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Lex Ferenda



Daithí Mac Síthigh - professor of law and innovation at Queen's University Belfast



Updated: 2017-10-10T11:09:09Z

 



WordPress.comOn intermediaries, at the Information Law and Policy Centre – 5 October 2017

2017-10-10T10:40:17Z

Cross-posted from https://infolawcentre.blogs.sas.ac.uk/2017/10/10/internet-intermediaries-from-defamation-to-directive-to-data-protection/ Taking stock of recent developments concerning the liability and duties associated with being an Internet intermediary (especially the provision of hosting and social media services) was the theme of a recent event at the Information Law and Policy Centre. In my presentation (click to download slides), starting from about 20 years ago, … Continue reading On intermediaries, at the Information Law and Policy Centre – 5 October 2017 →Cross-posted from https://infolawcentre.blogs.sas.ac.uk/2017/10/10/internet-intermediaries-from-defamation-to-directive-to-data-protection/ Taking stock of recent developments concerning the liability and duties associated with being an Internet intermediary (especially the provision of hosting and social media services) was the theme of a recent event at the Information Law and Policy Centre. In my presentation (click to download slides), starting from about 20 years ago, I reviewed the early statutory interventions, including the broad protection against liability contained in US law (and the narrower shield in respect of intellectual property!), and the conditional provisions adopted by the European Union in Directive 2000/31/EC (E-Commerce Directive), alongside developments in specific areas, such as defamation. The most recent 10 years, though, have seen a trend towards specific solutions for one area of law or another (what I called ‘fragmentation’ in 2013), as well as a growing body of caselaw on liability, injunctions, and the like (both from the Court of Justice of the EU and the domestic courts). So in 2017, what do we see? I argued that if there ever were a consensus on what intermediaries should or should not be expected to do, it is certainly no longer the case. From the new provisions of the Digital Economy Act 2017 creating a statutory requirement for ISPs to block access to websites not compliant with the new UK rules on age verification for sexually explicit material, to the proposed changes to the Audiovisual Media Services Directive that would create new requirements for video sharing platforms, to the Law Commission’s recommendations on contempt of court and temporary removal of material in order to ensure fair proceedings, new requirements or at least the idea of tweaking the obligations are popping up here and there. This is also seen through the frequent exhortations to service providers, especially social media platforms, to do more about harassment, ‘terrorist’ material, and the like. As the Home Secretary put it in her speech to the Conservative party conference last week, she calls on internet companies ‘to bring forward technology solutions to rid […] platforms of this vile terrorist material that plays such a key role in radicalisation. Act now. Honour your moral obligations.’ Meanwhile, the European Commission’s latest intervention, a Communication on ‘tackling illegal content online’ promotes a ‘more aligned approach [to removing illegal content, which] would make the fight against illegal content more effective’ and ‘reduce the cost of compliance’ – yet at this stage lacks clarity on how to handle divergence in legality between member states, the interaction with liability issues, and human rights issues (including the emerging jurisprudence of the ECtHR on the topic). The Economist summarised developments in 2017 as being a ‘global techlash’, while Warby J’s perceptive speech on media law pointed to the increased complexity of media law, ‘mainly, though not entirely’ as a result of legislative change. I called for a broader review of intermediary law in the UK (perhaps led by the Law Commissions in Scotland and England and Wales and the appropriate authorities in Northern Ireland), which would take a horizontal approach (i.e. encompassing multiple causes of action), address questions of power (though heeding Orla Lynskey’s caution that power in this context [...]



