Top Gear, Privacy and Identity

.. not a set of three things I ever expected to string together!!

Fascinating story of the week is that Top Gear's famous pet racing driver, The Stig ("some say he is the bastard child of Sherlock Holmes and Thierry Henri") wants to break his contractual and confidential obligations of silence as to his true identity imposed by his (presumably lucrative) BBC contract, so that he can reveal his name and make big $$$ out of his autobiography, in the style of his fellow presenters Clarkson et al, all of whom have reportedly made millions out of parlaying their popularity from the show.

It's a cracker this, in a week when the headlines are already full of a half hint that the Con_Dem government are thinking of having a bash at Eady J's judge-made law on privacy, breach of confidence and press freedom. The general tone of the hints in press has been that the balance has shifted too far in favour of protecting celebrity privacy, and too far from allowing the press to make lots of money out of kiss and tell tittle tattle, sorry," fulfil their public investigative duties".

So we already have an extensive debate about how far celebrities should be able to preserve their privacy even where they live their lives to some extent in public; but till now we've rarely had a debate about whether the "right to respect for private life" (Art 8 of the ECHR, which founds the recent line of English cases on privacy and confidence) also covers the right to disclose as well as hide your secrets.

From one perspective, the right to assert your "nymic" identity seems clearly like something that should be an intrinsic part of private life. In more modern instruments than the ECHR, such as the UN Convention on the Rights of the Child, a right to a name and an identity is explicit. In the ECHR, case law has extended the right to family life to something very similar, with numerous cases on the rigt to a name, to a state affiliation qand to an immigration or domicile status. These cases are complex and go both ways but the underlying notion that private life includes identity is one which most scholars would I think acknowledge.

But another way to look at it - and one I am sure the BBC lawyers are quite keen on - is that this was a simple commercial transaction where the Stig was paid for silence. Non disclosure agreements (contracts) or NDAs are of course ubiquitous. As with the general domain of privacy and personal data online, the question then becomes the more controversial one of how far should you be able to sign away your basic rights by contract. Adopting the language of restrictive covenants, it would be surely be unreasonable if The Stig was not allowed to use his own name in any walk of life, or with any employer. But is it reasonable that be be bound indefinitely by his consent even by the BBC? The question also arises of what remedy would be reasonable here if the BBC were say to seek an injunction to prevent any name-attached autobiography of The Stig being published. In libel law, , the common aphorism is that common law courts prefer not to grant allow prior restraint of speech on allegations of defamation, but to impose damages subsequent to publication if damage to reputation then ensued: "publish and be damned". In pure contract or confidence actions, such a bright line does not pertain. Should The Stig have the right to assert his name and pay the BBC if they suffer loss as a result? Or should he be stoppable by injunction as is possible in the ordinary law of breach of contract?

I'd love to see this go to court but I strongly suspect it'll settle .

IGF: upcoming

I'll be speaking on this workshop at the upcoming Internet Governance Forum in Vilnius and will also be speaking on a panel on online human rights and state responsibilities representing the Council of Europe. I'm very much looking forward to my first IGF:-)

IGF Workshop on "The Role of Internet Intermediaries in Advancing Public Policy Objectives"

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The goal of the Workshop is to discuss and identify lessons learned from experience to date of Internet intermediaries in helping to advance public policy objectives. The workshop will introduce the concept of “Internet intermediaries”, the categories of actors considered, their role, and the three ways in which intermediaries can take on a policy role: through responses to legal requirements; through their business practices; and through industry self-regulation. It will discuss the roles and responsibilities of Internet intermediaries for actions by users of their platforms, their nature and extent and the implications. The workshop is part of a stream of work being conducted by the OECD.

The workshop will take place on September 16 from 14.30 to 16.30, in Room 1.

Social networks, 2010 vn

As someone whose last book used the original,wonderful xkcd cartoon as its cover, it seems only right to bring you the updated version! (NB NOT by Randall Munroe, though glad to see they acknowledge him.)

ps but shouldn't that be "sunken island of Google Buzz?"

