Not-so-super injunctions

The row in Britain over the naming of footballer Ryan Giggs online (and subsequently in Parliament),  in contravention of a “super-injunction”, raises the same issues as New Zealand has experienced recently: can injunctions and other forms of name suppression work in the age of social networking?

British PM David Cameron appears to have accepted the reality of the situation:

“It’s not fair on the newspapers if all the social media can report this and the newspapers can’t,” he said. “So the law and the practice has got to catch up with how people consume media today.”

This is a strong indication that the UK will change its law (or least its policy) on injunctions. In New Zealand, the Government and officials have not yet grasped the nettle. In 2009, the New Zealand Law Commission published a detailed report on name suppression in this country. It noted:

Where information as to the identity of someone appearing before a court is already in the public domain, it will not generally be appropriate to grant name suppression. The law will not undertake an exercise in futility, which would bring its own authority and processes into disrepute. [3.65]

However, the Commission did not really address the issue of internet publication. As I wrote at the time:

Yet in many recent cases involving name suppression, that is precisely what has occurred. Twitter, Facebook and other local and international web sites are routinely used to blithely report (or more often, speculate on) the identity of the individual… There is every reason to think this phenomenon will become more and more common… If the law is not to permit exercises in futility, this issue may need to be revisited again before long.

There can be very good reasons for name suppression and other forms of injunctions. But it is not a question of right or wrong anymore. The fact is that such orders can (and therefore will) be made a mockery of, with relative impunity online. An English judge’s issuing of an injunction against Twitter users, and Ryan Gigg’s now-futile attempt to sue anonymous Twitter users, seem distinctly King Canute-esque.

Technology law update 6 October 2010

Virtualised software licensing

Licensing virtualised software isn’t getting any easier:

Big picture: Software licensing for virtual desktops is incredibly complex, confusing and, in some cases, prohibitively expensive. “It’s like the tax code,” says Dave Buchholz, principal engineer at Intel’s IT unit

Like the tax code – ouch. This is not new, yet from a contractual point of view, licensing virtual software is relatively straight-forward. The complexity is not an inherent licensing problem, but simply a commercial consequence – partly due to the well-worn idea that complexity is good for business (think mobile phone plans), and partly due to vendors trying to have their cake and eat it too.

Besides piracy, studies show that even users who actively try to be fully compliant often cannot understand the licensing rules (and as the article says, even vendors can struggle to understand their own licensing). The reality is that in most cases, if there is money on the table that a licensing tweak could recover, those tweaks would have already been made. But while the practice of overly-complex licensing has perhaps lasted longer than expected, disruptive technologies such as usage-based cloud computing, and open source software and the increasing use of virtualisation itself, mean the trend will be toward simplified licensing and subscription models.

Name suppression laws to be tightened

The Government has announced changes to name suppression laws, following a number of high profile incidents, a prosecution, and a Law Commission report into the matter. Among the announced changes:

Introducing a new offence to capture New Zealand-based Internet service providers or content hosts who do not remove locally hosted suppressed information which they know is in breach of a suppression order, and who fail to block access or remove it as soon as reasonably practicable. [emphasis added]

This is an improvement on the Law Commission’s recommendation that ISPs and hosts “carrying” suppressed information should “block access” to it, which would have caused practical problems for ISPs (see my comments here). Having a requirement simply to remove locally hosted content is a simpler and more realistic approach. But it still remains an iffy matter – IT lawyer Rick Shera raises some pertinent questions here.

Coincidentally, on the same day as the Government’s announcement, a name suppression order forced a number of bloggers to remove posts that had previously the identity of certain individuals. By which time the information was already available in caches, syndicated posts, Twitter, etc – just another reminder of the difficulty of name suppression in the present day.

Who’s suing who(m)?

Another day, another US patent infringement claim. There are so many flying around, its hard to keep up. Fortunately the Guardian gives us this diagram. Expect to see a few more arrows added in the near future.

If you can’t beat ‘em?

Minorly ironical: Ars Technica reports on antipiracy lawyers apparently pirating the legal forms of other antipiracy lawyers.

