NDAs and the Sound of Silence

NDAs and the Sound of Silence

“When truth is replaced by silence, the silence is a lie.” 
Yevgeny Yevtushenko

The #MeToo movement has brought Non-Disclosure Agreements (NDAs) as a way to silence allegations of sexual harassment into the public debate.  In light of controversies surrounding Donald Trump, Harvey Weinstein and now – Sir Philip Green, the billionaire retailer whose brands include Topshop – much has been discussed about the legality and morality of using NDAs to prevent publicity or otherwise cover up  bad behaviour.

But like any legal document, NDAs are not inherently “good” or “bad”. They are simply a tool, regularly used by lawyers in many contexts. To understand why they have become controversial, and to contribute to the debate concerning their use and abuse, we must first consider their structure and purpose.

NDAs, which are also called Confidentiality Agreements, are simply a type of contract used to prevent someone from sharing confidential information in ways which are unacceptable or damaging to another person. What information is considered “confidential” depends very much on the situation, as well as the relationship between the person providing the information (“discloser“) and the person receiving it (“recipient“).

Use of the word “confidential” to mean “intended to be treated as private” dates from the 1770s, and has its roots in the Latin word confidentia. This means “firmly trusting,” and is itself derived from confidere, which means “to have full trust or reliance.” 

Confidential information is often shared for a business purpose or in corporate negotiations, especially when mergers or collaborations occur. For example, a restaurant chain looking for a deal with a food manufacturer may want to share recipes, or a fashion designer may seek a partnership with a well-known athlete who has sketches and drawings of a sports-inspired clothing range. Likewise, when a company hires a new employee, they may be given access to company client lists, manufacturing processes or other valuable data.

The basic anatomy of the NDA is relatively straight forward, and should always contain the following elements:

  • A clear definition of the confidential information.
    These are often heavily negotiated clauses, and it is usual to have very wordy and detailed definitions which set out explicitly what is and is not captured by the agreement. Sometimes, even the NDA itself is considered “confidential information,” which means that its terms or existence must be kept secret.The discloser will often want a broad definition of confidential information which covers not only the documents or products in question, but perhaps any derivative ideas, feedback, analysis or concepts created or inspired by the confidential information. On the other hand, the receiving party will want to keep this definition as narrow as possible.

 

  • The key obligation to keep the information secret.
    Standard wording will typically begin as follows: “In return for the discloser making confidential information available to the recipient, the recipient promises to the discloser that it shall keep the confidential information secret and confidential.”However, the obligation clause almost always contains many more rules and responsibilities. For example, the recipient may be prohibited from even indirectly sharing or hinting at the confidential information. They may also be prohibited from making copies, removing the information from a particular location, or storing it on their personal smartphone.

 

  • The ways in which the information can be used.
    The recipient will be prohibited from using or exploiting the confidential information except for the “purpose.” The purpose is the defined reason the information will be shared in the first place, for example, “to establish a collaboration in respect of the Tommy Hilfiger x Lewis Hamilton fashion line.”Disclosures of the information by the recipient to their employees and professional advisers (including lawyers and accountants) are usually permitted. In such cases, the discloser may ask that all individuals who receive the confidential information from the recipient sign a separate confidentiality agreement. While some may consider this a bit over the top, it makes sense from the discloser’s perspective that the receiver should take responsibility if its employees or advisers breach confidentiality.

 

  • What happens if the project or deal does not go ahead, and the duration of the secrecy.
    The discloser will often ask that the receiver returns or destroys the confidential information if the project or transaction fails to materialise. The parties should also establish a realistic time period for the duration of the secrecy, as it may be unreasonable to expect that the information has to remain confidential for eternity.
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Lilly Panholzer for City finds it is easy to silence women with NDAs

Seems simple enough, so what’s all the fuss about?

As mentioned above, NDAs are incredibly common and used in a wide variety of situations, ranging from complex corporate takeovers to short-term collaborations. But despite their ubiquitous nature and seemingly straightforward terms, it would be a mistake to assume that these are simple contracts. 

It is rare for the parties entering the agreement to have perfectly equal bargaining power. Due to an imbalance of money, expertise, resources or even reputation, one of the parties involved will almost always be able to exert more influence over the other. This inherent imbalance can lead to the creation of NDAs which grant – or limit – rights in an unfair or improper way.

