NDAs and the Sound of Silence

October 28, 2018October 29, 2018by kelsey farishLeave a Comment

“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.

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.

intellectual property

“The Wife” and rights of attribution: an intellectual property perspective

October 21, 2018November 4, 2018by kelsey farishLeave a Comment

* * * CONTAINS SPOILERS * * *

In The Wife, Glenn Close plays Joan Castleman, the steadfast and amenable wife of celebrated novelist Joseph Castleman. But when Joe wins the Nobel Prize in Literature, things start to unravel between them. Is there more to Joan’s support than meets the eye? In this post, I consider the merits of a hypothetical intellectual property dispute between the couple, and an often-neglected right in particular.

Related image — *The Wife* is a 2018 film from Swedish director Björn Runge, starring Glenn Close and Jonathan Pryce. The script by Jane Anderson is based on Meg Wolitzer’s novel of the same name.

We first meet Joan Castleman – The Wife – the evening before her husband, celebrated novelist Joseph Castleman, wins the Nobel Prize in Literature. Praise and adoration for Joe’s prolific and highly acclaimed body of work are subsequently lavished upon him, while Joan and their two children watch on. But when the family arrives in Stockholm for the award ceremony, we begin to realise that Joe Castleman’s success rests on secrets and sacrifices.

Through the use of flashbacks to the 1950s and 1960s, we learn that Joan was a promising writer. While at college, her then-professor Joe Castleman encourages her writing, and the two eventually become romantically involved. But Joe is not content with merely lecturing about novels: he seeks to prove himself in the literary world as an author himself.

During a heated argument about his poorly written first attempt at a novel, Joe threatens to leave Joan. Desperate to keep him happy and aware of his deep desire for publication, Joan offers to “fix” Joe’s draft. Her amended version of The Walnut is published under Joe’s name, and becomes a literary sensation. For the next forty years, Joan continues to write as Joe gets all of the credit.

In Stockholm, Joan revisits *The Walnut* and considers the personal sacrifices she’s made in her marriage.

What makes The Wife so delicious to watch is the way in which Joan’s character transforms and gains a sense of agency. Having grown up in the sexist environs of mid-century America, Joan at first appears to have dutifully accepted her fate as an ignored, pushed-aside woman whose only roles have been “wife” and “mother.” The announcement of “Joe’s” Nobel Prize in 1996 serves as a catalyst, and through a series of small events Joan eventually gathers momentum and power – like a storm – to unleash her torrential anger. The Roger Ebert review perhaps puts it best, noting that Glenn Close’s Joan “undergoes a quietly powerful transformation from self-deprecating spouse to fiery force of nature.” The film ends on an uncertain yet quietly optimistic note, and we get the sense that Joan will reveal the truth – not only to her family, but to the public – in due course.

As I left the cinema, I found myself ruminating over Joan’s legal position. As the author of the novels, would she stand a chance at winning a copyright lawsuit?

Copyright arises automatically in original works of authorship fixed in a tangible medium of expression. This means that from the moment an author expresses something unique in a tangible way – for example, by writing it down using a typewriter – the author obtains an intellectual property right in the work.

Image result for annie starke the wife — A young Joan (played by Glenn Close’s daughter Annie Starke) supports her husband Joe in his literary ambitions (played by Henry Lloyd).

It’s pretty clear from the story that Joe did infringe Joan’s intellectual property. Unfortunately for Joan, even if she wanted to bring some sort of copyright lawsuit against her husband Joe, is is doubtful that she would win. Whereas a “negative defense” seeks to factually disprove an element of the plaintiff’s case, an “affirmative defense” defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct.

Put simply, in my imagined Castleman copyright lawsuit scenario, Joe’s lawyers could admit that Joe stole Joan’s work, but argue that he’s innocent in the eyes of the law. Here are three ways in which this could be possible:

Firstly, a lawsuit for copyright infringement must typically be filed within the applicable limitation period. The US Copyright Act requires a civil lawsuit to be filed within three years after the infringing action occurred. As such, a copyright lawsuit concerning Joan’s older novels would be practically impossible.
Secondly, Joan’s conduct may evidence acquiescence, or consent. This means that Joan knowingly watched Joe infringe her IPRs, but failed to raise any objection to the infringement at the time. In some instances, silence or inaction can be a form of “inferred consent.”
Thirdly, if Joe can prove that he infringed Joan’s copyright believing in good faith that he was entitled to do so, estoppel could apply. “Estoppel” as a term might not known by many non-lawyers, but the fundamentals are rather straightforward: a court may prevent (estop) a person from making assertions or from going back on her word, thereby preventing unconscionable conduct.

