thinking that you may not get fooled by this kind of fakery, check back in with Uncle Rupert, who was having a Twitter conversation with a fake profile for Larry Page (CEO of Google) over whether or not he should give Google+ a try…

“Half Of Twitter Users Risk Jail Every Day” and other Fairy Stories

The Christmas break’s a wonderful time to get a little perspective on any number of subjects – the meaning of life, your place in the world, what it all means and any other number of issues that won’t seem anywhere near as important when you’re back at your desk in the New Year.

Take, for example, the Daily Mail. Much-maligned as it may be amongst those of us who may like to think we know better than to believe some of its more Bill Hicks-baiting headlines, such as the classic which suggested that striking teachers were indirectly responsible for the death of a student who had the branch of a tree fall on her when she should have been in school last summer, it still commands a pretty large (if shrinking, along with most other print newspapers) circulation.

That circulation brings responsibility – you’d think that now would be as good a time as any to get some (enforced) perspective on that responsibility and redefine it where necessary in the light of the phone-hacking scandal and the Leveson enquiry, but this kind of thinking didn’t seem to be bothering Paul Dacre’s staff too much yesterday when it ran a typically carefully-balanced thoughtpiece under the headline:

“More than half of Twitter and Facebook users risk jail EVERY DAY”.

Now, this isn’t a piece that may attract any attention from Leveson as it doesn’t deal directly with the main issues making headlines during his enquiry such as phone hacking and the routine harassment of celebrities or public figures, neither of which the Mail has yet faced any substantiated allegations of, but what it does drag to the front of your mind is the issue of press ethics and the accuracy of stories.

I’m not talking about stories which deal in celebrity tittle-tattle or mindless trivia here. This story ran with a headline that’s substantiated with the following bullet points before the main text of its article:

“More than two-thirds would upload copyrighted material to the internet.

More than half couldn’t identify a defamatory statement.

A third were unaware that organising looting via Facebook or Twitter was illegal.”

Taking each in turn, copyright infringement doesn’t usually lead to a criminal offence unless it involves “making or dealing in an infringing article” or “making an article designed for making copies of a copyright work” and even then only tends to end in prosecution in instances of commercial-scale DVD piracy.

Uploading copyright content is usually dealt with by way of a threat of civil copyright infringement proceedings and as of yet we haven’t seen many cases against individual uploaders in the UK save for MediaCAT’s disastrous attempts to pursue members of the public on the basis that their IP address may have been used to download Cascada songs or porn earlier this year. The Courts were not impressed. No-one went to or risked jail. Some users of Twitter might do if they really are involved in copying on a large scale and yes, file-sharing does constitute infringement and is a bad thing, but I don’t see your average student ducking to avoid an armed team of Police swinging into his hall of residence any time soon for file-sharing one or even ten songs from any Band, even if they’re one of Simon Cowell’s.

Illegal downloading is a problem – it does make it hard to make money from music in the amounts that the industry used to, but much of the problems come down to advances in technology and an old business model in need of updating. Education of the downloading public will help to solve it, NOT scaremongering – that went out with the old “Video Piracy Is A Crime” trailers appearing on VHS Cassettes. It CAN be a crime, but your average Twitter user is not a criminal or at risk of becoming one.

Onto defamation, then. Yes, it’s a problem. Yes, defamatory statements, i.e. statements which “lower the reputation of the subject in the eyes of the ordinary reader” are made every day on Twitter and potentially to a much wider audience than may read them if made in the printed press. Yes, we have seen the first “Twibel” case fought between two MPs earlier this year which led to an award of damages at trial. Cricketer Chris Cairns brought a case over a Tweet which contained allegations of match-fixing this year which the Defendant failed to have thrown out on the basis that so few people saw it – he had enough followers for the case to proceed.

Reputation is made and destroyed over the social web in a matter of moments and the number of defamation claims involving social media is rising all the time. None of these cases have involved anyone going to Jail.

Finally, let’s look at the most serious issue – many Twitter users didn’t realise that criminal offences committed using social media would be punished in the same way as offline content or even that the use of a social network could constitute a criminal offence.

Bingo. Referring back to the Riots and the sentences handed out (and confirmed at appeal) over incitement to riot using Facebook to organise looting and anti-social behaviour and the risk of Contempt of Court over reporting the details of a superinjunction (possible in theory if the user can be shown to have known the terms of the Court Order involved and breached it), this is where the piece comes dangerously close to being factual.

There are a raft of criminal offences which involve the use of Social Media, such as misuse of an electronic communication system to send messages of a menacing or threatening nature, harassment, incitement to racial hatred, sending a “malicious communication” and transmitting obscene material.

