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26th Annual Conference 2011

Manchester Metropolitan University
11th & 12th April 2011

Conference Theme: "Harnessing Technology’s Full Potential; Minimising Potential Threats"

 

Position Papers

Dr Jonathan Barrett: Name Suppression Orders and Web 2.0 Media: the New Zealand Experience.

Dr Abdulrahman Alzaagy: When the Contract is Deemed to be Effectively Concluded in E-Commerce With Reference to Islamic Contracting Principles?

Diane Rowland: Is it a bird? Is it a plane? Why can’t the EPO and CA agree on the ‘as such’ exclusion?

Ibrahim Al swelmiyeen: Online Arbitration and Defamation in Social Networks.

Catherine Easton: Revisiting the law on website accessibility in the light of the Equality Act 2010 and the UNCRPD.

Ana María López Cepeda: The E-governance and Public Television in Europe.

Stavroula Karapapa & Indranath Gupta: UK empirical evidence on data protection compliance: Consent for data processing.


Postgraduate Paper Competition

Ratnaria Wahid: Copyright Ownership of Online Course Materials: By the People for the People. Download here.

Nick Scharf: Napster’s Long Shadow. Download here.

Matěj Myška: ACTA: Evil Inside? Download here.

Noriswadi Ismail: Identifiability in RFID. Download here.

Małgorzata Skórzewska-Amberg: Infringements in the Internet – a polish perspective. Download here.

Catherine S. Panaguiton: Profiting from pay-per-click advertising must come with a price – A hefty one, at that. Download here.

Long Long: The Prospect of Social Norms as a Governing Mechanism of Virtual Worlds. Download here.

Alexandra Giannopoulou: Copyright enforcement measures: the role of the ISPs and the respect of the principle of proportionality. Download here.

Aysem Diker Vanberg: From Archie to Google. Download here.

Sandra Schmitz and Thorsten Ries: Three songs and you are disconnected from cyberspace??? Not in Germanywhere the industry may “turn piracy into profit”.  Download here.

Lawrence Siry and Sandra Schmitz: Online Archives on Trial in Germany:Is there a Right to be Forgotten? Download here

Felipe Romero Moreno: The Three Strikes and You Are Out Challenge.

Anusha A. Munasinghe: Beyond E-Government in Sri Lanka. Download here.

Kim Barker: MMORPGing – The Legalities of Game Play. Download here.

Rory Taylor: The Record Industry, Technology, Globalisation and the role of Intellectual Property Download here.

Abstracts

When is the Contract Deemed to be Effectively Concluded in E-Commerce According to Islamic Contracting Principles?

Dr Abdulrahman Alzaagy

University of Wales, Trinity Saint David
r.alzaagy@trinitysaintdavid.ac.uk
 

The borderless nature of the Internet presents questions as to when a contract is considered to be irrevocably formed and therefore raises questions regarding contract validity. As a general rule, a contract is formed when there is an exchange of offer and acceptance between the parties. However, in online contracts the exchange of offer and acceptance involves the possibility that such correspondence may not reach its intended recipient. It is also possible that a message sent via the Internet may be altered en route and reaches its final destination either incomprehensible or with a different meaning to the one intended. That is to say, when an acceptance is communicated over the Internet it may be illegible when it reaches the offeror or it may never arrive at all. Consequently, it is questionable as to whether there is a valid conclusion of contract. Furthermore, provided that the acceptance has been unequivocally communicated to the offeror, questions arise concerning the exact time during which the contract is deemed to be effectively concluded. The prime aim of this paper is to discuss the valid conclusion of electronic contract in light of Islamic contracting principles. Early consideration will focus at when a contract is deemed to be legally binding in Islamic law in the conventional way of trading - face to face and contracting inter absentees. Discussions will be stretched out to include online contracting perspectives with reference to certain national and international laws in this respect.

 

Online Arbitration and Defamation in Social Networks

Ibrahim Al-swelmiyeen
University of Gloucestershire
ibrahimal-sweilmiyeen@connect.glos.ac.uk
 

Social networks are very popular among younger generation they use these social network sites such as facebook and twitter to meet new people, sharing files, photo, and a expressing there opinion on many issue[1], by doing so they are in risk to be liable for defamation, or vulnerable of reputation damage which will have a negative effect in their life [2]..Furthermore it will lead to a rise in social network defamation cases [3].

The current legal frame work which governs defamation in real world faces major challenges when it comes to the defamation in social network[4] the current legal frame work which governs defamation in social are in favour of  social network providers [5], and  the data protection act which  make it difficult to disclosure the anonymous identity in many cases beside The current debate about adopting the single publication rule instead of and the multi publication rule will  minimise the social network liability, and preferring the Freedom of Expression on the Internetmore than the individual rights, , for this the freedom of expression right  has to be balanced against the protection of private life guaranteed by Article 8 of the Convention, and the concept of private life covers personal information which individuals can legitimately expect should not be published without their consent and includes elements relating to a person’s right to their image.

One of the tools that can strike the balance can be done through introducing a effective dispute resolution systems which can adapt to the social network novel characteristics. This alternative can be similar to the successful online arbitration in Uniform Domain-Name Dispute-Resolution UDRP; this can be done by observing the similarities between the domain name disputes and the defamation in social network disputes, such as the nature of the disputes, as well as the jurisdiction conflict, and the self enforcement mechanism and applicable law avoiding conflict of laws.

This paper will cover the defamation in social network in three parts, the first part is situation part which  will highlight the social network nature,  activity, and disputes, while second part is the dilemma part which is  going to investigate what  are the applicable law, and whether they are effective,  and social providers liabilities.  Finally the third is the solution part which will recommend an alternative dispute resolution and highlights its main features and whether it can be effective in resolving defamation in social network.

 

[1] Simon Sellars Online privacy: do we have it and do we want it? A review of the risks and UK case law European Intellectual Property Review.2011

[2] Holman W. Jenkins Jr, “Google and the Search for the Future” in Wall Street Journal, August 14, 2010, available at http://online.wsj.com/article/SB10001424052748704901104575423294099527212.).

[3] Consultation paper. Cp 20/09.Defamation and the intranet: the multiple publication rule.. Sep 2009. www.justice.gov.uk/consultations/.../defamation-internet-response-web.pdf

[4]Godfrey v. Demon Internet Limited [1999] EWHC QB 244 (26th March, 1999) .

[5]Defamation Act 1996. http://www.opsi.gov.uk/acts/acts1996/ukpga_19960031_en_1#pb1-l1g1,

 
 
MMORPGing – The Legalities of Game Play
Kim Barker
University of Aberystwyth
kjb09@aber.ac.uk
 

MMORPGs (Massively Multiplayer Role Playing Games) and Virtual Worlds are big business; large numbers of people engage in some form of online gaming experience. Some users participate for social reasons or to generate a second income. Given the prevalence of such virtual spaces – whose numbers are now quite high – there is an increasing awareness that disputes can and often do arise about property and rights in online games.

Online games and MMORPGs are governed by EULAs. Each user is required to consent to the EULA of a particular game or world. Such agreements present one legal issue; they often deprive users of rights in intellectual property and virtual property to anything developed in the game. In addition to this, the same agreements prevent RMT (real money trade) of game items. There are strong arguments relating to freedom of contract and deprivation of rights in this area, and the increasing economic activities and prevalence of online games – and their disputes – suggests that such issues need examining.

EULAs are not the only problem for the users of MMORPGs and Virtual Worlds; how does a user protect his or her character against others who may seek to copy the appearance; is copyright the most appropriate mechanism? How do users resolve disputes when engaging in trade in Gray Markets? What rights do users have against Wizards and Griefers, Gold Sinks and Farmers? Does copyright prevent users selling their ingame property, game accounts and avatars to other users?  Users have sought to sell game accounts and in game assets on online auction sites until developers prevented gamers from doing so. All this because the licenses state developers retain ownership of rights.

Virtual World and MMORPG disputes are appearing before courts in the real world; Bragg v Linden Labs, BlackSnow v Mythic and Hernandez v IGE are just three examples concerning property rights and contractual issues in Virtual Worlds and MMORPGs. There are a plethora of legal issues raised in relation to properties and rights in cyber spaces, although the most interesting concern the contractual nature of restricted rights and the limitations on intellectual property granted to users. This paper seeks to explore some of these, and briefly outline the potential options for alternative mechanisms, predominantly including consideration of the intellectual property rights of both users and developers in light of the recent US judgement in MDY Industries v Blizzard Entertainment concerning copyright infringement.

 
 

Name Suppression Orders and Web 2.0 Media: the New Zealand Experience

Jonathan Barrett

Open Polytechnic, Wellington, New Zealand.

jonathan.barrett@openpolytechnic.ac.nz  
 

Less than four and a half million New Zealanders inhabit a land mass greater than the United Kingdom with only one metropolitan centre whose population exceeds one million. Most New Zealanders are regular Internet users and a vibrant blogging culture has developed. Consequently, people accused of crimes that attract significant public interest or opprobrium may be easily identifiable within their professional and local communities. Despite exceptions to the common law principle of open justice being statutorily restricted, name suppression in criminal proceedings appears common in New Zealand, although media reporting of high profile cases may distort perceptions of actual practice. Nevertheless, a perception that celebrities, in particular, disproportionately benefit from the privilege of name suppression is widely held enough for the Criminal Procedure (Reform and Modernisation) Bill 2010 ('the Bill') to specifically provide that being well known should not constitute an adequate ground for name suppression.    

The possibility of a name suppression order being breached is not new but the availability of Web 2.0 or new media, particularly blogging tools, has made this possibility a likelihood. Indeed, in the recent Whale Oil case, a prominent blogger became the first person in New Zealand to be convicted of breaching an NSO using Web 2.0 media. Since the judge in that case is the country’s most ‘tech savvy’ member of the judiciary, the case report provides an in-depth analysis of relevant issues.  

This paper is about New Zealand's experience of Web 2.0 media and NSOs in criminal trials. First, relevant principles and specific provisions of the Criminal Justice Act 1985 are sketched.  Second, the impact of the Internet on name suppression is considered, with particular reference to offenders who are well known. Third, the Whale Oilcase is discussed. Fourth, relevant provisions of the Bill are outlined. Fifth, name suppression in a context of Web 2.0 media is critically discussed, with particular emphasis on the expectations of freedom of expression and a right to fair trial.

 

E-commerce Taxation doesn’t need to be Taxing?

Subhajit Basu
University of Leeds
s.basu@leeds.ac.uk
 

There is nothing more challenging to the international tax regime than the effect of e-commerce. International direct taxation is also both excruciatingly complex and fundamentally arbitrary[1]. It is thus in double trouble- a potential victim of irrationality and technological advancement. Although the path of international direct taxation law is directed by three main drivers: tax sovereignty concerns, practical administrative concerns, and guiding international tax principles[2], but there are the five strategic tax rules that apply to international transactions which are similar in most of the countries.

They rest upon the use of a relatively small number of concepts: (1) the choice of specific principles (e.g., residence and source-based taxation) for governing the tax treatments of both domestic source income accruing to non-residents and foreign-source income accruing to residents; (2) the use of the concept of permanent establishment in establishing the economic nexus required to assert jurisdiction to tax business profits; (3) the application of alternative methods (e.g., tax credits or exemptions) for effecting (juridical) double-taxation relief; (4) the formulation of appropriate provisions (e.g., inter-company transfer pricing rules for multinationals) for the effective implementation of the chosen tax regime; and, finally, (5) the negotiation of bilateral (and sometimes multilateral) tax treaties to alleviate the undesirable effects of non harmonized tax policies among countries [3]. In this article I will analyse the challenges posed by the e-commerce to traditional source- and residence-based taxation systems (both legal and administrative). Particularly, I intend to illustrate the need for reassessment of the first two concepts. I will argue that all the controversies relating to international taxation are about interpretations of the provisions of domestic law and the treaties and conventions concerning double taxation avoidance.

[1] It is also that analysis of international tax law is overly dominated by economic thought. Legal analysts look to guiding principles that are typically broken down into efficiency and equity categories. See, Nancy H. Kaufman, ‘Fairness and the Taxation of International Income’ (1998) 29 Law and Policy in International Business 145. The efficiency concerns tend to dominate in part because there is very little agreement on the normative foundations for the equity issues. See also Michael J. Graetz, ‘Taxing International Income: Inadequate Principles, Outdated concepts and Unsatisfactory Policies’ (2001) 26 Brooklyn Journal of International Law 1357, 1362

[2] Cockfield, Arthur J. (2004)’Formulary Taxation Versus the Arm’s Length Principle: The Battle Among Doubting Thomases, Purists, and Pragmatists’, 52 Canadian Tax Journal pp 114-123

[3] Zee, Howell H ‘Taxation of Financial Capital in a Globalized Environment: The Role of Withholding Taxes,’ (1998) 51,3 National Tax Journal, 587-599

 
 

‘Can we keep your data please?’ and other necessary questions…

Paul Bernal

Lecturer in Law at UEA and PhD candidate at LSE

paul.bernal@uea.ac.uk
p.a.bernal@lse.ac.uk 
 

Recent stories like the fall of Phorm, the ACS:Law hack/leak and the furore over Google Streetview’s surreptitious data gathering suggest that privacy is very much a current issue, and one about which people are deeply concerned. At the moment, the balance appears to be too far in the favour of those in business and in government who gather and hold personal data. What is needed is a paradigm shift in the opposite direction. Privacy should be the default: intrusion, surveillance or data gathering the exception.

This paper will look at a key example of this paradigm shift: the holding of personal data. Currently, the default position is that decisions as to what data may be held are in the hands of those who hold that data. If an individual doesn’t believe that the data should be held, the process to get that data deleted is a convoluted one at best. The paradigm shift would mean that the default should be that data should not be held – and that those who wish to hold that data need to justify their holdings. The default position should be that a data subject should have the right to delete that data.

This right to delete data would not be without exceptions – there are a number of reasons that can justify the retention of data. Broadly speaking, they can be broken down into five categories: paternalistic – where society can override the individual’s desire (e.g. medical data); communitarian – where it is in the community’s interest that the data be kept (e.g. criminal records); administrative (e.g. tax records, electoral rolls); archival – keeping an accurate historical record of events (e.g. newspaper reports); and security (e.g. records of criminal investigations). Each of these needs careful control and monitoring – and the default is that data should not be held. It is important to note that ‘business reasons’ are not enough to justify the holding of data. In general data should not be held unless the individual concerned genuinely consents to its holding. The data holder needs to ask the question ‘Can we hold your data please?’ – and to respect the answer given, even if it is no.

This is just one aspect of the paradigm shift – similar questions need to be asked when thinking about the gathering, processing and use of data, questions like ‘can we monitor your web-browsing?’ and ‘can we gather your data?’ or ‘can we do this with your data?’ If these questions need to be asked – and their answers respected – the balance of power between those gathering, using and holding data would shift appropriately in favour of individuals.

 

This paradigm shift could help not only individuals but also businesses – by encouraging them to build more ‘privacy-friendly’ business models, models that could ultimately find more favour with their increasingly privacy-aware customers and thus be more sustainable. Following the theme of this year’s conference, these models would aid in harnessing the technology of the internet whilst minimising the potential threats that arise as a result of deficiencies in privacy.

 
 

Gone But Not Forgotten: Legal Implications of The Retention of Data on Mobile Devices

Michael Bromby
Department of Law
Glasgow Caledonian University

M.Bromby@gcu.ac.uk
 

Brad Glisson
Humanities Advanced Technology and Information Institute
University of Glasgow

 

Tim Storer
School
of Computing Science
University of Glasgow

 

Mobile phones are becoming increasingly sophisticated in terms of data storage and functionality.  The capacity to store personal, sensitive and commercial data would suggest that the owner need take steps to protect this data, both during ownership and following disposal of the device at the end of their useful life.

 

Previous studies examining the retention of data on computer hard disks following sale on the second hand market have consistently found “sufficient information present to pose a risk of a compromise of sensitive information to either the organisation or the individual that had previously used the disks. The potential impacts of the exposure of this information could include embarrassment to individuals and organisations, fraud, blackmail and identity theft”.[1]

 

A recent study indicates that there is a range of artefacts to be found on mobile phones that have been, to all intents and purpose of the previous owner, wiped clean of data prior to entering the second-hand market.[2]

 

A total of 49 devices were analysed and the artefacts (files, contacts, images, etc) examined using commercially available software.  In total, 11,135 artefacts were recovered of which 63% were deemed to be ‘personal’ in nature.  Not only were artefacts found to be present on mobile devices, but a significant number of artefacts were recovered following deletion by the owner which included emails, contact details, SMS texts, images, audio and video files totalling 1,934 in number (17%).