Image result for the wife film — While working on a definitive biography of Joe Castleman, author Nathaniel Bone (played by Christian Slater) discovers some striking discrepancies in Joe’s writing style.

Nevertheless, Joan’s cause is not a hopeless one. As evidenced by Joan’s emotional attachment and identity tied to her novels, literary and artistic work often mean much more than just the economic value they can generate. The creations can be very special to the person who first produced them, and often speak to immense emotional and intellectual effort. As a result, copyright works can be protected in ways that are different to traditional forms of property.

Moral rights are a type of non-economic rights which are considered personal to an author, in that they are inalienable and fundamental to the individual. Even if an author assigns the intellectual property rights to her novels to a third party, she will still maintain the moral rights to the work.

Chief among the moral rights is the right of attribution, which is the right of an author to be credited as the author of a work in question. Moral rights have a long history in international copyright law, and are set out in the Berne Convention for the Protection of Literary and Artistic Works, which governs international copyright law:

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to his honor or reputation.

Moral rights are well established in European legal systems, especially in French and German law. By contrast, moral rights in the United States have been somewhat neglected, as American law traditionally puts more significance on protecting economic interests. This has been changing in recent years however. In 2017, the US Copyright Office commenced a study to review how existing American law, including provisions found in Title 17 of the U.S. Code and other federal and state laws, protects the moral rights of attribution and integrity.

The laws which govern intellectual property rights have been forced to change in the face of challenges posed by the internet, disruptive technologies and an increasingly mobile population. Might moral rights be next on the agenda for American copyright reform? For Joan Castleman at least – whose conflict focuses almost entirely upon her identity and recognition as a writer – it’s easy to see why moral rights could be so important.

Brexit

Brexit: Questions and Concerns

October 18, 2018October 18, 2018by kelsey farishLeave a Comment

Part Two

I’ve attempted to set out the very basics of Brexit in a (currently) three-part guide designed for those who may not be aware of some of the history and context. In Part One of my series, I set out the basics of what the EU is, and why the United Kingdom is set to leave. This Part Two explores some (but not all!) of the main issues and concerns that have complicated or otherwise stalled the negotiations. Part Three will explain why I think Americans should care about Brexit.

There are many issues that have complicated or otherwise stalled the negotiations. Just some of the big concerns and questions are set out below.

The border between Northern Ireland
and the Republic of Ireland.

Despite sharing the island of Ireland, Northern Ireland is part of the United Kingdom, whereas the Republic of Ireland has been an independent country since 1937.

As a relative newcomer to the UK, I didn’t grow up learning about – of being impacted by – the Northern Ireland conflict. Also known as “The Troubles,” the violence over the constitutional status of Northern Ireland spanned thirty years (1968 – 1998). But despite not knowing all of the details myself, I know enough to appreciate that the open border that was negotiated as part of the Good Friday Agreement (GFA) is really important.

As I explained in Part One of my Brexit series, the are no physical borders between EU countries. But the reason there is an open (soft) border between Northern Ireland and the Republic of Ireland isn’t just because of EU rules: it’s been open since 1998 because that’s what was agreed in ending decades of violence in Ireland.

Image result for irish border brexit — The Republic of Ireland is shown in yellow, as is mainland Europe. These countries are in the European Union. The United Kingdom, which comprises *Northern Ireland,* Scotland, Wales and England, is shown in light blue.

Brexit will effectively make the border between the Republic and Northern Ireland an “external EU border.” What complicates things is that the Irish government, the UK government, and EU representatives have all stated that they do not wish for a hard border, due to its sensitive nature. To avoid major chaos ahead of the March withdrawal, The EU proposed a “backstop agreement” that would put Northern Ireland under a bespoke range of EU rules in order to avoid the need for border checks.

But this backstop has been opposed by the British government as it would essentially mean different rules apply to different parts of the United Kingdom. This has reignited the question of allowing Northern Ireland to leave the United Kingdom to reunite with the Republic of Ireland.

Northern Ireland as a whole voted 56% in favor of remaining in the EU. Recent polling suggests that 52% of voters in Northern Ireland said they would support a united Ireland outside Britain if it leaves the EU.

