Link: “Data legislation to outlaw millions of websites”

Freedom of Information news site Wobbing Europe reports on proposed legislation regarding ‘personal data’ which could impact on both journalists and citizens, based on a 2003 case:

“Bodil Lindqvist, a Swedish maintenance worker, and part time webmaster learned this the hard way nine years ago.

“In 1998 she built a website to inform young confirmands about the people who worked for the local parish in Alseda, a small congregation in the Swedish Protestant Church.

“Five years later the EU-court found that Lindqvist had violated the data protection directive by ”processing sensitive personal data”. Bodil Lindqvist had mentioned – in a humoristic way, but still – that one of the persons had injured her foot, and health data are by definition sensitive”

“… The EU-commission regards the case as a platform for departure for the future.
This is shown in a classified, but leaked, document on the data protection package presented by the Commission in January this year.

“In the proposed regulation […] anything uploaded to the net, and thus accessible to the public, shall be regulated by the proposed data protection rules. And as a general rule the following will be a no go-zone:

”The processing of personal data, revealing race or ethnic origin, political opinions, religion or philosophical beliefs, trade-union membership, and the processing of genetic data or data concerning health or sex life or criminal convictions and offences or related security measures shall be prohibited.” (Article 9.1)

“Hence the proposal clashes head on with all kind of net publishing, as well as with the fundamental right of freedom of expression.

“Should media ask for permission to publish a person’s political opinions or ethical background? Can we blog about Barroso’s political past, without his consent?

“To avoid such a conflict the Commission suggests a way out. Some will get at free ride:

“Member states shall provide for exemptions for data processing ”solely for journalistic purposes or the purpose of artistic or literary expression” (article 80).”

Twitter and the law

Nice list of legal considerations in using Twitter from the UK.

Additions: p166 – Incitement and “grossly offensive” communications

In addition to the hate speech laws covered on page 166 of the Online Journalism Handbook, publishing journalists should also be aware of three other laws that are increasingly coming into play with relation to comments posted by website users.

The law on incitement – now “encouraging or assisting a crime” under the Serious Crime Act 2007 covers acts where individuals incite others to commit illegal acts. It was used in a number of cases surrounding the UK riots where defendants were accused of encouraging disorder using social networks such as Facebook, with two men in particular receiving a sentence of 4 years in prison as a result.

Student Liam Stacey was charged under a second act – the Crime and Disorder Act 1998 – which covers incitement to ethnic or racial hatred, after making racist remarks on Twitter in the aftermath of the collapse of Bolton Wanderers footballer Fabrice Muamba. He was sentenced to 56 days in prison.

The Communications Act 2003, specifically Section 127 – covers “grossly offensive” messages, a term broad enough to include a worrying range of behaviour for publishers.

A number of Twitter users have been prosecuted under the act for offensive messages sent to footballers.

It was also used to prosecute Azhar Ahmed for the following statement, also on Facebook:

“People gassin about the deaths of soldiers! What about the innocent familys who have been brutally killed.. The women who have been raped.. The children who have been sliced up..! Your enemy’s were the Taliban not innocent harmless familys. All soldiers should DIE & go to HELL! THE LOWLIFE F*****N SCUM! gotta problem go cry at your soliders grave & wish him hell because that where he is going..”

The contentious issue here is who decides what is offensive. As Fahad Ansari explains:

“The test for “grossly offensive” is whether or not the message would cause gross offence to those to whom it relates, who need not be the recipients.”

Normally these laws are used to charge individuals, but publishers and journalists should also be aware of the potential for them to be used to request users’ details – including sources. If they have been warned about such content and have not removed it, there may also be legal consequences. These are as yet largely unexplored, although the case of News Ltd in Australia – found to have breached racial discrimination laws in publishing moderated comments – is illustrative.

The lawyer Charles Russell deconstructs a series of cases relating to that act here, including the ‘Twitter Joke Trial’ where a user was successfully prosecuted after he joked that he would blow up Robin Hood airport.

Update: p183 – Database copyright

The Online Journalism Handbook‘s chapter on law covers some of the rights issues relating to databases. A recent judgement in the Court of Justice (Case C-604/10, Football Dataco & others v. Yahoo UK ! & others) is worth noting as it explores some further distinctions regarding database copyright.

Dr. Estelle Derclaye, Associate Professor and Reader in Intellectual Property law, University of Nottingham, sums it up here:

“The Court rightly holds that the Database Directive’s concepts of “selection” and arrangement” refer to the “selection and arrangement of the data through which the author of the database gives the database its structure”. Selection and arrangement do not extend to the creation of the data contained in the database. Therefore, the intellectual effort and skill expanded in creating data are not relevant in order to assess the eligibility of the database that contains them for copyright protection.

Here’s more:

“In short, the directive aims at stimulating the creation of databases. Its aim is not to protect the creation of data capable of being collected in a database.

“The court then refers to its Infopaq, Bezpečnostní softwarová asociace, Football Premier League and Painer rulings to reiterate once more its interpretation of the originality requirement, namely the author’s own creation. Accordingly and applied to databases, the “criterion of originality is satisfied when, through the selection or arrangement of the data which it contains, its author expresses his creative ability in an original manner by making free and creative choices […] and thus stamps his ‘personal touch’”. Therefore, the Court continues, the criterion is “not satisfied when the setting up of the database is dictated by technical considerations, rules or constraints which leave no room for creative freedom”.