Entrepreneurs may think that an NDA adequately protects their valuable information when it is divulged to a potential investor. But unless the definitions and obligations are sufficiently locked down, little may prevent the investor from stealing the entrepreneur’s ideas.

Similarly, some unscrupulous companies may attempt to force their employees to enter into NDAs in an attempt to prevent whistleblowing or discrimination lawsuits. Matters can become very complex when an individual who has a grievance against a powerful boss is threatened with dismissal or further harassment, unless they sign an NDA. Moreover, a new common extension of NDAs is the inclusion of a “non-disparagement” clause. This goes beyond the protection of confidential information, and requires employees to never speak negatively about their employer or former employer.

In both the United States and the United Kingdom, lawmakers and courts have begun to establish clearer boundaries about the enforceable scope of NDAs. In the court of public opinion, powerful individuals who weaponise NDAs in an attempt to stifle access to justice, impair free speech and limit creativity are already losing. Regardless of the reason for entering a NDA, you owe it to yourself to ensure the document is checked first by a lawyer, and that your rights – and remedies – are adequately protected. 

 

UK regulator to investigate social media influencers

UK regulator to investigate social media influencers

A number of celebrities and social media stars are being investigated by the Competition and Markets Authority, which says it has concerns that some influencers are failing to disclose that they are being paid for their endorsements.

In the early days of social media, Instagram and Facebook were seen as ways to connect with those closest to us, and to provide an insight into our private lives. Today however, models and celebrities can make thousands (if not hundreds of thousands) of dollars with every photo they post, simply by featuring a product in their image. This nuanced form of targeted marketing deliberately blurs the line between “advertising” and “personal” sharing, and it’s big business. According to the Financial Times, Instagram influencers earned more than $1bn (£770m) in 2017.

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Pictured here is Chiara Ferragni, Italian fashion writer, influencer, businesswoman; and the first-ever blogger to be the focus of a Harvard Business School case study. Is this post of hers an advertisement, or is she just sharing the love?

Under American law, companies who work with influencers (defined as “key individuals with significant social media followings”) to promote products, services, or brands must follow certain rules, many of which are set out in Title XVI (Commercial Practices) of the Code of Federal Regulations. In particular, when there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement, such connection must be fully disclosed. (16 C.F.R. §§ 255.0-255.5).

In practice, this means that when a company pays an individual – either in cash, or through discounts, free travel, or products – the company and influencer should enter a written contract. The contract should oblige the influencer to both “disclose its material connection to the advertiser clearly and conspicuously,” as well as “refrain from making any false or misleading statements about the products and services.”

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nearly identical post to Chiara’s above, but Victoria at inthefrow here has included #ad. Is that clear and conspicuous enough?

Here in the United Kingdom, where influencers are paid to promote, review or talk about a product on social media, the law requires that this must be made clear. The use of editorial content that promotes a product –also known as “advertorials” or “native advertising”– must clearly identify that the company has paid for the promotion.

Earlier this month, the Competition and Markets Authority (CMA) launched an investigation into whether consumers are being misled by celebrities who do not make clear that they have been paid, or otherwise rewarded, to endorse products online. In its press release, the CMA announced that it has already written to a range of celebrities and social media influencers to request information about their posts and the nature of the agreements they have in place with brands. This comes just weeks after Made in Chelsea star Louise Thompson was slapped on the wrist for failing to disclose an Instagram post as a paid-for advertisement for watchmaker Daniel Wellington.

The regulator is also asking consumers to share their experiences, and says it would “particularly benefit from hearing from people who have bought products which were endorsed on social media.”

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Notice that this post says at the top, “paid partnership with.” Is that better than #ad?

The investigation is being carried out under Part 8 of the Enterprise Act 2002 in respect of potential breaches of the Consumer Protection from Unfair Trading Regulations 2008. If an influencer ignores the CMA’s requests to comply with the law, an enforcement order in court. As for next steps, breaching such an order can lead to an unlimited fine or a jail term of up to two years. However, examples of meaningful penalties are still almost non-existent.

