Weekly Notes: legal news from ICLR – 24 July

Posted on 24th Jul 2015 in Weekly Notes

This week’s baggage reclaim of legal news and open and shut cases includes yet more to-ing and fro-ing on industrial action by legal aid lawyers, the tale of a terror trial that can’t be told, an attempt to prevent the plagiarism of punchlines and the locking of law behind a licence to Lexis. (Alliteration is a dangerous thing, and a lot of it can be absolutely fatal.)

VACATION NOTICE: This will be the last Weekly Notes before the summer break. Publication will resume in September.  

 

Open Justice and Transparency

Thwarted transparencySome recent developments

Last year an entire trial was held in secret, on grounds of national security. The trial resulted in an acquittal, but more to the point, the limited number of reporters who were accredited (screened to bits, presumably) to cover it, such as Ian Cobain of the Guardian, were not allowed to actually write about it afterwards, according to a piece in Saturday’s New York Times, A Terrorism Case in Britain Ends in Acquittal, but No One Can Say Why:

He [Cobain] was allowed to observe much of the trial, but only under strict conditions intended to keep classified material secret. His notebooks are being held by Britain’s domestic intelligence agency. And if he writes — or even talks — about the reason that the [defendant], Erol Incedal, 27, was acquitted, Mr. Cobain faces prosecution and possibly jail.

“I know the essence of what was happening,” Mr. Cobain said, “but I can’t tell, I can’t even talk to my editor about this.”

Having initially gone along reluctantly with the reporting restrictions, a number of British news organizations are now challenging them in court. And yes, the challenge itself is being heard under secrecy rules that leave the public mostly excluded.

Commenting on this case, David Davis MP said it was hard to know who was being protected, but

“The implication is that this is more about the embarrassment of the agencies than it is about real questions of national security”.

This is actually an age-old complaint about the Official Secrets Acts.

“The truth is,” he added, “that there is no such thing as secret justice. If it’s secret, it’s not justice.”

This brings me to family justice, the President’s transparency agenda, and the Transparency Project which was set up by a number of legal bloggers (including the present contributor) to promote public understanding of the justice system. We have a blog which comments on cases which, not uncommonly, the press have distorted in some hideous way, giving the conspiracy theorists yet more ammunition for their unfounded fantasies and genuinely disappointed litigants a false fund of resentment.

Last week yet another good example emerged. This was the “forced adoption” case of the grandparents “too old” to look after a child when their own daughter, the mother, had been sectioned under the Mental Health Act. The story as it emerged in the Daily Mail painted a horrific picture of unfeeling officialdom wading in to steal a child when there were family members perfectly willing and able to look after it. The age factor was presented as decisive. But it transpired that the judgment (Re C [2015] EWFC B99  ) had been made available (pursuant to the President’s transparency guidance) so the true picture was easily available.  As Andrew Pack explains in his Suesspiciousminds blog,

The reason for the decision, very simply, was that the mother had considerable mental health difficulties, including cutting herself in front of the child, that the mother had a very difficult relationship with the grandparents and that they were not going to be able to shield the child from these things.

The Telegraph, having initially copied the Mails’ line (Couple aged 58 and 70 told they are ‘too old’ to look after their granddaughter) then looked at the judgment and wrote it up in much more balanced way, as Full story of grandparents “too old to adopt”.

But the question is, how many readers would bother with the revised and accurate version, if the first version to lodge in their minds is that simplistic rage-bait about thwarted family claims and dispossessed grannies? To make matters worse, some of the counter-comment came from a potentially compromised source, as Sarah Phillimore explains in her blog on the case, A lie can get round the world before the truth has put its boots onnow updated and republished on Inforrm’s blog. Sarah points out that the Independent ran an article (The real story behind ‘forced adoptions) countering the Mail’s simplistic position without flagging up that the author, Caroline Selkirk,  was actually someone with a vested interest, as Chief Executive of the British Association of Adoption and Fostering.  The availability of a click-through from her byline does not seem a satisfactory answer. The risk of appearance of bias needs to be clearly anticipated and declared. Let readers decide. When it comes to open justice, it is the whole truth that matters. Otherwise,  as David Davis says, it isn’t justice at all.

 

Copyright

Can you steal a joke?

Stand up comedians often complain about other people using their “material”, although to listen to some of them you’d think they’d invented the word fuck. They haven’t. But whole sentences can theoretically be the subject of a copyright claim, if they amount to a “work” rather than, say, the title to a work (which usually doesn’t attract copyright).  If a whole sentence constitutes a joke, well, perhaps that could be copyrighted. What if the joke appears on twitter?