Do robots need laws? : a summer post:)

I can so use this for the EPSRC Robotics Retreat I am going to in September!! (via io9 with thanks to Simon Bradshaw)



Another slightly more legal bit of robotics that's been doing the rounds, is this robots.txt file from the last.fm site. Robots.txt for the non techies are small text files which give instructions to software agents or bots as to what they are allowed to do on the site. Most typically, they do or don't tell Google and other search engines whether they are allowed to make copies of the site or not ("spider" it). No prize at all for the first person to realise what famous laws the last three lines are implementing:-)

User-Agent: *
Disallow: /music?
Disallow: /widgets/radio?
Disallow: /show_ads.php

Disallow: /affiliate/
Disallow: /affiliate_redirect.php
Disallow: /affiliate_sendto.php
Disallow: /affiliatelink.php
Disallow: /campaignlink.php
Disallow: /delivery.php

Disallow: /music/+noredirect/

Disallow: /harming/humans
Disallow: /ignoring/human/orders
Disallow: /harm/to/self

Allow: /

This all raises a serious underlying question (sorry) which is, how should the law regulate robots? We already have a surprising number of them. Of course it depends what you call a robot: Wikipedia defines them as "an automatically guided machine which is able to do tasks on its own, almost always due to electronically-programmed instructions".

That's pretty wide. It could mean the software agents or bots that as discussed above, spider the web, make orders on auction sites like eBay, collect data for marketing and malware purposes, learn stuff about the market, etc - in which case we are already awash with them.

Do we mean humanoid robots? We are of course, getting there too - see eg the world's leading current example, Honda's ASIMO, which might one day really become the faithful, affordable, un-needy helpmate of our 1950's Campbellian dreams . (Although what happens to the unemployment figures then?? I guess not that much of the market is blue collar labour anymore?) .But we also already live in a world of ubiquitous non humanoid robots - such as in the domestic sector, the fabulous Roomba vacuum cleaner, beloved of geeks (and cats); in industry, automated car assembly robots (as in the Picasso ads) ; and, of course, there are emergent military robots.

Only a few days ago, the news broke of the world's alleged first robot to feel emotions (although I am sure I heard of research protypes of this kind at Edinburgh University's robotics group years back.) Named Nao, the machine is programmed to mimic the emotional skills of a one-year-old child.

"When the robot is sad it hunches its shoulders forward and looks down. When it is happy, it raises its arms, looking for a hug.

The relationships Nao forms depend on how people react and treat it

When frightened, it cowers and stays like that until it is soothed with gentle strokes on the head.The relationships Nao forms depend on how people react and treat, and on the amount of attention they show."

Robots of this kind could be care-giving companions not only for children, but perhaps also in the home or care homes for lonely geriatrics and long term invalids, whose isolation is often crippling. (Though again I Ludditely wonder if it wouldn't be cheaper just to buy them a cat.)

Where does the law come into this? There is of course the longstanding fear of the Killer Robot: a fear which Asimov's famous first law of robotics was of course designed to repel. (Smart bombs are of course another possibility which already, to some extent exist - oddly they don't seem to create the same degree of public distrust and terror, only philosophical musings in obscure B-movies.) But given the fact that general purpose ambulant humanoid artificially intelligent robots are still very much in the lab, only Japan seems so far to have even begun to think about creating rules securing the safety of "friendly AIs" in real life, and even there Google seems to show no further progress since draft guidelines were issued in 2007.

But the real legal issues are likely to be more prosaic, at least in the short term. If robots do cause physical harm to humans (or, indeed, property) at the moment the problem seems more akin to one for the law of torts or maybe product liability than murder or manslaughter. We are a long away away yet from giving rights of legal personality to robots. So there may be questions like how "novel" does a robot have to be before there will be no product liability because of the state of the art defense? How much does a robot have to have a capacity to learn and determine its own behaviours before what it does is not reasonably foreseeable by its programmer?? Do we need rules of strict liability for robot behaviour by its "owners" - as Roman law did and Scots law still does for animals, depending on whether they are categorised as tame or wild? And should that liability fall on the designer of the software, the hardware, or the "keeper" ie the person who uses the robot for some useful task? Or all three?? Is there a better analogy to be drawn from the liability of master for slave in the Roman law of slavery, as Andrew Katz brilliantly suggsted at a GikII a while back??