Scottish Independence

It is not only Northern Ireland which poses a serious long-term threat to the UK’s territorial and constitutional unity because of Brexit. Scotland – which unified with England in 1707 after centuries of warfare between the two countries – is also toying with the idea of leaving the UK.

Scotland was the jurisdiction most in favor of remaining within the EU, with 62% voting remain. However, it’s important to remember that only two years earlier, Scotland had a “leave or remain?” referendum of its own – but in respect to the United Kingdom. In 2014, 45% of Scots voted to leave the United Kingdom, while 55% wanted to remain. But now that the United Kingdom is leaving the European Union, some argue that Scotland must go its own way and become an independent country that could – at some point – rejoin the European Union on its own.

Image result for scotland independence — The Flag of Scotland – called Saint Andrew’s Cross – has a blue background with a white diagonal cross. Here, the symbol of the EU – twelve gold stars – have been added to some of the flags as a symbol of Scottish-EU solidarity.

Financial Services

Financial services are a key industry in the United Kingdom, and the degree of inter-linkage between London and the EU economies is both economically substantial and intricate in terms of the legislative interface. The “passporting” system allow banks and finance companies to sell their services across the 28-member bloc with a local license, rather than getting a new license to operate in each member country where it does business. Put simply, banks established the UK can buy, sell and trade financial products across the EU with relative ease.

But Theresa May has already ruled out passporting after Brexit. Some of the world’s biggest banks have begun moving jobs out of London, and many question London’s future as a global financial center. Michel Barnier, the EU’s chief Brexit negotiator, has explained that Theresa May’s proposals for a new financial services regulatory framework “would violate the principle that access rights to the bloc’s financial services market are a gift from Brussels that can be freely withdrawn.”

Commodities and Critical Supplies from the Continent

If Brexit ends up creating regulatory and tariff barriers between the UK and the EU, customs checks and delays could severely hamper the import and export of commodities and critical supplies. Increased tariff and trade complications could disrupt supply chains and drive up operating costs, and the devaluation of the pound leads to higher prices.

Image result for dover brexit queue — Dover is the nearest English port to France, at just 34 kilometres (21 mi) away. Port chiefs said a two-minute delay at Dover would lead to 17-mile tailbacks.

The UK imports 30% of its food from the EU, most of which is fruit, veg, and meat. Likewise, as explained by The Guardian, many of the pharmaceutical factories that supply the UK are elsewhere in Europe. Getting medicines to pharmacies and hospitals is a complex process, and if European supply chains are disrupted, there could be shortages. Ministers have therefore drawn up plans to send in the Army to deliver food, medicines and fuel in the event of shortages if Britain crashes out of the EU without a deal.

Expats and the End to Freedom of Movement

For both non-UK Europeans living in the UK and UK citizens living elsewhere in Europe, Brexit means uncertainty about residence, pensions, healthcare, and much more. Will these expats need to apply for visas or citizenship? If so, by when? While the EU has published a guide “to help EU citizens make their own decisions about their current situation in the UK in light of Brexit,” many questions still remain.

Currently, 3 million EU citizens live in the UK and 1 million Brits live in other EU countries. These expats stand to lose all automatic rights and protections overnight, which is a deeply upsetting prospect for many. For example, British expats enjoying their retirement on the Continent could stop receiving UK private pension and insurance payments as UK providers lose the authority to transact within the EU. There is also no official word on the process that EU citizens will need to go through here in the UK, to secure or even apply for permanent residency.

The National Health Service

The National Health Service is revered as a national treasure. Much like a child in a custody battle between divorcing parents, the NHS has been used by both sides of the Brexit debate.

On the side of leaving the EU, Vote Leave claimed that the UK sends £350m ($460m) each week to the EU. Online and at other Vote Leave events, the slogan explicitly read “Let’s give our NHS the £350 million the EU takes every week.”

Those who support(ed) remaining in the EU pointed to the fact that the NHS relies on EU staff. Although a majority of NHS staff in England are British, a substantial minority are not. Around 63,000 out of 1.2 million staff are from elsewhere in the EU, with the most represented nationalities being Irish, Polish, and Portuguese.