 

This paper will examine some of the legal issues associated with the recovery of data: the guidance offered by mobile device manufacturers; the security of personal data contained within devices; and the safeguards against the misuse of personal data acquired by a third party.

 

[1] Jones, A (2010) The 2009 Analysis of Information Remaining on Disks Offered for Sale on the Second Hand Market Proceedings of the 8th Australian Digital Forensics Conference http://ro.ecu.edu.au/adf/80

[2] Glisson, W (In Press) Electronic Retention: What does your mobile phone reveal about you? International Journal of Information Security

 
 

A European solution to the Intellectual Property problem: addressing challenges and preserving benefits

Abbe Brown
University of Edinburgh
abbe.brown@ed.ac.uk
 

This paper will explore the impact of recent changes in the European Union in relation to encouraging innovation and providing greater access to it.  A central, although not sole, role in the encouragement of innovation in the EU lies with intellectual property (“IP”). Once an IP right exists, while it is in force it confers the exclusive right to control innovation in the territory, subject to some limited exceptions.  Strong arguments can be made that this is the justifiable price which society has to pay for innovation, including in relation to health, communication and protection of the environment, all of which could be termed as being for the global good.  Yet there are growing concerns in the European Commission as to the power held by IP owners – consider the Pharmaceutical Sector Enquiry (2009) and investigations into Microsoft (2004, which resulted in court decisions (2007), AstraZeneca (2005, court decision 2010) (Rambus (settled 2010) and Google (announced 2010). 

 

It can of course be argued that the power of these businesses, and the matters with which the regulator was concerned, are based on matters other than IP.  But both the pharmaceutical and information business sectors are grounded in IP: patents in the case of pharmaceuticals and for information there may be copyright, database rights and occasionally patents- even if there is also a strong movement towards open source licensing and the making available of public sector information.  IP can also be important for climate change, as is suggested by the adoption of fast track examining policies by the UK (and other) Intellectual Property Office and the introduction of new classification systems by the European Patent Office.

 

The EU2020 package seems likely to accord an ongoing role to IP.  But what of the more central place of human rights in the EU since the Lisbon Treaty and the new place of the environment in the Treaty on the Functioning of the European Union?  And the new guidance for application of article 102 TFEU and its prohibition on the abuse of a dominant position?  And what of trolls, or non practising entities? What use might be made of the CFI Promedia (1998) decision in addressing their IP actions?

 

This paper will discuss the extent to which these factors can give rise to an EU solution for reducing the negative aspects of IP, while still encouraging the development of technology.     

 
 

“Much ado about nothing?” or “The Taming of The Shrew?”: The EU-US 2010 agreement on e-health and some sub-plots on data protection

Joseph A Cannataci
University of Malta
JAcannataci@uclan.ac.uk
 

Jeanne Pia Mifsud Bonnici

University of Groningen
g.p.mifsud.bonnici@rug.nl 
 

On 17 December 2010 the Vice-President of the European Commission Neelie Kroes and United States Secretary of Health and Human Services Kathleen Sebelius signed a Memorandum of Understanding in Washington to promote a common approach on the interoperability of electronic health records and on education programmes for information technology and health professionals. In article 6c of this MoU one reads that the EU and the US share the goals of “development of internationally recognized and utilized interoperability standards and interoperability specifications for electronic health record systems that meet high standards for security and privacy protection.” This paper examines the context in which this agreement must be understood from an EU viewpoint first purely in the context of the protection of health data. It asks the question as to whether EU standards in health data protection have in reality advanced significantly if at all since Recommendation R(97)5 of the Council of Europe.

 

The paper will also briefly review the extent to which US legislative action in the medical health sector in the 1990s may have been directly influenced by R(97)5 and the legacy of common ground that this may have left to this day. It then moves onto recent developments on RFID and privacy impact assessments and their possible impact in the health care sector for e-systems. It recalls a plea for action in the face of such disparate implementation of R(97)5 asking how a lack of homogeneity would first require Europe to get its own internal house in order before being brave enough to commit to developing new standards with the US. The paper then asks the question as to whether this MoU can be realistic in attempting to achieve common ground on data protection standards in health care sector alone without first achieving a broader EU-US consensus on privacy and data protection. It considers this MoU in the context of the EDPS criticism of a multiplicity of agreements between the EU and the US while also pointing to the 2009 HLCG declaration on a consensus on data protection principles between the EU and the USA. The paper concludes that the objectives of the MoU would probably be met just as fast if not faster if the EU and the rest of the world achieve a new consensus on a generic data protection regime inspired by (if not modelled upon) Convention 108. Such a natural successor to Convention 108 would possibly have a number of chapters or protocols dealing with different sectors such as police, insurance, health, statistics.  In such a scenario, a chapter or protocol on health data, probably heavily influenced by R(97)5 would possibly meet the needs of common standards set as goals by the Dec 2010 EU-US agreement and also economically create a much larger market for compliant e-health systems.

 
 

How not to implement the EU Data Protection Directive: A Survey of Hungarian Data Protection Measures

Joseph A Cannataci 
University of Malta
JAcannataci@uclan.ac.uk
 
Zoltán Alexin
University of Szeged
alexin@inf.u-szeged.hu 
 

Keywords: Personal health data, Data Protection Act, Right to object, Right to legal remedy

The Hungarian Data Protection Act (DPA) is reputed to be one of the strictest in the EU. It provides for only two cases when personal data can be processed: either data subjects consent to the processing or a law makes the data processing obligatory. According to the intentions of the legislator, only this rigorous requirement can guarantee the rights to informational self determination of citizens at a highest level. The right to informational self-determination was ruled upon by the newly created Constitutional Court in 1991 after the political system was changed in Hungary. This paper first charts the introduction of this innovative piece of judge-made law in Hungary in 1991 apparently under the influence of German constitutional law and then examines how Art 8 (2) of the Hungarian constitution may have influenced the interpretation given to the way that data protection rules in Hungary may be made. The paper observes how year by year the Hungarian state has to pass new laws on processing personal data in the public or other interests with the result that at end 2010 some 317 laws and 448 decrees containing the phrase “personal data”. are contemporarily in force. The paper critically analyses the impact of a legal interpretation whereby hundreds of laws and decrees appear, in effect, to be premised on the inability of the citizen to object to the processing of the data covered by such laws and decrees. The authors thus examine how in Hungary, when personal health data is processed, as in other sectors this is deemed to be obligatory by law, and this in a nutshell means that patients do not have the right to object, block data processing or dispute data processing before the courts. It will be submitted that such an approach may make patients extremely vulnerable to the paternalistic care providers including the state itself. The Hungarian state maintains a lifelong personal medical history database from all citizens. This database includes all care provisions, including those that are not subsidized by the national health insurance  and denies patients the  standard data protection rights of objection and disputes on grounds of proportionality.

 

The paper here analyzes the extent to which the current Hungarian health data regime remains far, in letter and in spirit, from the provisions of Recommendation R(97)5 of the Council of Europe on the protection of health data. The authors attempt to demonstrate  that the Hungarian interpretation of the idea of bipolar data processing, i.e. when only voluntarily and obligatory data processing exist, leads to a dead end and finally ends up in a legal anarchy that substantially violates the EU data protection norms, typically those such as the right to object, the right to block and the right to obtain a legal remedy.

 
 

Regulation of Online Infringement of Copyright - No Risk of Penalty for Infringers, No Avenue for Protection for Copyright Owners

Andrea Cerevkova and Adam Glen

Department of Law & Criminology, Edge Hill University

Cerevkoa@edgehill.ac.uk 
 

Copyright holders have long argued that they are suffering substantial commercial damage as a result of unauthorised sharing or distribution of their copyright works. There has been a considerable lobby by rights holders worldwide, which has resulted in a host of new legislation as well as court cases. Except for one or two headline cases in the United States this lobby has failed to make any impact on the problem.

 

Until the Digital Economy Act 2010, because of technology and the existing law, copyright owners have had limited legal protection against the infringement of their rights. The Digital Economy Act attempted to redress some of that balance but failed to provide copyright owners with the ability to achieve recompense for damage sustained or to protect, in a timely manner, their rights so as to avoid commercial damage.

 

Technology and the internet have and are developing at a pace far faster than can be accommodated by the law and/or the existing business models of copyright owners. Internet users, even the non-technically illiterate, have a view, which some would consider lawless, that promotes and encourages the abuse of the traditional property rights expressed in copyright.

 

Existing laws of privacy, telecommunications and common law decisions regarding third party responsibility have meant that those sharing copyright works can easily circumvent and defeat any attempt by copyright owners to enforce their rights. The Digital Economy Act was meant to redress the balance; however, the demands of privacy and proportionality have removed all possibility of rightsholders taking legal action. The proposed method of implementation also means that the limited courses of action provided under the Digital Economy Act are beyond the financial means of all but the largest rightsholder organisations.

 

This paper will examine the technological issues, existing related laws, and cases which have a direct impact on the application of those laws, and the changes, both legal and technological, which are due to come into effect during 2011/12.

 

Consideration will be given to the different methods of unauthorised distribution of copyright material using the internet. This will be related to technological developments and avoidance or ‘cloaking’ techniques. The paper will then analyse recent international and English case law which has highlighted the impossibility of rightsholders controlling and stopping such unauthorised distribution. In addition, the paper will consider the impact that the acts of ‘rogue elements’ of the internet community and the legal profession have had in frustrating the enforcement of a rights holder’s property rights.

 

Finally, the paper will consider if it is possible, even with the implementation of IPV6, for the conflict of protection of interests in privacy and property rights to be resolved by legislative means or if the rights holders need to examine and pursue an alternate business model.

 
 

Unlocking contemporary UK encryption law & policy

Dr Bela Chatterjee
Lancaster University
b.chatterjee@lancaster.ac.uk
 

Although encryption - the art of rendering information secret (and the associated process of that information’s revelation, known as decryption) - has been deployed in various forms since ancient times, the advent of the digital technologies has seen a profound transformation in its role and significance in the last few decades. Whilst many of us may be familiar with the classic wartime struggle to (re)construct the Enigma machine piece by painful piece, sophisticated contemporary software such as Truecrypt, which provides open-source real-time encryption, is now readily available without cost to the general public. Whilst it is acknowledged that digital encryption has valuable and legitimate purposes, the secrecy and security of communications data that it provides may also be strategically used by serious criminals and terrorists. In the contemporary context of a post-9/11 world where concerns about cyberterrorism are to the fore and the proliferation of child pornography online is an increasingly pressing concern, there is an imperative that national security and law enforcement endeavours are not frustrated or undermined by potential intelligence and evidence being digitally hidden or otherwise obscured while the means to its recovery and intelligible access - the encryption key - is withheld or otherwise denied.

 

Located in this context, and considering the fact of ever-rapidly developing technologies, UK cryptography law and policy must endeavour to account for the desirable promotion of e-commerce and the value of individuals’ human rights as well as the concerns of national security - factors that are not readily commensurate or reconcilable. Framed against this background, the recent entry into force of Part III of the Regulation of Investigatory Powers Act (RIPA), ss. 49 and 53 of which provides for state access to encryption keys in certain circumstances and corresponding sanctions for failure to disclose, plus the implementation of codes of practice relating to these statutory provisions renders close scrutiny of the emerging jurisprudence both timely and apposite. Accordingly, this paper critically contextualises the recent development of domestic cryptography policy and technology and analyses associated cases.

 
 
 
 
 
 
 
 
 
 

Privacy in Cyberworld: Why Lock the Gate After the Horse Has Bolted?

Lisa Collingwood and Hiroko Onishi

Kingston University

L.Collingwood@kingston.ac.uk 
 

In this paper, the authors set out and critique the way in which the principles of off-line privacy protection transpose themselves to the on-line environment.  Reference will be made briefly to the Japanese jurisdiction, as Japan seems to have developed its own norm, which might sufficiently aid the UK approach to the cyber environment.

The following will be set out and critiqued in the paper to show an insufficiency of the current UK approach:

 

Ultimately, the authors will argue that, in relation to the on-line or cyber environment, protection of privacy is a thankless task - private information cannot be taken out of the public domain. 

 

[1] Sections 1 and 2

[2] Part 6 of the Resolution 1165 of the Parliamentary Assembly of the Council of Europe on the right to privacy[1] stipulates that “… public figures must recognise that the special position they occupy in society—in many cases by choice—automatically entails increased pressure on their privacy”.  This was adopted by the Parliamentary Assembly on June 26, 1998.

[3] Campbell v Mirror Group Newspapers Ltd  [2004] UKHL 22, at 8

[4] Mosley v. News Group Newspapers Ltd. (2008) EWHC 687 (QB)

[5] Ibid, at 36
 
 
 
 
 
 
 
 
 

Online Copyright Infringement Provisions within UK's Digital Economy Act, 2010 - Are Internet Service Providers Responsible for their Subscribers?

Eben Duah
Aberystwyth University, UK
ead09@aber.ac.uk  
 

One of the greatest opportunities and challenges confronting the content industry is the development of new technologies that facilitate the reproduction, storage and distribution of digital files. As the use of such technologies can be very efficient and also evasive in an online environment, copyright owners concerned about infringement have attempted to protect their works through technological and largely legal means. In recent years, there have been calls for a new legislative framework that recommends effective co-operation between rights holders and the ISPs in tackling file-sharing. This framework has been brought sharply into focus by the rise in popularity, and the use of peer-to-peer networks to share copyrighted materials without rights holders’ permission or authorization. Notable European legislative developments in this area began in France when it proposed a “graduated response” model as a public policy means of fighting online piracy. This model entailed the notification of an internet account holder of a detected infringing activity leading to the internet access suspension of repeat offenders. Despite contestation, the so-called Hadopi law has been passed in 2009, which still attract opposition both within and outside France on the proportionality of the suspension measure. Another area of concern has been the potential to encroach upon the confidentiality of internet users thereby furthering the conflict between the protection of rights holders and end-users’ privacy. The United Kingdom (UK) became the second EU Member State to follow suit with a legislation also aimed at online piracy.

 

The Digital Economy Act, 2010 (DEA, 2010) which has become law in the UK, contains provisions that place legal obligations on ISPs to co-operate with rights holders in tackling online copyright infringement, such as illegal sharing and illegal downloading of copyrighted materials. Under the terms of the statute, ISPs will be obliged to notify subscribers whose accounts are suspected of being involved in copyright violating activities; to supply infringement lists to rights holders upon request for the purpose of legal actions; and also to employ technical measures including the control of persistent infringers’ internet access and the blocking of infringing sites. Although the DEA (2010) does not address various other deficiencies in the Copyright, Designs and Patents Act 1988 (CDPA), it has also invited criticisms not least from the ISPs, who are  increasingly concerned that the obligations imposed by the Act may not be well-suited with EU laws design to ensure that national laws are proportionate. ISPs believe that it enforces upon them the role of policing the internet and also raise other data protection and user privacy issues. This paper will therefore attempt to examine the extent to which the Act conflicts with domestic laws and important European rules and assess ISPs liability for users’ behaviour.

 
 
 
 
 
 

Embedding ever-evolving interactive clicker technology in the legal curriculum: a best practice guide

Dr Catherine Easton

Senior Lecturer in Law

Manchester Metropolitan University

c.easton@mmu.ac.uk
 

Clicker is a term used to describe technology which allows an educator to record, display and manipulate student responses.  They provide options for multiple choice, yes/no, true/false, numerical and free text responses which can then be manipulated on the large screen of the lecture theatre. Lowery [1] and Barber et al [2] provide in-depth overviews of the available interactive systems and their relative merits.  Systems such as TurningPoint have now been developed to enable responses to be gained from students’ mobile phones, therefore bypassing the need for the purchase and distribution of handsets. 

 

Despite some important exceptions [3] there is a paucity of studies focusing upon the use of clicker technology in legal education, with the majority of work being carried out in pure science-based disciplines.  Educational uses of clickers have been outlined in previous studies [4] and these include:

 

The assessment of prior understanding

The provision of formative feedback

The provision of breaks in the presentation of a lecture

The administration of summative assessments

The promotion of peer learning

The promotion of attendance

 

The vast majority of these studies report positive student feedback in response to clicker use.  However, research [5] indicates numerous factors, such as the pressure to cover content and fear of technological failure, which can inhibit the widespread employment of clickers in a law department. 

 

Oppenheimer [6] found that there was a need for a coordinated pedagogical framework and management commitment in order to integrate clickers into the curriculum effectively.  With specific reference to legal education, the significant benefits of clickers are not being fully exploited and there is a need for further research focusing not only on how they can be employed in the provision of a lecture series but also how their use can be supported at a departmental level [7].

