Do You Want To Know A Secret?

Pangloss thought she was really going to write something serious about superinjunctions after the #Twitterstorm got on her nerves this morning, but it seemed by the time she got time that everyone else had written about it already. Including of course, David Allen Green.:)

Then she worried a bit about what the effect of all this might be on Twitter itself, rather than the celebrities, the newspapers, or the courts. Intermediaries worry a lot about being the ones who take the flak for the actions of their users. As a result most have abuse policies which boil down to "complain and we'll find a clause in our T & C which lets us take down the offending comment or possibly even kick the blighter off our site".

What worried me, then, was the suggestion this a.m. (which I now can't find, but believe me, it's out there) that Twitter could automatically redact tweets which threatened to infringe superinjunctions (ah found it!). Because I very much doubt they can . I suspect all they do right now is take down, in whole, on complaint, and that may not satisfy irate celebrity lawyers. Twitter is very very much more likely only to be able to automate removal of every tweet (and all of it) featuring say Jemima Khan's name . Or Gordon Ramsay's. Or um Andrew Marr. Even tweets by these people themselves. And that would er just be silly.

But then I remembered there's a fairly clear set of directions in the injunction Demon Internet got the court to approve way back in 2001, when they worried that one of their subscribers would break the court ban on revealing the new identity of Venables, one of the killers of Jamie Bulger.

An ISP shall not be in breach of the injunction unless it, or any of its employees or agents:

Knew that the material had been placed on its servers or could be accessed via its service, or

Knew that the material was likely to be placed on its servers or was likely to be accessed via its service, and, in either case

Failed to take all reasonable steps to prevent the publication."

Twitter isn't an ISP but the responsibility (and thus risk) seems similar or greater than a mere ISP. But what are "all reasonable steps"? Having a decent abuse policy? Providing the identity of alleged infringing tweeters on request? Providing it on court order? More? Yet more privatised filtering coming our way? Le sigh. (Hard to believe the ECJ would back that last though, the way SABAM seems to be going.)

But what I really ended up wanting to say wasn't a legal point but this quote which I found by an anonymous commenter at the end of one of the Guardian pieces.

The naming of celebrities still feels like a moral victory: as though we've usurped the rich and powerful. Celebrity superinjunctions annoy me not because of potential hypocrisy or controlling what I can and can't know (though those things do annoy me), but because it's wealth privilege on display. If I had an affair, and if for some reason the newspapers saw fit to print information about it, I wouldn't be able to get a superinjunction. I couldn't afford it.

So there you go. Superinjunctions, and their accompanying deconstruction and storm of comment, aren't about privacy vs freedom of expression. Or sex vs sensible journalism, tabloids vs broadsheets, the UK v the ECHR. or even the English High Court and Justice Eadie vs the Rest of the World. They're about power and the proletariat. Now can we go back to talking about stuff that matters, like jobs and health?

And why hasn't Wikileaks published that list of celebrities already anyway??

EDIT: Useful piece in OUT-LAW today about whether Tweeters could be done for contempt of court if accurately infringing outstanding injunctions cf @superinjunction.

One of the big issues is if a Tweeter as opposed to a media organisation would have had sufficient notice of the injunction, without actually having seen it or read it - Kim Walker thinks yes.

Another is anonymity - a Norwich Pharmacal order would work in UK, but will it work against Twitter whose HQ is in US? Walker thinks Twitter UK would request its US parent to seek a US order. Interesting - my own thought was that as with this case of the billionaire and allegedly libellous pseudonymous comments on Wikipedia, it would be up to the aggrieved celebrity to seek the US subpoena themselves. But again, seeking the ID itself, might be another of those "reasonable steps" Twitter as platform would have to take to ensure it was not itself in contempt?

An interesting point several commenters have brought up is that if a Twitter account is deliberately spreading false rumours the appropriate action would be not breach of confidence but libel, and that this would apply not just to the original accountholder but all the RTs. Litigation heaven beckons :) One wonders if the Jameel rules on abuse of process (previously used to restrain libel tourism) might not intervene here to stop the courts being flooded with thousands of Norwich Pharmacal orders...? (Note also that if the allegations were accurate, RTing would involve those who reweteeted as also breaching confidence - and yadda yadda, but more litigation hell..)

Judicial Review of Digital Economy Act fails: interim note

Just a quick note for those seeking basic info, as I haven't had time to read it properly yet - am about to! (or try @copyrightgirl's tweets, or the Guardian . )

The expected, though still bad, news is that most the arguments put forward by BT and TalkTalk were rejected ie on incompatibility with the Technical Standards Directive, the Data Protection laws, the E-Commerce Directive and proportionality generally. The Act therefore stands.

However BT etc were partially successful in relation to sharing the costs of the filesharing system to be established - the cost sharing SI made under the Act proposed a 75:25 split between the copyright holders and the ISPs; it now seems ISPs wil not be required to pay 25% of the cosst of establishing the appeals body but will still have to pay in relation to "internal costs" ie sending letters and identifying filesharers.

A key point will be appeals. BT and Talk Talk are considering their positions on this. I would have strongly expected a reference to the European Court of Justice for clarification, but the judge has indicated he found the issues of law clear and therefore would not support such. My feeling is this point at least might well be appealed successfully - especially following the Advocate General's opinion in Scarlet v SABAM only a few days ago, where the reasoning is strongly against the legality of blanket filtering and monitoring to protect copyright, since invasion of personal data privacy is inevitable. Although this does not necessarily directly affect provisions of the DEA itself other than s 17 on web blocking orders (which may itself be heading for non-implementation hell if Ed Vaizey manages to convince ISPs, IWF-style, to block sites on a voluntary basis, without need for court orders, behind closed doors) the balance struck here between rights of privacy and rights of property will surely cast a doubt that the interpretation of EC law, especially the DPD and PECD , is quite as untroublingly easy as Mr Justice Parker has suggested.

If there are no such appeals, the Guardian suggests the first letters to filesharers could go out in the first half of 2012. Pangloss is not quite sure if this means letters warning alleged filesharers or letters indicating sanctions like suspension, traffic slowing, etc (technical measures) - but probably the former. Certainly it has already been announced that the final version of the Initial Obligations Code has been put back to at least summer 2011 from the original deadline of Xmas 2010. Given that the Initial Obligations stage has to run for at least a year before stage 2, Technical Measures can even be introduced - and that still needs the assent of both Houses of Parliment - we are still a very long way from the first potential disconnections.

In the meantime, streaming has already overtaken downloading, Spotify has managed to educate millions of Europeans, even without much assistance from US record labels, that legal streaming is a great idea, and hardened down and up-loaders have already become far too clever to ever be caught by the DEA's IP address collection methods, while the innocent may find themselves falsely accused (see Richard Clayton's excellent witness statement to the court) .

By that long away time (2013?) when the first disconnections might be justified, the DEA may be too antiquated for even the music industry to press for its continuation. In the meantime however a huge amount of money - £500m estimated - will have been spent to safeguard an industry worth £200m (also an estimate, of course) - and of course also to make it universally hated by its target customers.

The takeaway message on this also is that the judicial review court has only found that the DEA has not technically violated any EC laws. Only these arguments could be made because an Act that is otherwise passed under doctrines of parliamentary sovereignty, however bad it is , in principle, policy or execution, stands till repealed, because that is how we do law in this country. Nothing that happened today proves the DEA makes sense or is right - merely that one judge thinks it does not violate any supranational laws.

ps is there really no English translation of SABAM yet other than a Google translation? Pangloss cannot seem to locate..