Peng t(h)ing called disruption…

2017-09-22T10:22:47Z

Discourse and rhetoric around the ‘sharing economy’ is something that fascinates me, and I am hoping to do a larger project on the topic (subject to time, funding and the usual caveats). But the 2017 release of two songs ostensibly ‘about’ new ways of travelling (Tom Zanetti’s ‘Uber’ and Not3s’ ‘Addison Lee’), and the brief … Continue reading Peng t(h)ing called disruption… →Discourse and rhetoric around the ‘sharing economy’ is something that fascinates me, and I am hoping to do a larger project on the topic (subject to time, funding and the usual caveats). But the 2017 release of two songs ostensibly ‘about’ new ways of travelling (Tom Zanetti’s ‘Uber’ and Not3s’ ‘Addison Lee’), and the brief shout-out to Airbnb in the best-selling ‘Feels’ (Calvin Harris with Pharrell Williams, Katy Perry & Big Sean) prompted me to say a few words about popular music and the Internet at this year’s Gikii workshop. My full playlist is available on Spotify, and the text that follows is an attempt to summarise some of my points. (Links in this post are to YouTube, where available). It’s not unusual for communications technology to be mentioned in lyrics. Glenn Miller’s ‘Pennsylvania 6-5000‘ used the brief and catchy telephone number of the hotel in which his band performed as a refrain – indeed, the only spoken words in the whole piece. Indeed, 20th-century popular music has a whole plethora of songs about or referring to telephones – be that Blondie’s ‘Hanging on the Telephone‘ (1978) or ELO’s ‘Telephone Line‘ (1977) (which I borrowed for an academic article, once) – and into the 21st century, Lady Gaga’s ‘Telephone‘ (2009) also makes significant use of (somewhat retro) telephone imagery in its much-viewed video, while Drake’s >1bn viewed ‘Hotline Bling‘ (2016) makes specific and repeated reference to something that Glenn Miller would not have imagined – the now-ubiquitous cellphone. (As pointed out in the discussion and in subsequent emails, the metaphorical potential of the telegraph and telephone is strong – ranging from Cardinal Wiseman’s Victorian hymn ‘Full in the panting heart of Rome‘ (‘For, like the sparks of unseen fire / That speak along the magic wire / From home to home, from heart to heart / The words of countless children dart / God bless our Pope, the great, the good’ – a fifth verse added in the 1860s to a text first published in 1850) to Meri Wilson’s ‘Telephone Man‘ (1977) (‘Hey, baby, I’m your telephone man / You just show me where you want it and I’ll put it where I can … / I can put it in the bedroom, I can put it in the hall / You can have it with a buzz, you can have it with a ring / And if you really want it you can have a ding-a-ling’) Two themes quickly emerge. One, as seen very clearly in the case of Drake, is the association between communications and sex / relationships / love. We will return to this. A second is how to approach technology and technological change. Kraftwerk are a worthwhile case study here because of the joining of technology as a subject matter with the use of emerging technologies in the production of the music itself. Sometimes the tone is celebratory (e.g. ‘Home Computer‘), and yes, again, related to relationships (‘Computer Love‘). Famously, later releases and performances of ‘Radioactivity‘ contain pointed critiques of nuclear power and highlight scandals and disaster in a way that the original did not. A relatively early specific reference to the Internet is found in Mousse T vs Hot ‘n’ Juicy’s ‘Horny‘ (1998). Not in the catchy chorus, but in the narrative verse, and with the Internet positioned as one of a number of mea[...]



Now out – Medium Law – the book!