 

This paper seeks to present the findings from a project in which the use of clicker technology was fully embedded into a public law presentation in order to:

 
 
 
 

The paper will be presented using a clicker system so please come prepared to interact. 

 

[1] Lowery, R. Teaching and learning with interactive student response systems: A comparison of commercial products in the higher-education market. Paper presented at the Annual Meeting of the Southwestern Social Science Association, New Orleans, LA, 2005

[2] Barber, M. and Njus, D. Clicker evolution: Seeking intelligent design. CBE-Life Sciences Education 6 (1) 2007 pp1-8

[3] Burton, K.  Interactive Powerpoints: Is There Any Point in Giving Power to Students? Murdoch University Electronic Journal of Law 11 (4) 2004

Caron, P. Teaching with technology in the 21st century law school classroom The Future of Law Libraries Symposium FL, 2005

[4] Caldwell, J. Clickers in the Large Classroom: Current Research and Best-Practice Tips CBE Life Science Education Spring 6 (1) 2007 pp9-20

[5] Dufresne, R. and Gerace, W. Classtalk: A Classroom Communication System for Active Learning. Journal of Computing in Higher Education 7 1996 pp3-47

[6] Oppenheimer, T. The flickering mind: The false promise of technology in the classroom, and how learning can be saved. New York: Random House, 2003

[7] Easton, C. An Examination of Clicker Technology Use in Legal Education, Journal of Information, Law & Technology (JILT) 2009 (3)  <http://go.warwick.ac.uk/jilt/2009_3/easton>

 
 

Revisiting the law on website accessibility in the light of the Equality Act 2010 and the UNCRPD

Dr Catherine Easton

Senior Lecturer in Law

Manchester Metropolitan University

c.easton@mmu.ac.uk
 

Use of the Internet has been proven to provide significant, wide-ranging benefits for disabled people [1] however, research such as the large scale global study commissioned by the United Nations [2] has determined a low level of accessibility, with only three of the 100 websites tested passing at the lowest, priority A WCAG, level.  These findings have been supported by further multi-disciplinary work.

 

While in other jurisdictions there have been definitive rulings on the need for the provision of accessible websites, the most notable being the Australian Human Rights and Equal Opportunities Commission case of Maguire v SOCOG (1999) H 99/1, a UK court has yet to lay down such a duty in relation to a live website.  It is accepted that there a number of wide ranging issues interacting in this multi-faceted area, such as standardisation, industry self-regulation and the determination of an international consensus on what constitutes accessible design.  However, this paper will focus on an analysis of the recent Equality Act 2010 and the changes it makes which could impact upon the creation of a definitive UK precedent in this area. 

 

The Equality Act 2010 brought existing anti-discrimination provisions into one overarching piece of legislation to honour the Government’s manifesto pledge “to modernise and simplify equality legislation”.  An analysis can be undertaken of how the measures contained in the UK’s new wide-ranging anti-discrimination provisions found in the Equality Act 2010 may be able to bring clarification in the area of website accessibility.  This evaluation can be placed in the context of the potential of public procurement measures and the possibility of formalising website accessibility standards through secondary legislation, following the example of Part M of the Building Regulations. 

 

Furthermore, the United Nations Convention on the Rights of Persons with Disabilities in its Article Nine specifically applies to access to the Internet. Given the international nature of website accessibility and the innovative bridging provisions contained in the Convention, its impact on website design and inclusion could potentially be far-reaching. This article analyses the area of website design in the light of these recent legislative developments.

 

[1] Lazar, J. Feng, J Allen, A. (2006) Determining the impact of computer frustration on the mood of blind users browsing the web In: Portland Oregon 8th International AGM SIGACCESS Conference on Computers and Accessibility ASSETS 2006 pp149-156

Thoureau, E. (2006) Ouch!: An Examination of the Self-representation of Disabled people on the Internet Journal of Computer-Mediated Communication 11 2006 pp442-468

[2] Nomensa (2006) United Nations Global Audit of Web Accessibility Bristol: Nomensa 2006 p32 http://www.un.org/esa/socdev/enable/documents/fnomensarep.pdf [Accessed 03/02/11]

[3] Kuzma J. (2009) Regulatory Compliance and Web Accessibility of UK Parliament Sites’, 2009(2) Journal of Information, Law & Technology (JILT), http://go.warwick.ac.uk/jilt/2009_2/kuzma

Sligar, S. and Zeng, X. (2008) Evaluation of website accessibility of state vocational rehabilitation agencies Journal of Rehabilitation Jan-March 2008 http://findarticles.com/p/articles/mi_m0825/is_1_74/ai_n25378303/pg_1  [Accessed 03/02/11]

 
 
 

Copyright enforcement measures: The role of the ISPs and the respect of the principle of proportionality

Alexandra Giannopoulou

alex.giannopoulou@gmail.com
 

In its effort to enforce a regulation system on the internet, intellectual property law introduced the graduated response system (otherwise known as “three strikes and you’re disconnected”). Since then, it started gaining popularity in legal systems all over the world. Following the infamous HADOPI law in France, similar examples exist (or are in the process of being legislated) in the United Kingdom, New Zealand or South Korea. But even if not legislated, the graduated response system can be found in other countries (Ireland, USA) in the form of voluntary agreements between major copyright holders and internet service providers.

 

Having concluded that the best solution to online copyright attacks lies to the role of the internet service providers, the European Commission continues to encourage the collaboration of the latter with the rights-holders. Admittedly, several countries have showed a growing interest in reinforcing the ISPs’ role by authorizing them or even obligating them by law to use not only access restrictions (graduated response) but also content filtering in order to regulate internet. These actions were fully supported by the European Union.

 

On an international level, the final version of the Anti-Counterfeiting Trade Agreement (ACTA) was published on 3 December 2010. The original purpose of creating such a text was to create an international intellectual property enforcement system to reinforce the fight against counterfeiting. Although it does not directly suggest the application of a graduated response system, it establishes a legal ground on which member states can justify the instauration of such a system. 

 

This paper will discuss the role of the internet service providers in regulating the internet as it is designated by the graduated response system. The tasks entrusted to the providers will then be examined for their accordance with the principle of proportionality. The article will not focus in a particular national legislation, but it will rather provide an analysis of the problematic aspects of the graduated response system using examples of national legislations or accords. The central question is two-fold: firstly, whether fundamental rights are respected by these enforcement measures, and secondly whether the original goal of intellectual property to protect the work, the author and its rights is achieved.

 

Since illegal file sharing has turned from a mere habit to an ideology, no repression law will achieve the goal of eliminating copyright attacks. It is evident that the technology that the internet is based on is still overwhelming for intellectual property as we know it and consecutive legislative efforts will not change this fact. The paper will ultimately propose that it would be wise to take a step back not only from the incessant legislation process but also from the war declared against internet. These latest enactments regulating internet have demonstrated that when proposing fast-draft solutions in order to sustain intellectual property, it is highly probable that other fundamental rights may be irrevocably damaged.

 
 

Not Just for Lulz: Is there still a future for Ethical Hactivism in the Anonymous world?

Martina Gillen

Oxford Brookes University

mgillen@brookes.ac.uk
 

The foundations of ethical hacktivism laid down by the founding parents of the Internet based upon their philosophical and ethical commitment to freedom of speech and their mastery of their technological sphere. This has left the activity with something of an anarchic heritage and an anarchistic approach to activism. Nowhere has this been more evident in recent months than in the activities of the “group” known as Anonymous.

 

The activities of this group range from those which fall clearly into those which would normally attract the label of political protests (such as enabling election news to be channelled out of Iran), to those which occupy a “grey” area the Chanology project and finally those which seem downright adolescent and bizarre the “Habbo Raids of '07”.  Is it appropriate to consider this as a single legal issue and how should regulations cope with the problems raised?

 
The problems of this form of movement include:

Factionalism with extremest elements- because of the traditional hacker ethos of engaging in technological activities for enjoyment and fun in a decentralised organisation this can lead to chaotic and “off message” activities. Almost inevitably there is also a clash between mainstream and in group definitions of what constitutes acceptable humour/behaviour.  

 The Epilepsy Forum attack (the groups contends that rigging various epilepsy help forums to cause seizures was not in fact one of their actions) highlights a further difficulty that  might be called the Attribution Issue. From an in-group perspective this is problematic because actions which will be damaging to the image of the group can be falsely attributed them or just as damaging actions which dilute the ideological message of the group may be attributed to them. From an external regulatory perspective this difficulty of clearly attributing actions raises political difficulties in justifying the labelling of these groups as proscribed as is a standard response to unacceptable groups/behaviour.

Despite near hysterical media reportage (for example the report which labelled Anonymous as “hackers on steroids” [1] many of the attacks rely on either brute force or phishing techniques (this does not denote a high level of technological sophistication on the part of the bulk of the membership).   However, the use of web 2.0 social networks for information and organisation is somewhat innovative and bears further socio-legal scrutiny.

 

The heart of the issue is defining the appropriate protected sphere of “speech” and to a lesser extent, with particular regard to social-networking, the freedom to associate on the Internet. This is the motivation behind many of the actions of Anonymous and is a legitimate concern for all users.  

 

This paper shall consider whether these freedoms can, or should, be reified as a right and thus whether the appropriate model from both a rights and a regulatory perspective is individual/social internet-user education and empowerment.

 
[1] KTTV Fox 11 26th July 2007 available online at:http://www.youtube.com/watch?v=DNO6G4ApJQY
 
 

Data retention – potentially everyone could be a terrorist

Szymon Gołębiowski,

University of Wrocław, Faculty of Law, Administration and Economics

simmon@op.pl
 

Keywords: data protection, data retention, traffic data, IP address, criminal proceedings, fundamental rights, constitutionalism

 

The Data Retention Directive 2006/24/EC imposed an obligation on Member States to establish a duty to collect and store the data of the Internet users. Member States can choose the retention period between 6 months and 2 years. Notwithstanding the controversies and its doubtful compliance with fundamental rights, the Directive was so far implemented by the majority of Member States (except for Austria and Sweden).

 

The Directive itself is thought to be an exception from the general rule to erase the traffic data expressed namely in the Data Protection Directive 95/46/EC and the E-Privacy Directive 2002/58/EC. Interestingly, the exceptional provisions of the Data Retention Directive are vaguely drafted. For example, Recital 25 stipulates that the Member States are free to adopt legislative measures concerning the right of access to, and use of, data by national authorities, as designated by them, and further that issues of access to data retained (…) fall outside the scope of Community law. The Directive, Art. 4 contains the provision that the access to the data stored is to be limited only to the competent national authorities in specific cases and in accordance with national law.

 

In result, it is not clear who and when can access the retained data and what is the scope of control over the subjects entitled thereto. The Directive only requires telecommunications operators to retain a vast volume of traffic data. All other retention issues are left for Member States to decide. In fact, it is not contrary to the Directive that the data would be accessible for other subjects than police, court and prosecutor. In result, the Directive read together with the exceptions prescribed in the Data Protection Directive, Art. 13 gives the Member States the discretionary power to decide. This threatens the right to privacy. Instead of being directed against serious criminals and terrorists, the retention regime can affect every individual.

 

In this paper, I will analyse how far these exceptions could be extended, what for the retained data could be used and who can access it. I will use an example of Poland and – possibly – a few other Member States, namely Germany, Romania and Cyprus (where the implementations of the Data Retention Directive were declared unconstitutional).

 
 

The Investigation into using E-learning Technology as an Improved Delivery Method of Forensic Science Education for the CPD of Lawyers

Dr Claire Gwinnett,

Forensic and Crime Science Department, Staffordshire University

Mr Ian King
Director of Law School, Staffordshire University
c.gwinnett@staffs.ac.uk
 

Over the past few years, the importance of the relationship between forensic practitioners and lawyers has been observed.  Whereas, in the past, understanding of forensic techniques was not deemed fully necessary for the lawyer, in many recent cases, lawyers have needed to understand the fundamentals of some common forensic practices to be able to utilise the significance of them in court.  In fact in some instances, failure to grasp some of the more complex forensic ideas has subsequently lead to misrepresentation of evidence, errors in the understanding of the evidence by jury members, and in the more serious instances, miscarriages of justice. Due to this, it appears obvious that for a more reliable justice system, some knowledge of forensic science for all participants in the system would be beneficial.  In addition, understanding of certain fundamental forensic ideas can allow lawyers to more quickly identify areas of particular interest in a case.

 

With this idea of increasing forensic knowledge in lawyers in mind, there have been a few attempts at providing this information over recent years.  For example, forensic practitioners and forensic educators have offered short workshops and presentations in general forensic practices for the exchange of CPD hours.  But these sessions have been met with little enthusiasm, limited engagement with the material and generally low turn out.  One reason that has been hypothesised for this very limited success is the delivery style of these sessions.  When designing any method of information delivery, the educator must be well versed in different delivery methods, new technological approaches and the learners’ style, needs and wants.  This is especially true for professional individuals that are full-time employed with very specific requirements and limited time.  Due to this, the exploration of using e-learning may provide the solution to this problem.

 

The paper will discuss a funded project conducted by Staffordshire University’s Forensic and Crime Science department and Law school into the use of e-learning as a delivery method for forensic science CPD for lawyers.  This 12-month project is investigating into the use of e-learning technology for the delivery of forensic science information to the law community.  Working with local and national law firms and an experienced resident judge, this project has attempted to understand the relationship between lawyers and forensic science and identify the advantages of using e-learning to provide a specially designed online resource for the law community in which learners have the ability to design their own learning experience and interact with forensic science in a meaningful and useful manner.  This project looks at how e-learning can encourage engagement with forensic science and how it overcomes problems seen in past attempts at forensic education for lawyers. The limitations of e-learning for the delivery of forensic topics will also be discussed.

  
 
Identifiability in RFID
Noriswadi Ismail
Institute of Computer and Communications Law
Queen Mary, University of London
noriswadi@gmail.com  n.ismail@qmul.ac.uk
 

Keywords: RFID. Data protection and privacy. European Union Directive 95/46/EC. Article 29 Data Protection Working Party

 

By 2011-2013, Radio Frequency Identification (RFID) is expected to grow at a Compound Annual Growth Rate (CAGR) of 17 percent. Globally, it is predicted that the Asia-Pacific region will witness the highest growth in terms of revenue. Europe and North America will gradually focus to improving their business processes with the RFID technology. The world’s second largest economy, China, has had deployed major and large scale RFID applications in her Beijing Olympics 2008 and the World Expo 2010 at Shanghai. It is predicted that from 2007 to 2011, the market size of RFID deployment in China shall be 17.83 percent of CAGR.

 

Against these backgrounds, it could be seen that RFID deployment and business is handsomely expeditious. Nonetheless, the data protection and privacy’s response on RFID is still crawling for an outreach. In the world’s data protection and privacy laws today, there are still dividing demography that segmented the application of data protection and privacy laws. Such application is influenced by different principles and approaches mainly the OECD Guidelines on Privacy, the European Union Data Protection Directive 95/46/EC, the APEC Privacy Principles, the United States Safe Harbor principles and respective national laws’ data protection and privacy laws, piecemeal and sector specific legislation. Broadly, the applications of these laws are not straight forward as it has its defined complexities, challenges and adoptions. Specifically, attempts have been made to address data protection and privacy concerns in RFID. This paper, in particular, attempts to go back to the basic principles of identifiability within the context of RFID. It analyses what constitute identifiability in RFID, if, there is an involvement of a person or many persons that collect, process, aggregate, manage, retain and expunge such data within an RFID application. The concept of identifiability will be appraised by referring to the European Union Data Protection Directive 95/46/EC.

 

In order to achieve the above, this paper is divided into 3 sections. The first section will briefly narrate the genealogy of RFID and how it develops to being a commoditised technology today. The second section analyses the summarised consultations that have had taken place within the Article 29 Data Protection Working Party and to what extend it has achieved the desired levels of outcome. Section three will then look into the meaning of data processor, controller and third party from the context of RFID. The discussion will then extend to the crux of the issue: identifiability. It outlines these fundamental questions; what, why, who, when and how identifiability is regarded as a fundamental concept in RFID, data protection and privacy.

 
 

Providing Client Advice Online – An Alternative Business Structure for the Legal Profession?

Martin Jones  

Glasgow Caledonian University

M.Jones@gcu.ac.uk
 

When the phrases “legal advice” or “legal help” or “legal assistance” are entered into Google, the user will more than likely be presented with an advertised link to “Ask a solicitor online”. The website behind this invitation is www.justanswer.com. Its business model is based around providing a forum where those seeking help with a problem can post a question to which registered experts will compete to provide an answer in return for a fee. Numerous categories of expert are available such as doctors, mechanics, vets, electricians and lawyers. User feedback helps to establish a rating for individual experts.

