Net neutrality - the European Commission’s vision of an open and neutral internet
Published on 29 Jul 2010 at 3:49 pm.
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Filed under Misc, Internet, Net Neutrality.
Blog Author: Tony Ballard
Consultation documents on net neutrality published in June by Ofcom and the European Commission show signs of quite different approaches. In so far as Ofcom perceives competition issues to lie at the heart of the debate it is wrong to do so. Directive 2009/140, part of the telecoms reform package, is directed at a different objective which the European Commission has adopted with remarkable enthusiasm. (more…)
The YouTube/Viacom decision: a victory for internet service providers (for the time being)
Published on 25 Jun 2010 at 1:01 pm.
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Filed under Misc, Copyright Infringement, ISPs.
Blog Author: Tony Ballard
As between ISPs and rights owners, on whom does the burden of policing online copyright infringements lie? In a judgment delivered on 23 June 2010, the US District Court for the Southern District of New York had no difficulty in deciding that it was a burden for the rights owners to bear.
The question arose in an action brought against YouTube and Google by Viacom, the FA Premier League and others for infringement of their copyrights. On a motion for summary judgment the judge, pointing to the intended balance in the US Digital Millennium Copyright Act between the interests of rights owners and the public interest in an efficient and well funded internet, held that YouTube and Google were entitled to “safe harbor” protection under the DMCA and were not liable for the infringements.
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Content regulation on the Internet
Published on 18 Mar 2010 at 10:03 am.
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Filed under Misc, AVMS Directive, Internet, Content Regulation, Social Networking.
Blog Author: Tony Ballard
On 12 March it was widely reported that a magistrates court in Wrexham convicted and fined one Darren Mattox for posting a message about his former girlfriend on Facebook. Apparently he had called her by an offensive name.
He was prosecuted for having done so under section 127 of the Communications Act, which makes it an offence to send “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”. This is an odd provision. It is a legacy of the old Post Office Acts and has lurked, little used, in the bowels of communications legislation for 75 years. It does not apply to anything in the nature of a programme service, which is regulated under broadcasting law and, more recently, under provisions implementing the European AVMS Directive. But thanks to the ingenuity of the prosecuting authorities in Wrexham, a new dimension in Internet regulation in the UK has been opened up. Sending anything that falls within the scope of the section otherwise than as a programme service is a criminal offence. (more…)
A solution to P2P filesharing remains elusive
Published on 15 Feb 2010 at 11:07 am.
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Filed under Misc, illegal file sharing, HADOPI.
Blog Author: Tony Ballard
Illegal peer to peer filesharing continues to test the boundaries of the law. Now the European Court of Justice is to consider it, because the SABAM v Tiscali (Scarlet) case is being referred to it.
When in 2007 a Belgian court ordered Scarlet, an ISP, to filter traffic on its network to identify illegal P2P filesharing and then to block it, rights owners were pleased but ripples of concern spread through the European ISP community. As well as questioning whether the technology was available and who should pay for it, serious questions arose as to how to resolve the competing claims of (a) rights holders as to their intellectual property, (b) intermediaries as to their responsibility for traffic passing across their networks and (c) users as to their privacy. (more…)
Clause 17 of the Digital Economy Bill – should internet law be in the hands of Ministers?
Published on 19 Jan 2010 at 5:46 pm.
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Filed under Misc, Internet, Digital Britain, Copyright Infringement.
Blog Author: Tony Ballard
Those who are familiar with the Legislative and Regulatory Reform Act 2006 will not be entirely surprised by clause 17 of the Digital Economy Bill or the amendments to it that Lord Mandelson has proposed. They may, however, share some of the concerns that were expressed in 2006 about increasing the powers of Ministers and the erosion of Parliamentary functions.
The Legislative and Regulatory Reform Act controversially conferred on Ministers wide powers to legislate by statutory instrument to reduce legislative burdens (apart from tax) and to get regulators to comply with better regulation principles. It was described by some at the time as the Abolition of Parliament Bill. David (now Lord) Pannick QC wrote in the Times that it would confer astonishingly broad powers on Ministers to make the law of the land. In the face of such criticism, the government gave an undertaking that the Act would not be used to implement highly controversial reforms.
