Dire traits – a curious case of copyright extradition

In an English copyright extradition case last year (Sitek v Swidnica Circuit Court, Poland [2011] EWHC 1378 (Admin)), the court’s decision to permit the appellant’s extradition to Poland turned on the assertion in a European Arrest Warrant that various audio and music files had “the traits of illegal copying”.   Mr Justice Lloyd Jones ordered extradition for those items, but refused it for games and software in respect of which the warrant made no similar assertion.   

Under our minimalist European extradition procedures, the prosecution were not required to state what the alleged traits consisted of, let alone provide supporting evidence.  Troublingly, it was sufficient for the warrant to make a bare formulaic assertion at a level of generality free of any concrete detail. 

Why did the alleged traits make the difference between extradition or not?  This brings into focus another significant aspect of the case.  The defendant Sitek was charged in Poland with copyright offences based on his acquisition of the computer games, software, audio and music files.  To qualify for extradition the prosecution had to show that the conduct alleged in the warrant would amount to an offence in England.  It was not suggested that the offence fell within the list of 32 EAW offences for which dual criminality is abolished. 

However the prosecution did not argue that the conduct alleged against Sitek would have constituted a copyright offence in England.  Clearly it would not have done, since the allegation was of mere acquisition and possession.   Instead, they relied on the Proceeds of Crime Act 2002.  This makes it a criminal offence to acquire or possess criminal property.  Property is criminal property if it constitutes a person's benefit from criminal conduct or represents such a benefit, and the alleged offender knows or suspects that it constitutes or represents such a benefit.

So the prosecution had to show that if the alleged conduct had occurred in the UK, then:

(a)  Someone up the distribution chain would have committed a criminal offence

(b)  The copies alleged to be in Sitek’s possession would have constituted or represented someone’s benefit from such criminal offence; and

(c)   Sitek would have known or suspected that to be the case.

As to (a) the judge held that it could be inferred from the allegations in the EAW that someone up the chain had either made the copies for sale or hire, or distributed the copies in the course of a business or otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright.  The judge drew attention to the value placed on the items in the description of the offences: “while not on a massive scale, these are, with the exception of Offence 4, not insubstantial quantities of infringing articles”.   

The loss caused to distributors by the audio and music files on which Sitek was ultimately ordered to be extradited was alleged to be as follows: p2p  audio files recorded into MP3: PLN 1,804; audio files with the repertoire of Polish and foreign music: PLN 407.97.  At the exchange rate prevailing at the time of the alleged offences, the total alleged loss to distributors on those items was about £370 (PLN 2,212).

The items on which Sitek was not extradited were alleged to have caused losses of PLN9,482.

The judge also held that it could be inferred that the person dealing up the chain knew or had reason to believe that the article was an infringing copy, since each of the descriptions in the warrant alleged that the appellant "should and could have assumed" in the circumstances that it had been obtained by means of a prohibited act in contravention of licence. Thus the same should and could have been equally obvious to any other person dealing in the items.   There was therefore sufficient basis to infer that someone up the chain would have committed a criminal copyright offence.

As to (b) the judge held that mere possession of the items by a person prior to the acquisition by the appellant would be sufficient to constitute a benefit.

As to (c), the prosecution had to show that Sitek would have had not just objective grounds on which he ought to have assumed that the items were infringing, but would in fact have known or suspected that to be the case.  The allegation that he “should and could have assumed” in the circumstances that the items were infringing fell short of alleging subjective knowledge or suspicion.  The case of dual criminality in relation to computer games and software therefore failed. 

However, the allegations in relation to the audio and music files contained the additional assertion that they had “the traits of illegal copying”.  This was enough to tip the balance and enable the judge to infer subjective knowledge or suspicion:

“While no further particulars of these allegations are provided, these are to my mind statements of primary fact from which conclusions may be drawn, albeit stated once again at a level of considerable generality. I consider that this description of the files is a matter which is capable of sustaining the necessary finding of knowledge or suspicion for the purpose of the relevant Offence in English law, in particular when considered in conjunction with the other more general allegations contained in all four statements of Offence.”

The Sitek case illustrates both the minimal level of detail which is required to be included in an EAW and the extent that the courts can make inferences based on quite general allegations. 