 

What remains unclear is the extent to which those paying for an answer do so in preference to the more traditional avenues of seeking legal advice. In addition, it is equally unclear how much reliance is  placed upon the “advice”  which they receive. A novel form of legal assistance may therefore create a new regulatory challenge.

 

Following the Clementi Review [1] and the Legal Services Act 2007, the landscape of legal service provision within England and Wales is set for significant change. Scotland is now following suit with similar legislation receiving Royal Assent in November 2010. The emergence of alternative business structures and capital investment from outside the profession may change the way in which consumers access legal services and is one which requires a new approach to professional regulation. Such changes are welcomed by commentators such as Susskind [2] who predicts that the future legal profession will need to actively adopt the benefits of information technology on the processes of legal business in order to survive.

 

The challenge for lawyers in the 21st century, is, according to Susskind “… to find and embrace better, quicker, less costly, more convenient and publicly valued ways of working.” [3] This paper will examine the extent to which justanswer.com is providing an embryonic response to that challenge and the potential regulatory issues it raises.

 

 [1]Report on Regulatory Review of Legal Services,  15th December 2004

http://www.legal-services-review.org.uk/

[2] Susskind, R. The End of Lawyers, OUP 2008           

[3] Susskind, R Legal profession is on the brink of fundamental change, The Times,

19th October , 2007

http://business.timesonline.co.uk/tol/business/law/article2522748.ece
 
 

UK empirical evidence on data protection compliance: Consent for data processing

Stavroula Karapapa and Indranath Gupta

Brunel University

Stavroula.Karapapa@brunel.ac.uk
 

While the issue of data protection compliance in the online environment has attracted much scholarly attention, there is little empirical evidence as to whether commercial websites comply with data protection law. With expansion of e-commerce, social networking and e-governance, submission of personal data to websites has become an essential prerequisite for taking advantage of any online service. Whereas possession and processing of such data by online service providers represent a key asset for business models in the web 2.0, they also create an issue of major social concern since they might implicate consumer privacy.

 

In light of the conditions laid down in the Privacy and Electronic Communications (EC Directive) Regulations 2003, this paper outlines the results of an empirical survey examining the data compliance of 200 websites registered with “.co.uk” domain. To lawfully process personal data, the data controller should have consent of the data subject. For the purposes of this empirical survey, we have primarily translated the legal requirement concerning informed consent into variable to test the compliance level of UK websites.

 

The survey determines the way by which websites collect personal information from data subjects. In particular, it explores the types of data collected and the extent to which such data is collected. The survey also assesses whether consent has been legitimately obtained. This assessment ascertains whether the consent expressly includes marketing purposes for receiving e-mail advertisements, or if it is some general form of consent towards non-explicit purposes. In addition, the survey looks at the way by which consent is obtained from the data subjects. Even though there are many ways to obtain consent in online interactions, for instance by asking the user to click in a box during registration, such consent is only deemed to be valid if users are given the opportunity to freely “opt in” for receiving commercial communications and for permitting transfer of data to third parties.

 

The survey shows that websites are not always compliant with data protection law. Websites seldom met the explicit consent requirement in relation to data processing.  Also the method of obtaining consent is questionable on the ground of legitimacy. The empirical survey forms the basis of future research on data compliance.

 
 

Is there any legal basis for the privacy impact assessment in the EU?

Dariusz Kloza

Vrije Universiteit Brussel – Research Group on Law, Science, Technology and Society (LSTS)

dariusz.kloza@vub.ac.be http://www.vub.ac.be/LSTS/
 

Keywords: privacy impact assessment, privacy, data protection

 

A privacy impact assessment (PIA) may be defined as a systematic process for evaluating the potential effects on privacy and data protection of a project, initiative, proposed system or scheme and finding ways to mitigate or avoid any adverse effects. It is fair to say that PIA originates from the positive experience of environmental and social impact assessments, commenced in 1960s. The idea grew up and developed in a number of common law countries (e.g. US, UK, Australia) in some mid-1990s. Nowadays PIA is considered as a good means to address the information society challenges.

 

Recently PIA has caught attention of academics, governments, policy-makers and private stakeholders, among others. The first reference to PIA might be found as early as in the 1995 Data Protection Directive (cf. Art. 20). In 2007, the UK became the first European country to publish a PIA manual. Such assessments have been lately conducted by new technologies industry, e.g. telecommunications companies. The Madrid Resolution adopted at the 31st International Conference of Data Protection and Privacy Commissioners (2009) strongly encourages implementation of PIA (cf. Art. 22(f)). In February 2011, the Art. 29 Working Party accepted a PIA for the radiofrequency identification (RFID) systems (Opinion 9/2011, WP 180). Moreover, the EU co-funds a legal research on the PIA framework for the Union. These are just some of the indications of the growing interest in PIA.

 

In 2010, the European Commission launched a revision process of the EU regulatory framework for privacy and data protection (cf. the Communication COM 609 (2010) final). In this contribution, we will discuss whether and how the concept of PIA fits into this revision process. We will examine if – so far – there is any legal basis or even obligation to conduct PIA, both at the EU and the Member States level. We will look at whether and how the said Commission’s Communication on the privacy and data protection review addresses PIA. We will also analyse the position of academia and industry (primarily) regarding implementation of PIA. A few tentative recommendations will conclude this contribution.

 

Does the T [Technology] Tail wag the I [Information] Dog in the Legal Regulation of Information? Does a more holistic and proactive approach help or hinder?

Andy Kok

University of Gloucestershire

akok@glos.ac.uk
 

Information has increasingly become a sought-after commodity, with far-reaching impact. A few recent examples:

Wikileaks;

The growth of phishing emails, usually done in attempts to elicit passwords to access others’ bank accounts; and

The world wide web’s role in the recent and on-going protests in North Africa and the Middle East, which has resulted in the fall of leaders in Tunisia and Egypt, and is continuing to cause unrest in Libya and Bahrain.

       

However the recognition of the value of information predates recent events; e.g. back in the 1980s, the Information Technology Advisory Panel in its report, Making a Business of Information – A Survey of New Opportunities (HMSO, 1983) recommended inter alia that “the government should recognise the current economic significance of the tradeable information sector, and the opportunities for future growth”[1].

 

Technology has changed the way information is controlled and disseminated.

 

To illustrate that, this paper will start with an examination of Wikileaks: Julian Assange, the founder of Wikileaks, has been compared to Daniel Ellsberg who leaked the ‘Pentagon Papers’, a study prepared by the US Department of Defence on the history of US involvement in Vietnam from 1945 – 1967. Information technology allowed Assange to leak sensitive information in a bundled up manner simply because the “technology allowed it to be put together” [2] whereas Ellsberg had to photocopy the documents he wanted to leak.

 

The Wikileaks story also demonstrates the role that intermediaries play – EveryDNS, a US-based domain name system provider, withdrew its services to Wikileaks, when the whole matter became too hot to handle, citing distributed denial of service attacks (DDoS).

 

What responsibilities do domain name system providers and other intermediaries have in relation to the information they host? Internet Service Providers [ISPs] have long argued that, one, they are mere conduits, so bear no liability for content carried on their sites, and, two, the tenets of freedom of expression and rights of anonymity of their users protect them against possible suits. Cases such as Google France, Google Inc v Louis Vuitton Malletier [3] and Godfrey v Demon [4]will be examined.

 

Cases on online defamation such as Godfrey v Demon [5]also raised the issue of the old rule on multiple publications. After a protracted challenge in domestic and European courts by Times Newspapers [Loutchansky v Times Newspapers Ltd ][6] , the previous government produced a consultation paper to reconsider the rule. Noting differences between defamation through print medium as opposed to internet defamation, the then government proposed to introduce a single publication rule.

 

Liability of ISPs for content does not stop there. There have been a number of reports of Google’s battles with the Chinese authorities on the content of articles carried online, accessible to users in China of Google’s search engine. This issue is no doubt going to escalate in the light of current populist unrest in various parts of North Africa/the Middle East, said by some to have been fuelled by information available online.

 

How do the laws on data protection and freedom of information influence this debate? Do the courts have the requisite grasp of the way technology affects the regulation of information? The implications of the decision in Durant v Financial Services Authority [7]will be examined, alongside the Information Commissioner’s response to that decision.

 

The way the courts approach the legal regulation of information, more specifically the influence of technology on such information, will also be critiqued in relation to the allocation of domain names; these are essentially just bits of information to aid the uninitiated to an Internet Protocol address, yet have become big legal battles worth millions of pounds [8]. This is especially pertinent in the expected growth of gTLDs.

Has parliament made a better job of regulating technology-impacted information? The impact of the Fraud Act 2006 on this specific issue will be looked at, especially in relation to phishing.

 

Finally, this paper will examine the position of the European Union. The European Commission has published a Green Paper on ‘policy options for progress towards a European Contract Law for consumers and businesses’, citing restrictions to online cross-border trading as the driver.

Does a holistic approach to the legal regulation of information facilitate greater participation in the information society? 

 

[1] Linda Dorrington, Information Makes the Headlines: A Summary of the ITAP Report and the Comments of the Library Association, the Institute of Information Scientists, the British Library and ASLIB [1984] Health Libraries Review 65, 66 <http://onlinelibrary.wiley.com/doi/10.1046/j.1365-2532.1984.120065.x/pdf> accessed 15 January 2011

[2] R Smith, Rights and Wrongs: Cable Guy: The Latest Wikileaks Disclosures Take Us Into a Legal – and Moral – Maze (16 December 2010), LS Gaz 7

[3] Case C-236/08 Google France, Google Inc v Louis Vuitton Malletier [2010] OJ C134/2

[4] [1999] EMLR 542

[5] (n4)

[6] [2001] EWCA Civ 1805 and [2009] ECHR 3002/03

[7] [2003] EWCA Civ 1746

[8] British Telecom and ors v One in A Million [1999] FSR 1

 
 
 

Treading the Thin Line between ePrivacy and Electronic Communications: An Assessment of Legal Definitions in the EU 2009

Eleni Kosta and Peggy Valcke

Interdisciplinary Centre for Law & ICT (ICRI) - K.U.Leuven

Eleni.Kosta@law.kuleuven.be
 

The ePrivacy Directive (2002/58/EC, amended by Directive 2009/136/EC) is an integral part of the European regulatory framework on electronic communications (commonly known as telecoms package) and applies to the processing of personal data in the electronic communications sector. The ePrivacy Directive covers only publicly available electronic communications services in public communications networks, leaving outside its scope private or semi-public networks and services. However, as both the Article 29 Data Protection Working Party and the European Data Protection Supervisor very accurately noted, there is a tendency of services to increasingly become a mixture of private and public ones. This development creates difficulties in the applicability of the ePrivacy Directive, which is based on the distinction between private or public networks and services. Moreover, legal scholars note a lack of important definitions that would be needed for the unobstructed interpretation of the ePrivacy Directive.

 

For instance the fact that there is no definition of what should be considered as “public” is rather problematic especially with regard to new cutting edge technologies in view of the anticipating future developments. For the correct application of the provisions of the ePrivacy Directive some basic definitions included in the Framework Directive (2002/21/EC, amended by Directive 2009/140/EC) are to be taken into account.

 

The ePrivacy Directive should thus be read in conjunction with the definitions of the Framework Directive (such as those of “electronic communications service”, “electronic communications network”, or “provision of an electronic communications network”), which in various instances are not taking into consideration the modalities of the data protection field, or more general, are characterised by lack of clarity. For instance the definitions of electronic communications service and electronic communications network have specifically been criticised as not very clear by the Article 29 Data Protection Working Party. The Working Party noted that “both definitions ‘electronic communications services’, and ‘to provide an electronic communications network’ are […] not very clear and both terms should be explained in more details in order to allow for a clear and unambiguous interpretation by data controllers and users alike”.

 

The 2002 regulatory package on electronic communications aspired to clearly delineate electronic communications services from other services falling outside its scope of application, following a horizontal approach. During the 2009 review of the telecoms package, there was a tendency to expand specific provisions of the ePrivacy Directive to information society services. Such an expansion can have significant consequences on the architecture of the regulatory framework on electronic communications, which clearly wished to exclude information society services from its scope of application and is based on the distinction between transmission and content. The need for clear definitions that will ensure the undisputed interpretation of the European regulatory framework on electronic communications in general -and the ePrivacy Directive more specifically- appears imperative in view of the technological developments and the convergence of networks and services, as for example in the case of social networking sites that offer a mixture of services, such as content services, chat, e-mail etc.

 

In this paper we will try to demystify the scope of application of the ePrivacy Directive by making an assessment of the relevant legal definitions contained in the European legal framework on electronic communications. We will examine how cutting edge technologies, such as RFID, fit into the existing legal framework and whether the 2009 review of the telecoms package could have brought some more clarity to the definitional issues. Moreover, we will examine how these technologies blur the boundaries between electronic communications services and information society services and we will discuss whether and how such converging services may undermine the horizontal approach underpinning the EU regulatory framework for electronic communications.

 
 

"Your request is being processed" - Is the tide turning in favour of Illegal Downloaders?

Stephen Kuncewicz
SKuncewicz@hbj-gw.com
 

The last few weeks have seen the issue of illegal downloading of media content over the internet through Peer-To-Peer file-sharing services brought firmly back into the public consciousness.

 

Controversial law firm ACS:Law has been at the centre of a debate which has moved from asking whether or not their methods of pursuing individuals alleged to have downloaded music and movies (some of which are pornographic) were justified to the wider issue of privacy concerns over the use of data collected to support their allegations after Hackers organised a "denial of service" attack on the firm's website which led to a backup database of E-Mails containing the identities of thousands of suspected filesharers being made public.

 

The Information Commissioner has already stated that an investigation into whether ACS:Law has breached terms the Data Protection Act 1998 is already underway, and these concerns led yesterday to the High Court granting an adjournment of the Ministry Of Sound's attempt to force internet service provider Plusnet to hand over subscriber details to allow the record label to investigate whether or not its content had been downloaded illegally. 

 

PlusNet told the Court that it would need to ensure that the information to be provided to Ministry of Sound would be adequately protected (along with the privacy of their subscribers) before making any disclosure. The Court agreed to consider the objection, and the case has been adjourned.

 

In many ways, this very public (in every sense of the word) has served to highlight the various legal, social, moral and political issues associated with the entertainment industries' efforts to stamp out illegal downloading of their material.

 

Starting from the basic and undeniable premise that anyone involved in copying or facilitating the copying of any material which is protected by copyright (which will include the overwhelming majority of the music, film and software files shared over peer-to-peer networks such as Newzbin, Limewire and BitTorrent) is an infringement and as such illegal, taking action to deter further infringement would in most cases seem perfectly reasonable.

 
 
 

Filtering by Internet Service Providers: Privatised Censorship or Corporate Responsibility?

Emily Laidlaw

Lecturer, University of East Anglia

PhD Candidate, London School of Economics

e.laidlaw@uea.ac.uk
e.b.laidlaw@lse.ac.uk
 

Filtering of content by Internet Service Providers (ISP) illustrates deep legal, political and theoretical divisions concerning how the Internet should be governed, in particular issues surrounding the traditional public/private governance divide and how these should be accounted for in the digital environment.  The shift to governance by private bodies reflects a growing trend toward privatisation of public values, which puts increasing pressure on corporate governance frameworks to be legitimate alternatives to state action.  In the United Kingdom the framework for filtering of content has largely been left to the ISP industry to manage, which responded by creating the Internet Watch Foundation (IWF).  As the IWF’s mandate continues to expand and ISPs receive increasing pressure to undertake a more significant role concerning filtering of an expanding range of content, questions are raised about what rights users have, if any, concerning the content that is filtered, and the legitimacy of a private body such as the IWF acting as regulator. The question is whether the frameworks that govern bodies such as the IWF are enough to create the standards needed for human rights compliance or whether such bodies simply become a form of privatised censorship.

 

This paper investigates whether the regulatory framework of the IWF complies with human rights principles.  To that end a traditional human rights analysis will be undertaken to determine whether the IWF’s regulatory approach complies with the principles of Article 10 of the European Convention on Human Rights.  Working within this frame of reference, the following will be examined. First, the regulatory environment of Internet filtering in the United Kingdom will be discussed to situate the IWF within the public/private governance debate.  Second, the IWF’s governance framework will be examined to determine if the IWF is a public authority under the Human Rights Act and whether it is governed in a way that is provided by law, necessary and proportionate. Finally, the wider significance of the problems posed by such corporate governance frameworks will be examined to determine whether private governance of filtering is appropriate when freedom of expression is engaged.