… “The crux of the judgment comes at paragraph 42 when the court clearly states that skill and labour in the selection or arrangement of the data, even if significant, is not sufficient as such to trigger copyright protection. The labour and skill must express the originality in the sense defined by the court (i.e. creativity) for it to give copyright protection to the database.”

Addition: Law – Police Production Orders demanding footage of events

Here’s a legal issue which is not covered in the Online Journalism Handbook but which looks likely to become an increasing issue for online journalists filming video of events such as riots, protests and evictions: the Production Order.

Jason Parkinson writes on the NUJ’s London Photographers’ Branch blog about his fight to oppose a production order application to seize all his video footage of the Dale Farm eviction:

“The production order, calling for all footage shot on 19 and 20 October, is also being served upon other news outlets.

“I am resisting the order with the full support on the National Union of Journalists (NUJ) and legal support from Bindmans Solicitors. The handing over of material, either published or unpublished goes against the NUJ Code of Conduct.

“I strongly believe a journalist should protect her/his confidential sources and material gathered in the course of her/his work. If I am forced to comply with the production order I am being forced into breaching my own union’s ethical code, but also to be forced into being an unwilling agent of the state, handing over material that will surely be used as intelligence.”

Foot Anstey provide a useful guide to production orders as they apply to the media, exploring rules set out in the Police and Criminal Evidence Act 1984 (PACE). These include a distinction between “excluded material” and “special procedure material”. Emphases are mine:

“Police seeking access … must make an application to a circuit judge, giving prior notice to the relevant journalist or media organisation.

“”Excluded material” is defined to include journalistic material which consists of “documents” or other “records” acquired or created for the purposes of journalism and which a person holds in confidence – for example, subject to the obligation under clause 14 of the PCC’s Code to protect confidential sources of information.

“… “Special procedure material” means material which has been acquired or created for the purposes of journalism and which does not fall within the definition of “excluded material”.”

In other words, the difference seems to lie in the confidentiality of the material.

These definitions then shape the case that the police must make. For “excluded material” they need to effectively make the same case as they would for a search warrant, and that such a warrant “could lawfully have been authorised under another statute (e.g. under the Theft Act)”. More on search warrants here.

This sort of case can also be made for “special procedure material”, but that category also allows the police to make other arguments, which I’ve split into bullet points with emphasis added:

• “That there are reasonable grounds for believing an indictable offence has been committed;
• “That there is special procedure material on specified premises;
• “That the material is likely to be of substantial value to the relevant police investigation;
• “That it is likely to be relevant evidence;
• “That other methods of obtaining it have been tried without success, or have not been tried because it appeared they were bound to fail;
• “and that it is in the public interest, having regard to the benefit likely to accrue to the investigation and to the circumstances in which the person holds the material, that the material should be produced or that access be given to it.”

Failure to comply with a production order “may be dealt with as a contempt of the Crown Court.” Contempt is an offence punishable by imprisonment.

It’s notable that the legal language specifies material “acquired or created for the purposes of journalism” – so the focus is not on the person’s occupational role (i.e. journalist) but rather the purposes of the material, which would suggest that bloggers, for example, would still come under the same process.

Despite that language, what’s not clear is if a person filming an event for their own personal blog or an independent niche or hyperlocal blog would be issued with a production order, or if police would resort to other procedures.

If you are, or know of, a blogger who has been the subject of a police request for material, it would be very useful to know how that request was made – and how you dealt with it.

Addition: p182 Copyright Law

A recent decision on how copyright laws apply to sporting events has implications for online journalists and citizen journalists. Here’s the key passage from a report in The Guardian:

“Fanned by the belief that third parties, including the media, are profiting from their events and the Premier League by contrast is losing revenues, the award of copyright protection would have enabled sports organisations to tighten their grip on their games and on the generation of original content (notwithstanding the challenges presented by the use of social media by fans). Sporting events being protected works would also have made it easier to pursue acts of infringement. That Murphy, who argued for the right to show Premier League football in her pub using a foreign decoder, may continue to be prevented from doing so due to the existence of protected works, such as Sky and Premier League graphics, theme tunes and logos, was the single crumb of comfort from a copyright perspective to come out of the judgment.”

And also:

“Had the ECJ [European Court of Justice] agreed that sport events attracted their own copyright protection, the impact could potentially have been devastating for newspapers and news agencies, and therefore for readers. We could have seen the monopolisation of certain traditional press formats; the ability to create still pictures being sold to the highest bidder in the same way as broadcast rights, leading to severe economic harm to picture agencies and the shift of absolute editorial control of picture coverage into the hands of sports associations; and further steps being taken on the road to the selling of “reporting rights”, ultimately fulfilling the long-term goal of the leagues to own and control all content emanating from their events. The result: censorship through the emasculation of independent viewpoints.”

As more sports clubs seek to make money from their own ‘performances’, expect this issue to continue to be contested, and watch for future decisions.

Resource: p183 Copyright and Database Rights

This report provides very helpful guidance on database rights and copyright: (PDF) http://discovery.ac.uk/files/pdf/Licensing_Open_Data_A_Practical_Guide.pdf