What do you think? Are influencer adverts easy enough to spot, without the hashtags and caveats? Interestingly, a study by Bazaarvoice and Morar Research found that nearly half of the 4,000 UK consumers polled are “fatigued” by repetitive influencer content. The majority also said they felt influencers were publishing content that was “too materialistic” and “misrepresented real life.” Notwithstanding this, the World Federation of Advertisers reported that 65% of multinational brands plan to increase their influencer investment. Perhaps there’s truth in what Chiara herself once quipped: “some loved me, some hated me—but they all followed me.”

 

Interested in this topic? Be sure to check out The Fashion Law’s Annual Brand and Influencer Report: The Good, Bad, and Highly Problematic. Featured photo above is Lena Perminova at Paris Fashion Week Autumn/Winter 2018 | Source: Getty Images

Sir Cliff Richards v BBC: is publicity the soul of justice?

Sir Cliff Richards v BBC: is publicity the soul of justice?

You don’t have to be a privacy or media lawyer to have heard of the sex abuse allegations levied against celebrities in the entertainment industry over the last few years. The investigations concerning Sir Cliff Richard, a famous British musician, included a widely-televised raid on his estate in Berkshire by South Yorkshire Police. Nearly four years after the BBC first named and shamed Sir Cliff in what is now considered to have been “sensationalist” journalism, the High Court has determined that his rights of privacy were infringed.

What makes this case so interesting is that it does not focus on defamation —that is, the publication (or voicing) of a statement which adversely affects another person’s reputation. Instead, Sir Cliff won his case on the basis that the BBC’s wrongful disclosure of his private information was an invasion of his privacy. 

In Sir Cliff Richard v BBC and South Yorkshire Policethe Court considered if suspects who have not been formally charged by police have a reasonable expectation of privacy in respect of the criminal investigation. How are an individual’s rights to privacy balanced against the freedom of expression enjoyed by media organisations? That the suspect in this case is a celebrity only complicates matters, as it calls into question the importance publishing private details in the name of public interest.

Prosecutors said in 2016 that there was not enough evidence to justify criminal charges against Mr. Richard, one of Britain’s best-known entertainers, with a career spanning some 60 years. However, the BBC stands by their reportage of the allegations, and I suspect the BBC will indeed appeal this decision.

As if written for the stage, the Justice Mann’s 120-page judgement begins with a summary of key characters and the plot as it unfolded…

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Daniel Johnson, in front of Sir Cliff’s Berkshire estate

Daniel Johnson, an investigative journalist for the BBC, received a tip-off from a police insider in June 2014 that Sir Cliff was under investigation for historic sex offences against a child. In a manner some would consider blackmail, Johnson “exploited the opportunity to get confirmation of his story about Sir Cliff, and more details if possible” from the South Yorkshire Police (SYP). In exchange for Johnson not publishing the story immediately, the SYP promised that he would be given advance notice of the search of Sir Cliff’s estate. The raid was eventually conducted in August 2014, with BBC crew waiting at the gates and helicopters hovering overhead to capture the whole ordeal.

In case you’re wondering where the Beeb’s lawyers were, the BBC held a meeting to discuss whether to name Sir Cliff and when to broadcast. In her testimony, Senior Editor Fran Unsworth explained that “the legal risk was diminishing because they had got a lot of confirmation of the facts of the story”. The principal legal concern seems to have been in respect of factual accuracy and defamation, and not privacy – as “the lawyers had not flagged that up to her as a specific risk” (para 111).

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the (not very exciting) footage shows plain-clothes police entering Sir Cliff’s estate.
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Three gloved individuals appear to be looking through what is likely Sir Cliff’s office

The legal framework of Sir Cliff’s privacy claim is enshrined in European Convention on Human Rights, brought into force in the UK by the Human Rights Act 1998.

Article 8 sets out the right to privacy: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law […] or for the protection of the rights and freedoms of others.”

Article 10 upholds the BBC’s competing rights of expression: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society [including those] for the protection of the reputation or rights of others.”

In instances where which both Article 8 and Article 10 are engaged, the Court has to perform a balancing and weighing act to ascertain which predominates. Neither article has prima facie precedence over the other.

Article 8 privacy protections arise only where an individual has a reasonable expectation of privacy. For example, if I have a conversation with my friend in a crowded coffee shop in central London, I cannot reasonably expect our discussion to be protected as truly private.