Whale Oil case: lessons for bloggers

My brief post yesterday noted Judge Harvey’s starting proposition that the Police v Slater case was not about the merits of name suppression orders in the 21st century, but was simply about whether the defendant’s conduct breached the law as it stands (albeit in a novel circumstance). And the judge got it right.* But the judgment also provided some useful observations of more general application. Some of these include:

While the case involved posts made by the blog owner himself, what is the position of comments by third parties? Judge Harvey noted:

… most administrators or supervisors of blog sites or those occupying the position of Mr Slater must hold some responsibility for the comments that are posted. Mr Slater in his DVD interview indicated that he exercised such supervisory power over his blog site. He would allow comments or postings of material with which he agreed. This indicates that he is able to delete or remove material or posts from the blog site. This would put Mr Slater in the position of a person of responsibility similar to that of the moderator in the case of Stratton Oakmont Inc v Prodigy Services Co.

The Prodigy case involved defamation, but the principle is the same: a person who knowingly permits defamatory, suppressed or other unlawful content to remain on a website under their control (or otherwise “assumes responsibility” for the material) may be held liable for that material. See my article here and posts here for more information.

On the other hand, the position where the website operator has no knowledge of unlawful material will usually be quite different. Recently, there have been a number of instances where Courts have taken a pragmatic view where website operators have little or no control over what their users do, or where attempting to introduce such controls would be very difficult. E.g. for a situation involving IP infringment see my post here and for a defamation situation see here. A similar situation arose today, with a US judge finding that eBay was not liable for its customers using its service to sell counterfeit jewelery. So lets be clear, the case does not mean that anyone operating a blog may be liable for what someone else posts. But for blogs with active moderation, or if the operator becomes aware of certain material posted on their site (or “ought to have” been aware of it), care should be taken, and editorial discretion exercised. Which is just common sense, and how many blogs operate anyway.

Whale’s lawyer also advanced an argument that, because the Whale Oil site is hosted on a server in San Antonio, Texas, there was no “publication” or relevant act in New Zealand, and therefore no crime under New Zealand law. Nice try, but with a judge as well versed in such matters – Judge Harvey literally wrote the book on internet law in New Zealand and teaches it at Auckland University – no cigar:

The reality of the situation therefore is that Mr Slater’s blog is available free of charge to internet users in New Zealand who may and do access it from time to time and therefore publication takes place in New Zealand… The evidence before me is that the material was able to be read and comprehended in New Zealand (thus constituting a publication) and the material was uploaded on the Whaleoil blog by Mr Slater present in New Zealand at the time. Thus acts necessary for publication – the creation of the material, the posting of the material and the availability of the material to be comprehended by readers in New Zealand – all took place within the jurisdiction.

What about a blog that doesn’t carry unlawful (suppressed, etc) material, but merely links to it? The judge noted the US DeCSS case, but left the question open for another day, saying:

“Following from that is the [hypothetical situation of a] New Zealand based blogger who may embed a link to the off-shore blogsite which contains the suppressed name. One should be cautious in such circumstances that one does not become involved in “publishing” by way of hypertext link… I have no doubt this point or something like it will fall to be decided in this country in some future case”.

Whale’s lawyer had attempted to argue that blogging was intrinsically “different”, and mentioning a suppressed name did not fall within the corners of the Criminal Justice Act definitions. He had also tried to argue that the Criminal Justice Act, passed in 1985, could not apply to blogs (which were not contemplated at that time) and must be limited to traditional news media. The judge rejected these lines of argument, saying:

Conceptually a blog is no different from any other form of mass media communication especially since it involves the internet which anyone who has an internet connection is able to access… It is publication. It is made to a wide audience. It goes beyond a private conversation over the telephone or, a coffee table or at a dinner party. It is the mass media element that accompanies the internet that places the blog within the same conceptual framework as any other form of mass media publication… In the age of mass communication and the internet, where everyone may be a publisher, that approach cannot be sustained. The law must continue to speak.

* So I have no doubt the decision here is correct, based on the current law and what has been reported. It has been interesting to read the comments (on Kiwiblog for example) of some, who should know better, but who are most upset that the judge did not take it on himself to legislate from the bench and reform the “broken” suppression regime and help bloggers to “expose crims”.  However as I wrote last year, I do think the law on suppression needs to change to a more open system. That is both desirable and inevitable, and parliament should act sooner rather than later on this.

Blogging and Name Suppression

Blogger Cameron Slater (a.k.a. Whale Oil) was convicted today in the District Court of breaching suppression orders on his blog. By happy coincidence (or maybe not?) the country’s most tech-savvy judge, Judge David Harvey, heard the case and his detailed and expositional judgment is available here. Judge Harvey has certainly delivered on this judgment and it’s worth a read. He makes the following key comment at the very outset:

This case is about whether or not a person behaved in a manner that breached the law and in doing so utilised some of the communications technologies associated with the Internet. It is not a case about whether or not the law should allow nonpublication orders. That debate must take place in another forum.