Related image

Elisabetta Zanon, director of the NHS European Office, has laid several other key potential Brexit implications for the NHS over at Kings College London’s UK and EU website. One that stuck out to me in particular is that UK health organisations are one of the largest beneficiaries of EU health research funds in Europe, with €760 million ($875 million) in EU funding having supported research in the UK between 2007 and 2013. The NHS has benefited from this funding, as well as from EU collaboration in clinical research more generally. What is the scope for continued European investment for medical research?

Screenshot 2018-10-17 at 9.47.34 PM — Jaguar F Type convertible 😍 Photo by Alex Howe

Manufacturing and Motorsport

Petrol heads around the world know that the Britain is famous for its premium and sports car heritage, and is home to Aston Martin, Bentley, Daimler, Jaguar, Land Rover, Lotus, McLaren, MG, Mini, and Rolls-Royce… to name a few.

But might the auto industry go “extinct” because of Brexit? Land Rover recently announced plans to move some production to Slovakia and Honda has admitted a no-deal Brexit would cost millions of pounds. Additionally, EU regulations require that at least 55% of automotive parts must come from within the EU, which could mean suppliers in the UK are abandoned.

Stranded on an Island

When the UK leaves the EU, it will also leave the single aviation market, which is the regulatory basis for flights in and out of the country at the moment. This impacts not just flights to the EU itself, but to other countries with which the EU has a deal, including the United States. Accordingly, planes leaving the UK could be prevented from using Irish airspace, as the UK’s post-Brexit default trade status under the World Trade Organization does not include commercial travel rules.

Heathrow airport has raised nearly £1 billion ($1.3 billion) in debt to keep it going through a “worst-case scenario” following a hard Brexit. The operator the airport itself has also announced it will move its international HQ from the UK to Amsterdam as a result of Britain leaving the EU. Although a spokesman for British Airway’s parent company stated “we are confident that a comprehensive air transport agreement between the EU and UK will be reached,” Ireland-based RyanAir “believes that the risk of a hard (no-deal) Brexit is being underestimated.” Speaking of airports, there are also growing concerns about those infamous passport queues at Heathrow getting even worse.

Politics and Personalities

Of course, in addition to policy debates, there are also political clashes that may stall or otherwise derail Brexit. These include infighting amongst different factions of the Prime Minister’s Conservative Party, which may threaten Theresa May’s continued leadership.

In a long-read profile of the Prime Minister for the New Yorker, it was posited that Theresa May faces an impossible situation, with populist demands on one side, practical realities on the other and no way to truly reconcile both. “May’s best hope has been to contain the damage on all sides.”

Unfortunately, the British government remains almost exclusively focused on Brexit. “The country — as an administrative entity — has virtually stopped working,” explained Businessweek.

There are also substantial questions about the legitimacy of the referendum itself. The vote was not legally binding, and potential Russian interference with the Vote Leave campaign has also come to light. People’s Vote, a campaign group calling for a public vote on the final Brexit deal, is also gaining in popularity.

For now though, Brexit does appear to be plowing forward, if a bit unsteadily. But it would be unwise to forget that considerable challenges – only a few of which have been mentioned above – still lie ahead.

Coming soon: Why Should Americans Care About Brexit?

Brexit

Brexit: An Introduction for Americans

October 18, 2018October 18, 2018by kelsey farishLeave a Comment

Part One

I’ve attempted to set out the very basics of Brexit in a (currently) three-part guide, made for those who may not be aware of some of the history and context. In particular, this has been written with Americans in mind. Why? Because as a UK resident, I know Brexit will impact me. But as an American myself, I think Americans should know (and hopefully care) about Brexit, too.

In Part Two of my series, I set out some of the main issues and concerns that have complicated or otherwise stalled the negotiations. Part Three will explain why I think Americans should care about Brexit.

What is the European Union?

What we now call the European Union was first a coal and steel partnership between France, Germany, Italy, Belgium, the Netherlands, and Luxembourg after World War Two. The philosophical foundation centered on the idea that trade and economic interdependence lessens the risk of armed conflict.

What began as a purely economic trading bloc has developed into a unique economic and political partnership involving 28 European countries. Importantly, countries of the European Union (known as Member States) benefit from access to the Single Market, which allows goods, services, labor (workers) and capital to move freely between countries without tariffs or borders.

So, is the European Union like America, and the member countries are like “States” ?

On the surface, perhaps. You can travel across national borders in the same way you can travel across state lines. Likewise, thanks to the single market, commodities and services can flow between countries, without being subject to tariffs or other trade frictions. Within the 19 countries of the Eurozone, you can even use the same currency. But remember: the EU is a political system, not a country.