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Webcasters and mobisode providers face fees for the first time, or a fine
Published on 4 Dec 2009 at 11:11 am.
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Filed under Misc, Broadcasting, AVMS Directive, Internet, IPTV.
Blog Author: Tony Ballard
On 19 December 2009 the provision of television programme services on the internet or on mobile platforms without an Ofcom licence becomes an offence.
This is one of the lesser known consequences of the implementation of the AVMS Directive. Since 2003, when the Communications Act was enacted, webcasters and mobisode providers, and indeed anyone providing an internet service consisting of moving or still images or legible text produced to be seen on television, were exempted from content licensing thanks to subsection (3) of section 233 of the Act.
All that is now going to change on 19 December. The AVMS Regulations repeal that subsection with effect from that date and, by doing so, bring within the scope of Ofcom regulation a great swathe of internet and mobile services, all of which will need to a television licensable content service from Ofcom. The application fee is £2,500 and there are annual charges based on turnover thereafter, not to mention editorial and advertising standards to observe.
That this is not well known is attributable to a number of things, not least of which is the obscure drafting of section 233(3), which must be a contender for the title of worst drafted provision in English statutory law. In an Act which does not mention the internet once, the draftsman indulged in extraordinary contortions to produce an exemption for internet services without mentioning the word itself. The passing of this provision will not be mourned by those who favour clarity of expression in statutory language.
Against this background, the citizen might expect to be excused for having overlooked the extension of content regulation to the internet by the words in AVMS Regulations, which themselves are not exactly self-explanatory. The extension is achieved by the words: “In section 233 of the 2003 Act (services which are not television licensable content services), omit subsection (3).” The practical meaning and effect of these words do not exactly spring from the page.
The citizen might also expect to be excused if he or she had relied on Ofcom’s Guidance Notes for licence applicants, which still say (as at the time of writing, 4 December 2009) that internet services, including websites and web-casting, are excluded from the licensing requirement (paragraph 42 of the Guidance Notes).
As a matter of law the citizen will, of course, be disappointed to the extent that it is a matter of ignorance of the law. But where the law is expressed in terms as obscure as section 233(3), where its repeal is achieved by a few words buried without fanfare in an instrument aimed primarily at different services, and where the regulator’s guidance notes may be said to give rise to a reasonable expectation of exemption, those who are pursued for non-compliance after 19 December may have a serious grievance if they are pursued under the criminal provisions of the Broadcasting Act for provision of a licensable service without a licence.
Public service broadcasting and the Digital Economy Bill
Published on 25 Nov 2009 at 3:08 pm.
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Filed under Misc, Broadcasting, AVMS Directive, Digital Britain.
Blog Author: Tony Ballard
The Digital Economy Bill proposes a reformulation of the public service broadcasting principle.
Not so long ago, the Government spoke of digital television bringing about the end of television as broadcasting and the beginning of electronic communications as a seamless web which transcended the old distinctions between television, computer and the telephone. It foresaw a future where broadcasting regulation was based in the first instance on competition law with a reduced set of distinctive media rules added only where strictly necessary. The upshot was the Communications Act 2003, which withdrew almost all specific content regulation from the internet, and a campaign in Europe to limit the scope of the Audiovisual Media Services Directive.
The Audiovisual Media Services Regulations 2009
Published on 16 Nov 2009 at 4:20 pm.
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Filed under Misc, AVMS Directive.
Blog Author: Tony Ballard
“Would you tell me please,” said Alice, “what that means?”*
After lengthy consultations and the circulation to stakeholders of drafts, the Regulations implementing the AVMS Directive have been made and laid before Parliament. Unless Parliament intervenes, they will come into force on 19 December.
In one sense, the Regulations are a tour de force of Parliamentary drafting. The draftsman has applied Occam’s razor to the cumbersome prose of the earlier drafts, cutting verbosity, discarding anything not strictly to the point and presenting the new rules in plain English. Purely from a drafting point of view, they are a model of elegance. (more…)
Net neutrality is to be imposed on US ISPs under FCC proposals. Is there a judicial trend towards similar principles being imposed in Europe?
Published on 23 Sep 2009 at 4:36 pm.
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Filed under Misc, Broadband, Net Neutrality.