 
 
 
 

E-Participation requires E-Participants: how can this be best effected?

Professor Philip Leith

Queens University, Belfast
p.leith@qub.ac.uk  

 

One of the major planks of some E-Gov visions is the notion that there is a willing participatory group who are more than happy to be involved in new forms of democracy and will be active and useful suppliers of input to e-consultation or  e-participation processes. This group is different from that which goes online to the No. 10 web and signs a petition asking the prime minister to resign.

 

It is becoming clear, though, that the commitment to e-participation may well be there in theory, but difficult to access in practice.  Further, the participation which is most welcome can frequently require training and expertise which is not widely available or there may be differences in opinion as to the point of participation.

 

In this paper I will look to the attempts to encourage participation in the patent system.  The UK is about to initiate a trial system utilising New York Law School’s Peer To Patent project, but has also attempted to involve participants in previous consultation exercises.  I will use these as demonstrations of the sorts of problems which e-participation has met, and consider whether this new form of E-Gov is perhaps being oversold. The interesting question is whether participation is a growing tool which can ensure better public services from the State.  My conclusion is that consultation and participatory projects are certainly educative but e-participatory projects are most likely incapable of achieving the goals set by their more optimistic advocates.

 
 
 

The Prospect of Social Norms as a Governing Mechanism of Virtual Worlds

Long Long
Ph.D. Candidate,The University of Manchester
berkeley_long@hotmail.com    

Keywords: Social Norms, Virtual Worlds, Virtual Community, Robert Ellickson 

 

Millions of people are escaping from the real world to virtual worlds, where they interact with each other in respect of entertainment, business, education, and social networking. Under such a trend, there will be concerns over governing mechanisms of virtual worlds which have growing implications for participants’ lives. As some evolving elements of social norms have been observed in virtual worlds, it is worthwhile to discuss the prospect of social norms as a governing mechanism in virtual worlds.

 

In his famous book of “Order without Law,” Robert Ellickson predicted that effective norms are more likely to be established in a close-knit group, which does provide members with the power to control others and opportunities to exercise the power and also information about norms and violations. When applying Ellickson’s norm emergency theory in the context of virtual worlds, however, it could be argued that effective social norms would not be established in virtual worlds. This is because the unique context of virtual worlds contains two factors which may erode foundational conditions necessary for the establishment of social norms. More specifically, participants’ in-world interactions depend upon providers’ design arrangement in the software platform. In general, virtual world participants only have limited capabilities to administer sanctions in the software environment. In order to exert social control over others, participants can hardly do without the help of virtual world providers in terms of software design and technical support. Moreover, participants do not have enough sanction opportunities in virtual worlds because of role-playing. Participants tend to have different and multiple identities in virtual worlds. This separation between participants’ in-world identities and their real-world identities provides potential in-world deviants with a safe cushion. In this way, in-world deviants could get away with deserved sanctions by signing up to the world with another identity and are therefore able to commit deviant behaviours continually.

 

Given the advantages of social norms employed as a governing mechanism in virtual worlds, there would be a demand for solutions to correcting social imperfections identified above. The most powerful solution is that virtual world providers deliberately design a software environment in which participants can exert effective social control over others to the highest degree. In addition, moderate legal intervention is also necessary to guarantee a suitable environment for the establishment of effective social norms in virtual worlds.

 
 
Governance and public television in Europe

Ana María López Cepeda

Universidad de Santiago de Compostela, Spain

anamaria.lopez@usc.es 

The mode of governing modern societies is experiencing in recent years a number of changes that involve a restatement of the traditional bases for the management of corporate and political power at various levels. Some of these challenges are related, first, with the new tools of communication and open information flows that allow for greater accessibility and transparency, and secondly, the social demands of more pluralism in decisions government institutions and enterprises.

 

This is how the modern concept of governance appears as a new way to mange more collaborative, based on a more open society, non-hierarchical mechanisms, new collective practices and more participatory forms, increasingly distant from the principle of authority and unilateral.  Governance is an alternative way to manage relationships and / or liability, and in that sense as a mechanism to replace the sole and exclusive control of the centralized corporate bodies, which become ineffective by themselves to meet the demands and societal needs.

 

The emergence of new technologies and so-called mass self media (blogs and social networks) cause to reconsider the need for the government develop an e-governance in their relations with citizen. E-government is the use of information technologies in the delivery of products and services of the state to citizens and industry.

 

This new perspective of the Governance must be present at all public service bodies, and among them on public television as a means to satisfy requirements of society involved in the technological and social change experienced in recent years.  A free and transparent information is the foundation of a democratic society because without transparency communicative performance of political parties, the result distorts the meaning of democracy.

 

This paper studies how the main models of public television in Europe (Spain, France, Portugal, Italy and the United Kingdom) are involved in the new concept of e-governance. To this end will be examined web pages, blogs and social network that offer these five models of public televisión in Europe. The paper will examine key indicators of transparency (openness, participation and accountability) present in the websites of these public broadcasters, as well as the use by public entities such as blogs and social networks, its themes and participation.

 
 

Adopting the E-Conveyancing Matrix

Moira MacMillan
Martin Jones

Glasgow Caledonian University

M.Jones@gcu.ac.uk
 

At BILETA 2010, in a paper entitled “Re-entering the E-Conveyancing Matrix” we reported that whilst significant progress had been made in Scotland towards constructing the necessary technical and legal infrastructure required for electronic conveyancing, it is true to say that the fully electronic transaction remains elusive. The impetus provided by the publication of the Scottish Law Commission’s Report on Land Registration during 2010 [1] may now move Scotland a step closer to a conveyancing transaction which can be completed electronically from start to finish but questions remain as to the extent to which such a development would be embraced by the legal profession.

 

Currently, solicitors in Scotland may opt to utilise the Automated Registration of Title to Land (ARTL) system which incorporates a public key infrastructure system as a method of registering a property transaction. The system is partial inasmuch as not all types of property transactions can be registered electronically. The take up of the system has historically been limited. Generally available statistics from the Registers of Scotland indicate that electronic registrations account for less than 5% [2]of recorded property transactions and this is borne out by more detailed statistics obtained by the authors.

 

The recent decision by the Lloyds Banking Group to make the use of ARTL mandatory by those solicitors who wish to remain on its panel from September 1st 2010 may, however, have a significant impact on the take up of the system.

 

It is against this backdrop of change that this paper will report the findings of a detailed questionnaire examining solicitors’ attitudes towards e-conveyancing and ARTL which was undertaken in January 2011. It will also report the initial findings of a series of focus groups which were undertaken with forty members of the profession in February 2011. The paper seeks to explore whether the hurdles to be overcome prior to e-conveyancing being fully realised are ones of infrastructure or attitude.

 

 [1] Scottish Law Commission Report 222 on Land Registration

http://www.scotlawcom.gov.uk/publications/reports/2010-present/

[2] Registers of Scotland Annual Report and Accounts 2008-2009,

http://www.ros.gov.uk/public/publications/annual_reports.html
[3] “Essential artl” Journal of the Law Society of Scotland, 14/06/2010
http://www.journalonline.co.uk/Magazine/55-6/1008214.aspx
 
 
 

Blogger convicted of breaching Data Protection law: An analysis of implications for whistleblowers and ISPs.

Karen McCullagh
Salford University

K.McCullagh@salford.ac.uk

 

Keywords: Blogger, whistleblower, journalistic exemption, ISP liability, data protection

 

This paper analyses the recent case of Stuart Syvret v Attorney General and the Connetable of Grouville [1]. Mr Syvret, a former senator (politician) in Jersey, published on his blog the text of a confidential report relating to an investigation into the conduct of a nurse at the General Hospital. The report contained the name of the nurse, (referred to in this paper as Nurse X) and details of alleged offences (which included theft of drugs, alleged murders of patients and sexual offences).

 

The defendant was prosecuted for two breaches of the Data Protection (Jersey) Law 2005. Firstly, that contrary to Article 55, he knowingly or recklessly without the consent of the relevant data controller, published on his blog site, a police report that contained personal and sensitive data.  Secondly, that contrary to Articles 17 and 21, he processed personal data without being registered as a Data Controller.

 

Mr Syvret argued that his actions in publishing the report on his blog were in the public interest as he believed there was a cover up by Jersey authorities in order to avoid political embarrassment.  He was found guilty, ordered to remove the personal and sensitive data from the offending blog post, fined a total of £4,200 and ordered to pay £10,000 in prosecution costs for the data protection breaches[2].

 

During the course of the proceedings, the Office of the Data Protection Commissioner of Jersey contacted Google, the blog host, requesting that the disputed blog posts be removed. Google refused to comply with this request in the absence of a court order. 

This paper, after illustrating the facts of the case and the reasoning of the judge, discusses the main issues at stake, namely, the role and responsi­bilities of whistleblower bloggers and the rights and responsibilities of ISPs who host blogs. Further, this paper draws upon an interview with Mrs Emma Martins, Data Protection Commissioner of Jersey, who calls for a review of journalistic exemptions and a review of the obligations of ISPs in relation to data protection offences. 

 

[1] Judgement was delivered on 17th November 2010, Jersey Magistrate Court; http://www.thisisjersey.com/wp-content/uploads/2010/11/17-11-10-Judgement.pdf

[2] He was also sentenced to ten weeks imprisonment for three contempt of court offences (He had refused a community service option). He is currently appealing the conviction. (This paper will take account of the outcome of the Appeal, once it is heard on 19th January 2011)

 
 
 

Automated Blocking of Child Pornography: An International Overview

TJ McIntyre

tjmcintyre@ucd.ie 

International trends towards blocking (or filtering) internet content have been led by attempts to block the transmission of child pornography. However, while the systems adopted to do so share a common goal they otherwise vary greatly.

The focus of blocking differs from system to system, with some operating on web pages, others on internet searches, others on peer to peer software and yet others on email. Those responsible for deciding what files or internet pages should be blocked also differ greatly - in some jurisdictions being public bodies, elsewhere private entities. Where systems have been adopted at a national level the domestic legal basis (if any) varies, as does the issue of whether blocking is compulsory or voluntary for each service provider.

Similarly, there is some disagreement as to the fundamental purpose of such systems. The majority are being deployed as purely preventative tools (in some cases, actively building in constraints which will stop the technology from being used as an investigative or prosecutorial tool). Some, however, go well beyond this remit and have been used to identify and prosecute those seeking to access child pornography.

There is also no consensus as to what material should be blocked, with "virtual" child pornography (such as purely computer generated images) being particularly controversial. This has lead to recent INTERPOL attempts to harmonise blocking - specifically, by making available to ISPs a "worst of the worst" list covering material which would be illegal in (almost) all jurisdictions.

Finally, the technical implementations of blocking and the consequent collateral damage to other content which is inadvertently blocked can be seen to vary dramatically as between systems, with some (hash value based) offering a degree of precision which restricts blocking to an individual file, while others (DNS based) have been deliberately designed to block entire domains so as to maximise pressure on domain name owners.

Given this landscape, the purpose of this paper is twofold. First, to offer an overview of child pornography blocking systems with a view to developing a taxonomy of those systems. Secondly, to offer a preliminary assessment of the likely implications of each family of systems for the law, particularly in relation to such matters as the impact on freedom of expression, the likelihood of function creep and the extent of overblocking.

 
 
 
 
 

The Digital Economy Act 2010 – One Year On: An analysis of the Digital Economy Act 2010

Dr. Dinusha Mendis
Bournemouth University
 dmendis@bournemouth.ac.uk
 

On 7 April 2010 the Digital Economy Act 2010 received Royal Assent in the UK Parliament and came into force on 12 April 2010.  The Digital Economy Act 2010 (hereinafter DEA) introduces a number of new provisions, amongst which, one of the most controversial provisions has been the requirement to impose obligations on internet service providers (ISPs) to reduce online copyright infringement and the requirement to impose ‘technical measures’ by disconnecting a user involved in copyright infringement from the internet. Cases such as Napster, Grokster and Pirate Bay had brought piracy and illegal file-sharing to the forefront highlighting the urgent need for copyright law reform. At present cases such as Liberty Media and Hotfile continue to emphasise the issues surrounding illegal file-sharing. As such, the Act takes drastic measures to deal with copyright infringers in particular those involved in illegal file-sharing and as expected was deemed controversial by copyright users whilst it was welcomed by the recording and film industries.

 

The paper will question whether the ‘three-strikes’ policy and ‘web-blocking’ contained within the DEA which follows in the footsteps of the French HADOPI is perceived to be the answer to this problem?  In an attempt to answer this question, the paper will also take an in-depth insight into the reasons behind bringing into effect the DEA, its provisions, the contentious issues and will consider the consequences of a rushed Bill through Parliament where complex copyright issues were considered at ‘wash-up’ stage. The paper will also consider the OFCOM Initial Obligations Code published on 28 May 2010, which attempted to clarify some of the issues contained within the DEA, the judicial review case brought forward by Talk Talk and BT in November 2010 and the most recent developments relating to the ACS:Law file-sharing case, ongoing since 8 February 2011. 

 

Nearly one year on, has the DEA been effective or has it spelt more trouble than good?  With BT and Talk Talk granted judicial review, is there a future for the DEA?  Ultimately, what does the DEA mean for illegal file-sharers and more importantly for the ordinary user and what does the future hold for UK netizens as a result of this new law?

 
 

Freedom of expression overtaken by archaic rules on jurisdiction?

Jeanne Pia Mifsud Bonnici
University of Groningen
g.p.mifsud.bonnici@rug.nl 
 
Oscar Philip Duintjer Tebbens
Faculty of Law, University of Groningen, The Netherlands
 

In a world where new ways of conveying information develop rapidly and media providers become more and more internationally oriented, regulating the media becomes more complex.  While national realities may require states to act on a national level, the desired effect of the regulation may be somewhat stunted. Increasingly individual states have little room to implement their own views on freedom of expression. Arguably, the developments in Iceland and in Hungary in the past months can illustrate this clearly. Following from the aftermath of the financial collapse of Iceland, in June 2010, the Icelandic Parliament unanimously approved a proposal (the Iceland Modern Media Initiative) to make Iceland the freedom of expression capital of the world. In what appears like the complete opposite trend, in December 2010, the Hungarian Parliament approved a law transposing, among other directives, the Audiovisual Media Services Directive (AVMS directive). The new Hungarian law was strongly criticised by journalists, civil society, the European Commission and European Parliament on the grounds that it greatly restricts freedom of expression in Hungary and violates Union law.

 

This paper looks at these two prima facie opposing developments in Iceland and in Hungary.  It traces the development of each initiative pointing out the obvious differences in the margin of appreciation of each state towards freedom of expression, the treatment of authors and journalistic sources. The paper then shifts focus to the common result of both approaches. In summary the authors argue that with the room states have they can protect the citizens and media providers only as far as litigation in their own jurisdiction is concerned. There are a few areas in which a state can widen or restrict freedom of expression within their own jurisdiction to, for example, counter the chilling effect of litigation: by the non-recognition of defamation verdicts from countries that do not apply the same level of protection for freedom of expression. Or by stopping litigation where the only aim is to silence a person (so called SLAPP lawsuits). Other measures like enhancing source protection for journalists, as Belgium has done, can be implemented without any difficulty but with the caveat that this protection only holds if the journalist of the implementing state does not work abroad.

 

Cases brought before courts around the world increasingly show that the international spread of media services limits the effectiveness of a national approach to the regulation of the media. The different (at times opposing) national perspectives have limited reach to protect or restrict the media reaching only within their territorial scope. Furthermore, as seen in the case of Hungary, states have to increasingly accept to play within the rules of regional or international commitments. Hungary has had since December to succumb to the pressures of the European Commission and have proposed amendments (still to be passed through Parliament) adjusting its media law.

 

In conclusion, the authors argue that while initiatives like those of Iceland are a welcome addition to the cause of freedom of expression, as they may help shape future international developments, it is time for states to take up the challenge to address long standing issues of jurisdiction in the regulation of the media. Ultimately the authors argue that the main question remains ‘How do we resolve the lack of manoeuvrability of states on issues of freedom of expression when current ideas on jurisdiction have been overtaken by technological developments?’