It also demonstrates that dual criminality in a copyright case may be based not just on a corresponding copyright offence, but on a catch-all statute such as the Proceeds of Crime Act 2002.  This can render conduct criminal (such as in this case mere possession) which is not an offence under the copyright legislation itself.

Council of Europe search and social media recommendations - political agendas dressed up as human rights

When human rights become just another vehicle for channelling the political agendas of the hour, you suspect that something has gone wrong.  When a group of government ministers issues, under the human rights banner, a shopping list of pet policies designed to drive government intervention - then you know it.

The recent Council of Europe “Recommendation of the Committeeof Ministers to member States on the protection of human rights with regard to search engines” and its twin Recommendation for social media platforms are just such documents. 

You might think that a human rights evaluation of search engines and social media would be primarily devoted to securing the rights of users to receive information free of government censorship and snooping.  For all the latter-day emphasis on horizontal rights between individuals, the primary role of human rights is and always will be to protect individuals from the excesses of the State.

But no, after a ritual nod in paragraph 2 to the importance of search engines in promoting freedom of expression, the game is given away in the third paragraph of the search engine Recommendation:

“Suitable regulatory frameworks, compliant with human rights requirements, should be able to give adequate responses to legitimate concerns in relation to referencing by search engines of content created by others. Further consideration is necessary as to the extent and the modalities of application of national legislation, including on copyright, to search engines as well as related legal remedies.”

So it seems this document is not going to be about securing the position of search engines as engines of free expression and the dissemination of knowledge, but about heaping as much regulation on them (to the benefit of other concentrated interests) as Ministers think they can get away with while remaining nominally human rights-compliant.

And so, in the main, it proves.  The ground is laid in paragraph 2, where the Committee of Ministers “considers it essential that search engines be allowed to freely crawl and index the information that is openly available on the Web and intended for mass outreach”.  This carefully worded sentence makes no mention of users having unimpeded access to the index. Crawling and indexing do little for the freedom of expression of users unless they can access search results.

When we move on to the meat of the recommendation it becomes clear that the omission is deliberate.  The document includes not just a list of recommended interferences with search engines’ freedom to operate their businesses (disclosure of information about search result methodologies, various requirements in the name of protecting personal data and ensuring accessibility to people with disabilities, member States apparently encouraged to offer public service search engines), but also of impediments to user access: non-indexing or de-ranking of content "not intended for mass communication (or for mass communication in aggregate)".

Even the single recommendation that might go some way to promoting freedom of expression is cast as a potential regulatory intervention:  that member States should encourage search engine providers to discard search engine results only in accordance with ECHR Art 10(2) and that users should be informed as to the origin of the request to discard the results, subject to respect for private life and protection of personal data.

One wonders whether a committee of Ministers would even have thought of this if search engines such as Google hadn’t already been doing it, in conjunction with websites such as Chilling Effects.  Anyway being informed of the origin of the request is a poor second to seeing a result that should never have been removed in the first place.

Restricting government access to user information is addressed weakly, in a way that (astonishingly for a human rights document) puts private and government access to personal data on an equal footing:  “ensure that suitable legal safeguards are in place when access to users’ personal data is granted to any public or private entity…”.

While a detailed appendix to the Recommendation pays greater attention to freedom of expression, for instance in its treatment of filtering and de-indexing and of access to data by governments, it also contains more specifics about what the Ministers expect search engines to be asked to do.  

The social media Recommendation follows a similar structure, stripped of the specifics about search results but with many additional recommendations about protecting users from harm and treatment of personal data.  However the appendix to the social media Recommendation looks much more like a detailed manual for implementation of the main recommendations than does that for search engines.

We are accustomed to reading politically driven policy agendas in documents emanating from the European Commission. What is so difficult about these documents is that they purport to be human rights recommendations, published under the auspices of the Council of Europe.

If human rights are now so debased and diluted that political agendas like these can be dressed up in the clothes of human rights, then human rights are in danger of losing their real value. 

That is perhaps not surprising, human rights having been diluted and eroded from all corners of the political compass.  What are in reality claims on others channelled via the coercive agency of the state are added to the list of rights; ever-increasing horizontality detracts from the significance of rights as protection against the state; and the specious assertion that rights and freedoms must be exercised responsibly ignores the fact that those who disagree with us will always seek to paint our actions as irresponsible. 