A lot of comment has been made about the Whale Oil case, and much of it centred on whether name suppression should be available. Except for those who believe in a particularly activist judiciary, such questions are not for the Court to decide. Similarly there has also been much comment on the possible futility of suppression orders in the internet era. Following the release of the Law Commission’s report on name suppression last year I said that:

If the law is not to permit exercises in futility, this issue [name suppression] may need to be revisited again before long.

Judge Harvey also addressed this issue, rightly saying:

Up until such time as the legislature decides to repeal or amend s 140 of the Criminal Justice Act 1985, orders made by the Court for non-publication are expected to receive compliance and the assumption is that citizens will abide by Court orders. If they do not they may expose themselves to possible prosecution or Contempt of Court proceedings.

Except possibly in extreme cases, it is not for the Court to decide that a statutory provision is no longer effective and shouldn’t be applied.

Read part 2 here.

ISP filtering

The Department of Internal Affairs’ (DIA) internet filter has gone live. The system is aimed at blocking illegal images of children. While this is a voluntary scheme (unlike Australia‘s scheme), the experience in the UK has been that there will be pressure on ISP’s (including direct Ministerial threats) to join the “voluntary” scheme, lest they become a known haven for those seeking illegal content. Now, all UK ISP’s subscribe to the Cleanfeed filter.

In New Zealand, any move to make the filter mandatory would require legislation. While many opponents of the filter would likely oppose legislation, it would at least have the effect of defining the parameters of the filter and its regulation. The legislation would need to comply with the Bill of Rights Act (unsatisfactory though that law may be), or be passed with a statement expressly acknowledging where it breaches that Act. This would clear up concerns (or at least bring them into the open) that the filter may one day start to gradually be used for other purposes, such as blocking breaches of name suppression. It would make the filtering accountable to Parliament and the Courts. Also, the enabling legislation does not need to create make filtering mandatory – it could ensure that ISP’s remain free to choose whether or not to sign-up.

As long as the scheme remains voluntary and unregulated, though, no legislation is needed. While the objective is admirable (putting aside major questions over effectiveness), concerns include:

  • What information is being stored in the system, who has access to that information, and is it in compliance with the Privacy Act 1993?
  • What oversight is there on the content being filtered?
  • Is there a risk that the system could be extended to include material covered by name suppression orders?
  • Is pressure being brought to bear on ISPs to join the system?

For now, some ISP’s have expressed strong concerns about the filter which, as long as it remains voluntary, makes it unlikely that full sign-up will be achieved in the short term.

Name suppression and the internet

The Law Commission has published its report on name suppression. On the issue of name suppression on the internet it makes one recommendation:

Where an Internet service provider or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable. [7.16]

With regards to hosts, this is largely the status quo. It is less clear what an ISP that is “carrying” suppressed information is supposed to do. It would be impractical and ineffective, for example, to require ISPs to block access to sites it didn’t host. Of course, once a suppressed name has been communicated beyond our shores, any restrictions imposed by New Zealand law ceases to have any effect. If a major sports star had name suppression in New Zealand, and it was reported by Australian newspapers, would every ISP in New Zealand be expected to block access to those Australian websites?

The report’s findings on internet issues are brief, and don’t quite grasp the essential difficulties that the internet presents to the name suppression regime.  It states:

Where information as to the identity of someone appearing before a court is already in the public domain, it will not generally be appropriate to grant name suppression. The law will not undertake an exercise in futility, which would bring its own authority and processes into disrepute. [3.65]

Yet in many recent cases involving name suppression, that is precisely what has occurred. Twitter, Facebook and other local and international web sites are routinely used to blithely report (or more often, speculate on) the identity of the individual. An invariable side effect is the gross defamation of innocent persons unlucky enough to fit some “non-identifying” criteria not covered by the suppression order. There is every reason to think this phenomenon will become more and more common. In fact, the application of a suppression order, in many cases, simply has the effect of causing more speculation and breaches of the order – a manifestation of the Streisand effect.

The report noted that name suppression is generally more readily available in New Zealand than in Australia or the United Kingdom. One interesting statistic which the report did not appear to have considered, however, is how effective name suppression orders (in high profile cases) have been. Anecdotal evidence as well as personal experience suggests they are increasingly ineffective.

If the law is not to permit exercises in futility, this issue may need to be revisited again before long.