 
 
 
 
 
 

The Three Strikes And You Are Out Challenge

Felipe Romero Moreno
feliperomeromoreno@hotmail.com 
 

In the UK, the Digital Economy Act 2010 (DEA), which comprises graduated response measures intended to prevent virtual intellectual property (IP) transgression has generated heated debate. While some research has started to investigate the provisions dealing with online copyright infringement, little attention has been paid to the fact that technology is fast exceeding the confines of this legislation. This paper evaluates the suitability of the ‘‘three strikes and you are out’’ approach to copyright enforcement where internet subscribers alleged to be unlawfully file-sharing will be disconnected from the internet following increasingly strong warnings. The paper considers whether tracking technology employed to indirectly detect copyright infringers represents systematic recording of private activity and is thus a violation of the right to privacy under article 8(1) of the European Convention on Human Rights (ECHR). It also assesses whether or not IP addresses of internet subscribers are classified as personally identifiable information. However, given that at present online copyright infringement occurs via non-P2P methods, such as, one-click file hosting services or streaming, just as P2P is similarly employed for non-infringing purposes, for example, Skype or BBC iPlayer; what is the correct balance between the interests of copyright holders and the subscribers’ fundamental privileges to confidentiality, data protection, freedom of speech and presumption of innocence.

 
 

E-Government for Developing World:  Sri Lankan Perspective on E-Commerce Readiness

Anusha Abeywickrama- Munasinghe

PhD Candidate at Monash University

Senior Assistant Secretary (Legal), Ministry of Justice, Sri Lanka

anusha.munasinghe@monash.edu
 

This paper identifies e-government in developing country context,  examining both current situations of ‘e-commerce’ and ‘e-government’ initiatives in Sri Lanka with the focus on its readiness to face e-society challenges.

 

This paper examines the concepts of ‘e-governance’ and ‘e-government’. The concept of ‘governance’ is the basis for  ‘e-governance’. ‘Governance’ itself is considered as a broader concept than the  ‘government’ including mechanisms at various levels covering different areas and with the involvement of individuals and institutions, public and private, managing their common affairs effectively.  ‘E-governance’ as a concept has evolved with the use of ICT for the purpose of enhancing governance.  ‘E-government’ suggests a generic term for web based services from agencies of government and it denotes the idea of utilizing the Internet and world-wide-web for delivering government information and services to citizens.

 

This paper investigates e-readiness in Sri Lanka focussing on the obstacles which are common to developing countries. This paper examines the main e-government program ‘The e-Sri Lanka Initiative- Citizen and Government Participation' with the aim of providing the developing country perspective on e-government and e-commerce. The analysis identifies the barriers to  implementing e-governance strategies. Successful e-government is dependent on government commitment towards introducing policies that ensure the necessary regulatory environment,  and on its overall ability to provide facilities and bear the necessary cost. The analysis will look at the opportunities and the challenges that e-government initiatives present for developing countries.

 

From the  Sri Lankan perspective, one of the major obstacles has been the unstable and constantly changing political environment. Although Sri Lanka has a tradition of 50 years of democracy and an independent judiciary, the threat posed by the prolonged 25 years of ethnic conflict,  raged in the North and East provinces, cannot be underestimated.  This paper identifies the contribution of favourable policies in achieving the objectives of the programme such as well scored macroeconomic framework compared to other developing countries in addition to active and creative use of fiscal policy.

 

This paper explores e-commerce as a part of e-governance and its development in Sri Lanka first providing a general perspective on the subject. Legislative provisions were introduced to regulate e-commerce activities which contribute to facilitate domestic and international e-commerce eliminating legal barriers to encourage e-commerce.

 

This paper considers whether Sri-Lanka is ready to take e-society challenges by examining contribution of e-governance, e-government and e-commerce programs. This article suggests that there are  difficulties in achieving the full potential of e-revolution in the developing country context generally.  There have been reasons holding  back the growth and development of e-governance. Developing countries have proved that they have the capability to implement e-governance programs however, with difficulties mainly due to political instability and asymmetrical changes in policy formulation. The findings suggest that initiatives introduced in Sri-Lanka have shown positive results. However, it takes time to approach all sectors and every level in the society.

 
 
ACTA: Evil Inside?
Matěj Myška
Masaryk University, Czech Republic
matej.myska@law.muni.cz
 

This paper should take a closer look on the much disputed Anti-Counterfeiting Trade Agreement (further referred as “ACTA”) which shall establish a new legal framework for enforcement of intellectual property rights.

 

Firstly, the history of the negotiations and surrounding controversies are presented, especially focusing on the reasons, why ACTA has been negotiated under a veil of secrecy. Further, the legal nature and institutional setting of the ACTA negotiations are introduced because ACTA is not negotiated under the common WIPO, nor WTO framework, but as a standalone agreement. Next, by analysis of the leaked drafts and the revised “final” version of this proposed plurilateral agreement the legal framework to be established is introduced. The analysis focuses especially on the suggested civil measurements (injunctions, damages, other remedies, information related to infringement and provisional measures) and the proposed measures in relation with enforcement of intellectual property rights in the digital environment. In this core part of the paper the expected impact on the liability of information society services providers (ISP) and the rules on protection against circumvention of technological Measures are presented and whether these could lead to the possibility of imposing of the “three-strikes” procedure (i.e. the disconnection of Internet users) The other provisions (e.g. the criminal enforcement of intellectual property rights) are discussed briefly. Furthermore, the abovementioned provisions are compared to the already established legal framework of the European Union (Enforcement Directive, Information Society Directive and E-commerce Directive) and also to what degree this framework needs to be changed in order to comply with the obligations resulting from ACTA.

 

The provisions of ACTA are presented as too draconic by many pro-consumer advocacy groups as well as human rights watchdogs (e.g. Consumers International, EDRi, Electronic Frontier Foundation etc.). In their view, which is also presented in this paper, the proposed draft of ACTA poses a grief threat to fundamental freedoms and human rights especially the freedom of expression and communication privacy. Also the current data protection standards may be endangered. The official opinion of the European Parliament expressed in its Resolution of the 10 March 2010 on the transparency and state of play of the ACTA negotiations is evaluated.

 

Finally, in the last section a general assessment of the ACTA and its pursued goals is undertaken. The possible implementation of its provision in the national law of the Member States is envisaged. In conclusion, the ACTA seems to be an instrument of an rather restrictive approach to tackling the challenges posed by the development of communication and information technology to intellectual property rights in general.

 
 

Digital witch hunting and the right to privacy in China

Dr Rebecca Ong
lwong@cityu.edu.hk
 

It cannot be denied that the Internet continues to have a significant impact on the social, cultural, commercial and political aspect of everyday life. While it can be said that the impact is generally positive, a phenomenon has arisen where the technology can be used to publicly shame, harass and humiliate a person with devastating effects.

 

The aim of this paper is four-fold.  First, the paper will briefly describe the Internet and online forums in China.  Second, it will discuss the increasing use of human flesh search as a valve for the community to express dissatisfaction over local injustices and to enforce social norms and moral values.  It also discusses how the use of human flesh search can lead to an infringement of privacy.  Third, the paper analyses the land mark Beijing Court’s decision in Wang Fei v Zhang Leyi, Daqi.com and Tianya.com. The case is significant in that it is the first case that recognizes human flesh search and the impact it can have on mainstream society.  The case also provides judicial recognition of Chinese citizens’ right to privacy.  Finally, the paper considers the right to privacy and reputation as well as the liabilities that can arise under the recently enacted Chinese Tort Law.

 
 
 

Profiting from Pay-Per-Click Advertising Must Come With A Price-

A Hefty One, At That Suing Providers of PPC Advertising Services: Liabilities, Jurisdiction and the Right to Privacy

Catherine S. Panaguiton
University of the Philippines, College of Law
panaguiton.0064539@gmail.com
 
 

 Advertising on the web, as the PPC (Pay Per Click Advertising) service offered by the search engines, is one of the innovations that came with the Internet.  It has been greatly lauded since its speed, wide range coverage, lower costs, accessibility and the efficiency that it provides has made consumers’ and advertisers’ lives easier.

 

 However, the same salient features that made PPC advertising attractive to consumers and advertisers has also made this service prone to abuse. This is evident from this researcher’s discovery of a number of deceptive and misleading advertisementsthat are able to permeate Google, Yahoo and MSN’s PPC (Pay Per Click) advertising service, proscribed by consumer protection laws in force. The number of people that must have been victims of these advertisements is unknown, but empirical evidence shows that these scrupulous advertisers are profiting greatly from this scheme. Should the sites where the deceptive and misleading advertisements are linked to disappear one day, would victim-consumers then still have recourse under the law ? Could these consumers file suit against search engines, Yahoo, MSN and Google, who directly or through their negligence, provide these advertisers with the service or the means to commit violation of consumer protection laws? This paper attempts to explore these questions.

 

The E-Commerce Directive and the recent ECJ rulings lend little help to the consumers in the above situation. The E-Commerce Directive provides that these search engines, as ‘information society services’, may be generally held liable for storing illegal information or providing the means for the perpetuation of illegal activity. However, in the recent landmark cases in the ECJ, the Court ruled that PPC advertising offered by these search engines, as ‘hosting’ services, fall within the ambit of the safety harbor provisions in the E-Commerce Directive. Hence, for illegal acts committed by advertisers in the use of the PPC service who later on take down their websites and are nowhere to be found, search engines are relieved from liability and it is the consumers who bear all the, largely pecuniary, losses.

 

This researcher then critiques the E-Commerce Directive and the ECJ rulings elucidating the provisions in the aforesaid directive, to determine gaps to the said law in force. Specifically, the liability of information society services for illegal acts committed by users of their service is examined, as well as corollary issues on obtaining jurisdiction in suits against foreign corporations proffering PPC advertising services and the right of privacy. This is done to the end that consumer protection laws are not rendered inutile in the worldwide web. Furthermore, the E-Commerce Directive serves as a model law for many countries such as the Philippines, whose laws on E-Commerce are still in their fledgling stage. It becomes imperative then that this law be subject to scrutiny as it was done in this paper.

 
 
 

My profile is my castle, how reasonable is the expectation of privacy of the Social Network Sites users?

Aneta Podsiadła  
anetapodsiadla@gmail.com

Nicolaus Copernicus University

 

We are facing new era where there is no clear-cut distinction between the public and private sphere of our life, it is difficult to estimate especially in the online world. Social networking sites (“SNS”) are already an unprecedented social phenomenon. The amount of users is increasing every day and amount of information being circulated is vast. Among many advantages of being part of the great social community there are risks and costs that users must bear in mind when setting up their account and letting others to browse their profiles. Many SNS users subjectively expect that the information they post to their profiles will only be visible and accessible to those to whom they grant access and not to others such as employers, government or court.

 

Recent decisions of the US federal courts laid a new groundwork for the interpretation of the right to privacy of the online users of the social networking sites in the civil law cases. The SNS users can no longer be confident that what they post will never be disseminated. The problem that appeared is that judges have undertaken different decisions based on different reasoning, starting from the theory of the reasonable expectation of privacy, Fourth Amendment privacy, right against self-incrimination from the Fifth Amendment to relevant legislation. At the end of this chapter I will introduce a set of rules for judges that should be taken into account when defining the scope of privacy that individual can rely on.

 

Presented in the paper US approach will be opposed by the European approach which varies considerably in this matter. In this chapter I will examine the EU regulations applicable to the herein subject, as well as relevant judgments of the European Court of Justice and selected Member States (United Kingdom, France, and Germany). Problem under EU legal system concerns lack or insufficient regulation of data being processed in civil law cases, as well as lack of harmonization among the Member States.

 

The question that herein paper will address is which system of law accurately reflects the realities of digital age and properly protects individual privacy online. If none of them sufficiently addresses the problems what improvements should be made?

 
 
 
 
 
 
 

Right on track? – The issue of consent in online behavioural advertising

Judith Rauhofer

Edinburgh University

Jrauhofe@staffmail.edu.ac.uk
 

As a matter of current practice, the online behaviour of most internet users is routinely tracked by online advertising networks through the use of third party cookies, history sniffers and other tracking technology. Although technological means enabling users to avoid such tracking exist, almost all of these technologies rely on the users to take active steps to avoid tracking - for example, by blocking cookies, changing default privacy settings of browsers and other applications. Lack of skill and user inertia mean that by and large tracking is carried out on an “assumed consent” basis.

 

The information thus collected is mainly used to serve internet users with online advertising that is targeted to their interests (and which is therefore deemed to be more effective) although more recently concerns have arisen that the use of that information for other purpose, for example, discriminatory pricing, is also on the increase.

 

There is as yet no clear legal framework for the use of tracking technology for the purpose of online behavioural advertising. Although a number of questions have been raised in relation to the regulation of cookies and – more recently – specific profiling technology used by Phorm together with a number of British ISPs (which was eventually found to violate legal restrictions on the interception of communications), the data protection framework is currently seen to be of limited effect in the prevention of tracking because most of the user information collected through tracking does not identify a living individual. Restrictions do exist where the tracking is cookie based and is thus subject to the requirements set out in the E-Privacy Directive (which are about to change from opt-out to – browser supported – opt-in). However, not only do these provisions not cover all tracking activity, the implementation of the new cookie regime is currently the subject of much discussion between industry, policy makers and privacy organisations.

 

In recent months, several organisations, including the European Parliament, the Article 29 Working Party, the US Federal Trade Commission and the European Commission have published their views on how this issue should be addressed in a regulatory context and it is expected that OBA will be the focus on a number of legislative and self-regulatory initiatives in the coming year, both at national and EU level. However, most of these initiatives continue to focus on achieving “user-friendliness”, often ignoring the more fundamental question of user consent.

 

This paper will look at the use of consent in OBA in the context of the upcoming review of the EU data protection framework. It will examine ways in which the different technological and self-regulatory approaches currently discussed, apportion responsibility for decisions designed to facilitate OBA. The paper will consider the underlying policy decisions that legislators will be required to take and the long-term – potentially unintended - consequences of those decisions. In particular, the paper will focus on potential harms of OBA for individual users as well as the public interest in general of which policymakers should be aware in this context.

 
 

Is it a bird? Is it a plane? Why can’t the EPO and CA agree on the ‘as such’ exclusion?

Diane Rowland
Department of Law and Criminology

Aberystwyth University

dor@aber.ac.uk
 

This paper will assess the continuing divergence between the interpretation of the ‘as such’ exclusion in Article 52 EPC as propounded by the Technical Board of Appeal of the European Patents Office and the Court of Appeal in the UK. The objective is not so much to evaluate the tests or reasoning in themselves, as this has been scrutinised by many other commentators, but rather to reconsider why the matter has become so controversial, why the issue has not been resolved and how it might be affected by proposals for harmonisation at European level and whether or not an EU Patents Court would be capable of providing an acceptable solution.

 

The dual nature of a computer program has always been acknowledged but the legal response to the effect of this duality remains a topic of debate; that debate has ebbed and flowed but is still very much in existence. At its heart is the question of the appropriate intellectual property protection for a computer program. Where as copyright focuses on the literal properties of a program (the ‘writing’), the availability (or not) of a patent depends on its functionality (the ‘behaviour’). There may have been modifications to traditional copyright principles in an attempt to provide a better fit to the particular properties of a computer program as evidenced e.g. by the Software Directive (Directive 2009/24/EC codified version) there is nevertheless a general acceptance that a program can be protected as a literary work under the Berne Convention. No such general view can be identified with regard to the availability of patents for computer implemented inventions and the topic remains a controversial one.

 

A number of reasons can be identified for the continuing controversy. First is an emphasis on the literal properties i.e. the ‘writing’ and an argument that copyright is therefore the inevitable choice. Second, the similarities between the characteristics of computer programs and mathematical algorithms again preclude the use of patents. Third, the European Patent Convention (and, in consequence, the UK Patents Act 1977) contains an exclusion for, amongst other things, a computer program to the extent to which the claim relates to the computer program ‘as such’. No such exclusion occurs in Article 27 of the TRIPS agreement which provides that patents should be available for inventions in all fields of technology. Possibly because of the focus on the harmonised copyright protection in the Software Directive the threshold for patentability has been set much higher in Europe than in other jurisdictions such as the US and Japan where the criteria have been liberalised significantly. The reasoning applied by the Technical Board of Appeal (TBA) of the European Patent Office (EPO) to the patentability of computer implemented inventions has changed over time arguably tacitly acknowledging the influence of both TRIPS and the availability of patents in other jurisdictions. However this development has not been paralleled in the UK, where the Court of Appeal, notwithstanding the requirement of the Patents Act 1977 to take ‘judicial notice’ of decisions of EPO bodies, arguably continues to reach judgments which are based on decisions of the TBA which the TBA itself no longer follows.

 

This paper will examine whether or not the Court of Appeal is being overly cautious in its approach to the patentability of computer related inventions; its attitude to harmonisation of patentability criteria in Europe in this field of technology, particularly in the light of its approach and attitude in other technological areas; the view that the Court is technically bound by its earlier decisions which relied on now outdated decisions of the TBA is tenable, especially in the light of the Court of Appeal decision in Actavis UK Ltd v Merck & Co [2008] EWCA Civ 444 in which a further exception to the rule in Young v Bristol Aeroplane [1944] KB 718 was proposed and will go on to consider whether the existence of a European Patent Court would clarify the situation or merely generate further confusion.