Still, perhaps we should expect little better when we charge a Committee of Ministers with responsibility for human rights.  We can hardly expect a bunch of politicians, even when wearing human rights hats, to do anything other than act politically.

See me, sue me?

When the internet swam into our vision (in my case in 1993), one of the first questions was whether putting up online content that is legal in one country risks exposure to the laws and enforcement of some other country in which the content might be illegal. 

That has happened.  The 1995 CompuServe raid, following which local German country manager Felix Somm was prosecuted and eventually acquitted on appeal, was an early example.  Others followed, such as the 2000 French litigation against Yahoo! Inc. and ultimately unsuccessful criminal prosecution of its then CEO Timothy Koogle, both over Nazi memorabilia on its US auction sites. 

Fast forward to today and we still have to ask the question.  Every so often someone in authority feels the urge to put on blinkers, engage tunnel vision and, casting the internet as chief villain, decide to view the rest of the world as an offshore haven that exists for the sole purpose of subverting his home laws.  This even happens at policy level.  EU and US authorities have both gained deserved reputations for trying to forcefeed other countries, and each other, with their pet legislative agendas.    

In the UK you could argue that we asked for it.  Our libel courts willingly adopted the startlingly parochial doctrine, first espoused in the Australian case of Gutnick v Dow Jones, that any website in the world that can be read and comprehended in the UK is published here.   Asserting our libel laws against the rest of the world on the basis of minimal UK publication provoked the US to pass the SPEECH Act, preceded by New York’s Libel Terrorism Prevention Act.

So is it any surprise if US authorities feel little compunction in trying to enforce their criminal copyright laws against UK-operated websites – even though in common with the USA we have one of the strongest sets of intellectual property laws in the world?  But in this jurisdictional race it is not judges and prosecutors but the everyday citizen who ends up in metaphorical or even real shackles.

Blinkers and tunnel vision come at a cost, most concretely the injustice suffered by unfortunate individuals who fall foul of overzealous local law enforcers in other countries.  The obvious defence is to build firewalls, cutting off the rest of the world from your content.  Even if that were possible it is the worst outcome, inhibiting every kind of discourse across borders.  The geolocation firewall does not discriminate.   

For the first time, thanks to the internet, the promise of Article 19 of the 1948 Universal Declaration of Human Rights – “to seek, receive and impart information and ideas through any media and regardless of frontiers" – has been made good.  That is to be treasured and protected, not destroyed by building walls in cyberspace.

But won’t the least restrictive jurisdictions win out and, in practice, export their values to every other country?  Won’t everyone set themselves up in the country with the fewest laws? 

Some may, and if they do it in order to evade the laws of a particular country, then it may be no surprise if that country’s legal system tries to do something about them.  But even then there is a case for restraint if, as is often the case, the suggested cure is worse than the complaint.  And within Europe, the ECommerce Directive recognises that it is more important to encourage online trade between EU states than to allow member states to enforce many types of national law against websites based in other EU countries.

But the essence of the internet is individual speech and publication.  The hundreds of millions of people who blog and tweet and contribute to discussion forums and set up innovative little websites are not about to migrate en masse to some exotic content haven.  They will stay exactly where they are in their student attics and their homes, with their schools and jobs and families and operate under their local laws.   That is exactly what they should reasonably expect to be able to do, without the fear of the police coming knocking on their door at the behest of some foreign government, and without the fear of being sued because someone somewhere else in the world can see a website that they think contravenes their own country's local law.

So does that mean that people in one country should, if they choose, be able to access material from other countries that might be unlawful at home?  Certainly.  That is the world created by the internet, there is no going back and the sooner governments recognise it the sooner we can bring some sense to all this. 

The important word is ‘choose’.  We can value the ability to choose; or every country can attempt forcibly to export its laws to every other country, resulting in a chaos of conflicting jurisdictions and perceived injustices.  It is one thing for people to have access to a choice of material created under different sets of laws.  It is quite another to extend state power across borders in an attempt to coerce people into complying with every other country’s content laws.