As a political science student in university, I had Max Weber’s definition of a nation state drummed into my head: “a human community that (successfully) claims the monopoly on the legitimate use of force within a certain geographical territory.” The EU does not have the power of coercion through police and security forces: this power still belongs to the individual member states. The EU relies on member states to enforce laws and policies, and discretion is permitted in certain areas, including national security.

Screenshot 2018-10-12 at 6.37.18 PM — This map (via BBC) shows the current Member States, and their date of joining the EU. Croatia joined most recently, in 2013.

What are the branches of EU government,
and who is in charge?

The EU doesn’t have a President or Prime Minister in the traditional sense. Rather, four institutions work together to run the EU and handle policies ranging from agriculture, environment, health, trade, foreign relations, security, justice and migration.

European Council – represents the governments of the individual member countries. The Council sets the EU’s overall political direction, but has no powers to pass laws. The President of the Council is currently Donald Tusk. He is the principal representative of the EU on the world stage.
The Commission – also known as the “guardian of the treaties,” the Commission promotes the interests of the EU as a whole.
Parliament – represents the EU’s 510 citizens and is directly elected by them.
European Court of Justice – the ECJ is the supreme court of the European Union in matters of European Union law. It is composed of one judge per member state – currently 28 – although it normally hears cases in panels of three, five or 15

Although there is no “Capital of Europe,” Brussels in Belgium is home to three of the four key institutions (the ECJ is based in Luxembourg) and is somewhat of an “informal” capital.

Why is the United Kingdom leaving the EU?

A referendum was held on Thursday 23 June, 2016, to decide whether the UK should leave or remain in the European Union. Leave won by 51.9% to Remain’s 48.1% (see a detailed breakdown of the results here). More than 30 million people voted, representing nearly 72% of eligible voters and 46% of the UK population.

To put this figure in perspective, In the United States, roughly 55% of eligible voters and 42% of the population voted in the 2016 Presidential elections.

Was the Brexit referendum question flawed in its design?

Some have lamented the fact that EU citizens living the UK were excluded from voting, as were 16 and 17 year olds. Also worth noting is that England and Wales voted in favor of Brexit, whereas Scotland and Northern Ireland backed staying in the EU. This has led to further questions on democratic legitimacy and the possibility of the Union breaking apart, as discussed below.

Whose idea was this?

The United Kingdom, generally speaking, has had a love-hate relationship with the ideas of a “united Europe” and an “ever closer union” for decades. However, relations have deteriorated considerably over the last ten years. The 2008 global financial crisis, the subsequent Eurozone crisis, an influx of immigrants and refugees, terrorism, and social malaise brought concerns about the relative merits of EU membership into the mainstream political debate.

Perhaps no other political movement was as vocal about the UK leaving the EU than The UK Independence Party, a right-wing Eurosceptic populist party. Colloquially known as UKIP (“you-kip”), the party was led at the time by Nigel Farage – whom you may have seen campaigning next to Donald Trump or appearing on Fox News as a commentator.

To quell infighting within his Conservative Party, and to satisfy voters contemplating leaving the Conservative Party for UKIP over the EU question, Prime Minister David Cameron decided to hold the referendum. He supported the UK remaining in the EU, and although he didn’t have to, he resigned the morning of the referendum announcement.

Interestingly, despite campaigning for Remain and stating that “the UK has made a mistake in leaving the European Union,” Cameron insists that “calling a referendum was the right thing to do.”

After the Referendum Vote,
was the UK declared free from EU rule?

Put simply, no. In order to leave the EU, there are a few legal procedures that must be followed (including the triggering of Article 50, addressed below). Furthermore, when the UK leaves the EU, it will also leave the framework of rules and regulations that govern an incredibly wide spectrum of policy areas. The UK still needs to figure out what sort of relationship it wants to have with its neighbors.

Practically speaking, it really is like a divorce. If normally can’t just sign the paperwork one day and be done with the other spouse forever. You need time to discuss what happens with your house, cars, and other assets, as well as your liabilities like the mortgage, credit card debt and little Henry’s school tuition. You also need to decide what your future relationship will look like.

Why is there a deadline of March 2019?