2017-09-18T08:39:53Z

My book Medium Law (Routledge) has just been published. It’s available in hardback (from the publisher and from various bookshops) and for Kindle and as a Google Play ebook, and an extract/summary is available here. Here’s the mission statement, more or less (taken from chapter one): I will set out the case for continuing to … Continue reading Now out – Medium Law – the book! →My book Medium Law (Routledge) has just been published. It’s available in hardback (from the publisher and from various bookshops) and for Kindle and as a Google Play ebook, and an extract/summary is available here. Here’s the mission statement, more or less (taken from chapter one): I will set out the case for continuing to acknowledge within regulation, and in some cases use as the basis for special regulation, the medium. This is not to say that every silo ought to be defended on equal terms. There are plenty of examples where the lines drawn for legal purposes make no sense, and may have never made sense in the first place. We will encounter Morris dancers and lap dancers, space invaders and streaming video, and surprisingly detailed consideration (by regulators) of everything from ringtone subscriptions to titles and credits in audiovisual works. But I will propose that the idea of converged, cross-platform, medium-neutral media regulation is unattainable in practice and potentially undesirable in substance. What I’ve tried to do in the book is identify the role of the medium in media law. Chapter two is about the significance of the medium, historically and in the present day, including an extended discussion of Canadian media scholars Harold Innis and Marshall McLuhan, and examples from outside of conventional media law. Two long chapters, following a similar structure, investigate the medium within the film and game sectors – both affected by digital technologies and by specific forms of regulation. Then, medium-specific chapters consider medium-specific (and broader) approaches to the law, in radio, video-on-demand, premium rate services, and finally ‘entertainment’ (e.g. theatre, live music, circuses, and the like). I do hope people enjoy reading it – it was a long time in the writing for various reasons, but the result is something that, I think, reflects the way I approach my work and the different sorts of literature and ideas that I try to engage with. Here’s what some other people have to say about it: The convergence of media law and Internet regulation has caused some to question the need for medium-specific laws: a claim firmly rebutted in this comprehensive review of medium-specific law basing itself on the insight of the ‘Toronto School’ scholars Innis and McLuhan. Mac Síthigh’s excellent monograph provides meticulous case studies in the vagaries of medium law, essential reading for all those interested in the construction of medium-specific regulatory regimes, their evolution and their continued relevance. (Chris Marsden, Professor, Sussex Law School, University of Sussex, UK) Medium Law provides a rich and detailed overview of the tensions that exist in some of the less-charted areas of UK media law – from the regulation of online radio and video games, to live relay of opera in the cinema, music apps, and video on demand. Mac Síthigh challenges us to reconsider the role of the medium, alongside the message, in framing our media regulation of the future. (Rachael Craufurd-Smith, Reader in EC Law, Director of Learning and Teaching, University of Edinburgh, UK) This timely and highly ambitious book confronts head-on the debate on the development of technology-neutral, future-proof legislation across media platforms. By providing a careful and in-depth analysis of the laws concerning radio, film, TV, games, on-demand services and other entertainment platforms, this insightful book explains why the medium will continue to play a pivotal role in media regulation. Highly recommende[...]



Disliking like

2017-08-23T21:16:30Z

I have a new article in the forthcoming issue of the Journal of British Cinema and Television. JBCTV (Edinburgh University Press) is a journal that I have read and cited for some time, so it’s a particular pleasure to be published in it after all that. The paper is entitled ‘TV-like’: aesthetics, quality and genre … Continue reading Disliking like →I have a new article in the forthcoming issue of the Journal of British Cinema and Television. JBCTV (Edinburgh University Press) is a journal that I have read and cited for some time, so it’s a particular pleasure to be published in it after all that. The paper is entitled ‘TV-like’: aesthetics, quality and genre in the regulation of video-on-demand services (link is to pre-print version hosted by Newcastle University; updated link to final version will follow). It explores, in more detail than was possible in the on-demand chapter of Medium Law (chapter 6), the way in which ATVOD and Ofcom interpreted and implemented certain provisions of the Audiovisual Media Services Directive (AVMSD) concerning on-demand services. A big sticking point was working out, as required by the law, whether on-demand services were ‘comparable’ to the form and content of television services. Down the rabbit hole I went, and (with encouragement from my friend and sometime collaborator Keith M. Johnston in particular, and a most enjoyable presentation of a very early draft at an ECREA workshop in beautiful Aarhus), I found myself exploring whether the methods and conclusions of Ofcom could be better informed by other aspects of television studies. This arises because Ofcom needed to work out how to respond to the content of on-demand services, under headings such as titles and credits, the duration of the works, the quality of production, and much more. Of course, while all of this was being finished off, ATVOD’s functions were being folded back into Ofcom, and the European Commission was getting the rewrite of the AVMSD on track, so the article ends up as more of a reflection on an experiment, with an eye to how things might be better handled in future. Here’s the full abstract, anyway, and hopefully some will find it of interest. From 2010 to 2015, video-on-demand services in the UK were regulated by the Authority for Television on Demand (ATVOD), under an agreement with the statutory regulator Ofcom and applying the pan-European standards introduced through the 2007 EU Audiovisual Media Services Directive. A key question for the regulators and for service providers was whether any given service fell within the ‘scope’ of the law – that is, which services met the legal definition of an on-demand audiovisual media service. This is a study of how Ofcom exercised its role as the final arbiter of that definition, through a close examination of its 15 decisions in appeals against initial determinations by ATVOD. The use of the legal test for ‘comparability’ with conventional television services, and the regulatory focus on ‘TV-like’ on-demand services, has demonstrated the significance of production and aesthetics as a determinant of regulation. In particular, production decisions regarding titles, credits, and duration, as well as a range of issues of perceived quality (audio, video, voiceover, editing, and the like), have been taken into account. It is contended that Ofcom has relied on focus group research, rather than on wider insights from television studies research, in assessing these factors, and that the underlying Directive may have been flawed in its concepts and definitions. [...]



