Archives for the month of: March, 2012

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.

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 InfopaqBezpečnostní softwarová asociaceFootball 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.”