Copyright extradition FAQ

In 10 days’ time I’ll be speaking at OrgCon on “Have warrant, will extradite – copyright cops go international”. In the meantime, here is a FAQ to whet your appetite.

Q. Surely copyright is a civil matter? How can someone be extradited for that?

UK copyright is both civil and criminal, and has been for many years. An infringer can be sued for infringement in the civil courts, or prosecuted in the criminal courts for a more limited range of criminal copyright offences – or both.

Most criminal copyright offences require a commercial ingredient. All of them require the defendant to have knowledge, or reason to believe, that (put roughly) what was done infringed copyright.

Q. If copyright is about copying, can linking infringe?

If a site links to infringing items elsewhere, it is true that the site will not store any copies of infringing copyright works. But that’s not the end of the story. Copyright legislation sets out a series of ‘restricted acts’, not all of which depend on copying. In particular, it is an infringement to make a work available to the public without the consent of the copyright owner.

In Newzbin, a civil case, the site operator was found to infringe by making movies available to the public, even though it did not store any copies of the infringing films on its own site. The NZB linking files in that case were not simple links, but made downloading practicable by aggregating hundreds or thousands of fragments into one user download. The judge, applying the European Court of Justice decision in Rafael Hoteles, said:

“This service is not remotely passive. Nor does it simply provide a link to a film of interest which is made available by a third party. To the contrary, the defendant has intervened in a highly material way to make the claimants' films available to a new audience, that is to say its premium members. Furthermore it has done so by providing a sophisticated technical and editorial system which allows its premium members to download all the component messages of the film of their choice upon pressing a button, and so avoid days of (potentially futile) effort in seeking to gather those messages together for themselves.”

The judge also found the defendant liable on the separate grounds that its particular behaviour amounted to authorising and inducing copyright infringement by the site’s users.

Newzbin suggests that simple linking does not of itself infringe the making available right. However there may be room for debate about where the line between simple linking and the Newzbin scenario is drawn.

Q. Didn’t the TV-Links case say that linking wasn’t a copyright offence?

TV-Links was a criminal prosecution. The site consisted of user submitted links. The judge said:

“The site operators would not know when a link was placed on its site by members of the public. When it learned, if it did, of a link that had been placed on its site, the defendants would not know what that link was, unless those who had placed the link onto TV-Links’ site also provided an accurate description of what the link was. The operation of the site was entirely in the hands of the public in the sense that they placed the links on the site that pointed the way to sites from which material could be accessed. … It was not disputed that when the attention of TV-Links was drawn to material on a site to which it had a hyperlink (and where such material was said to be in breach of copyright) the defendants took immediate steps to block access to such a site.”

On the question of making available, the judge found that it was the linked-to sites, not the linking site, that made works available to the public.

In the O’Dwyer case the prosecution sought to distinguish TV-Links on the basis of three aspects of the alleged conduct, recited by the district judge in the magistrates court as follows:

1. “Both TVShack websites were entirely in the hands of Richard O’Dwyer and his co conspirators requiring third parties to sign up to TVShack and be vetted before going further.”

2. “There was no attempt to protect copyright.”

3. “O’Dwyer knew materials were subject to copyright and actively taunted already cited efforts in June 2010 to seize TVShack.net.”

The prosecution also argued that O’Dwyer was “intimately involved in deciding who was allowed to post links on the TVShack website, which links would be posted…”.

O'Dwyer said that he was not guilty of the charges against him.  He stated that his site "worked exactly like the Google search engine ... (it) directed users through the use of searches to websites ... at no point was there any infringing material, such as movies or programmes on my server.  It just directed users to other websites by providing the link."

The judge concluded:

“there is much in the distinction factually, remembering that these matters are allegations of conduct which a trial court alone can resolve – that [the prosecution] contends between the instant matter and [TVLinks].”

He decided that the conduct alleged by the prosecution in the extradition request would be an offence in the UK. That conclusion is at the heart of the public controversy over dual criminality in the O’Dwyer case.

Q. How are the facts established in an extradition case?

Extradition cases are decided on the basis of the conduct alleged against the defendant. Reasonable grounds for suspicion have to be established. The court deciding on extradition is not supposed to conduct a mini-trial to decide whether the allegations are justified. That is the province of the trial court in the requesting country. For many requesting countries there is no requirement to produce evidence in the UK court to support the allegations.