 
 

Is there a future for commercial legal information retrieval systems?

Jaromir Savelka
j.savelka@gmail.com
 

Commercial legal information retrieval systems have firmly established themselves as the inherent part of legal practice. For a long time they have been the only electronic source of reliable high quality legal information ranging from legal regulations to academic publications. For a long time the commercial systems were left to compete among themselves for gaining the largest market share possible. During the past decade public and private services offering free access to information experienced enormous growth. From general purpose search engines to websites specialized in providing highly profiled legal information these services threaten the position of commercial legal information retrieval systems. It is no longer necessary to pay for the commercial systems in order to be able to access current regulations, relevant case law or high quality academic literature. An obvious question arises whether there still is an objective need for the commercial systems and what is the added value they can offer to their customers.

 

In the Czech Republic there are three major commercial legal information retrieval systems that control almost the whole market. It is worth mentioning that Czech lawyers seems to be accustomed to work with these systems and are often not aware of the fact that in many cases they do not offer any exclusive information at all. It however seems that the situation may change from day to day due to the Ministry of Interior’s project eSbírka the aim of which is to provide free access to the legislation using up-to-date XML technologies. Since the project has attracted a lot of public attention it is most likely that it will eventually make lawyers evaluate their actual needs for the commercial systems.

 

The aim of the paper is to elaborate on the current position of the commercial legal information retrieval systems, identify the added value they offer in comparison to the freely available services and find the possible opportunities to offer unique services that cannot be provided for free.

 

As the base for the reasoning the data on the user experience with the three major systems used in the Czech Republic gathered from the junior students at the Faculty of Law in Brno are used. The advantage of this approach is that the systems that have been evaluated differ greatly. While one of them has a form of a rather old fashioned application equipped with abundance of precise functions, another one is a modern cloud application offering simple environment with only the most important functions. It is thus possible to elaborate on preferences of the beginning users, the users that are going to be the future customers of the commercial legal information retrieval systems, perhaps those that are going to decide on the question asked in the title of the paper.

 
 
 
Napster’s Long Shadow
Nick Scharf
PhD student and Associate Tutor

University of East Anglia

N.Scharf@uea.ac.uk
 

It is ten years since the litigation involving the Napster peer-to-peer (p2p) file-sharing network and the Recording Industry Association of America (RIAA). As such, a timely analysis of the case and those following the decision is warranted to examine the important legal impact of rulings have had on the status of p2p as a technology for distributing content. This paper will argue that in the digital age, p2p litigation has come to define how music will not be distributed online with the cases involving Napster and its successors bringing important changes in how copyright law is applied with regard to p2p networks. Fundamentally, the Napster litigation exists within an environment underpinned by a broader power struggle, where vested interests have long fought for control; copyright law was the weapon chosen to maintain that control. Napster is also significant as representing the first incarnation of p2p technology as it functioned via a central server. Successive cases, whilst essentially dealing with the same scenario of online file-sharing, have differed in that the technology in question varied from this structure. As a result, it is also important to examine the Grokster and Pirate Bay cases as they utilised more developed and de-centralised network structures. This article will critique these cases in order to determine how copyright evolved with Napster onwards and how it currently stands today; specifically the development of ‘knowledge’ and ‘inducement’ aspects. It is argued that these are effectively insurmountable obstacles for any p2p developer and the virtues of p2p technology have been lost.

 
 

Three songs and you are disconnected from cyberspace??? Not in Germany where the industry may “turn piracy into profit”

Sandra Schmitz/Thorsten Ries

Interdisciplinary Centre for Security, Reliability and Trust (SnT), Université du Luxembourg, Luxembourg

Sandra.SCHMITZ@uni.lu
 

 Creative industries claim to have suffered a loss in income by the rise of so-called P2P filesharing, i.e. the practice of distributing or providing access to digitally stored information using distributed peer-to-peer networking. Filesharing as such is not illegal, but users tend to ignore intellectual property rights. The problem of the content industry in enforcing their rights is the difficulty to identify the copyright infringers without IP address subscription information. Governments feel that it is their responsibility to protect the rights of the entertainment industry viewed as key economic players and therefore seek ways to disable unlicensed sharing of files and provide means to identify the person behind an IP address. In transposing the Enforcement-Directive (2004/48/EC) into national law some EU Member States implemented a statutory right to have the connection owner of an IP address identified if certain requirements are met.

 

Most of the current state initiatives to stop illegal filesharing introduce a graduated response scheme often referred to as “Three Strikes Law(s)”. These schemes attempt to control and regulate internet access as a means to encourage compliance with copyright laws: following a response scheme repeated offences will result in the suspension of internet access for the connection owner of the IP address linked to the offences.

 

Germany has so far refrained from introducing a graduated response scheme and relies on the system of cease-and-desist letters where lawyers send out so called “Abmahnungen” on behalf of the copyrightholders. With such a warning letter the sender informs the addressee that he considers an activity of the addressee to infringe rights of the copyrightholder. The warning also contains a request to compensate the sender for the work involved to issue the warning (which according to the German law is beneficial to him) and regularly asserts a claim for damages. Furthermore it is usually linked with a desist order which sets up a fixed amount of money each time a (further) infringing act can be proven. Thus, if the addressee signs the request he will have to pay the penalty for breaching the order or risks a suit filed by the rightholder.

 

A whole business has evolved with specialised law firms sending out dozens of cease and desist letters each day (an estimated 450.000 in the year 2009) and advertising this business with the promise to “turn piracy into profit”. Germany has thereby become an intense battleground for illegal filesharers and content owners with specialised companies searching P2P networks for illegal activities.

 

This paper will examine how this system works, who profits from it, how effective it is and how the German legislator tries to prevent an abuse of the system by lawyers meshing their professional interest with their clients’ economic interests while still enforcing copyright protection. The paper will also focus on recent decisions where “Abmahnungen” have been sent to internet connection owners who have not infringed copyrights themselves but whose connection has been misused by family members or whose WiFi access was not sufficiently protected. This raises issues which are also of interest for those states operating a graduated response scheme, namely because while the internet connection where copyright material unlawfully passed through can be identified, it is another matter to tie a particular person to have definitely used that connection at that time.

 
 
 
 
 

After the fitful fever, what’s life for Wikileaks after the WikiDump: New conundrums for social media

Jaspal Kaur Sadhu Singh
Phd Candidate
Department of Law & Criminology

Aberystwyth University

jks08@aber.ac.uk
 

Social media on the Internet is often tagged as revolutionary - that it is a new platform for discourse and debate and it is seen as a tool of empowerment for the individual speaker. It is, however, not short of its critics who feel that the attention received is unfairly magnanimous considering the minimal impact it has had on democratic discourse. Social media as part of the new media carried through blogs, online videos and social networking sites may not have toppled authoritarian governments but it has certainly introduced a popular and expanding forum for both mediated and unmediated debate, a space for opinion and commentary or simply a soap-box to stand on and be heard if anyone chooses to listen. There is no denying the fact that some of this discourse on the Internet in particular discourse that is of socio-political nature has managed to permeate both national and international conversation. One of the crippling factors of this new type of media is that actors who choose to remain anonymous have had their anonymity removed or run the risk of the same.

 

If individuals fear that their anonymity will be compromised, social media actors in the form of Wikileaks will publish the story, prompting Time Magazine to state that the website “could become as important a journalistic tool as the Freedom of Information Act”. Wikileaks sees itself as “a public service designed to protect whistleblowers, journalists and activists who have sensitive materials to communicate to the public.” The prediction of the media pundits has served to be correct. Julian Assange, its founder, and the website itself has been shortlisted in every worthy list of 2010. Its core business relies on the promise of confidentiality and trust to individuals who are willing to part with documents and information to Wikileaks and for these to be published. This has courted great controversies but no greater than the one that arose as a result of the publication of diplomatic cables in November 2010, now come to be known as the “WikiDump”. These disclosures and the ones before in July of the “Afghan-War Diaries” have raised numerous discussions on defining the nature of business of this website and more importantly its role. One cannot ignore the tags it has received thus far from “digital media”, “journalistic tool” to being referred to as a rogue trader of secrets.

 

The paper will introduce the Wikileaks model as being unique to social media. The paper will also address the question whether this is journalism or merely dissemination of data. The question is imperative as the issue of Wikileaks’ accountability arises if it is seen as a media outlet. Commentators have stated that this is a fundamental First Amendment question. This leads to addressing the issue whether the sources have the right to confidentially. There is then the larger debate of weighing free speech against national security which has been acknowledged as a likely issue to come before the US Supreme Court. These questions will also weigh on the current debate on how the law should be viewing citizen journalism on the Internet.

 
 
Infringements and the Internet– a polish perspective
Małgorzata Skórzewska-Amberg

Faculty of Law, Kozminski University, Warsaw

mskorzewska@kozminski.edu.pl 
 

The danger of uncontrolled use of computer and teleinformatic network advantages has begun to be increasingly noticed in the last few years.  Criminal acts, committed in networks, with the use of networks and against networks, reach beyond national borders. Expert assessments indicate that profits originating in computer crime surpassed those from drug trade and is now equal to the global level of income from illegal as well as legal trade in weapons. 

 

The emergence and development of global computer networks, including the Internet, continue to create new challenges for its users. Technical solutions in information security must be supported by requirements that rules of relevant procedures are observed and backed up by state pledges and sanctions if violated.  To translate the language used by modern technology into proper legal language, reflecting behaviour seemingly unimportant or of minor consequence, but in reality causing major damage, turned out to be most difficult. The objective to cover as much as possible of cyberspace behaviour is therefore not only of great importance and urgency, but also a considerable challenge. 

 

It is also increasingly difficult to define the individual forms of violation with the use of information technology. These forms are often interconnected, as a consequence of or the cause for another violation. In the past, viruses were often created as malicious programmes with the aim only to destroy or slow down systems. Today they are often used to gain control over information in a network or to disguise an intrusion. Frauds, including computer frauds, are often connected to the breaking of security measures or unauthorized disruption of the integrity of information. Attacks as spoofing, phishing, smishing or pharming, in itself considerably dangerous for network users, are today closely connected with the activities of highly specialized crackers.

 

Organized crime is continuously and successfully adapting to the environment of advanced technology, using thousands of computer networks to commit crime at global scale. The substitution of individual crackers with organized gangs, using paid computer knowledge to commit crime, stresses the changing profile of computer crime.

 

Breaking of the law is often made possible or facilitated by the Internet. More and more countries decide therefore to introduce various legal instruments to prevent law violation. At the same time, the need to guarantee necessary security for the citizens on the one hand and the need to guarantee their civil rights on the other are often difficult to combine when confronted with the challenges of information technology on which our modern societies are built.

 
 
 
 
 

Online Archives on Trial in Germany: Is there a Right to be Forgotten?

Lawrence Siry and Sandra Schmitz

University of Luxembourg

Lawrence.Siry@uni.lu
 

Keywords: Free Speech, Defamation, Online Archives

Nowhere is the world smaller than on the Internet. With one mouse click, people from across the globe can re-acquaint themselves with old friends, research the unknown, read newspapers from faraway places and times. As the world cybershrinks, the ways in which governments and courts attempt to control the information on the web has become diverse and contradictory. Issues of national interest and international jurisdiction have stretched across all aspects of the web. We must find a more cooperative, coherent and consistent international policy, one which fosters the free flow of information, while protecting personality rights. The controversy is not limited to the present, but affects the way the Internet records and preserves history. As newspapers bring massive archives online, society is challenged to balance defamation laws which may hinder the free flow of information, and laws which protect personality rights. What is protected speech in one country may be defamation judged from another country in a future time.

 

This paper explores the traditional liability regimes concerning paper archives and how these laws are applied to online archives available on the web. The paper explores in specific how German courts are attempting to mold traditional theories of liability to fit the new Internet-based reality of publishing and archive maintenance. The paper explores a recent case in Germany, which extends national jurisdiction into the New York Times archives in New York City, as well as claims filed by two murderers who try to have their names deleted from the worldwide memory i.e. the internet. We will examine under which circumstances German courts may accept online archives as "digital pillories" where they contain stories on crimes committed in the past which identify the offender. Interconnecting the New York Times case and the murderer cases, we also review the enforcement of defamation judgments from foreign jurisdictions in the US, where many media outlets involved are headquartered. The paper then outlines recent developments to “combat” libel tourism in the US, in particular, statutes which would extend jurisdiction to foreign nationals who have not availed themselves of American jurisdiction. These laws seek to extend the First Amendment far beyond American borders.

 

These developments are in many ways, spiralling out of control, escalating away from a common path for resolution of the competing interests of society and personality. The controversy has lead to legal uncertainty with repercussions that are both financial and rights-based. While a common solution might be warranted, such will be difficult given the competing priorities in the varied jurisdictions. The paper also will also attempt to review potential solutions for standards that will satisfy these diverse priorities.

 
 
 
 
 
 

Porky Pies and the Internet: New recipe, or old fashioned home-cooking for English libel law in the twenty-first century?

Gavin Sutter

Queen Mary, University of London

g.sutter@qmul.ac.uk
 

 The past two years have seen many concerted attacks upon the traditional English law of libel, many of which have been rooted in the notion that in many respects this area of law has been hopelessly outclassed by contemporary, online media. New concepts of publication must be addressed, as we have seen in, for example, Loutchansky v Times, and its application of the traditional multiple publication rule to internet archives. The response of the Strasbourg court clearly indicates that in the eyes of Europe, as well as many in England (both within and outside the walls of the Palace of Westminster), this will soon change. An encouraging development for an academic who has been arguing for such an evolution of the law for a number of years before the libel reform movement came to the fore! There are, however, other, sometimes more fundamental questions with which to deal here – for instance, how might (and, indeed, how should) a case such as Charleston v NGN be resolved where rather than all elements of the article in question being present on one page of a newspaper they are split across two or more parts of a website. Then there is the matter of cross-border publications, once a rare thing undertaken by large publishers, now a commonplace, daily activity for individuals on bulletin boards, blogs, and social networking websites. The reform lobby have loudly trumpeted English libel law being applied online as contributing to the demise of free expression the world over, citing anecdotal evidence of publishers as far afield as Australia fearing online publication leading to their figurative house being blown down by the big bad wolf of English libel law. Whether this alleged problem is one with which we in England should be concerned is a matter of some debate; claims that London facilitates rampant forum shopping by way of overreaching itself in relation to online publications are, at best, specious. In relation to defences, the reform lobby would also seek to radically alter the defence in Section 1 of the Defamation Act 1996, amounting to something closer to the US approach in the Communications Decency Act. Aside from the barrier to such presented by the UK’s commitments under the Electronic Commerce Directive, this is, as so many demands for reform, ill thought out and not workable. This paper will argue that while undoubtedly changes require to be made to elements of English libel law with respect in particular to the online context, this should properly be a process of gentle evolution, and not the radical reforms demanded by many seeking not a fair balance of interests but rather the replacement of a perceived pro-claimant system with one that is decidedly more pro-defendant.

 
 

The Record Industry, Technology, Globalisation and the role of Intellectual Property

Rory Taylor
rorytaylor2@btinternet.com
 

There are currently 4 major record labels, which dominate the record industry.  The Universal Music Group, Sony BMG Music Entertainment, EMI Group and Warner Music Group, accounted for 81% of global album sales and 84% of global single sales in 2009. Each of these labels operates in a variety of fields beyond recorded music, incorporating publishing, electronics and telecommunications, thus extending their influence to cover more markets within the global entertainment industry. In achieving their dominance in music sales, the Big Four each own a large portfolio of labels, from formerly independent labels to large regional operators in different territories.

 

The convergence of the different industries and the dominance of 4 major corporations has resulted in globalisation. The majors carry an international pop music across the globe, altering and homogenising musical preferences of audiences in most countries. As a result, music listeners are presented with formulaic, unoriginal music and shows such as the X Factor.

 

Over the past 10 years or so, there have been huge developments in digital technology, which have fundamentally transformed the way in which music is recorded, distributed, marketed and listened to.  For example, compact, highly portable, and increasingly affordable music equipment, coupled with digital software available for the PC has allowed music to be recorded, edited, mixed and duplicated anywhere in the world and for only a small fee. Once recorded and mastered, music can be distributed on the internet via digital music services, such as iTunes, eMusic, Rhapsody, AmazonMP3 and cd.baby.com. In respect of promotion, the internet has also proved to be a great tool for indie record labels and their artists in reaching new and potentially lucrative audiences. There are a vast number of internet radio stations, which provide indie record labels with the opportunity of showcasing their artists’ music to millions of people online. Moreover, music can now be promoted via free or cheap social networking and artist sharing sites, such as MySpace, Twitter, Bandcamp and ReverbNation.