Some of those responsible for such offences have gone to Jail, and many have been convicted. They are a minority, and they have been traced through their online footprint. Many didn’t realise what they were doing was illegal. These are good points, and made in both the article and in the research to which it refers. The public does need to get to grips with the fact that what they do online is punished in the same way as it is offline. What they don’t need is to read this kind of inaccurate headline. They may not know that what they’re doing is wrong, but even if half of Twitter’s users behaved in an illegal way, can the Mail really claim that they’d all risk Jail? What if it was a first offence? What about the actual offence which they commit?

Generating an audience through fear is nothing new, but in an atmosphere where the Press is asking itself some pretty searching questions about how it deals with the Public, this kind of headline is irresponsible at best. Yes, there is a risk here and yes, some Twitter users could go to Jail. Educating them as to the limits of acceptable and legal behaviour is one thing, but trying to “scare them straight” doesn’t work and is in any event the Government’s responsibility, not the Mail’s. Even if it were, the Mail would also still have an equal responsibility to run headlines which put across a balanced comment on this kind of issue. In this case, they’ve ignored it in the same way as the Twitter users they claim are at risk of incarceration.

Just like the Twitter users they refer to a “risking jail”, they should know better.

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Riot Act – Social Media, Its Role In The Riots And Where We Go From Here

The debate over social media and its role in communications as well as wider society has been all over the news recently.

We’ve had the Superinjunction controversy – where the identity of a Footballer trying to surpress the details of an extramarital affair was spectacularly “outed” by Twitter users, the Twitter Joke Trial – involving an aspiring Accountant convicted for the offence of sending a Tweet of “menacing character” under the Communications Act 2003 and the Trafigura scandal – where the identity of a commodities broker was briefly hidden behind a superinjunction before the details of the case, the name the Company involved and accounts of parliamentary scrutiny into its business were exposed by a political blogger, allegedly from his kitchen .

Every one of the cases touched on a major legal and social issue – freedom of the press and inidividuals, the nanny state and the reach of both the civil and criminal law in the online world, but they were issues to get angry about from a fairly detached point of view, driven more by the true north of our moral compass rather than real, visceral anger or fear.

This week, however, has been a little different. On the one hand everything has changed, but on the other everything remains the same. We’ve seen what various media outlets have described as “the first social media riot”.

A shooting of a young man in London led to protest, which quickly changed beyond all recognition into what was clearly opportunistic theft driven by aggressive consumerism and a divide between the rich and poor. That divide exists 24/7, every day-we’ve just been made acutely aware of it, violently.

I’m not going to get into the politics behind it, the culture created by the media (which you don’t have to buy into, by the way) or weigh in on how those behind the riots were or weren’t to blame for the way they’ve ended up because I’m not qualified to – I’m a Lawyer working in a field I love with a wife and child on the way; a professional with a good career and great family.

Although I have done so harshly at times over the last few days, I’m now of the opinion that it isn’t my place to judge the rioters based on their backgrounds or family lives – the issues they deal with and are driven by are in some cases both too complex and too primal for me to understand. I’m not in touch with them, and maybe society as a whole isn’t.

None of this is any excuse for their actions, on which they’ll be judged by above all else. Yes, there’ll be concessions made to upbringing and their actual role in the riots but they are already being punished, even if some think that this is not enough.

It was easy to feel that way on Tuesday night whilst Manchester was being looted and its businesses smashed to pieces, along with the livelihoods of many of the smaller traders who simply didn’t stock what the mob was clearly “shopping” for – designer clothes, booze and high-end electronics.

Tuesday was a scary night, but the Police kept a very tense situation from becoming far worse. In a clear indication of exactly how bourgeois my own position is, I sat in a restaurant at an event with friends and only put my head above the parapet at around 10:30, when we were told that the riot may be heading our way.

A group of us picked our way through the City Centre, sticking as close as we could to the Police and main roads to avoid the rumoured muggings which, according to Twitter, were widespread. They weren’t, and although we saw plenty of “youths” in gloves and masks coming into the city with one thing on their mind, we got home safe. It was all we could ask for – the Police deserve all the credit in the world for keeping us safe and making sure that the violence didn’t repeat itself on Wednesday.

The aftermath consisted of property damage, injury and widespread rage amongst the population of a (rightly) proud city. The coverage of the rioters containing their soundbites did nothing to disabuse us of the opinion that they were simply looting and rioting because they could, because it was fun and because they could get away with it. I’ve led a privileged life but I’ve always had to work for what I wanted, even if it’s never been as hard as working two jobs to feed a family or involved any real manual labour. I’ve been lucky as much as I have rewarded and I’m very grateful, but I just can’t imagine how anyone could justify behaving the way the rioters did.

Coming in to Manchester on Wednesday, any liberal sentiment in my brain had taken a holiday. Whilst the Army should never be brought in to a situation like this, I do believe the Police should get tougher where they can (no, not using rubber bullets) and where not at risk of serious harm . The city was full of volunteers coming to clean up, although the job was pretty much already done by the time they arrived, thanks to Manchester City Council. I wanted to do something, but apart from grabbing a broom, what can a lawyer do? Every legal spin seemed in bad taste, apart from commenting on how social networks should NOT be blocked or “turned off”. So I did – thanks to the Drum for letting me.