Q. How can a country extradite someone who has never set foot there?

In the most typical extradition situation some at least of the defendant’s conduct has to have occurred in the requesting territory. However, the courts have recognised that crimes can be committed remotely. So someone who sends a letter bomb from one country to another commits an act in the territory to which the letter was sent. If the defendant intended the effects of his actions to be felt in another country, his conduct will be treated as having occurred there.

Q. Where does conduct occur on the internet?

For extradition purposes the existing “intended effects” principle may apply, or it may be argued that technical aspects of conduct in fact took place in the requesting territory. But either gives rise to a problem that is increasingly familiar in cross-border internet cases, whether civil or criminal.

By default a website is visible cross-border. Does that mean that the site owner is exposed to the law and jurisdiction of every country from which it can be accessed? In the language of extradition, is the website operator automatically taken to intend the effects of his actions to be felt in every country from which users can access the site? Or does there have to be more than that, and if so what?

There are almost as many different answers to these questions as there are different types of liability and countries. Answers that veer towards the ‘mere accessibility’ end of the spectrum are tempting as a means of asserting local law, but have severe extra-territorial consequences. Maximising cross-border exposure to multiple jurisdictions carries a high risk of chilling the free flow of legitimate information across borders.

Q. Does the alleged conduct have to be a criminal offence in the UK as well?

In many extradition cases, including to the USA, yes - dual criminality has to be shown. This can be a highly technical exercise. The result may depend critically on how the court constructs the hypothetical scenario in which the alleged conduct is geographically transposed, so as to determine whether it would be an offence here.  It is particularly important to get that right in a copyright case, since copyright is itself a territorially limited right.

Q. What if the UK can also prosecute?

Historically the paradigm extradition case was someone who committed a crime in one country, then fled to another. Only the requesting country would have jurisdiction to prosecute. As communications improved, so it became possible for a crime in one country to be plotted, and possibly committed, remotely from another. Criminal jurisdiction rules and extradition place of conduct rules became less strict in response, enabling a person to be extradited from the country in which he carried out most or all of the physical acts.  In that situation the authorities in both countries may have the ability to prosecute.

Many argue that where significant conduct takes place in the UK, then the UK court should be able to consider refusing extradition if the requesting territory is an inappropriate forum for trial.

At present, if the connection with the requesting country is sufficiently tenuous that it amounts to exorbitant jurisdiction, then the UK court can refuse extradition on human rights grounds. Otherwise it cannot consider forum.

The internet takes forum concerns to a new level. Far from the paradigm of one obvious victim country, a website is by default available worldwide. If any extradition partner can seek extradition from the website operator’s home country simply because users have accessed the site from the requesting country, then the site operator faces extradition exposure to any one of a series of countries, none of which has as close a connection with the alleged offence as the home country. Any protection then offered by dual criminality is scant comfort. It is unlikely to be at all obvious that any requesting country has the main interest in prosecuting and is best placed to do so.

The Extradition Act 2003 in fact contains provisions, not brought into force, that if a significant part of the conduct alleged to constitute the extradition offence is conduct in the UK, then extradition should be barred if in view of that and all the other circumstances it would not be in the interests of justice for the person to be tried in the requesting territory.

The Scott Baker Extradition Review currently being considered by the Home Secretary recommended against bringing these provisions into force. The word ‘internet’ appeared not once in the report’s entire 486 pages.

Hello Tamiz, goodbye Godfrey

Last Friday, in Tamiz v Google Inc, Google successfully challenged the English court’s jurisdiction to hear a libel claim against it founded on comments posted to a blog hosted on its Blogger platform.  Mr Justice Eady held that Google was not a publisher of the comments, even after notification of the complainant’s objections. 

Tamiz marginalises Godfrey v Demon Internet, the original English internet defamation case decided in 1999.  Godfrey held that an ISP that hosted Usenet newsgroups, since it had chosen to store the newsgroup in question on its servers and was able to obliterate postings to the newsgroup, was a publisher at common law.