After the Referendum Vote and Cameron’s resignation, fellow Conservative Party politician Theresa May became Prime Minister. In March 2017 – nine months (and quite a few legal battles) after the vote – her government “triggered Article 50” of the Treaty of Lisbon. Although Article 50 is only five paragraphs long, this now-famous provision sets out (inter alia) that:

any EU country may decide to quit the EU;
the exiting country must negotiate its withdrawal with the EU;
there are two years to reach an agreement (unless everyone agrees to extend it) and;
the exiting country cannot take part in EU internal discussions about its departure.

The date of 29 March 2019 is therefore important, because it marks two years from the date of the UK’s invoking of Article 50 – the deadline mentioned at paragraph 3.

So what’s happening now?

This is certainly a busy time for politicians, lawyers, lobbyists and concerned citizens. Negotiations about future relations between the UK and the EU are taking place now, in an attempt to reach an agreement as soon as possible.

In July 2018, Theresa May unveiled her cabinet’s official view of a proposed Brexit deal – known as the Chequers Plan. But European Council President Donald Tusk rejected the Chequers plan at an EU summit in Salzburg last month, leading to increased speculation that the UK could leave the EU without a deal.

Meanwhile, calls to hold a “People’s Vote” to allow the British people to have a “final say on Brexit” are gaining momentum. More than 100,000 people are estimated to attend the biggest Brexit protest to date on Saturday, 20 October.

Speaking at a press conference yesterday (16 October), Tusk admitted that he has “no grounds for optimism before tomorrow’s European Council on Brexit. As I see it,” he continued, “the only source of hope for a deal for now is the goodwill and determination on both sides.”

Up Next: Are we there yet? The key questions and concerns complicating the Brexit negotiations

data protection, Uncategorized

Airbrushing history? Photos of Oxford Student Celebrations Raise Questions About Privacy Rights and Journalism

October 14, 2018October 24, 2018by kelsey farishLeave a Comment

A former Oxford University student asked image agency Alamy to remove photographs of her celebrating the end of exams. Now, the photographer accuses Alamy of “censoring the news”. Is this a threat to freedom of the press, or has the woman’s human right of privacy been correctly protected?

The end of exams are a liberating and happy time for university students around the world. At Oxford, students take their celebrations to another level by partying en masse in the streets, covering each other in champagne, shaving foam, confetti, flour and silly string in a tradition known as “Trashing.”

Screenshot 2018-10-14 at 9.37.21 AM — An Alamy photo of Oxford celebrations from 1968. “Trashing” has become a bit more crazy since the 1990’s.

Speaking to the Press Gazette, Photographer Greg Blatchford explained that during the 2014 Trashing, a student invited him to take photographs of her celebrating on the public streets. Some of the images show her swigging from a bottle of champagne, while in others she is covered in silly string.

Blatchford then sent “about 20” images to Alamy as news content. The former student subsequently stated that she “loved” the images in email correspondence to Blatchford, and even shared them on Facebook. This summer, four years later, the woman contacted Alamy to have the photos deleted. The company removed the images – much to Blatchford’s dismay.

Screenshot 2018-10-14 at 9.37.58 AM — An Alamy stock image of Oxford University Trashing celebrations. **Note: THIS IS NOT ONE OF THE SUBJECT PHOTOGRAPHS.**

The right to be forgotten under the GDPR

Because the woman was able to be identified from the photographs, they constitute “personal data” as defined by Article 4 of the General Data Protection Regulation (GDPR). Under Article 17 GDPR, data subjects have the right in certain circumstances to compel the erasure of personal data concerning him or her.

For example, if the data was originally collected or used because the individual gave their consent, and that consent is subsequently withdrawn, the company may honour the request for deletion (Article 17(1)(b)). However, a company can also use a “counter attack” if an exception applies. Importantly for news and media agencies, if keeping the data is necessary for exercising the right of freedom of expression and information, they may be able to refuse the request and keep the data (Article 17(3)(a)).

For more details on how the right to be forgotten works in practice, see my earlier post, Now You’re Just Somebody That I Used to Know.

Are journalists under threat from privacy lawyers?

Blatchford explained that although they are now considered “stock images,” they were originally “news” photos and should not have been removed. By deleting the photos, Alamy “are censoring the news. I’m incensed that someone can influence news journalism and censor the past where clearly if photographs are taken in public, with the full consent of participants they can turn around and say ‘sorry, that’s not news’ later. This sets a precedent for anybody to walk up to a news organisation and say I don’t like the pictures of me. Journalists will then start feeling the threat of lawyers.”