So what else? Still angry, I thought about writing something and then remembered Steve Downes’ eloquent and understandably emotional blog about his daughter’s recent NHS experience. That standard is hard to emulate.

All I can do, then, is tell you about what I know. Arrests for criminal activity involving or facilitated by the use of a social network are a comparatively recent phenomenon, with recent high profile cases such as the infamous “Twitter Joke Trial” which involved an alleged threat to blow up an airport, and the 2009 obscenity case involving a blog featuring the fictional kidnap and rape of Girls Aloud being very obvious examples of the fact that criminal behaviour online is every bit as punishable as it is offline.

Users can’t always hide behind their profile picture and increasingly the Police will be monitoring their activity.

The arrests coming out of the riots show how old, and sometimes newer law is being used alongside new technology to deal with criminality online .The arrests so far have dealt with offences under the Public Order Act 1986 and the more recent Serious Offences Act 2007; this act in particular prohibits encouraging or assisting offences, and arrests for this kind of activity on the web are a new and landmark application of the existing system – it could be used alongside offences under the more recent Communications Act 2003 which deals with misuse of a public electronic communications network to send a message of menacing character or the Malicious Communications Act 1988 which deal with “malicious” messages to cover virtually all social network misuse.

Tellingly, the Prime Minister is now suggesting that messages promoting criminal behaviour should be blocked or deleted from social networks and anyone convicted of using them to incite social disorder be banned from using them. We’ve seen bans handed out as part of ASBOs previously as well as bans from contacting other users in harassment cases, but this is something new and will no doubt raise concerns over whether or not this will have any impact on the individual right to freedom of expression under Article 10 of the European Convention on Human Rights, although this can be restricted in the interests of public safety, national security or the prevention or detection of crime. Then there are the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 to consider, although Orange and T Mobile are already apparently assisting the Police in obtaining information on rioters who used their network.

As for the social networks themselves, as Twitter, Facebook and Research In Motion are all based outside the UK it’s hard to see how the Government can force them to take action, although it’s been suggested that talks will be held over their role in the riots and responsibilities going forward over the coming days.

It’s worth remembering, however, that if a network is taken down or access cut off, we will lose the chance to do more than receive messages inciting criminality – we also lose the right to trace those behind the messages as quickly, to get real news on the ground out to the public and media (although Twitter in particular has seen its fair share of hoaxes over the past few days) and to co-ordinate clean-up groups, which has been the greatest benefit coming out of the recent unrest.

Even if they were based in the UK, changing the current position, where social networks must delete or block material which they would be liable for disseminating as and when they are notified of it being on their servers to escape liability to force them into a more active role policing their users would represent a major shift in the government’s internet policy.

These riots were just as much squashed by social media as they were exacerbated by it – the platforms involved are neutral; the users are to blame. Monitoring rather than banning is a better solution.

Theft By iPod? – Not for too much longer….(maybe)

One of the most little-known and heavily criticised provisions of copyright law may now finally be reformed, as Vince Cable is expected to announce his support for the recommendations in the recent Hargreaves Review of Intellectual Property which called for (amongst other changes) the legalisation of “format shifting”, which would allow private copying of legitimately purchased copyright material, including CDs, MP3s and videos by downloading them onto an MP3 player or other device. Currently, this is an infringement, which Cable is due to describe as “astonishing”.

Copyright is vital to the entertainment industry; it is the main way in which content producers make money. It protects music or video as soon as it is recorded; the copyright in a song or entire album belongs to either the Band or their label, giving them the right to control how and when their music is copied and made available, and allowing them to charge fees for doing so.

The law has not been able to keep up with technology. In the 80s, many LPs carried a warning that “Home Taping Is Killing Music”. We are in an even worse situation now; the Music Industry is terrified of the impact that illegal downloading is having upon CD sales. Copying or sharing a song without permission is copyright infringement, so theoretically anyone who copies a song or album onto their iPod could not only be sued by an artist or label, but also be prosecuted for a criminal offence.

The law never saw the iPod coming or predicted its success. The public at large thinks that transferring your CD collection onto an MP3 player is perfectly legal, but by transferring a CD onto your PC or iPod you are actually copying it, which is illegal even if only you listen to it. Downloading from iTunes is legal, as you’re paying for the copy of the song or album which you download, but when you pay for a CD you’re only permitted to listen to it in your own home. Changing the law will do a lot to clarify the situation.

Neither record companies or the Government will ever want to take action against an entire generation who is growing up with an iPod rather than a CD player, and no-one has ever actually been prosecuted for doing so. Recognising Format Shifting may well start another shift – in public opinion towards respect for copyright law.