Determining the defamation liability of an internet platform is now becoming a much more fact-sensitive and nuanced affair, heavily influenced by the need to have regard to the fundamental right of freedom of expression secured under Article 10 of the European Convention on Human Rights.  The decision in Tamiz moves a step further away from the rigid traditional doctrine that for defamation purposes anyone who participates in publication is liable as a publisher, unless saved by any specific defences available to intermediaries. 

In Tamiz the claimant over a three month period sent Google a series of complaints about a total of six different comments on a blog article.  He also complained about the original blog article, but ultimately did not sue over that.  Some three weeks after the last complaint, Google notified the blog owner who removed the article and comments within a few days.

Google argued that it neither could nor should be expected to investigate and determine the truth or falsity of allegations made by bloggers. With half a trillion words on the Blogger platform, and 250,000 new words added every minute, it would be unrealistic to attribute responsibility for publication of material on any particular blog to Google, whether before  or after notification of a complaint.

The judge commented:

“The position may well be fact-sensitive. Liability may turn upon the extent to which the relevant ISP entity has knowledge of the words complained of, and of their illegality or potential illegality, and/or on the extent to which it has control over publication.”

He agreed that notification of a complaint did not immediately, automatically or necessarily convert Google’s status or role into that of a publisher.  Likening Google’s position to that of the owner of a wall which has been festooned overnight with defamatory graffiti, he observed that Google was not required to take any positive technical step in the process of continuing the accessibility of the offending material, whether notified of a complainant’s objection or not.  On the evidence Google’s role as a platform provider was purely passive.  It was not a publisher at common law and so had no need to rely on any defence. 

For good measure the judge went on to consider the position if he was wrong about Google’s status, holding that if Google was a publisher at common law it would still have been able to rely on the intermediary defences under both the Defamation Act 1996 and the ECommerce Directive.

From the perspective of what the law ought to be, cutting back the broad common law doctrine of participation in publication is to be welcomed.   The doctrine cast too wide a net in pre-internet days, let alone post-internet.

Godfrey v Demon Internet represented an application of unvarnished traditional doctrine to the internet.  Eady J in Tamiz noted that Godfrey was decided 18 months before the Human Rights Act 1998 came into effect.  He stressed, as he did in Metropolitan International Schools (the case in which Google was held not to be a publisher of search engine snippets), the need to take into account the fundamental right of freedom of expression.  It was important to guard against imposing legal liability in restraint of Art 10 ECHR where it is not necessary or proportionate to do so.   

However, where does Tamiz leave the state of the law on common law publication?  Eady J acknowledged that:

“It is probably fair to say that none of the decisions so far relating to the role of Internet service providers (ISPs) has definitively established, in general terms, exactly how such entities fit into the traditional framework of common law principles”

and that he was ‘striving to achieve consistency in the court’s decision-making’. 

Indeed only two months ago in Davison v Habeeb, another case concerning the Blogger platform in which Google Inc challenged jurisdiction, HHJ Parkes QC held that Google was arguably a publisher of the blog articles complained of.  In that case, as in Tamiz, Google notified the blogger of the complaint after it was received.  The blogger did not remove the articles.  Google did so on a voluntary basis once proceedings were commenced. 

Notwithstanding Eady J’s striving to achieve consistency, much remains unclear.  In Tamiz and Davison we now have two first instance decisions concerning the Blogger platform which have reached different conclusions as to common law publication by Google, on facts which while not identical have much in common.  Are we to conclude that the fact that Davison related to blog articles, whereas Tamiz concerned comments posted in response to a blog article, is a significant point of factual distinction?  Or should we regard the decisions as inconsistent? 

While Tamiz tells us that notification is not necessarily sufficient for a host of a blogging platform to be a publisher, it does not go so far as to say that it could never become a publisher, or give much guidance as to when (if ever) the line might be crossed.  In Tamiz the judge appears to have set some store by Google’s forwarding of the complaint to the blogger (as it also did in Davison), but did not say whether the position would have been different had it not done so.

It is common ground in all the decisions that publication has to involve a mental element.  A merely passive role as a platform provider does not suffice.  In Bunt v Tilley Eady J held that the crucial consideration was whether a person had ‘‘knowing involvement in the process of publication of the relevant words.  It is not enough that a person merely plays a passive instrumental role in the process.’  In order to impose legal responsibility upon anyone under the common law for the publication of words, it was essential to demonstrate that they had a degree of awareness that such words existed, or at least an assumption of general responsibility.