Rebooting lexferenda.com

2017-05-29T18:55:08Z

I’ve neglected this blog for quite a while now (and it was hardly all that active beforehand), so this is just a note of hello (and welcome back, hopefully) to readers. I’ve also updated some of the static pages at the tabs above (about my research, etc) and regular posts will resume in coming days. … Continue reading Rebooting lexferenda.com (image)

I’ve neglected this blog for quite a while now (and it was hardly all that active beforehand), so this is just a note of hello (and welcome back, hopefully) to readers. I’ve also updated some of the static pages at the tabs above (about my research, etc) and regular posts will resume in coming days.

The changeover may have disturbed subscriptions (for those still interested in such things), so if so inclined, please do check your RSS details or subscribe by email through the option in the right sidebar.

(Image: CC-BY https://www.flickr.com/photos/kalleboo/4611613067/)


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Ten years!

2017-05-29T18:40:33Z

This is a post made out of notes on the first ten years of this blog (2006-2016). Most of the activity was during that first half. I’m posting it now as part of the site reboot. Some things of interest…to me, at least: In that first period, the number of visits per year was consistently … Continue reading Ten years! (image)

This is a post made out of notes on the first ten years of this blog (2006-2016). Most of the activity was during that first half. I’m posting it now as part of the site reboot.

Some things of interest…to me, at least:

  • In that first period, the number of visits per year was consistently above 1,000 per month. Since then, it has been a good deal lower – although 2015′ total of 6,705 was the first increase in many years .
  • The most read post remains FOI and Universities from January 2009. But, the overwhelming majority (1500) of hits came on that day (via Ben Goldacre / Bad Science).
  • I joined Twitter myself in 2009. That was probably the beginning of the end of regular blogging.
  • But, many recent visits come via Twitter. (Oh, Google Reader, how you are missed).
  • The most read post in 2015 was an old one – July 2009, on data retention. The search-juice title (Data Retention Ireland – actually a play on the initials of Digital Rights Ireland, discussed in the post) is probably a factor. The other popular posts were newly posted within that period –  Computers and the Coalition – a speech at the launch of the Information Law and Policy Centre), and a note in memory of Greg Lastowka. (Sadly, not the first time I have used the blog to note the early passing of friends and colleague – e.g. Liss Jeffrey, Peter Fitzgerald).
  • In terms of popular outbound links, we see UEA (my employer from 2008-2012) and cearta.ie (who supervised my PhD, 2006-2009) in particular.
  • Update: I hardly posted at all in 2016 itself: just a handful of posts at the beginning of the year, with the old data retention stuff still being popular in terms of hits.

