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Media law and the Leveson Inquiry

12 Dec

By Dr. Daithí Mac Síthigh, lecturer in the UEA Law School. See Daithí’s profile and publications here; he also blogs at Lex Ferenda, where this post originally appeared (as ‘Hot Tub Time Machine’…)

On Thursday (8th December), a group of academics from seven UK institutions gave evidence at the Leveson Inquiry on the culture, practice and ethics of the press. I was one of the seven heard in what was termed a ‘hot tub’ format – this phrase has provoked much comment; I was vaguely familiar with it (for expert witnesses in trials, particularly scientists) and it does lend itself to interesting (if slightly worrying) images. The others were (in the morning) Steven Barnett, George Brock, Brian Cathcart and Angela Phillips, and then (alongside me in the afternoon) Julian Petley and Ian Hargreaves. Each session opened with a discussion on journalism/media education and segued neatly into a broader discussion on the inquiry’s work, particularly regarding regulation of the press.  We were asked to answer polite (and very well informed) questions from the two counsel (David Barr & Carine Patry Hoskins) and Lord Justice Leveson  himself.

All three of the afternoon witnesses were there for the morning, so we had a good opportunity to see what our colleagues were saying – particularly the useful debate between Barnett and Brock on models of media regulation and the role of statute. It was interesting to watch the Inquiry go about its business – serious but not overly formal, and a technology-infused room (transcribed text appearing on screens, each lawyer with a computer in front of them, iPads and smartphones in circulation, and of course the fixed (and indeed unobtrusive) video cameras dotted around the room, linked to the live stream on the Inquiry’s website. On this occasion, it’s fair to say that neither Court 73 nor (I’m told) the overflow annex) were packed out – perhaps a day of academics does not have the appeal for others that is has for me! (Not even a Guardian live blog – which according to Charlie Brooker’s Black Mirror defines a serious event – but the Telegraph did have one (and a still of me in full hand-waving mode).

The full details of what we all said can be found in the transcripts: morning and afternoon. As a new lecturer I didn’t have a lead role in the discussion of education, although I was pleased to be able to talk about some of the things we are working on at UEA, particularly the interdisciplinary ‘Media & Society‘ module, and to comment (briefly) on the differences between media law for law students and media law for journalism students. (Lord Justice Leveson also appeared amused (or scared) at my observation that the inquiry itself is a useful part of this year’s media law syllabus). I enjoyed the discussion of the different careers of journalism graduates and the ups and downs of NCTJ recognition in the morning and afternoon sessions – a really useful exchange to review.

My next major intervention was regarding the Press Complaints Commission; this was the bit that made into the end of a Guardian report too. I suggested that some aspects of the Press Council of Ireland could form a part of UK reform – e.g. statutory recognition of an independently constituted Council, the involvement of journalists and not just proprietors, links between the responsible journalism defence to defamation law and Council membership. I also observed (and Twitter users took notice!) that UK publishers had joined the Irish council in respect of their Irish editions; others have made this point before but it does bear repeating. I added that investigative powers would only be appropriate if a press body was appropriately accountable for the exercise of those powers.

Of course, most of the questions directed to me were Internet-related, and it’s where I had the opportunity to put across quite a few points drawn from my research. While I wanted to emphasise that the idea of the lawless Internet is inaccurate (and has been for some time), I also discussed the importance of clear laws that individual bloggers etc could understand (and possibly be protected by akin to journalists if standards are met), the dangers of encouraging or requiring online intermediaries to be the key location of regulation (or treating them all, from telecoms providers to search engines, as the same), and also the strong points of some community-driven regulation. (Those who have read things I have written in law journals or even on this blog may recognise many of those points, and what I was trying to do was summarise them for the purposes of the Inquiry, which isn’t specifically about online media but will surely be dealing with it under various headings). I did coin an unintentional soundbyte, that hosts should not be the “new arbiter of what is right or wrong”. I also responded (not in much detail due to time) to Julian Petley’s comprehensive paper on freedom of the press vs freedom of expression, which I recommend as a very interesting reading on this topic. Oh, and I defended media studies as an important contribution made by the academic world, but that again won’t surprise readers. And then it was off to the cleverly squeezed in BBC remote studio for a chat with the fine Radio Norfolk : hear the results here (at 1h45m) and the following morning’s studio interview here (at 1h48m).

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Newport State Of Mind

1 Jun

By Dr. Daithí Mac Síthigh, lecturer in the UEA Law School. See Daithí’s profile and publications here; he also blogs at Lex Ferenda.

Government reviews of intellectual property are not difficult to find. The last big one in the UK was the Gowers Review of 2006, although fewer than half of its recommendations were taken up. The European Commission has done a few, with copyright being the subject of a number of actions in the much-discussed Digital Agenda – most recently a Communication on a ‘single market for IP rights‘, and Ireland has recently joined the game, with a review of ‘barriers to innovation’ in the Copyright and Related Rights Act announced after the formation of a new Government.

Recently, though, the report of the most recent UK project, the Hargreaves Review (PDF), was published. Launched with a speech by the Prime Minister, who appeared to be proposing the replacement of the ‘fair dealing’ approach of UK law (where a list of exceptions are set out, such as ‘criticism or review’) with the ‘fair use’ defence known in US law (which instead sets out factors to be considered). It appeared as if it was the position of Google and those similarly situated that the PM had in mind, on the grounds that fair use makes it easier to innovate, take risks, develop new business models, and so on. In the end, though, the report didn’t recommend fair use – not least because it appears difficult to bring it in within the current EU approach to harmonisation of copyright law. Instead, it’s proposed that the UK introduce further exceptions that are consistent with EU law – such as parody, which is fairly clearly within the scope of US fair use but can also be a standalone statutory exception (as the Gowers Review also proposed), and private copying.

The Hargreaves Review goes further, in proposing new systems for rights clearance (a complicated and often expensive process) and ‘orphan works’ (where the rightsholder cannot be contacted – often this means something in copyright but ‘out of print’); issues of this nature were at the heart of the Google Books class action in the US and are also a cause of concern at EU level. But the most radical proposal, in my view, is that the UK should take up the cudgels within the EU for a new clause to protect ‘non-consumptive’ uses, distinguishing between the use of new technologies and ‘trading on the underlying creative and expressive purpose’ of a work. Although the report doesn’t provide a detailed draft of such a clause, it’s a very important and promising contribution to the debate on copyright and technology, particularly if the Irish report picks it up, and both nations can frame it as a contribution to the Digital Agenda.

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