But it may not be that easy. Of course, the proposed change is simple enough in the music industry, but the British Video Association has already come out in opposition to the relaxation of format-shifting on the grounds that it should be up to rights owners to decide how they provide a digital copy – many DVDs and Blu-Rays now come bundled with one, which means that as of today anyone copying the contents of an original disc could still be sued for infringement – that could all change along if format-shifting is liberalised.

It’s important to remember that File-sharing or commercial copying will still be an infringement; this is not a licence to upload to other users over P2P sites, merely an ability to transfer files between devices in your own home – sending it somewhere else is still not permitted. What effect this will have on the much-hated DRM (digital rights management) regime has yet to be seen.

As always, the first Court cases will tell the story here, but this is a first step (if a slightly more problematic one than at first glance given that different formats involve different layers of copyright) towards the modernisation of copyright law to keep pace with the digital world. this is a first step (if a slightly more problematic one than at first glance given that different formats involve different layers of copyright) towards the modernisation of copyright law to keep pace with the digital world.

Phone Hacking – “Investigative Journalism” takes on a whole new meaning

“Phone Hacking” has been making headlines in the very news outlets it is alleged have been complicit in it over the last few months, but no accusation made to date has been as serious as those made today against the News Of The World and its former editor (and now Chief Executive of News International) Rebekah Brooks after it emerged that Glenn Mulcaire, a private investigator formerly engaged by News International to gather intelligence on a number of high-profile celebrities and other public figures, may have been involved in or responsible for hacking into the voicemail of murdered schoolgirl Millie Dowler and the families of the victims of the Soham murder victims – all allegedly under Brooks’ watch.

The outcry has been understandably huge and predictably universal. Brooks has apologised as far as she can without admitting liability at this stage, which itself follows a public apology and admission of liability by News International in April this year to several celebrities who were put under surveillance by the News Of The World and their voicemails intercepted.

News International’s statement came after a long-running internal investigation and described “past behavior” as “a matter of genuine regret”. The company took steps to set up a compensation scheme for “justifiable claims” after “failing to uncover important evidence”, leading to action which was “not sufficiently robust”.

It followed the launch of several sets of civil proceedings against the tabloid by, amongst others, Sienna Miller, Steve Coogan, Kelly Hoppen, George Galloway, Andy Gray and Tessa Jowell. Some have already settled their claims and the estimated damages bill was thought to be around £20 Million, with each case and payout assessed in line with a set of criteria including whether or not the interception of voicemails actually led to a story being published.

Even if you believe that the Press’ freedom to report has been cut back too far by the Courts after the Max Mosely case in 2008 it’s impossible not to have sympathy for the Dowler Family, whose grief may well have been exploited for the sake of circulation and intensified by the apparent checking and/or deletion of messages from Millie’s mobile phone by a third party who was listening in rather than Millie herself, giving them false hope that she was still alive.

Amidst the growing hysteria, it’s worth looking at the legal as well as moral issues around phone hacking if for no other reason than to get an idea of the punishment which may await those found responsible.

Phone hacking involves both criminal offences, which can lead to a fine and/or imprisonment for those involved and a civil cause of action which allows its victims to sue for damages.

Section 1 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) makes it an offence to intentionally intercept communications transmitted over a public telecommunication system without a “lawful excuse”, which will only usually cover investigations by the Police or Security Services.  Section 3 of the Act allows any victim of unlawful interception to sue in the Civil Courts.  Unlike many similar offences and civil claims, there is no “public interest” defence available to Hackers.

The first major conviction under RIPA for phone hacking came in 2006 after Journalist Clive Goodman and Glen Mulcaire received prison sentences following the alleged surveillance of several members of the Royal Family against a backdrop of claims that there were only a few “rotten apples” involved. That statement now seems hollow at best.

Additionally, the Data Protection Act 1998 (DPA) allows the Information Commissioner’s Office to prosecute hackers for criminal offences including unlawfully obtaining, disclosing and procuring the collection of personal under section 55.  Available defences involve obtaining the information in question to prevent or detect crime or if otherwise authorized to do so, again leaving surveillance solely within the province of the Police or other law enforcement bodies except where a disclosure is in the public interest, which is exceptionally rare and inconceivable in the case of the latest allegations.

Prosecutions brought over alleged instances of phone hacking under either Act have not so far led to the deterrent action that many predicted or expected, but in the wake of new evidence and a public outcry, several Journalists and their support teams may well now find themselves facing serious criminal penalties.

Even if evidence which proves guilt to the criminal standard of proof – beyond reasonable doubt – isn’t available to the prosecution or any sentences continue to be more lenient than victims may demand, further civil cases will be almost inevitable and may be far more damaging to the Journalists involved (at least in monetary terms) as well as easier to prove on the “balance of probability” – that one version of events is more probable than not.