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Campbell’s Scoop

2016-01-18T07:06:30Z

Tom Bennett and I, along with the regular editors (Eric Barendt, Rachael Craufurd Smith and Tom Gibbons) have put together a special issue of the Journal of Media Law (volume 7, issue 2) arising out of the workshop we hosted at Newcastle Law School on the Campbell Legacy and broader issues of privacy law in the UK and Commonwealth. The original … Continue reading Campbell’s Scoop →Tom Bennett and I, along with the regular editors (Eric Barendt, Rachael Craufurd Smith and Tom Gibbons) have put together a special issue of the Journal of Media Law (volume 7, issue 2) arising out of the workshop we hosted at Newcastle Law School on the Campbell Legacy and broader issues of privacy law in the UK and Commonwealth. The original workshop (discussed here) was a ‘ten years on’ discussion of the decision of the House of Lords in Campbell v MGN [2004] UKHL 22. Papers in the issue come from Nicole Moreham, Jacob Rowbottom, Rebecca Moosavian, Paul Wragg, Eric Descheemaeker, and my co-editor Tom. We also wrote a short editorial, which appears below. Introduction: The Campbell Legacy (2015) 7 JML 152 The early years of the 21st century have seen a number of significant developments in the law that have impacted upon the media. The impetus for many of these was the enactment of the Human Rights Act 1998 and perhaps the most dramatic was the recognition by the House of Lords in Campbell v Mirror Group Newspapers Ltd of a cause of action for ‘misuse of private information’ (MPI). This case is rightly regarded as seminal. For, in recognising a head of liability apt to protect against the wrongful publication of private information, the English judiciary took a step towards fulfilling Lord Irvine’s pre-HRA prophecy that English judges were ‘pen-poised’ to develop the right to privacy in domestic law. The decision of the House of Lords in Campbell has been followed by a decade (or so) of cases and discussion on the shape and purpose of privacy law in England and Wales. The judicial recognition of the MPI cause of action has had a significant impact on the media. Moreover, the decision and its subsequent refinement have formed part of a transnational conversation on privacy, reputation, celebrity, information, and speech, with many other legal orders continuing to grapple with common law and statutory approaches to privacy. Courts in Canada and New Zealand have, whilst developing their own privacy torts, given substantial consideration to the Campbell model. Furthermore, the Australian Law Reform Commission recently recommended the adoption of a ‘misuse of private information’ tort, taking its preferred nomenclature directly from Campbell. Clearly, then, Campbell’s legacy – whatever else it may be – courts global attention. This ‘legacy’ was the subject of a one-day workshop held at Newcastle University on 23 April 2015, convened by the guest editors of this issue. With support from the Journal of Media Law, Schillings, and the Newcastle University Conference Fund, we were joined by speakers and participants from universities and legal practice, spanning England, Wales and Scotland. In addition, we were particularly pleased to welcome Dr. Nicole Moreham from the Victoria University of Wellington (New Zealand), who gave the closing keynote address. This special issue of the Journal of Media Law brings together a selection of papers first presented at the workshop, and subsequently revised by the authors. The contributors address the Campbell legacy from a range of perspectives including tort law, human rights, and comparative law; they discuss broader themes of power, metaphor, consistency, and technological change. Nicole Moreham, who has written extensively on post-Campbell developments, focuses her attention on one of the most recent MPI decisions: Gulati v MGN in the High Court. Concentrating on the treat[...]