The 77 year-old singer told the Court that he suffered an “unbelievable amount of hurt and pain” after the BBC broadcast the allegations that he had sexually assaulted a boy in 1985. “It felt like torture, sustained over almost two years. It felt as though everything I had done, everything I had built and worked to achieve, was being torn down, like life itself was coming to an end.”

But one might wonder if, as a celebrity, Sir Cliff cannot claim to have an expectation of privacy. A certain amount of emphasis was given by the BBC to the fact that Sir Cliff was a public figure, and one who had promoted his Christian beliefs. Because Sir Cliff had been so vocal (ie public) about Christian morality, the BBC considered that his alleged sexual crimes against a child qualified as a matter of public interest. To that point, the Court acknowledged that in certain special circumstances, the public’s right to be informed can extend into private aspects of public figures (para 276).

However,  Rocknroll v News Group Newspapers [2013] EWHC 24 (Ch) upheld that a public figure is not, by virtue of their fame, necessarily deprived of his or her legitimate expectations of privacy. Axel Springer v Germany 39954/08 [2012] ECHR 227 also makes clear that the safeguard afforded by Article 10 to journalists is subject to the proviso that they are acting in good faith and on an accurate factual basis, and that they provide “reliable and precise” information in accordance with the ethics of journalism.

In considering the BBC’s argument that the stories about Sir Cliff had been published in the public interest, the Court disagreed, saying that reporters at the BBC “were far more impressed by the size of the story and that they had the opportunity to scoop their rivals.” (para 280) This echoes the findings in Axel Springer, in that photographs and commentary which expose a person’s private life cannot be considered to have been published in the name of public interest, if they were in fact made public only to “satisfy the curiosity of a particular readership” (Axel Springer, para 48). It is unsurprising in my view that Justice Mann “came to the clear conclusion that Sir Cliff’s privacy rights were not outweighed by the BBC’s rights to freedom of expression” (para 315).

Publicity is the very soul of justice. In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.

Jeremy Bentham. legal and social reformer (1748 – 1832)

Will this case have a chilling effect on media freedoms? Writing for The Guardian, Professor of Financial Journalism Jane Martinson argues that “as long as the media reports accurately – making it clear when a suspect is under investigation for a serious crime, rather than arrested or charged – there should be no bar to the public knowing what is going on.” However, in my view this fails to take into consideration the complexity of public perception. In his concluding remarks, Justice Mann cited “the failure of the public to keep the presumption of innocence in mind at all times” as an aggravating factor against the BBC.

Other criticisms focus on the point that this case provides an undeserved blanket of anonymity to criminals, providing a way to keep allegations against possible abusers secret. Whether or not there is a reasonable expectation of privacy in a police investigation is in actuality fact-sensitive question, and is not capable of a universal answer (para. 237). According to Police Guidance on Relationships with the Media, the names or identifying details of suspects of crime should not be released by police to the press or public, unless special circumstances apply — such as threat to life, the prevention or detection of crime, or a matter of public interest.

The inevitable stigma attached to the extremely serious allegations against Sir Cliff made the invasion of privacy even worse. When an individual’s good reputation is tarnished, even wrongfully, it may never be recoverable. This is especially harmful to celebrities, who rely so heavily on public favour. In my view, Sir Cliff Richards v BBC is not a sweeping new precedent that stifles freedom of the press: it simply restates the statutory protections afforded by the Human Rights Act within the context of already-established European and English case law.

France vs Russia in media regulator showdown

France vs Russia in media regulator showdown

France’s broadcasting regulator recently issued a warning to the French division of Russian television channel RT for falsifying facts in a programme about the use of chemical weapons in Syria. The following day, the Russian state media regulator accused French television channel France 24 of violating Russian media laws. As relations between western countries and Moscow deteriorate, France nears passing “Fake News” regulation to hit back at RT, while France 24 risks having its operating licenses revoked in Russia.

RT France’s broadcast on Syria

At least 40 people died earlier this year from exposure to chlorine and sarin gas in the Syrian town of Douma. The attack provoked global outrage and Western governments blamed the attack on Syrian President Bashar al-Assad, a Russian ally. Within days, the United States, Britain, and France led retaliatory missile strikes against Assad’s suspected chemical weapons sites.

