24 May 2011

Of Superinjunctions, Free Speech And Privacy Protection


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Image by Sara Simmons on Flickr
5746811723_c6ee3aa242_oYou will most probably recognise his face if you are a football fan.
This guy must have had a harsh time during the last couple of weeks.
Actually, he must have gone through hell.
What he has reportedly done may be controversial and stay at odds with morality, but this is not the subject of the article you are reading.
It is about his right to private life.

My point is that since the man on the image has not committed any wrong, no public interest should qualify to deprive him of a right provided for by Article 8 of the European Convention on Human Rights.
The forgoing is not to be understood as the advocacy towards a single individual. It is the advocacy towards the right of private life par excellence.

Want to read more? Good,

Let’s Kick It!

Allegedly, the man on the image has had an affair with a model and ex BigBrother contestant. However, after the model had contemplated to disclose their relationship, he managed to obtain a

Superinjunction

(aka gagging order) to prevent potentially embarrassing details about his private life being published.
What you have to know about superinjunctions is that they prevent anyone from publishing information which is said to be confidential or private about the applicant. That not enough, superinjunctions prevent anyone from reporting that they even exist.

The English High Court granted the order.

Nevertheless, the Scottish Sunday Herald

Dared To Publish

footballer’s image claiming that it has no obligations under an English injunction and if anyone wants to prevent the whole of the British media from reporting on a story, then they will need to get separate injunctions in all jurisdictions.

The interesting thing preceding the publication in Scotland is that, as soon as Twitter users had started to tattle about the alleged affair of the footballer, he managed to obtain a gagging order also against Twitter.
Despite any deliberations as to whether Twitter is subject to the jurisdiction of English courts, the superinjunction flopped in meeting its purpose. It not only failed in preventing the spread of information on the microblogging platform, it bestowed Twitter an unprecedented increase in traffic instead. Every user interested in the matter was tweeting said footballer’s name.

5719332110_b51182ab3a_z

Undoubtedly, this teaches us that

Superinjunctions Have Only Limited Effect

when it comes to Web 2.0 and social media.

The reactions could not come quickly enough.
Lord Chief Justice Judge lamented that “modern technology is totally out of control”. David Cameron added “It’s not fair on the newspapers if all the social media can report this and the newspapers can’t” and announced that “the government considers to legislate on privacy issues in order to catch up with the advent of social media”.

Would you support such legislation efforts?
I would.
I could accept minor limitations and would easily survive the lack of knowledge about whom a celebrity allegedly slept with. Because I know that such a minor concession of the society as a whole, would end up saving said celebrity’s private life.

Filtering Twitter?

I spent a couple of hours on Twitter this Sunday and read as many messages marked with a #Superinjunction hashtag as possible.
My impression was not that the users celebrated the victory of free speechover gagging and censorship. No, their overall message to the footballer sort of read “You think you can hide behind a superinjunction? You cannot, it simply does not work on Twitter”. They seemed happy to have tracked him down. That had nothing to do with free speech, that was hate speech.

Besides, it was in a clear breach with the superinjunction, of which everybody on Twitter already knew.

I delayed the publication of this article, because today I had a little chat with Jane Lambert on Twitter. There she expressed her concern as to whether a foreign social network should be allowed to operate in the jurisdiction of England and Wales if it is in breach of a fundamental right granted by the European Convention On Human Rights and cannot prevent flouting of an English court order.

She opined that networks should develop filtering technologies, but should deploy them only sparingly in democratic societies.

What do you think?

8 February 2011

Football Without Frontiers?


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DSC00926photo © 2010 Ben Sutherland | more info (via: Wylio)

Football is a very valuable industry in England and Europe in the first place and it is responsible for generating billions. However, what makes football really big is its connection with television. It was the television broadcast that brought the football of England’s Premier League to the world at large. Football without frontiers, indeed.

Football and television broadcast rights – this is the subject of this blog post. If you are a football fan and watch the broadcast of the Premier League, you have certainly heard of the proceedings brought by the Football Association Premier League (FAPL) against the QC Leisure (et al) and Media Prtocetion Services Ltd against the brave publady Ms Karen Murphy. The High Court of Justice of England and Wales has recently referred those proceedings to the Court of Justice of the European Communities (Court) where few days ago Advocate General Juliane Kokott delivered her opinion.