Apart from a civil claim under section 3 of RIPA, the hotly-disputed “right to privacy” established in cases involving Naomi Campbell and Max Mosley will form the basis of at least some of the ongoing and future civil claims against News International and any other Newspapers who are alleged to have been involved in similar conduct.

UK privacy law is a combination of a balancing act involving the individual’s right to respect for their private and family life enshrined in Article 8 of the European Convention on Human Rights and the Press, the same convention’s Article 10 guarantee of Freedom of Expression (usually the basis for the Press’ defence to such claims) and the law of confidentiality, which deals with the misuse of information that is confidential in nature and disclosed under conditions which give rise to an obligation of confidentiality.

The basic question which the Court needs to answer in any privacy case is whether or not an individual has a “reasonable expectation of privacy” in the information obtained and/or disclosed without their consent, and whether or not the Press’ ability to report matters of public interest should take precedence over that expectation.  It’s hard to see how personal voicemails can ever be seen as anything but private, especially in light of the judgment in Mosley v NGN which set the bar for public interest comparatively high – there is a big difference between what is of genuine public interest and what it simply “interesting to the public”.

Former Government Director of Communication Andy Coulson claimed earlier this year that there was no “culture of phone hacking” during his tenure as Editor at the News of The World, but today’s reports tell a potentially very different story – the worry in April was that not only was phone hacking far more widespread than had been suggested, but it went far higher up the chain of command than the “lone Journalists” previously suspected and the News Of The World may not be alone in being willing to step outside the law in search of a scoop.

Questions are being asked over how widespread phone hacking really is in the British press, how many Journalists have been involved and how much was known about their activities by senior management, including Rebekah Brooks. We’re no longer talking about a lone Journalist, and the aborted criminal investigations may now be the focus for renewed criticism.

Examples will almost certainly be set (hopefully internally as well as externally) and any institutional and systematic invasions of privacy simply will not be tolerated any longer, especially after several previous abortive investigations. Even though the Crown Prosecution Service had previously concentrated their efforts on voicemails intercepted before they were listened to by the intended recipient, this may now be less of a concern and even older messages may be the focus of new investigations after the apparent revelations in the Dowler case.

As the scandal continues to develop, more and increasingly sensational allegations are likely and it may be a long time before British investigative journalism rebuilds its previously enviable reputation. Although the allegations are just that and remain unproven at this stage it seems hard to imagine that those suspected of involvement will be able to remain unpunished for too much loner. Freedom of expression and investigative journalism must and will certainly survive, but not by any means necessary.

 

“Trial by X Factor”? – Juror faces Contempt conviction after contacting Defendant through Facebook during Trial-UPDATED

In the first case of its kind, Joanne Fraill will today appear in the High Court in London to stand trial for Contempt of Court after she allegedly contacted and exchanged messages with Jamie Sewart, the defendant in a drug Trial in which she was a Juror. Sewart is also being prosecuted for contempt over allegations that she asked Fraill for details of the Jury’s deliberations.

The allegations, first made in April 2011, led to what Attorney-General Dominic Grieve referred to as the “collapse” of a major drug Trial at a cost of £6 million. He obtained permission to pursue Fraill for contempt after Sewart had already been convicted but whilst other defendants were still awaiting their verdict. Fraill is also said to have researched details of the defendants via the Internet, despite a direction from the Judge to decide the case solely on the basis of the evidence before the Court.

As a result, one of the Defendants in the original case is challenging his conviction as a result of the online conversation between Fraill and Sewart, alleging “jury misconduct”.

Contempt of Court is a serious offence, and one which is becoming more and more relevant to the online world after recent online media reporting of high-profile trials and the large-scale “civil disobedience” of thousands of Tweeters who revealed the identities of various celebrities (including a very high-profile footballer referred to as “CTB”) who had obtained superinjunctions to protect their privacy by restraining newspaper reports into their private lives.

Contempt has become a very live issue for social media sites and platforms after the recent conviction of the Daily Mail and The Sun for contempt after a photograph of the Defendant in a murder trial at Sheffield Crown Court holding a pistol with his finger on the trigger was posted on their websites on the first day of the prosecution’s case. Even though it was accepted that the posting of the photograph was a mistake, both newspapers were convicted.

Tweeting from Court is, however, now permitted in certain circumstances after a ruling made by the Lord Chief Justice following the bail hearing of Wikileaks founder Julian Assange and provided that the Judge hearing a case is satisfied that it will not interfere with the administration of Justice; it is never usually contempt to produce a fair and accurate contemporaneous report of proceedings in good faith.

Most recently, the Attorney General indicated that anyone using Twitter to breach the terms of a superinjunction could also face contempt proceedings. In an interview with Radio 4 on 7 June, he made it clear that social media users were not exempt from the obligation to comply with Court orders and that, although it is usually up to the Claimant obtaining the original order to initiate action to enforce them, he would take action in his own right if to do so would be in the public interest, proportionate and necessary to uphold the rule of law.