Several days later, RT France aired a segment entitled “Simulated Attacks” during its evening news programme, which dismissed the chemical weapons attacks as staged. Furthermore, RT France dubbed over the voices of Syrian civilians with words they had not said. The portrayal of the Syrian attack in such a manner may be a violation of its contractual, and regulatory obligations under French law.

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Xenia Federova, President of RT France, reportedly has a direct line to President Putin

A Muscovite in Paris

Bolstered by the popularity of its French language website and YouTube channel, RT took the decision to open a Paris bureau after the Élysée Palace refused to provide RT reporters with press credentials to cover presidential news conferences. Previously, the state-backed broadcaster had been criticized by French President Emmanuel Macron as “behaving like deceitful propaganda” which “produced infamous counter-truths about him.” As a presidential candidate, Macron was targeted by a campaign of fake news and hacking attempts from Russia, and he is reported to have taken the affront personally.

I have decided that we are going to evolve our legal system to protect our democracy from fake news. The freedom of the press is not a special freedom, it is the highest expression of freedom. If we want to protect liberal democracies, we have to be strong and have clear rules.

Emmanuel Macron

Nevertheless, when speaking about the channel prior to its launch, RT France’s president Xenia Fedorova commented: “France is a country with a storied legacy of respect for the freedom of expression and embrace of new ideas. RT France will enable the audiences to explore this diversity and hear the voices rarely found in the mainstream media.”

Conseil supérieur de l’audiovisuel (Audiovisual Council, or CSA) has authority under the French Freedom of Communication Act or “Léotard Act” (loi n° 86-1067) to regulate television programming in France. RT only recently entered the French market in January 2018, and like all broadcasters in the country, operates under a contract with the CSA. In its official notice, CSA stated that the Russian outlet violated its obligations under the contract, namely:

  • article 2-3-1 —journalists, presenters, hosts or programme directors will ensure that they observe an honest presentation of questions relating to controversies and disputed issues
  • article 2-3-6 —The publisher will demonstrate precision in the presentation and treatment of news. It will ensure the balance between the context in which images were taken and the subject that they show [and] cannot distort the initial meaning of the images or words collected, nor mislead the viewer.

CSA went on to claim RT France displayed “failures of honesty, rigor of information, and diversity of points of view.” Furthermore, “there was a marked imbalance in the analysis, which, on a topic as sensitive as this, did not lay out the different points of view.”

Although RT France acknowledged a mistake had been made in the French translation of comments from a Syrian witness, it claimed that this was a “purely technical error” which had been corrected. Rebutting CSA’s complaint, Xenia Fedorova stated, “RT France covers all subjects, including the Syrian conflict, in a totally balanced manner, by giving all sides a chance to comment.”

 

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Not amused: standing alongside Putin, Macron stated at this 2017 conference that “Russia Today did not behave as media organisations and journalists, but as agencies of influence and propaganda, lying propaganda – no more, no less.”

 

A Parisien in Moscow

France 24 broadcasts in English on Russian satellite packages, and has about 1,348,000 weekly viewers. In a statement, Russia’s Federal Service for Supervision of Communications, Information Technology and Mass Media —commonly known as Roskomnadzor identified a violation of media law by France 24 in Russia.

A Russian media source reports that “during an analysis of the licensing agreements in watchdog Roskomnadzor’s possession, it has been established that the editorial activity of France 24 is under the control of a foreign legal entity.”

This would violate Article 19.1 of the Russian Mass Media Law, which was amended in 2016 to restrict foreign ownership of media companies. The law bans foreigners from holding more than a 20 per cent stake in Russian media outlets, effectively forcing them to be controlled by Russian legal entities.

RT’s chief editor Margarita Simonyan said the Roszkomnadzor move was a retaliatory action for CSA’s warning. Speaking to state news agency RIA Novosti, Simonyan explained, “Russia is a big country. Unlike many, we can afford ourselves the luxury of tit-for-tat measures.”

RT is widely acknowledged as the Russian government’s main weapon in an intensifying information war with the West. In respect of media ownership, it is no secret that the Kremlin uses direct ownership to influence publications and the airwaves. Each Russian TV channel is fully or partially owned by the state except for one, NTV. Even so, NTV is owned by Gazprom, the natural gas giant in which the government has a controlling stake.