The facts

FAPL markets the copyright for the live transmission of its football matches. It essentially grants its licensees the exclusive right to broadcast and economically exploit the matches within their broadcasting territory, generally the country in question. In order to safeguard the exclusive rights of other licensees, those Licensees are at the same time required to prevent their broadcasts from being able to be viewed outside their broadcasting territory. BSkyB is such a licensee of FAPL for the UK and offers its sports feed to pubs against £7,200 a year. NOVA is the licensee for Greece and offers its sports feed to bars or pubs at about €1,080 (£700) a year. Both BSkyB and NOVA use a conditional access technology and have a “footprint” extending beyond the territorial limit of the licences they enjoy from FAPL. Any person within a broadcaster’s “footprint” who has the appropriate satellite dish, decoder box and decryption card is technically capable of viewing the programmes provided by that broadcaster as part of its broadcasting service.
Not surprisingly, proactive undertakings (such as QC Leisure) import decoder cards from abroad, in the present cases from Greece and Arab States, into the United Kingdom and offer them to pub owners (such as Karen Murphy) then at lower rates. The FAPL is attempting to stop that practice since it undermines the viability of the services they provide.

The claims

Basically, claimants asserted that the use of foreign decoder cards in the UK to access foreign transmissions of live FAPL football matches committed an offence under Section 297 of the Copyright Designs and Patents Act 1988 (CDPA) and involved an infringement of their rights under Section 298 CDPA as well as their copyrights in various artistic and musical works, films and sound recordings embodied in the Premier League match coverage. Further and since BSkyB has the exclusive right to broadcast the football matches in question for reception within the UK, it demanded the “applicable” payment being the subscription which would be payable to BSkyB if Karen Murphy had contracted to receive BSkyB’s service rather than the NOVA service from Greece.

The defences

Since Sections 297 and 298 of the CDPA were introduced to transpose Directive 98/84/EC the defendants pleaded that the purpose of the Directive is not, as the claimants contended, to give to service providers of lawful decoder cards a right to control their circulation or place of use and so divide the single European market into zones with differential pricing. On the contrary, the purpose of the Directive is to facilitate the undistorted operation of the single market by giving to service providers a Community-wide right to suppress the manufacture of and commercial dealings in cards which give access to protected services for, and further to remove obstacles to the free circulation of cards which might previously have arisen from pre-existing provisions of national law. Further defences were based, inter alia, on the fundamental freedoms under the EC Treaty as well as on Article 81 EC.

The questions referred to the Court

Following the referance for a preliminary ruling consisting of an unusually high number of questions (more than 20 relating to both cases) the Court joined the two cases. The referred questions asked the Court to interpret the Directives 98/84/EC, 93/83/EC and 2001/29/EC as well as Articles 28 and 30, 49 and 81 EC.

Advocate General’s opinion

After having undertaken a remarkable dissection of Community law dealing with copyright and broadcasts, Advocate General Juliane Kokott concluded that the decoder cards sold outside, but used within the UK did not constitute “ilicit devices”. Nevertheless, member states, Kokott wrote, were at liberty to by means of national law prevent the use of such cards, when they were obtained on the grounds of false personal data. The same would also apply to acquirers purporting private use, but deploying decoder cards on commercial scale. Kokott further opined that, a copyright work (=football match) is not communicated to the public by wire or wireless means, within the meaning of Article 3(1) of Directive 2001/29, where it is received or viewed as part of a satellite broadcast at commericial premises (=pub) or shown there, free of charge, via a single television screen and speakers to members of the public present in those premises. Not less important for the present cases, the freedom to provide services under Article 56 TFEU (previously Article 49 EC) precludes provisions which, on grounds of protection of intellectual property, prohibit the use of conditional access devices for encrypted satellite television (=decoder cards) in a Member State (=UK) which have been placed on the market in another Member State (=Greece) with the consent of the holder of the rights to the broadcast (=FAPL). The latter is despite any false personal data at acquisition or individual agreements to use the decoder cards only for domestic or private use. However, the freedom to provide  services is no magic bullet: it may be prejudiced by national rules, which allow rights holders to a broadcast to object to its communication in a pub, provided that the restriction of freedom to provide services stemming from the exercise of that right is not disproportionate to the share of the protected rights to the broadcast.
In the end the Advocate General delivered her mostly relevant conclusion: FAPL’s license agreements with content providers such as BSkyB or Nova that provide for territorial exclusivity and ban the export of decoder cards to other member states of the EU are incompatible with Article 101(1) TFEU (previously Article 81 EC) , since such licence agreements are liable to prevent, restrict or distort competition.

My two cents

If  the decision of the Court in those combined cases follows the opinion of Adovace General Kokott, then it will very likely be 2011’s landmark decision par exelance!
Especially the economical impact has the potential to be nothing less than disruptive. What seems to be an ease for viewers and supporters may soon dramatically lessen the quality offered by the FAPL and the clubs participating in it, as they will encounter unexpected difficulties to maintain there way of working. Where do you think does the money for the recent truly vertiginous football transfers come from? 75 Millions for Cristiano Ronaldo? You better forget about that!

What should we expect if the Court decides the cases in the affirmative? Will it mean the end to a football without frontiers or will it be rather its long awaited redemption from commercialism and recollection of true values?

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