According to Mashable, Twitter is cracking down on stolen jokes 

In a freewheeling universe home to millions of spambots, fake celebrities and trolls, it’s no surprise that many Twitter accounts habitually crib popular 140-character quips to rack up followers. But Twitter now seems to be using copyright rules to police this comedic fraud,

writes Patrick Kulp. He explains that some professional writers are using Twitter to publish jokes from which they derive their livelihood (which seems, well, just a tad reckless). And they don’t like people copying them without attribution. It’s not just jokes which attract copyright complaints:

Twitter received more than 25,000 Digital Millennium Copyright Act (DMCA) notices last year, though these requests typically have to do with pictures and videos rather than the actual text of tweets.

Frankly it seems odd to complain about something going viral on a medium where that is supposed to be the whole point. You want interaction. You want people to replicate and spread your word. You just don’t want them taking the credit. But that seems almost inevitable.

By way of research, the next time I saw an amusing jokey tweet, I copied the text and entered it into a search. Blow me, if there weren’t several identical tweets from different people all claiming the same amusing observation as their own.

The only solution, it seems to me, given the difficulty for Twitter to police this sort of thing, along with all the other abuse it is supposed to prevent or deal with, is to provide a facility when writing a tweet to insert a © symbol next to it and render it incapable of being copied as text (ie render it as an image). Though this would not stop someone writing the words out again.

The article was flagged up in a tweet by Emily Goodhand (aka @copyrightgirl) who referred us back to her 2011 blog post on the copyright in jokes (including some good ones)

 

Baggage and bias

suitcase

No resemblance to any judicial luggage is intended. Image: planyourmeetings.com

The case of the missing, er, case

British Airways can’t please all of the people all of the time, and some passengers may be forgiven for thinking the airline has given up trying to please anyone any of the time. I won’t bore you with my own gripes about dreadful food, poor air circulation or faulty entertainment systems. But I’m far from alone and, it seems, in rather good judicial company in the case of Peter Smith J, who has had to recuse himself from a big commercial dispute involving BA (presumably on grounds of apparent bias) after voicing complaints in court about the loss of his luggage on a recent trip to Italy.

The full story is in the Telegraph: The High Court judge, the £3bn airline case and the mystery of his lost luggage 

Among the colourful stories they dig up about his Lordship is the one about the Da Vinci code judgment (rejecting breach of copyright claims over the medieval conspiracy theories reheated by Dan Brown) in which he inserted his own secret coded message. And why not? Judgments are often dull enough already. Come to think of it, I wonder if any law reporter has tried the same trick in a headnote? (I certainly haven’t. Maybe I should have done.)

As it happens, I owe a debt of gratitude to Peter Smith J because a few years ago he kindly lent me his judicial robes for an educational DVD in one scene of which I played, momentarily (blink and you’ll miss it) a High Court judge. You can see the video here: Making Legal History.

 

Direct action and lack of direction

Is CBA out of step with (a) solicitors’ bodies; (b) it’s own membership?

Controversy continues over the involvement of criminal barristers in the refusal of work / industrial action already embarked upon by criminal solicitors up and down the country. Last week we reported that the CBA having ballotted its members had agreed to proceed with direct action. See Weekly Notes 17 July.

Then there was a meeting scheduled between the Lord Chancellor and solicitors’ groups (the CLSA and LCCSA and the so-called Big Firms Group or BFG, with its somewhat Roald Dahlian acronym), to which the CBA was – directly or indirectly – or possibly not – invited or told about or something, but to which in the event did not send anyone. The confusion, or cock-up (no one is suggesting conspiracy), has been described in useful and commendable detail on the Jack of Kent blog in, first, light with optimism, The “Save Legal Aid” Crisis – is an end(game) in sight? And then, heavy with disappointment, The Empty Chair

There is also a blog post by John Cooper QC entitled The Survey, The Ballot and The Misunderstanding in which he expresses his dismay at the unravelling of unity against the cuts, and in particular the failure of the CBA to attend a meeting at which such unity might have been demonstrated impenetrably to the Secretary of State responsible for the continuation of the cuts:

This was potentially an important meeting, which by all accounts saw Gove engaged with attendees. The CBA have been arguing for discussion and contact with the Lord Chancellor for weeks, surely here was another palpable opportunity to continue to develop that relationship. Is it so unreasonable to ask why no one turned up?

There’s also this, by Mark George QC: Standing firm and holding the line  In which he airs his misgivings about the leadership of the CBA in responding to what it appears to perceive as a watering down of the action by solicitors, in concentrating on Crown Court disruption and going back to normal (ish) work in the police stations and magistrates’ courts. In his view this changes nothing.