Because of the constrained political environment, Russian media are unable to resist the pressure from the state and succumbed to the well-known propaganda and conformism pattern according to which they’ve been operating in the Soviet times. The period of the relative freedom of press ended with Vladimir Putin ascension to power, which was too short for the Russian media to become a strong democratic institution.

Index on Censorship

In the wake of alleged Russian interference with American elections and the Brexit referendum, lawmakers now face the challenge of regulating a defiant type of expression. Is this propaganda masquerading as journalism, which should be curtailed or even censored ? Or is RT simply a voice from a different perspective? Should viewers be trusted to make the best decision as the information wars carry on?

In France at least, the road to regulation seems to be preferred. After fierce debate, the French Parliament approved draft legislation to allow courts to determine whether articles published within three months of elections are credible, or should be taken down.

Social network, media company, host provider, neutral intermediary… what’s in a name for YouTube?

Social network, media company, host provider, neutral intermediary… what’s in a name for YouTube?

Media companies who call themselves social networks will have to recognize that they, too, have to take on responsibility for the content with which they earn their millions.

-— Markus Breitenecker, CEO of Puls4

Who is to blame, if someone records TV programmes and illegally uploads them to YouTube: YouTube, or the individual? According to the Commercial Court of Vienna, YouTube is jointly responsible for copyright breaches from user-uploaded content. Is this einer Entscheidung, die das Internet revolutionieren könnte – a decision that could revolutionize the Internet?

To date, the unanimous opinion of European case law supports the position that YouTube is only a platform, an intermediary, a service provider, a neutral host, and so on – and therefore could not bear the responsibility for stolen content. That’s no longer true, says the Handelsgericht Wien (Vienna’s Commercial Court).

In its judgement of 6 June, the Court handed Austrian TV broadcaster Puls4 a key victory in its four-year legal battle with Google-owned YouTube. In 2014, Puls4 had sued YouTube for allowing Puls4’s stolen content to appear on the YouTube platform. YouTube responded by asserting the Host Provider Privilege set out in Article 14 of the E-Commerce Directive 2000/31/EC, which in certain situations shields host providers from being held responsible for the actions of its users.

The Americans have a similar provision in the Online Copyright Infringement Liability Limitation Act (OCILLA), which forms part of the Digital Millennium Copyright Act. The OCILLA creates a conditional “safe harbor” for online service providers by shielding them for their own acts of direct copyright infringement, as well as from potential secondary liability for the infringing acts of others. In exempting internet actors from copyright infringement liability in certain scenarios,  both Article 14 and the Safe Harbor rule aim to balance the competing interests of the copyright holders, and those who use the content online.

Where YouTube is simply a host provider, it is the individual who uploaded the video in the first instance who is to blame for the theft of copyrighted material. This time, the Court disagreed with YouTube’s argument, and has found finding the media giant to be jointly responsible for the copyright infringement.

So, why should we care about the Puls4 case? Although Austrian case law is not binding for other European Union member states, the Commercial Court’s judgment sets a precedent for denying Host Provider Privilege to YouTube. This may encourage similar decisions in the future which are based on the same line of argument.

Speaking to German newspaper Der Standard, Puls4’s CEO Markus Breitenecker explained that YouTube had effectively abandoned its neutral intermediary position and assumed an active role, which provided it with a knowledge of or control over certain data. In European legislative parlance, this is known as being a false hosting provider or false intermediary.

For years, many of us have assumed that YouTube is just a inanimate platform to which users upload videos. This case underscores that YouTube can no longer “play the role of a neutral intermediary” because of its “links, mechanisms for sorting and filtering, in particular the generation of lists of particular categories, its analysis of users’ browsing habits and its tailor-made suggestions of content.”

Puls4 and YouTube have until early July to petition the court, before it issues its binding ruling. In a statement to The Local Austria, YouTube said it was studying the ruling and “holding all our options open, including appealing” the decision.  In the meanwhile however, YouTube noted that it takes protecting copyrighted work very seriously.

If the preliminary decision is upheld, YouTube must perform a content check upon upload, instead of simply removing copyright infringing content upon notification. In respect of this, the Viennese court stated that “YouTube must in future — through advance controls — ensure that no content that infringes copyright is uploaded.” It is therefore rather timely that YouTube began beta testing a feature called Copyright Match last month, a tool which allows users to scan the platform to locate full re-uploads of their original videos on other users’ YouTube channels.