Coming Soon

2016-01-06T07:04:05Z

On the Routledge website, a first announcement of my forthcoming (i.e. still being written) book, Medium Law (to be published late in 2016). While I am not expecting George RR Martin levels of encouragement to finish it, it is equal parts nice and intimidating to start a new year with an ISBN…(image)

On the Routledge website, a first announcement of my forthcoming (i.e. still being written) book, Medium Law (to be published late in 2016). While I am not expecting George RR Martin levels of encouragement to finish it, it is equal parts nice and intimidating to start a new year with an ISBN…


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After the Coalition

2016-01-04T14:38:09Z

Last March, I wrote a blog post (itself based on a speech given at the launch of the new Information Law & Policy Centre at the Institute for Advanced Legal Studies) on what happened in the field of IT law over the five years of the Conservative / Liberal Democrat coalition government in the UK. An extended … Continue reading After the Coalition (image)

Last March, I wrote a blog post (itself based on a speech given at the launch of the new Information Law & Policy Centre at the Institute for Advanced Legal Studies) on what happened in the field of IT law over the five years of the Conservative / Liberal Democrat coalition government in the UK. An extended version of that speech and post has now been published in the journal SCRIPTed, and can be found here:

Daithí Mac Síthigh, ‘Computers and the Coalition: Legislation on Law and Information Technology, 2010-2015’ (2015) 12 SCRIPTed 141


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It’s not easy being green

2015-11-06T09:50:03Z

The UK Government’s ‘Fulfilling Our Potential’ green paper on higher education (subtitle: “Teaching Excellence, Social Mobility and Student Choice”) was published today (not yet on official site, but PDF here). Of course, there is excellent coverage in places such as the Times Higher and WonkHE. Here are some initial impressions on my part (breakfast reading, … Continue reading It’s not easy being green →The UK Government’s ‘Fulfilling Our Potential’ green paper on higher education (subtitle: “Teaching Excellence, Social Mobility and Student Choice”) was published today (not yet on official site, but PDF here). Of course, there is excellent coverage in places such as the Times Higher and WonkHE. Here are some initial impressions on my part (breakfast reading, so excuse errors). Bear in mind that my current admin role is on the research side of the house – and I have not kept up to date with developments in national HE teaching policy in recent years; working in Scotland was a part of that, for sure, and it’s worth remembering that today’s paper is what the Government has to say in respect of England in most cases. In particular, I am not very familiar with the latest developments for ‘alternative’ providers, etc, so haven’t really considered those aspects of the paper. In no particular order: There is, as expected, some discussion of data obtained through the National Student Survey (NSS), including a proposal that it be one of the three (existing) data sources for teaching excellence. Now, the main thing the NSS tries to measure is satisfaction. That’s something to be interested in, for sure. What I don’t yet see is the link between satisfaction and quality. To take one (disturbing) example, evidence from the US suggests that there may be a relationship between student surveys/evaluations and particular forms of discriminations (e.g. gender, race) (see here, and here). Of course, student evaluations can be a useful part of a conversation on teaching. And, if a group of students feels dissatisfied with their teacher on gender grounds, that is a scientifically interesting finding for all sorts of reasons. What it isn’t is anything meaningful about the quality of the teaching delivered by that teacher. Similarly, we’re asked whether data on careers (the Destinations survey) and retention should be used – these are the other two ‘existing’ sources proposed to be used, alongside institutional evidence and new data. Destinations is tricky in some disciplines (like mine) and using retention measurements might mean a perverse incentive to do everything to avoid students failing, at the cost of academic standards. The report identifies competition for attention and resources between teaching and research within institutions. (This is primarily attributed to Graham Gibbs’ work). In my view, this section could have been greatly strengthened with a discussion of the relationship between research and teaching – particularly positive dimensions (e.g. the sometimes-mocked but potentially very thoughtful concept of research-led teaching). Ironically, the report ends up reinforcing the separation. As expected, and just as in consumer policy (a clear template for the current Government approach to higher education governance), there is a great focus on the provision of information. Better information would be useful, but is not an answer in its own right. We know this from research on consumer law itself, e.g. Geraint Howells’ work (where there has been a similar obsession with how homo economicus will make better decisions and drive competitive markets if only standards and requirements are replaced with dis[...]