The Contempt of Court Act 1981 contains a “strict liability” offence (which does not require the prosecution to show evidence of intent) offence of communicating a “publication” (i.e. any communication in whatever form) to the general public which creates “a substantial risk that the course of justice in the proceedings in question would be seriously impeded or prejudiced”.

The case in question must be “active”, the Defendant would need to know this and be aware of that facts surrounding it at least in general terms even if they weren’t aware of the exact terms of any order which the Court had made as part of the proceedings – they can still breach it. It may be enough to show that they were merely aware that the information which they refer to in the “publication” was protected by a superinjunction for the Prosecution to secure a conviction.

Of course, if any comment on alleged Court proceedings is NOT true, such as the allegation that Jemima Khan had obtained a superinjunction to suppress an extramarital affair, then whoever made the “publication” could also be sued for libel and have to pay substantial damages if the subject of the publication’s reputation was seriously affected.

The Fraill case deals with a very specific offence under Section 8(1) of the 1981 Act which confirms that it is a contempt of court and an offence “to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings”.

The Court has always made it very clear that jury deliberations must remain confidential and it’s hard to see how Fraill can successfully defend this case, even if she tries to rely on an argument based on her right to freedom of expression under Article 11 of the European Convention on Human Rights – that right is restricted by a number of other considerations, including maintaining the authority and impartiality of the Judiciary.

Not only that, but in this case every message which Fraill sent will be able to be printed out and admitted in evidence. Facebook will probably prove to be the one witness which will not crumble under cross-examination. The Government has become increasingly concerned that Jurors are regularly using the internet to research defendants in Trials, and this case will probably lead to very tough new guidelines being issued to try to ensure that the genie is, if not put back in the bottle, at least kept in the Courtroom.

Some reports have even described Jurors using Facebook to set up polls to determine the guilt of defendants. For now at least, this kind of “Trial by X Factor” appears relatively limited, but Jurors will be made aware that this kind of activity is strictly prohibited. Even though the Courts may not be able to stamp it out altogether, in future Jurors may increasingly find the (Face)book being thrown at them. What these cases show is that Social Media is not lawless, and that hiding behind a profile may not be enough to escape liability.

UPDATE-Fraill admitted contempt during today’s hearing and will be sentenced on Thursday. She had been told that she faces jail-in the words of Lord Judge: “there are no circumstances that (did) not mean immediate committal. Sewart was told that she would receive a suspended sentence.

UPDATE- 16th June

Frail was sentenced to 8 months in prison today-a stark reminder that online activity could have serious online consequences.

Britain’s Got Damages? – Cowell takes legal action over “malicious” blog in “fix” claims

Simon Cowell is never far away from the Headlines, especially after rumours of a falling-out with Cheryl Cole that may have led to her being dropped from the Judging Panel on the US version of the X Factor, the announcement of the UK version’s own new judging panel and the airing of the live finals of “Britain’s Got Talent”.

Every year, many of Cowell’s shows come under attack for apparent bias towards certain contestants but this series of Britain’s Got Talent has been hit with a more serious allegation – that the “angelic” 12-year old singer Ronan Parke has been under contract to Cowell’s management company Syco for two years and that the outcome of the show has been “rigged” for him to win after he was “restyled” for the public audience.

The allegations came in an anonymous blog allegedly written by an executive at Sony Records, which has already been read by over a million web users that has been described as part of an organised “hate campaign” to derail Parke’s chances of winning tonight’s live final of the show. The blog went on to claim that Parke was “discovered” at a birthday party in 2009, but that nerves kept him from appearing in the 2009  or 2010 series.

Sony’s reaction has been unequivocal. They intend to “take legal action” against whoever is responsible for the blog and have reported it to the Metropolitan Police in the hope that they take steps to prosecute the culprit for an offence of “malicious communications”. Unsurprisingly, Sony have denied any truth to the rumour, which has spread like wildfire over Twitter.

So, after a month where we’ve seen superinjunctions broken over Twitter, user details handed over to potential claimants and a general outcry over the attempts of the rich and powerful to stamp out negative commentary on social networks, are we likely to see the Britain’s Got Talent “Mole” outed or prosecuted any time soon?

The offence of sending a “malicious communication” comes from Section 1 of the Malicious Communications Act 1988, which states that “anyone who sends to another person a message which is indecent, grossly offensive, a threat, which contains information which is false (or believed to be false) by the sender or is in some way “indecent or grossly offensive” and which is intended to cause distress or anxiety to the recipient is punishable by a fine or a six month custodial sentence.

Serious stuff – the 1988 Act was intended to cover poison pen letters  along with, writing of all descriptions, electronic communications, photographs and other images in a material form, tape recordings, films and video recordings. It certainly covers a blog post. – what’s “grossly offensive” in this case will be decided on the basis of its usual ordinary meaning.