In the short(er) term, though, the key problems may be around the more intangible but important issue of privacy. Robots are likely as with NAO above to be extensively used as aids to patients in hospitals, homes and care homes; this is already happening in Japan and S Korea and even from some conference papers I have heard in the US. Such robots are useful not just because they give care but because they can monitor, collect and pass on data. Is the patient staying in bed? Are they eating their food and taking their drugs and doing their exercises? Remote sensing by telemedicine is already here; robot aides take it one step further. All very useful but what happens to the right to refuse to do what you are told, with patients who are already of limited autonomy? Do we want children to be able to remotely surveille their aged parents 24/7 in nursing homes, rather than trek back to visit them, as we are anecdotally told already occurs in the likes of Japan?

There are real issues here about consent, and welfare vs autonomy which will need thrashed out. More worryingly still, information collected about patients could be directly channeled to drug or other companies - perhaps in return for a free robot. We already sell our own personal data to pay for web 2.0 services without thinking very hard about it - should we sell the data of our sick and vulnerable too??

Finally robots will be a hard problem for data protection. If robots collect and process personal data eg of patients, are they data controllers or processors? presumably the latter; in which case very few obligations pertain to them except concerning security. This framework may need sdjusting as the ability of the human "owner" to supervise what they do may be fragile, given leearning algorithms, bugs in software and changing environments.

What else do we need to be thinking about?? Comments please :-)

Reforming privacy laws

The videos are up from the recent very successful ORGcon on digital rights; and here is the vid of the panel Pangloss appeared on (all speakers v good - I appear about 9 mins in).

[ORGCon] Reforming Privacy Laws from Open Rights Group on Vimeo.

Note that since this event in July the Commission has announced the draft reform proposal for the DPD will be delayed till probably the second half of 2011 (sigh!)

For those interested, the recent Wall Street Journal spread on privacy threats from a US perspective is also well worth perusing (follow links at end for related stories - there are 6 or so)

The Sunday Times are supposed to be publishing a UK follow up today (August 8) in which Pangloss should be quoted - but since its behind paywall I haven't been able to check :-)

Google Makes TM Changes to Adwords Across EU

Google have issued an interesting press release today about changes they are making to follow up on the recent ECJ Adwords decision.

We defended our position in a series of court cases that eventually made their way up to the European Court of Justice, which earlier this year largely upheld our position. The ECJ ruled that Google has not infringed trade mark law by allowing advertisers to bid for keywords corresponding to third party trade marks. Additionally, the court ruled that advertisers can legitimately use a third party trademark as a keyword to trigger their ads

Today, we are announcing an important change to our advertising trademark policy. A company advertising on Google in Europe will now be able to select trademarked terms as keywords. If, for example, a user types in a trademark of a television manufacturer, he could now find relevant and helpful advertisements from resellers, review sites and second hand dealers as well as ads from other manufacturers.

This new policy goes into effect on September 14. It brings our policy in Europe into line with our policies in most countries across the world. Advertisers already have been able to use third party trademarked terms in the U.S. and Canada since 2004, in the UK and Ireland since 2008 and many other countries since May, 2009.

The most interesting bit for Pangloss is that what accompanies this is a new type of notice and takedown procedure.

In the affected European countries after September 14, 2010, trademark owners or their authorized agents will be able to complain about the selection of their trademark by a third party if they feel that it leads to a specific ad text which confuses users about the origin of the advertised goods and services. Google will then conduct a limited investigation and if we find that the ad text does confuse users as to the origin of the advertised goods and services, we will remove the ad. However, we will not prevent use of trademarks as keywords in the affected regions.