On the basis of Tamiz, while a degree of awareness of the existence of the relevant words may be necessary for legal responsibility, it is not necessarily sufficient.

In Godfrey, Demon Internet as the ISP hosting the Usenet newsgroup to which the defamatory statement was posted was held to have had a more than passive role: 

“I do not accept [counsel’s] argument that the Defendants were merely owners of an electronic device through which postings were transmitted. The Defendants chose to store ‘soc.culture.thai’ postings within their computers. Such postings could be accessed on that newsgroup. The Defendants could obliterate and indeed did so about a fortnight after receipt.”

The main factual basis on which Godfrey is said to be distinguishable from Tamiz seems to be that Demon chose to host the Usenet newsgroup in question.   That now appears to be an increasingly slender point of distinction, the more so since soc.culture.thai would have been only one of many thousands of newsgroups hosted by Demon at that time.  The judgment contains no discussion of the extent to which Demon may or may not have selected which newsgroups to host.  Further, there would have been many postings within each newsgroup, in which case it is debatable how choosing to host a newsgroup can amount to knowing involvement in the process of publication of the relevant words.

Final resolution of the issues raised by Tamiz and Davison will have to await a decision of an appellate court.  It should also be remembered that in those cases and also in Bunt v Tilley the claimant acted in person, without legal representation. 

However, it does seem increasingly clear that Godfrey v Demon Internet represents the high water mark in mechanistically applying the traditional pre-Human Rights Act defamation rules regarding publication.  Notwithstanding the attempts of later courts to distinguish Godfrey on its facts, if Tamiz is right then it must now be doubtful whether Godfrey would be decided the same way today.  If not already flatlining, Godfrey may fast be approaching its terminal phase. 

Regulatory convergence - same old question, same right answer

Browsing through the responses to the Communications Review Open Letter in advance of the forthcoming Green Paper, I came across the answer from the Oxford Internet Institute to the posed question "Is regulatory convergence across different platforms desirable and, if so, what are the potential issues to implementation?".    The OII says, very sensibly:

"... it would be a significant mistake to seek regulatory convergence across platforms if this means imposing a model of broadcast regulation on the Internet. It is often assumed that the Internet is a modern era ‘Wild West’, lawless and unregulated. In fact, the opposite is true – there is already extensive regulation of Internet service provision, content and activities. We would argue that traditional regulatory models for broadcasting, common carriers (such as post or telecommunications) and the press cannot be imposed wholesale on the Internet without serious risks to its vitality and its contribution to the UK economy as well as potential chilling effects of speech."

I was reminded of another Green Paper 14 years ago - the European Commission Convergence Green Paper - which raised much the same question.  At the time, alarmed at the possibility that policymakers might unthinkingly apply anachronistic broadcast regulation to the internet, I wrote a piece for the Financial Times (8 April 1998) entitled "Networks without broadcast constraints".  Unblushingly I reproduce it below, if only to suggest that while the question may recur, the right answer remains unchanged. 

“In the 17th century John Milton, in his celebrated Areopagitica, argued against Oliver Cromwell's licensing of books and newspapers. Today,with the rise of the internet, the battle has begun for freedom of the digital networks.

The battleground is Brussels. Last December the European Commission published a Green Paper called "Convergence of the Telecommunications, Media and Information Technology Sectors, and the Implications for Regulation".

Convergence is the phenomenon that, thanks to advances in IT and communications technology, content no longer respects the technical boundaries of telephone, radio, television and cable. The Green Paper identifies the internet as "both the symbolic and prime driver". The Green Paper, open for consultation until the end of April, begins a debate about the regulatory environment for digital content. The outcome is important for traditional print media. As paper content migrates to digital networks, should digital content be licensed and subject to discretionary regulation as if it were broadcast?

Or should it be like print, which in liberal countries needs no licence and whose publishers are answerable only to general laws enacted by democratic institutions and enforced by independent courts ? In the rush to devise policy proposals for the internet, it is easy to assume that it is another variety of new media, which like broadcast should subject to discretionary content regulation.  Even if that could be justified, the analogy is misconceived. Spectrum on the internet is far from scarce. Internet content is not invasive. Every internet user is also potentially a publisher. The US Supreme Court, in the Communications Decency Act case, accepted these differences from broadcast media. It concluded that the net's content is as diverse as human thought and it deserved the highest degree of First Amendment protection.