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some Puls4 content is still available on YouTube (at least, here in the UK).

The European Parliament seems to think the arguments about false hosting providers is best left to the courts to decide. Despite the E-Commerce Directive being more than 15 years old, there is no pressing need for a reform. In a recent report on the matter,  the European Parliament’s Committee on the Internal Market and Consumer Protection stated that while false hosting providers may not have been envisaged at the time of the adoption of the E-Commerce Directive in 2000, “the delineation between passive service providers caught by Article 14 and active role providers remains an issue for the court.”

 

 

Is posting rap lyrics on Instagram a #HateCrime?

Is posting rap lyrics on Instagram a #HateCrime?

A teenager who posted rap lyrics on Instagram has been convicted of “sending a grossly offensive message over a communications network,” which was uplifted to a hate crime. She has received a community order (probation) and must pay costs of £500 ($700 USD) together with a £85 victim surcharge.

Chelsea Russell, a 19 year-old woman from Liverpool, England posted the lyrics from American rapper Snap Dogg’s song, “I’m Trippin” (NSFW) onto her Instagram account profile, or “bio.” The lyrics in question were ‘kill a snitch n—-a and rob a rich n—-a.’

Russell claimed she posted the lyrics as a “tribute” following the death of a 13-year-old in a road traffic accident. A screen shot of her profile was sent anonymously to Merseyside Police’s Hate Crime Unit, and Russell was brought in for questioning. She attempted to claim that her Instagram was not public as only Instagram members could access it, but the Crown proved in court that anyone could see Russell’s bio.

Russell’s defence lawyer, Carole Clark, claimed that the meaning of the ‘n’ word has changed over time, and has been popularised by hugely successful and mainstream artists including Jay-Z, Eminem and Kanye West. In particular, “Jay-Z used these words in front of thousands of people at the Glastonbury festival.” Clark also pointed out that the spelling of the word ended in an “-a,” rather than the arguably more pejorative “-er.” Nevertheless, District Judge Jack McGarva found Russell guilty and added, “there is no place in civil society for language like that.”

Under section 127 of the Communications Act 2003, it is an offence to send a message that is grossly offensive by means of a public electronic communications network. Section 145 of the Criminal Justice Act 2003 provides for an increased sentence for aggravation related to race.

Under the Crown Prosecution Service’s guidelines on prosecuting cases involving communications sent via social media, before heading to trial, there must be sufficient evidence that the communication in question is more than:

  • Offensive, shocking or disturbing; or
  • Satire, parody, iconoclastic or rude; or
  • The expression of unpopular or unfashionable opinion, banter or humour, even if distasteful to some or painful to those subjected to it.
“Freedom of expression is applicable not only to ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State, or any sector of the population.”
—European Court of Human Rights decision in Handyside v United Kingdom (1976)
It may be tempting to see this verdict as an overreach by Crown Prosecution Services, or “political correctness” gone mad. However, the lyrics Russell chose to share don’t simply drop the N-bomb. These lyrics may be understood as encouraging killing and robbing of a particular type of person — ie, black men.

The distinction between “offensive” and “grossly offensive” is an important one and not easily made. Context and circumstances are highly relevant.  The legal test for “grossly offensive” was stated by the House of Lords in Director of Public Prosecutions v Collins [2006] UKHL 40 to be whether the message would cause gross offence to those to whom it relates – in that case ethnic minorities – who may, but need not be the recipients.

Accordingly, there is a high threshold at the evidential stage. The Crown must also consider an author’s rights of expression enshrined in the European Convention of Human Rights. Extreme racist speech is outside the protection of Article 10 because of its potential to undermine public order and the rights of the targeted minority (Kuhnen v Germany 56 RR 205).

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Russell’s case brings to mind the similar legal battle of Paul Chambers. Frustrated that his travel plans had been disrupted by bad weather, in 2010 he tweeted about blowing up an airport and was subsequently arrested. His conviction attracted public outroar and became a cause célèbre for freedom of speech activists before being overturned on appeal (Chambers v Director of Public Prosecutions [2012] EWHC 2157).