This case raises similar issues to the infamous “Twitter Joke Trial” which saw Paul Chambers prosecuted for a similar offence under Section 127 (1)of the Communications Act 2003 after a tweet which “jokingly” described his plans to blow up an airport. Chambers’ was convicted for the offence of  “misus(ing) a public electronic communications system to send a message  which was grossly offensive or of an indecent, obscene or menacing character.” The blog in question may not fit this criteria, but some of the tweets which followed it may.

Section 127 (2) contains an offence which may be more suited to the Parkes case, at least as far as the contents of the Blog are concerned: sending by means of a public electronic communications network, a message that he knows to be false or persistently making use of a public electronic communications network for the purpose of causing anyone annoyance, inconvenience or needless anxiety.”  It carries the same punishment as the Malicious Communications Act 1988 Offence and the 2003 Act has already been used to bring Paul Chambers at least to book, but this section is a “catch all” to see up virtually any objectionable content on social networks.

So, what’s the point? As I’ve said a thousand times before – what you say online is every bit as punishable as what you say offline. If one criminal offence can’t get you then another one may. Not only that but what you say online can be downloaded and held against you as well as used in evidence which is easy for a Judge to read. Simply put, there’s no such thing as a Tweet without consequence. It’s doubtful that we’ll see a conviction of the Blogger here and if you were particularly cynical you could see this entire exercise as yet another PR stunt from the Cowell machine. That doesn’t, of course, take into account Parkes’ feelings but it won’t stop commentators from reaching that conclusion. As it turns out, some of the comments made about Parke have been homophobic and beyond abusive, so no amount of cynicism can excuse them.

Of course, there’s nothing to stop Cowell and Sony taking civil proceedings in relation to the “fix” allegations or claims that they “sexualised” Parjke to broaden his appeal if they can find out out who’s behind the blog. They’d need to go to the website or host on which it was based and obtain an order to release their details (as CTB has recently tried to and South Tyneside Council successfully have done in relation to Twitter) and then sue for defamation on the basis that his comments lower the reputation of Cowell/Sony in the eyes of the man in the street and have damaged public confidence in the competition being decided fairly.  It’s hard to see how they wouldn’t win as some of the claims may be almost impossible to defend, but there’s no guarantee that the person behind the blog could pay costs or damages even if they lost the libel case. If there is any truth to some of the allegations, the Blogger may have a defence which covers them in either justification or qualified privilege. Even then, the more serious and less defensible allegations would cancel those defences out  – the more serious the allegation, the higher the award in damages. 

Much ado about nothing? I suppose that depends on your point of view. It may well be in Cowell’s interest to pursue the Blogger to prove a point and restore a reputation that is taking something of a beating over the past few days by “sticking” up for the little guy. Some of the Tweets which have followed the blog are completely inexcusable and it may be time to show some of the more cowardly Tweeps involved that this kind of abuse simply won’t be tolerated online or anywhere else – those who comment on the blog and take the allegations further may end up in far more trouble then the writer.

If you ask them later whether or not tweeting the allegations or making them in the first place was a good idea, they may be forced to say “no”. Four times.

V For Vendetta – More Superinjunction details leaked over Twitter: Is this the last straw?

Superinjunctions and legal proceedings against Social Networks are all over the news at the moment, and although no-one has as yet been held to account through the Court for revealing the public figured behind them on Twitter, it looks as if that may not be too far away.

Yesterday, an anonymous Twitter account posted the alleged details of the Claimants behind no less than thirteen superinjunctions, as well as some of their addresses and links to Court documents which related to them. This time Twitter took action quickly and removed the Tweets in question, but not before the names had begun to make their way around other websites and social networks, although the validity of the user’s claims remained very much in doubt.

We’ve seen that in the world of real-time commentary through social media, injunctions may be very easily undermined by the information to which they relate already being in the public domain in one form or another, as commodities broker Trafigura, Take That star Howard Donald, golfer Colin Montgomerie and Imogen Thomas have found out over the course of the last 18 months.

However, just beacuse the public know about the details of who’s behind a superinjunction doesn’t mean that it ceases to exist. In fact, in the latest challenge to the footballer CTB’s superinjunction the Court made it very clear that widespread reporting over Twitter will not necessarily defeat an order of the Court, no matter how many times the names of the parties are retweeted. The Judge in this case drew a clear distinction between the effect that tweets can have on a victim and the impact of alleged press “harassment”  along with the details of their private lives making it onto the front page of the tablods. Even though the Attorney General has suggested that he will not for now look to take action against Social Media users for contempt of court in these circumstances and the Court has made it clear that it will usually be up to him to do so, we are coming to the stage where the Court may be forced to take some kind of action to prove a point.