 

Digital technology has allowed for independent musicians and independent record labels to reach a global audience directly and to bypass the record industry, whilst still achieving huge success. For example, in early August 2010, Canadian-American indie-rock band, Arcade Fire released their third album, “The Suburbs”. Over 156,000 albums were sold in the United States in its first week of release, making it No.1 on the U.S Billboard charts. In addition, following the release of the album, the band played two sell-out shows at New York’s, Madison Square Garden.

 

The success of independent record labels could also be rooted in their business model and the relationship between them and their artist. Indie record labels are in general terms much more fairer and flexible than majors. This can be verified in the contracts negotiation which is close to a partnership between the parties. Artists signed to an indie record label will maintain rights to their music, thereby being provided with much more scope for experimentation and artistic freedom. Many artists, such as Arcade Fire will license their music to the label and will usually have an equal share of any profit made.

 

In contrast, it could be argued that the relationship between major record label and artist, which is built upon a traditional recording contract, is one-sided and unfair. In this type of contract, the record label makes a commitment to invest in an artist and in return the artist will sign to the label exclusively for a certain period of time. As well as signing away copyright in sound recordings, artists will usually have to pay back a huge advance and will be unable to record for anyone else other than the label during the term of the contract nor leave if they are unhappy.

 

Global record sales have been falling. The industry blames illegal downloading and file-sharing via peer-to-peer networks and have therefore lobbied for increasingly draconian laws to protect their interests and served law-suits on those who have dared to download and share music illegally. As a result of the lobbying, the Government introduced the Digital Economy Act into UK law in late 2010. The Act seeks to protect and encourage the growth of digital material and related business and therefore provides measures to curb illegal file-sharing. Moreover, in Europe there is the International Anti Counterfeiting Trade Agreement (ACTA) on the horizon, which contains proposals for the reduction in band speed and suspension of persistent file-sharers.

 

In addition, the record industry has clung to these outdated contractual arrangements, arguing that they are necessary to enable innovation and investment.

The resultant contractual and Intellectual Property regimes, however, fail to provide a balance between the rights holders, users, innovators and the public interest. As a result, music provided by the industry is still unoriginal and formulaic.

 

In this paper, I will argue that in order to meet the challenges of technology and globalisation, the record industry should consider mimicking the approach of small, independent record labels and musicians, reducing the role of contract and intellectual property rights at present being used to inhibit innovation.

 
 

From Archie to Google: Search engine providers and emergent challenges in relation to EU competition law

Aysem Diker Vanberg
University of Essex
adiker@essex.ac.uk 
 

Due to their power as information gatekeepers search engine providers are subject to close scrutiny by media, governments and scholars [1]. Google, the leading search engine provider, ranking as the 34th largest company in the world based on market capitalisation [2], has its fair share of critics and legal battles in the fields of Internet censorship and surveillance, data protection, privacy as well as competition policy.

The proposed paper takes as a starting point that as pointed out by the Vice President of the European Commission responsible for competition policy, Joaquín Almunia, understanding the dynamics of web based services is a complex task due their innovative business models that change persistently [3].

This paper aspires to answer the following questions,

i)                    Is the market that search engine providers operate in different than traditional markets, and if so, what are the characteristics that make it different?

ii)                   When could these key differentiating characteristics first be observed, and what were the subsequent consequences in context of EU competition law?

iii)                 Is Google’s undisputed leading position likely to pose challenges in the field of EU competition policy?

 

In order to answer the above-mentioned questions, the study will introduce the history and development of the search industry, various definitions and categorisation of search engines, their business models, the characteristics of the market and their multi sided nature with network effects. 

 

The author holds that due to the commercialisation of search coupled with innovative business models that change persistently, there is a growing potential for search engines to engage in anticompetitive practice. Hence there is a need to reassess current EU competition law and policy.

 

The study will, using historical analysis, provide insights drawing on competition law, technology and economics, which will be directly applicable to challenges that are likely to arise in the near future, and be of value to European policymakers as well as scholars in these intersecting fields of research.

 

[1] A fast growing number of scholars have written and are writing about the regulation of search engines. 

See e.g., Nico van Ejik, 'Search engines, the new bottleneck for content access', in Telecommunication Markets, Drivers and Impediments, (eds.)  B. Preissl, J. Haucap & P. Curwen, Springer, London, 2009, p. 141 ; James Taylor Lewis Grimmelman, 'The Structure of Search Engine Law', New York Law School Public Law and Legal Theory Research Paper Series No. 06/07-23, 2007;p.3;  Frank A. Pasquale and Oren Bracha, 'Federal Search Commission? Access, fairness and accountability in the law of search', 93 Cornell Law Review, 2008, p. 1149; Urs Gasser, 'Regulating Search Engines: Taking Stock and Looking Ahead', Yale Journal of Law & Technology, Vol. 9, 2006, p.124.

[2] According to the information obtained from Financial Times, as of June 2010, Google ranks as the 34th largest company in the world based on market capitalisation. Please see http://media.ft.com/cms/620e79e8-8837-11df-a4e7-00144feabdc0.pdf for a full list of companies and rankings (last visited  October 11, 2010)

[3[ See speech delivered by Joaquín Almunia, at the University College London Annual Jevons Institute Colloquium on July 7, 2010. Available at: http://www.ucl.ac.uk/laws/jevons/docs/10_coll_almunia_speech.pdf (last visited October 11, 2010)

 
 

Toward an understanding of behavioral intention to use online journalism

Somayyeh Varzandeh

University Putra Malaysia

somayeh.varzandeh@gmail.com
Musa Abu Hassan

Professor of Mass Communication University Putra Malaysia

musa@putra.upm.edu.my
 

Keywords: Decomposed Theory of Planned Behavior; Online Journalism; Iran

 Online journalism as a new medium, in comparison to the traditional journalism, has challenged the meaning of production capacity, policy, independency, difference of time and place, and in particular, the interaction between the journalists and their audience. However, the number of professional journalists who are employing online version is still limited. The reason for the lack of journalists might be deficiency of academic and technological education and lack of attention given to journalists' intention to use technology. 

 

Therefore the purpose of this study is to identify the factors that determine the intention to adopt online journalism among journalists in Iran by using a research model based on the decomposed version of theory of planned behavioral (DTPB). Decomposed Theory of Planned Behaviour (DTPB) is one of the models developed by Taylor and Todd (1995) to recognize particular salient beliefs that may impact information technology usage. DTPB examines three factors, namely; attitude, subjective norm and perceived behavioural control that can influence the intention to use technology.

 

Purposive non- probabilistic sampling method was used to select journalists who were working for national and international daily newspapers in Iran. Multiple Regression Analysis and Baron and Kenny model were used to assess the relationships in the constructs. The paper presents some findings on online journalism adoption intention determinants. It also discusses some of the implications of the findings on theory and practice. Editors and newspaper administrators will also find the study very instrumental. 

 
 

Copyright Ownership of Online Course Materials: By the People for the People

Ratnaria Wahid
R.Wahid@uea.ac.uk

University of East Anglia

 

The economic crisis around the world has caused various government funding including for Higher Education Institutions to be cut, leading to increasing costs of obtaining university education.  An effort to address this problem is by opting for a cheaper alternative for higher education through taking advantage of technology by providing online course materials that could defer the need for universities to pay for classroom spaces, professors time and printed materials. Nevertheless, online course materials could consist of various forms of copyright works such as text, images and sound recordings which all have different connotations and effect in copyright law.  The authors and owners of each of the copyright materials used in the package of online materials also varies from one another.  The positive development of using online course materials is burdened with complexities and uncertainties that arise due to overlapping claims to different layers of things related to online course materials. 

 

This paper will look at what and how the works incorporated in online course materials are categorized in copyright law.  It further distinguish the effect of copyright on online teaching materials as compared to the traditional face to face teaching.  This paper will then look at the issue of ownership, particularly who owns what in online course material.  This is important to avoid later claims or controversies, particularly if there is an intention to commercialize the online course material or subsequently use or licence it. The exercise of copyright law and policies in the relation to academic author versus the employing universities particularly in several countries would be discussed.  In the midst of identifying the clear and appropriate owner of copyright work, surprisingly not much thoughts and consideration were given on the how the determination of ownership could benefit the public interest, which is originally the main purpose of establishment of copyright law.

 
 

United States v Julian Assange

 
Dr Charles Wild

Head, University of Hertfordshire School of Law

c.wild@herts.ac.uk
 
Dr Stuart Weinstein

Associate Head, University of Hertfordshire School of Law

s.weinstein@herts.ac.uk
 

The authors plan to present a short dramatic sketch as to what a prosecution of Julian Assange by the United States Department of Justice might look like.   For this presentation, the role of the prosecuting attorney shall be played by Dr Stuart Weinstein – a former practicing lawyer in the US and the role of Julian Assange shall be played by Dr Charles Wild, an academic expert on the Internet and social communities.  The prosecution shall be examining Mr Assange on the witness stand and will be assumed to be taking place at the time of BILETA.  By this date, Mr Assange has posted his encrypted “insurance” file containing thousands of more classified documents on several websites and has now released the encryption key to his supporters who have already downloaded this file.

 

One statute that Mr Weinstein might use is The Espionage Act of 1917, 18 USC § 792 et seq., which prohibits any attempt to interfere with military operations, to support America's enemies during wartime, to promote insubordination in the military, or to interfere with military recruitment.  However, the use of this statute was not successful in the Pentagon Papers’ case of New York Times Co. v. United States, 403 U.S. 713 (1971) where the US Supreme Court issued a decision making it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.   The question before the Court was whether the constitutional freedom of the press, guaranteed by the First Amendment, was subordinate to a claimed need of the Executive Branch of the US Government to maintain the secrecy of information. The Supreme Court ruled that the First Amendment did protect the right of the New York Times' to print the materials. 

 

However, by the time BILETA 2011 commences, it is thought that the US Congress under the leadership of Congressman Peter King, the new Republican chairman of the House Intelligence Committee, will have passed new legislation which will grant the US Government the power to prosecute Mr Assange for publishing the names of military or intelligence community informants pursuant to the Securing Human Intelligence and Enforcing Lawful Dissemination (Shield) Act which will have been signed by President Obama. This will allow the US Attorney General to prosecute Julian Assange for posting military documents from the war in Afghanistan in July 2010 without removing the names of Afghan citizens who had assisted the US.

 

Mr Assange (an Australian) will argue in his defence that there has never been a successful prosecution in the United States of a non-government employee for disseminating classified information.  Moreover, Mr Assange and Wikileaks will argue that they are akin to a news organisation and are protected by the First Amendment.  Since Wikileaks hosts its publications across several multiple international jurisdictions using state of the art encryption to bounce stuff around the Internet to hide trails, Mr Assange will claim that Wikileaks passes its data through countries that offer relatively strong legal protection to people who leak information such as Sweden, Iceland and Belgium and thus there is no jurisdiction over him by a US court.   

 
 
 

Web-based Software Tools to Support Students' Empirical Study of the Law

Adam Wyner
A.Z.Wyner@liverpool.ac.uk

University of Liverpool, Computer Science

Wim Peters
University of Sheffield, Computer Science
W.Peters@dcs.shef.ac.uk
Fiona Beveridge

University of Liverpool, Law School

F.C.Beveridge@liverpool.ac.uk
 
 

The paper investigates and proposes tools to support students in empirically investigating legal cases using text analytic software.  Web-based tools can be used to engage and leverage the collective skills and ambitions of law students to crowd-source the development of legal resource materials.  Law school students must develop skills in close textual analysis of legal source material such as legal cases.  To use source material such as case decisions to reason about how precedents apply in case-based reasoning, law students must learn to identify a range of elements in legal cases, for example, parties, jurisdiction, material facts, legislative and case citations, cause of action, ratio decideni, and others.  Moreover, students should be able to address complex queries to a case or a case base (a corpus of cases) in order to answer questions of particular legal interest; for example, about relationships between a judge, parties, cause of action, and ratio.  Currently students either simply rely on their own analytic abilities to read a case or find answers to questions; legal search tools (e.g. Lexis-Nexis) provide search support, but are restricted to a limited number of coarse-grained parameters and cannot search for deep, particular semantic relationships in the text.  To enable automated support of queries of the corpus, and so enable deep empirical research on cases, it is essential to have a corpus of legal cases which are annotated with machine readable (XML) tags that signal the semantic properties of passages of text.  To create such a corpus requires a tool to annotate the text.  Such a tool would reinforce students’ examination of the source document.  The paper describes recent developments of tools using Semantic Web technologies, text analysis, and web-based annotation support.  With the text analysis software, General Architecture for Text Engineering (GATE), which is customised for legal applications, law students can annotate legal cases for a fine-grained range of legally relevant concepts and linguistic relations; they can also use GATE to write grammars and automatically annotate the text.  Using GATE TeamWare, an online text annotation tool that automatically evaluates interannotator agreement, students can collaboratively analyse and agree on a gold standard corpus of legal cases.  The corpus can be automatically indexed using Lucene, thereby allowing fast results to complex queries over any string or annotation used.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
POSTER SUBMISSIONS
 
Student Learning on Online LLM programmes
Erin Jackson,
Distance learning manager

School of Law, University of Edinburgh

Julie Moote, PhD researcher, School of Education, University of Edinburgh

e.jackson@ed.ac.uk
 

The poster reflects the work to date on a research study aiming to scrutinise and understand student learning on Law School's LLM programmes delivered by online distance learning (the 'eLLM'). The study aims to help us maintain and enhance the quality of the learning and teaching experience as the eLLM continues to develop, since its launch in 2005/6. 

 

The project will use a combination of quantitative and qualitative research methods to analyse asynchronous online discussion involving eLLM students and tutors. We will investigate tutor and student responses to student diversity; strategies to promote deep learning, sophisticated reasoning and discourse; and the development of ways of thinking and practising in the discipline of law.

 
 

A Study to Define the International Guidelines of Ethics Concerning Electronic Medical Data

Elsa Butrous, Benjamin Faber, Chandni Gupta, Christopher Haggart, Mohammed Jawad and Sager Patel

Imperial College London
sager.patel06@imperial.ac.uk
 
Background 

There has been a global increase in the use of information systems and technology, with greater volumes of Electronic Medical Data (EMD) being collected, stored, processed & manipulated and transferred & distributed. Such technological advances and increases in EMD usage have helped propel the quality of healthcare foreword. However, it has also created a number of ethical dilemmas and significant avenues for unethical action, exploitation and abuse. A preliminary literature review revealed a lack of internationally applicable and conclusive set of ethical guidelines pertaining to EMD usage. This study set out to fill this void.

 
Methodology 

A project-specific, nine stage framework was created to elicit ethical dilemmas and construct a set of guidelines in an organised and repeatable fashion. This framework used key themes adapted from generic guideline development cycles[1][2]1,2. A comprehensive literature review, critical analysis of literary findings, and semi-structured interviews with leading academics in the field of medical ethics formed the backbone of this study. This reports’ findings underwent additional analysis and critique by experts in this field, adding further credibility to the study.

 
Results

The authors combined the ethical reasoning and moral logic found in the literature review and semi-structured interviews in order to create the subsequent guidelines. In total, twenty eight ethical guidelines were created pertaining to the ethical usage of EMD. The guidelines were then discussed and critiqued further by experts in this field, allowing appropriate adjustments to be made.

 
Conclusion

This study has conducted a comprehensive literature review and produced a set of well reasoned ethical guidelines on the handling of EMD which fills a void in current literature. As information systems and technology take a more central role in healthcare provision, it is paramount that the ethical dilemmas and dangers of such technology are also tackled. Therefore, these guidelines can act as a reference point, raising awareness of the ethical dilemmas concerning EMD and also helping to guide higher ethical standards of electronic data usage in the healthcare setting. 

 
 

[1] Browman, G. P., Levine, M. N., Mohide, E. A., Hayward, R. S., Pritchard, K. I., Gafni, A., Laupacis, A. The practice guidelines development cycle: a conceptual tool for practice guidelines development and implementation. Journal of Clinical Oncology 1995;13(2): 502-12.

 

[2] Graham, I.D., Harrison, M. B., Brouwers, M., Davies, B. L., Dunn, S. Facilitating the use of evidence in practice: evaluating and adapting clinical practice guidelines for local use by health care organizations. Journal of obstetric, gynecologic, and neonatal nursing 2002;31(5): 599-611


 

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