This is an interesting way of implementing the caveats in the ECJ decision. Google have generally sought to automate all their processes as far as possible, whereeas this will create a lot of manual work in processing what will no doubt be a storm of cease and desist notices - compare the Content ID approach on YouTube where take down exists and is faithfully followed, but there is also a push towards persuading IPholders to submit their own works for pre emptive filtering. However in this case they clearly think the work involved in implementing this new scheme will make more money for them in advertising revenue, than it will lose in costs of manual take down. And take down should fend off most future litigation, though not, I suspect, all. For businesses , a harmonised policy through all EU is always a boon.

It would be interesting to see some empirical data emerging on how this affects the choice of keywords, click-through and text of AdWords ads in future, and how this does or not benefit the public interest in access to information in advertising. Google's usual approach to open data should be helpful here. (Will takedown notices under this scheme go to Chilling Effects website, as linking-to-content take down requests do? I hope so.)

We are not amused? Jokes, twitter and copyright

Q. Why did the comedian Tweeter cross the road?..

A. .. to steal someone else's joke posted on Twitter??

The Grauniad reports today on the latest spat in the turf war that is developing on Twitter between comedians trying out jokes and material, and passing other parties quietly re using thus material, sometimes explicitly under their own name.

It seems that Keith Chegwin, now no longer for some while the fresh faced lad of Saturday morning TV, has hit rock bottom and resorted to passing off jokes gathered on Twitter as his own "old" material.

Chegwin decided to use his account, where he has more than 36,000 followers (no, me neither), to broadcast a whole load of gags and one-liners. He claimed that these were either his own work, or traditional gags minted by long-dead comics.

Unfortunately, they weren't. Among the gags retold by the one-time player of pop were identifiable jokes written by a number of contemporary standup stars, including Milton Jones, Lee Mack and Jimmy Carr. And what Cheggers presumably envisaged as a warm-hearted bit of fun has stirred up a sizeable amount of bad feeling within the comedy community. One comedian, Ed Byrne, even took Chegwin to task on Twitter, telling him he was wrong not to credit "working comics" for the jokes he was using.

This is not the first occasion of such, er, lack of amusement, emerging. My esteemed colleague @loveandgarbage tells me that this is a common source of disquiet. Comedians like to test and work on their material and Twitter with its potential for response and re-tweeting is a prfect venue for this. But the real question is, does anyone own a joke? Should they? Isn't this common cultural property? Where would society be if the first person to invent a "knock knock " job had asserted copyright in it?

Jokes - and especially tweeted jokes - are often quite short, vaguely familiar variations on a theme, and don't look much like the public conception of a "literary work", which is the applicable category of copyright (for written down jokes anyway). But the law as usual is not as simple as ordinary common sense.

Copyright exists only in works which are "original literary works". But case law has set a very low bar on such protection. A "literary" work has been held to include a long list of extremely unexciting written-down "things", eg, exam papers, football coupon forms, and a large number of meaningless five letter words used as codes. Looking at rather short literary works, it is generally acknowledged, eg, that some particularly pithy headlines might well engage copyright, though slogans are more contested, and usually protected by trade mark. There is the famous Exxon case, Exxon Corp. v. Exxon Insurance Consultants International Ltd [1982] Ch. 119, in which the English court held one word was too short to be a literary work. But 140 characters is somewhat longer and there is an interesting quote in the Exxon case from University of London Press Ltd. v University Tutorial Press Ltd. [1916] 2 Ch. 601 in which Peterson J. said, at pp. 609-610:

The objections with which I have dealt do not appear to me to have any substance, and, after all, there remains the rough practical test that what is worth copying is prima facie worth protecting.

Copying jokes certainly seems to be a worthwhile economic activity. But are jokes "original"? There is surely an argument that, like recipes, every joke that exists has already been invented in some fundamental form - and therefore can be freely copied and adapted. Yet jobbing comedians do put a great deal of work into, and base their income on, inventing "new" jokes - and as the Grauniad note, the culture has shifted since the 80s to a point where comedians now regularly claim to "own" their jokes (I've also just been referred to this fascinating piece):

The idea that a comedian had outright ownership of his material seems to have taken root in this country once Manning et al gave way to the Ben Elton generation. For the original alternative comedians, simple gag-telling was far less important than presenting a fully-formed original perspective on the world. And if you were trying to offer an audience something distinctive (with all the added hard work that involves) then it became crucial to ensure that your gags were wholly your own....In recent years, the main victims of plagiarism in standup have been those comics who rely heavily on one-liners and quickfire jokes. For gag thieves, these present the perfect opportunistic crime: they're easy to lift and contain fewer hallmarks of the originator's personality.