Even so, digital networks remain at risk of having broadcast regulation imposed upon them. Outside Europe, Singapore has imposed a class licensing scheme for the internet under the control of the Singapore Broadcasting Authority. The UK Broadcasting Act arguably could apply to moving pictures on the net.

If the Broadcasting Act were to be extended to web versions of UK newspapers, they would have to be censored to comply with the Act's requirements of political and public policy neutrality. No editorials on the web. Freedom of speech would be the preserve of an ever-diminishing print rump. The Green Paper does acknowledge the principle of "no regulation for regulation's sake". It rightly points out that the IT industry operates in an unlicensed environment. It mentions that convergence may challenge licensing approaches based on perceived scarcity of radio-frequency and content. It refers to the possibility that different standards may apply to the same content provided over different platforms. It tends to favour lighter regulation. However, as paper content migrates to the networks, the Green Paper pays little attention to the need to preserve the freedom to publish that content without permission from the state.

Nowhere does it suggest a clear principle that licensing and discretionary regulation are inappropriate for content published over networks. Instead the paper tends to emphasise "self-regulatory" approaches that risk verging on government regulation by another name.

It points out that self-regulation for the net may lead to divergent approaches unless co-ordinated to some degree at a community level. So much for diversity - the essence of the internet - as a positive good. Martin Bangemann, EU commissioner, has called for an International Charter for global communications. He also suggested the possible need for a European Communications Act covering infrastructure, services, content and conditions of access.

A recurring theme in the debate is the need to regulate internet content effectively. Mr Bangemann, describing reactions to his call for an international charter, says that some people who are afraid we are heading for anarchy considered the internet something that must be brought under strict control.

The real need is to free the internet and other digital networks from the threat of censorship by licensing and discretionary regulation, and to establish them as subject only to settled laws protecting free speech, enforced by independent judges. If that were embodied in Mr. Bangemann's charter, it would be progress indeed. Achieving it in a world replete with countries whose governments do not value freedom of speech should be the important task for international lawmakers.”

Avoidable ATVOD

Following OFCOM’s ruling in the Sun Video case, what does the future hold for ATVOD? 

ATVOD sees itself as a model for co-regulation, whose expertise can usefully inform the forthcoming Communications Green Paper: 

“Our experience is that co-regulation of video on demand services has proved capable of yielding nimble, economical solutions and the promise of establishing a broad consensus around light touch regulation.” (Letter to Minister for Culture, Media and Sport, 28 June 2011)

Others view it differently.  In July 2011 Lord Clement-Jones criticised ATVOD in Parliament as expensive, too wide in scope, far from light touch and already giving rise to litigation. 

An answer to a Parliamentary question in November 2011 revealed that complaints to ATVOD about audiovisual services were running at about two a day since April 2011.  No complaints had resulted in a finding of breach of content standards.  ATVOD costs around £450,000 per annum, recouped by fees levied on about 150 regulated VOD services.

The question is bound to be asked, come the Communications Green Paper, whether ATVOD should now be given a decent burial.  What purpose is served by an extra layer of content regulation - whether ATVOD-style co-regulation or a full-blown statutory regulator – over and above the general law, especially when funded by imposing substantial costs on a small section of industry?

Are there alternatives?  The UK government does have to comply with the AVMS Directive, which lays down content requirements specific to TV-like audiovisual services.  However those can be enshrined in a few paragraphs of statute, with a sanction such as the ability for a person affected to apply to court for an injunction.  That, in conjunction with a voluntary code of conduct, is how the Irish government has implemented the AVMS Directive.

Subjecting on-demand audiovisual services to an appropriately crafted statute would remove the need for a funded regulatory or co-regulatory body and provide a regime much closer to that applicable to most other speech and content, both generally and on the internet.

An Irish-style approach was never considered when the UK government consulted on the implementation of the AVMS Directive in 2008.  The Communications Green Paper would provide the perfect opportunity to reconsider the need for any regulator at all.