We have voted.  The leadership could have resigned rather than implement a policy they apparently disagreed with.  They did not. It is therefore their job to ensure this campaign is pressed with the maximum effort to ensure we get the government to accede to our demands.   When they meet tomorrow I trust the whole of the CBA Exec will accept this and reject any attempt to undermine the current action.

And this: The Law of Unintended Consequences, by Simon Myerson and the follow up, The Silence of the Lambs, both here.

For an explanation of the new protocol according to which solicitors are now pursuing their direct action, see Law Society Gazette, New protocol marks change of tactics in legal aid action.

The protocol, which came into effect on 24 July, allows solicitors taking part in the boycott to carry out police station and magistrates’ court work, in effect restricting the boycott to Crown court work. It seems this was a change of tactic forced on the other groups by the BFG who were finding it increasingly difficult to sustain the cost to their members of the industrial action, apparently.

See also: Action was on brink of ‘collapse’, practitioner groups reveal

STOP PRESS: Sindy runs story saying Legal aid cuts: Criminal barristers’ strike will go ahead despite last-minute feud with solicitors  A spokesman for the CBA said:

“Our recommendation remains that the action starts [today]. The CBA executive is due to meet [this] evening to discuss a change in the criminal solicitors’ joint protocol which provides for solicitors resuming work in magistrates’ courts and police stations.”

Dates and Deadlines

The Age of Criminal Responsibility (ACR) Conference

Northumbria University Newcastle, 23rd September 2015. 11am – 6pm. Room 403 4th Floor, Business and Law Building. Speakers include Professor Thomas Crofts, Sydney University;  Professor Barry Goldson, The University of Liverpool; Pam Hibbert OBE, Centre for Social Justice; Helen Howard, Teesside University; Dr. Raymond Arthur, Northumbria University; Nicola Wake, Northumbria University; James Chalmers, University of Glasgow.

Details:  link.

Programme:  PDF.

 

Law (and injustice) around the world

China

New cyber –security law

Primary Opinion comments that China’s draft Cyber-Security Law, released on 8 July for public comment, while imperfect in some respects, is

an important step to bringing China’s privacy regulation and information security regulation in line with the rest of the world even though its particular features have generated concerns and will present implementation challenges for the international community. Notably, prior to the Cyber Law China did not have one single over-arching legislation that specifically addressed the collection, storage, transmission, and operation of personal information.

 

Georgia, USA

When is public information private? 

Sarah Glassmeyer has written on her blog about the availability (or otherwise) of public legal information such as statute law. Should such law be freely available to the public whom its makers serve? You’d think so. But in the state of Georgia that isn’t so. The only version available to public scrutiny is behind a paywall, because it’s been annotated by a legal information publisher you may have heard of, called Lexis.

Sarah writes of the case of one Carl Malamud, free law advocate and founder/owner of public.resource.org, a distributor of legal and government information and data, who had the temerity to replicate, and freely distribute, the ostensibly non-copyright public content which the State of Georgia saw fit to charge readers to peek at. Georgia is not (as Malamud avers) claiming copyright in its own laws; but it is claiming copyright in the annotations thereto, which it publishes via Lexis. And it’s asking Malamud and his outfit to cease and desist. Here is a link to its claim.

The annotations are useful and cost money to prepare; but the state could release the raw law for others to use and annotate if they see fit, in the public domain. That’s what the UK government does, with www.legislation.gov.uk (which ICLR has now incorporated – at no extra cost – into its simple and user-friendly online case law platform – end of plug).

See also: Custodians and gatekeepers: maintaining access to public legal information

 

Saudi Arabia

Calls for criminalisation of “villifying religion”

Saudi Arabia has reiterated its call on the international community to criminalize any act vilifying religious beliefs and symbols of faith as well as all kinds of discrimination based on religion, according to the Saudi Gazette. Abdulmajeed Al-Omari, director for external relations at the Ministry of Islamic Affairs from the Kingdom, said:

This requires everyone to intensify efforts to criminalize insulting heavenly religions, prophets, holy books, religious symbols and places of worship,”

The remarks were made in Lille, France, where Al-Omari was participating in a forum, with representatives from 16 European countries, a number of international organizations led by UNESCO, Organization of Islamic Cooperation and the Association of Islamic Universities.

Meanwhile, as the Kingdom doesn’t like to be reminded, international outrage continues over the sentencing to imprisonment and public flogging (1,000 lashes, 50 so far given) of Raif Badawi, simply for expressing his views and setting up a website allowing others to do likewise, as Amnesty International continues to remind us.

 

 

That’s it for now. Enjoy the week ahead, and check for any updates in the next day or two.

 

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.