Contrary to popular belief, anyone who publishes details on a social networking platform such as Twitter is not immune from the consequences of what they say. A Superinjunction will usually contain a penal notice which states very clearly that not only will the Respondents be in breach and potentially guilty of contempt if they reveal any details of the injunction, but so will any third party who is not a respondent in the proceedings but is aware of the injunction and then goes on to leak its details. If this Tweeter was aware of the actual details of an injunction, and the links to Court documents may suggest that this was the case, then he may be easier to pursue for contempt than users who simply retweet the details of other posts. . In this particular case, however, the user in question has so far remained anonymous and if they are determined to stay that way as well as technically literate they may avoid virtual “capture” for quite some time.

Twitter is based in California and as such it’s very difficult to take effective action against them through a UK Court to find out who may be behind the leaks. If it were based in the UK or had assets here (it’s about to open an office in London), then as a platform it would be shielded from liability if it immediately removed tweets which contain unlawful material when notified – this lack of editorial control is not only part of many social networks’ business model (they could not feasibly check every comment to ensure that it doesn’t cause a problem) but key to their defence in the UK or EU as a “mere conduit” which makes material available over the internet but has no control over the content itself. Twitter have so far refused to comply with CTB’s order obtained through the UK Courts to reveal details of users who retweeted his identity even if they did hand over user details to South Tyneside Council this weekend after a Court Order was obtained against them in their home state. Twitter’s rapid action in this case may well be an attempt to placate their UK-based stakeholders and reinforce their recent and very clear commitment to comply with any valid Order which compels them to reveal user data.

The Courts will now have no choice but to really get to grips with the practical issues which social media commentary creates in ongoing proceedings, especially those which are intended to remain secret. The last few years have seen criminal cases involving obscenity in blogs, harassment and cyber-bullying through Facebook and the relatively new offence of “misuse of a public electronic communications network” – the notorious “Twitter Joke Trial”. Each of these cases is a salutary lesson that although social network users can hide their presence through false profiles and may not be worth pursuing if they simply wouldn’t be able to pay damages or costs in a civil claim, they are not immune from sanction and it’s probably only a matter of time before at least one member of the Twitterati is held accountable for the content which he or she posts.

However, against the backdrop of John Hemming using parliamentary privilege to name CTB last week, the Attorney General may not be willing to take any real action until the tension between Parliament and the Judiciary over privacy law is resolved. Courts may intervene in certain circumstances but the requests for them to do so in this kind of case have so far fallen on deaf ears. For now at least, Twitter remains open to misuse without extreme sanction but this won’t last forever – as the stakes are raised with every passing incident, so will the desire to find out who’s openly defying the Judiciary.

Do Not Adjust Your Set-Twitter Hands Over Details, but NOT to CTB

This is the second time I’ve blogged over the apparent disclosure of Twitter user details to support a lawsuit at a ridiculous hour this week, but it’s worth it.

The Telegraph is leading with a front page story bearing the headline “Twitter Reveals Secrets”.

Don’t panic.

Twitter has NOT handed over user details to CTB so he can sue for breach of privacy or violation of his Superinjunction. CTB has made an application in a UK Court for disclosure of user details from Twitter, who are based in the US and have no assets in this jurisdiction. It is very difficult to enforce a UK Court Order in the US. Our privacy law, based on a combination of the European Convention On Human Rights, the Data Protection Act 1998 and the law of confidentiality, doesn’t apply there. US privacy law is,as I understand it, pretty different.

Twitter has disclosed details of users on the request of South Tyneside Council, who are looking to take action in defamation against a whistleblower called “Mr.Monkey” who has accused Councillors of criminal offences. A Council can’t sue for libel in its own right but individual Councillors can. They’ll need to find out where he is to work out if this is possible, and they have obtained the order in California under Californian Law. The allegations of criminal misconduct will probably be libellous in California-they certainly are over here, although if Monkey is a whistleblower he or she may be protected by defences in public interest or justification. In the UK courts, making such an application for disclosure requires a case with strong merits brought by the eventual claimant in a claim and as the Council can’t sue for libel this will teach us a lot about hoe the US and UK courts deal with this kind of legal redress.

Yes, this is a big deal. But it’s a big deal in US law, not ours. We grant orders like this against UK companies fairly often. CTB should have gone to California and done the same thing. The law may be different, but his odds would have been better and he wouldn’t have been seen as a global King Canute, just a claimant using a local system to get a local remedy.

I’m no expert in US law, but I’ve been tweeting with @Cathygellis, who is. For now, CTB’s critics are safe. The deadline for Twitter to comply with the UK Court Order has come and gone, with no sign yet of them caving in. This is significant from the perspective of a point of principle, but I doubt the case will help CTB’s cause.

CTB has gone from being in a battle on one front to a war on many, and there’s no flag being waved by Twitter just yet. As you were.

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