However, there are considerable differences of fact between Russell’s Instagram bio and Chambers’s tweet. Chambers’s tweet mentioned the weather delay — the all important context — and his “threat” lacked menace, because it did not create fear or apprehension in those who read it. Russell may have been quoting a song lyric, but isolated from any other information, her words could reasonably be (mis)interpreted as a genuine threat.

Unfortunately, only limited information is available on Russell’s case, so it is not possible to fully analyse how the Crown determined that it was indeed in the public interest to pursue prosecution. I would assume however that there were some extenuating circumstances. Perhaps Russell had a history of offensive behaviour, or maybe the prosecution proved that the lyrics were intended to cause malicious upset to a grieving family?

While the legal principles and their application may be uncertain in situations such as these, this case underscores the need for a cautious approach to social media. At times, even though I recognise intellectually that my Twitter and Instagram feeds are “public,” the fact that I share personal insights and photos makes the platform seem perhaps more intimate and secure than it really is. Social media is like any other “community,” for which certain rules of decorum do apply.

Project Gutenberg: the German edition?

Project Gutenberg: the German edition?

Project Gutenberg is an American website which digitises and archives cultural works to encourage the creation and distribution of eBooks. It currently offers 56,000 free books for download, including classics such as Pride and Prejudice, Heart of Darkness, Frankenstein, A Tale of Two Cities, Moby Dick, and Jane Eyre. Many of these titles are available because their copyright protections have expired in the United  States, and are therefore in the public domain. The website is a volunteer effort which relies mostly on donations from the public.

What does it mean if a book is in “the public domain”? This term means that something (a novel, artwork, photograph or other creation) is not protected by intellectual property law, including copyright, trade mark, or patent. Accordingly, the general public owns the work, and not the individual creator. Permission is therefore not required to use the creation.

Despite the noble cause of making literature available at no or low cost to the masses, a recent ruling against Project Gutenberg has resulted in the website being geo-blocked for all visitors attempting to access the site from Germany. The claimants in the case are the copyright owners of 18 German language books, written by three authors, each of whom died in the 1950s.

In Germany, the term of copyright protection for literary works is “life plus 70 years,” as it is in the United States. However, the United States applies different rules for works published before 1978. For works published before 1978, the maximum copyright duration is 95 years from the date of publication. In the United States, the 18 books in question are all in the public domain. For the avoidance of doubt, Project Gutenberg runs on servers at the University of North Carolina at Chapel Hill, and is classified as a non-profit charity organisation under American law.

Sharing and accessing the written word has changed since the 16th century! Engraving showing a publisher’s printing process, from the Met Museum.

The copyright holders of these works notified Project Gutenberg of their alleged infringement back in 2015. In early February 2018, the District Court of Frankfurt am Main approved the claimant’s “cease and desist” request to remove and block access to the 18 works in question. The claimants also requested administrative fines, damages, and information in respect of how many times each work was accessed from the website.

 

Our eBooks may be freely used in the United States because most are not protected by U.S. copyright law, usually because their copyrights have expired. They may not be free of copyright in other countries. Readers outside of the United States must check the copyright terms of their countries before downloading or redistributing our eBooks.

The Court reasoned that it was worth taking into account the fact that the works in dispute are in the public domain in the United States. This however “does not justify the public access provided in Germany, without regard for the fact that the works are still protected by copyright in Germany.” The simple message on the front page (cited above) may not be sufficient to draw users’ attention to the fact that what they are downloading may be in contravention of national copyright laws.

The judgement also cited Project Gutenberg’s own T&Cs in its decision, noting that the website considers its mission to be “making copies of literary works available to everyone, everywhere.” While this broad statement may seem innocuous and idealistic, the court used this to support its findings that Project Gutenberg could not reasonably limit itself as an America-only website.

A key point in this matter is the question of jurisdiction. While Project Gutenberg is based in the USA, the claimants successfully argued that as the works were in German and parts of the website itself had been translated into German, the website was indeed “targeted at Germans.” Furthermore, even if the website had not been intended for German audiences, that the infringement occured in Germany is sufficient grounds to bring the claim in German court.

While Project Gutenberg was only required to remove the 18 works listed in the lawsuit, the organisation has blocked its entire website in Germany to protect itself from any further potential lawsuits on similar grounds (see the Q&A here). Project Gutenberg is planning to appeal the decision.

This first published on the 1709 Copyright Blog. You can also read more at the IPKat here.