Net neutrality in the US
Last Monday (21 September), the new Chairman of the FCC announced proposals for applying principles of non-discrimination and transparency to companies that control access to the internet. Describing the rules that would implement these principles as not being about government regulation but about fair rules of the road for those companies, he saw them as consistent with the original architecture of the internet as an open system. He saw his task as being to ensure that every American had access to open and robust broadband.
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When are search engines liable?
Published on 18 Aug 2009 at 4:14 pm.
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Filed under Internet.
Blog Author: Cate Haywood
Metropolitan International Schools Ltd v (1) Designtechnica Corporation (2) Google UK Ltd & (3) Google Inc [2009] EWHC 1765 (QB)
The High Court has set aside an Order to serve Google Inc out of the jurisdiction, on the basis that the defamation claim against it had no reasonable prospect of success. A reasonable prospect of success is a requirement of the Court Rules allowing service out of the jurisdiction.
Background and Facts
Metropolitan International Schools Ltd (”MIS”) is a distance learning course provider. It issued proceedings against Google UK, Google Inc and a third party website in respect of statements published on a web discussion forum which were alleged to be defamatory, in that they bore the meaning that MIS’ Train2Gain courses were a scam. Google searches on the product name produced the scam allegation as part of a snippet of information accompanying the hyperlink.
As Google Inc was domiciled in the US, permission to serve the claim out of the jurisdiction was obtained. Google Inc made applications to have the order for service out of the jurisdiction set aside and for a ruling that the Court should decline jurisdiction on grounds of public policy, abuse, non-publication, and defences under s. 1 Defamation Act 1996, regs 17 - 19 of the E-commerce Regulations 2002, and innocent dissemination at common law.
The Judgment
A key issue was whether Google Inc, the operator of the search engine, was a publisher at common law. If it was not, Google Inc argued, there was no reasonable prospect of succeeding in a claim and the order for service should be set aside.
Much turned on the way in which search engines like Google operate. There was evidence that Google Inc had no control over the search terms entered by users or over material placed on the web. Furthermore, the searching process was automated. With this in mind, Eady J took the view that Google Inc could not be characterised as a publisher at common law. It had “merely, by the provision of its search service, played the role of facilitator“.
The Judge noted that it was well established that a person can become liable for a publication of a libel by permitting it to continue when he has the power to prevent it doing so. However, he took the view that Google Inc was not in an analogous position to a website host as it could not ensure that the words would never reappear; they may be thrown up by a future search.
Google Inc had taken steps to block certain offending URLs once they were identified. He took the view that Google Inc should not be fixed with liability on the basis of authorisation, approval or acquiescence either, while efforts were being made to block offending URLs.
Other defences had been raised by Google Inc to support its contention that the claim had no reasonable prospect of success. These included a defence under s.1 Defamation Act 1996, the defence of innocent dissemination at common law and defences under the E-commerce Regulations 2002.
The Judge concluded that the defence of innocent dissemination at common law had not been abolished in 1996 but did not assist a defendant whose attention had been drawn to the defamatory content.
Further, if Google Inc had needed to rely on s.1 of the Defamation Act, it was difficult to see how it qualified for s.1 protection by relying on the fact that it had taken reasonable care in relation to the publication, because its process had no human input and was an automated one.
The UK Government had already taken the view that the protection of the E-commerce Regulations did not extend to search engines. Accordingly, the Judge held that statutory intervention would be needed before a search engine might be considered a webhost within Regulation 19 and thereby able to benefit from protection under the E-commerce Regulations.
On this basis, the Judge set aside the order for service. There was, in the Judge’s view, also a material misrepresentation on the application to serve out of the jurisdiction which justified the order being set aside.
Comment
This is the first time that the question of a search engine’s liability for defamation has been dealt with in the English Courts. The decision will be welcomed by search engine providers as it offers them some comfort.
While the Government has chosen not to expand the protection afforded by the E-Commerce Regulations to search engines, Eady J’s development of common law principles does offer some protection to search engine providers.
The judgment does not, however, offer absolute protection to search engine providers as the fact that Google Inc had taken active steps to block various URLs that it had been made aware of was particularly important in the case. On that basis, it is likely that a search engine provider would be expected to take similar steps to block URLs when notified of defamatory statements appearing in search results, even if they are unable to physically remove the offending material.