So maybe there is copyright in the jokes in question, and poor Cheggers is a copyright pirate. (Appealing to Technollama here to insert a Photoshop mock up pic!) But there is a serious point here, of which the Twitter joke is (paradoxically) a good example.

Is there copyright generally in any tweet? If so, what happens to re-tweeting? Passing around tweets by re-tweeting them is, for most tweeters, welcome : both providing an ego boost and allowing the community to share useful and amusing information at lightning speed. Yet if copyright exists in tweets, such activity is prima facie copyright infringing.

Again, there is a strong argument that by writing in an unprotected, open to the public, Twitter account, you are granting an implied license to copy. (Twitter itself seems to recognise this by providing no re-tweet button where the tweet is a friends-only one.) However the "implied license" argument has been frequently repelled on the Net generally: it is now very well accepted that simply posting something on a website, like a photo, or a story, does not in any way grant permission to all and large to reproduce it (cf a thousand spats over fans downloading pictures of their heroes from official media websites). Why should Twitter be any different? As usual, this would very much be on a case by case basis and depend on intentions, if litigation was ever to occur.

So we are left in a dilemma. If comedians are to get protection, we may prejudice perhaps the fundamental mechanism by which Twitter adds value to its community: the re-tweet.

But that's not the only problem. Presumptively granting copyright to tweets would allow particular tweets to be easily suppressed from distribution on threat of legal action, something that migt have serious chilling effects on freedom of speech.

Most recently, eg, take the Ben Goldacre/ Gillian McKeith spat, over whether Ms McKeith had called Mr Goldacre a liar on Twitter. Conveniently for the Goldacre side, someone had taken a screen cap of the incriminating tweets by McKeith, before she sensibly and fairly quickly deleted them. I wondered at the time if these tweets were not her copyright, and thus illicitly copied and distributed - as clearly she had not given permision, or if she had, had withdrawn it by deleting the tweets on her own account. And copyright can be so much easier a way to suppress speech than libel since it does not involve any enquiry over whether what was said was a lie or detrimental to anyone's reputation.

Of course, again (as with yesterday's FOI post) in copyright, there are exceptions for news reporting and public interest elements. But these are untested for social media and particularly for amateur tweeters rather than professional journalists. (It is interesting in the two pieces linked to above, that the Guardian themselves link directly to the screen-capped tweets, but Goldacre, a clever careful man, does not. :) Most lay people receiving a cease and desist on copyright grounds would probably delete a re-published tweet without demur. This could be the next way to suppress speech on a vigorous liberal forum like Twitter for everyone from Ms McKeith to the Church of Scientology.

Turning into a bit of a bad joke, eh? :-)

When does information not want to be free?

Apparently, when it's been released under a freedom of information (FOI) request!

This is not, I imagine, the answer you, gentle reader, expected:)

Pangloss was recently asked by an acquantance, X, if he ran any legal risk by publishing on a website some emails he had obtained from the local council, as part of a local campaign against certain alleged illicit acts by that council. According to X, the emails could destroy the reputation of certain local councillors involved, and that they had had great difficulty extracting the emails, but finally succeeded. Obviously the value to the public in terms of access to the facts - surely the whole point of FOI legislation - would be massively enhanced if the obtained emails could be put on the campaign website.

My advice was that I was no FOI expert but since data cannot be released under FOI when it reates to a living person, DP and breach of confidence were not likely to be problems (though the latter was not impossible), and the main danger was surely libel, in which case truth was a complete defence. There would of course be a risk that councillor A might be lying about councillor B to the detriment of their reputation; in which case there was a danger of re publishing a libel. But that didn't seem all that germane and a public interest defence (though not one Pangloss would like to depend on, if it was her money) would certainly be possible.

I was wrong. Asking more people (and many thanks here to the wonderful ORG-legal list, especially Technollama, Victoria McEvedy, Simon Bradshaw, Daithi MacSithigh and Andrew Katz)) revealed the main weapon for gagging publication of FOI requests: that useful, all purpose, font of legal restraint - copyright.

In my innocence, I would have expected that a document obtained under FOI could be automatically republished by the recipient. Not so. The Office of Public Sector Information (OPSI)'s website reminds us that :

Information listed in Publication Schemes, which can be disclosed under FOI, will be subject to copyright protection. The supply of documents under FOI does not give the person who receives the information an automatic right to re-use the documents without obtaining the consent of the copyright holder. Permission to re-use copyright information is generally granted in the form of a licence.[italics added]

As with most legal issues, the devil is in the detail here. Why should permission to republish only be "generally granted"? Why is it not compulsory to grant a license (though not necessarily for no consideration)? In the example at hand, the copyright holders have fought to prevent disclosure and have every reason to refuse to grant copyright permission. This seems both immoral and against the whole point of FOI.

Technollama advises me that where information is Crown copyright, there are indeed generally obligations under the Public Sector Information Directive (PSID) to release that information under some open licensing scheme. Currently this is Click-Use, but will soon be Creative Commons. An "open licensing" scheme does not necessarily mean you get to publish for free either, but it should mean copyright could not be used to gag publication. This all sounds good and right. The general reasoning behind the PSID obligations is that public money pays for public data, so the public should be able to access it and re-use it to create both economic and creative public benefits .

A similar reasoning lies behind the recent acclaimed open data.gov initiatives involving Tim Berners-Lee and Nigel Shadbolt's Web Science team. Various campaigns such as the Guardian's Free our Data calls have influenced UK public opinion to the point where the UK government seems to have acknowledged that public data should be able to be - well - published - and then re-used for public benefit.

However Crown copyright only applies in general to works generated by central not local government. And in any case it is more than possible that emails of this kind might be the copyright of the individual senders themselves, not the council, especially given the lack of a contract of employment.

(There are plenty of public bodies subject to FOI whose works are not Crown copyright, including eg the BBC and the ICO - see a selected OPSI list here - so this is going to be a common problem.) Of course it is possible the emails might not qualify for copyright at all - but given the low level of orginality test etc usually applied nowadays, this is pretty unlikely.

So here is a case where the law has already agreed that there is a public benefit in being able to scrutinise the activities of public officials (in this case, local councillors) yet there is no obligation to allow re-publication, merely a suggestion. In this case, the incentive to allow public republication is ethical and moral, not economic. Should that make any difference? I don't think so: perhaps the reverse.

Copyright of course has exceptions. Even if the council or councillors in question refused to license republication, it might be claimed that well known defences like news reporting or public interest might apply to allow copyright to be trumped. The OPSI site acknowledges this (see para 2). But we all know that the chilling effect of the threat of expensive litigation is likely to be an effective muzzle for most members of the lay public, if only vague and untested defences lie between them and big legal debts.

Would it not be far, far more sensible simply to require that where copyright materials are released under FOI (perhaps after a decent interval if necessary to allow for appeals) then a licesne to republish MUST be granted? Reasonable commercial conditions could apply depending on the value of licensing the information; which would be zero for scurrilous emails, but would stop people using FOI as a back door to getting free copies of expensive information. (Though as noted, the trend is for free release of public data anyway.)

The UK is not the only country to allow this under its FOI law In Canada, in 2008, Michael Geist discovered that the Vancouver BC government were asserting copyright over released by FOI materials. He wrote:

The notion that the media may not inform readers of harms to the public interest without first pleading for the state's permission and paying a copyright fee is deeply troubling.

I could not agree more. The current situation is an appalling (and little known) travesty of what FOI is all about. It needs changed.