In a statement to the Press Gazette, Alamy’s director of community Alan Capel said the images were submitted as news four years ago, but moved 48 hours later to the stock collection. “Therefore we are surprised that this is deemed to be ‘censoring the news.’ As per our contract with our contributors, we can remove any images from our collection if we see a valid reason to do so.”

The university said that participating in trashing can lead to fines and disciplinary action since it is against the universityâs code of conduct — The comical images of students wearing sub fusc (formal academic attire) while partying are often published in newspapers around the country in May.

Privacy and press freedom have long been considered competing interests, but that’s not to say that striking an appropriate balance between the two is impossible.

On some level, I do sympathise with the photographer. I also struggle to buy Alamy’s argument that the images are not “news content” and are now “stock images.” The classification of an image should be based on its context, purpose and subject matter – not the time that has elapsed since the event, nor the label attributed to it on a website.

Stock images are, by definition, professional photographs of common places, landmarks, nature, events or people. By contrast, the Oxford Trashing photos are attributed to a specific time (May), place (Oxford), category of people (students), and event (celebrating the end of exams). They are popular for several reasons. Firstly, they illustrate a charming and comical juxtaposition. Although these students attend one of the oldest and most prestigious Universities in the world, they are – after all – entitled to a bit of fun. Secondly, Trashing has received increased press attention in recent years, as students have become subject to complaints fines, disciplinary action, and even police enforcement. These images clearly show, in ways that words alone cannot, matters of public interest.

In this particular instance however, I think Alamy have made the right decision in deleting the images.

Although the Press Gazette does not name the woman, it does note she is “a marketing director in New York.” It’s entirely plausible that she has valid concerns that the images of her participating in Trashing may negatively impact her reputation and career, or otherwise cause some sort of harm or embarrassment.

She claims that “there was no consent given to publish or sell my photos anywhere. I am not a model nor have given permission to any photographers to take photos of me to publicly display or to sell. This was a complete breach of privacy.” This contradicts what the email records show, but even if she had lawfully consented to the photographs being taken at the time, she is entirely within her rights to now withdraw consent.

On balance, Alamy probably has dozens – if not hundreds – of images from the 2014 Trashing at Oxford. The likelihood that the images of this woman in particular are somehow especially newsworthy is minimal. Had Alamy refused to delete the photos, the woman would have been entitled to raise a complaint with the Information Commissioner’s Office. ICO enforcement action can include injunctions, sanctions, or monetary fines. Furthermore, Alamy would risk becoming known as an organisation that doesn’t care about privacy laws, thereby damaging its reputation.

Contrary to Blatchford’s concerns, it is doubtful that an organisation would delete a genuinely newsworthy image, simply because someone doesn’t like how they look. The right to be forgotten is not an absolute right to be purged from history, but a right to regain control of how information about you appears online.

For more details on how the right to be forgotten works in practice, see my earlier post, Now You’re Just Somebody That I Used to Know. If you’re interested in how celebrities control images of themselves, see Fame and Fortune: How do Celebrities Protect Their Image?

Header image by Alex Krook via Flickr

intellectual property

TickBox sent packing as film studios and Netflix win $25 million lawsuit

October 1, 2018October 11, 2018by kelsey farishLeave a Comment

This story was first published for the 1709 Blog, where I regularly write about copyright law in entertainment, technology and media.

The Alliance for Creativity in Entertainment (ACE), an industry coalition of global entertainment companies and film studios, together with Netflix and Amazon, has secured a major legal victory against Tickbox, a type of so-called “Kodi Box” streaming device. As a result of the judgement and permanent injunction, which were handed down in Los Angeles, California on September 11th, Tickbox will pay $25m (£19m) in damages. Additionally, Tickbox will no longer provide software that allows users to access pirated content, and agrees to disable any such software within 24 hours.

In its coverage of the matter, Variety noted that in initial advertising, Tickbox promised customers that they could get “virtually the channels you get from your local cable company … without you having to worry about paying rental fees or monthly subscriptions.” Tickbox devices retailed for about $150 (£115).

In October of last year, ACE originally filed a lawsuit alleging that TickBox was promoting their streaming device as “a tool for mass infringement of copyrighted motion pictures and television shows”. By this point, TickBox had changed the advertising wording, and in its defence to the lawsuit attempted to feign innocence by “claiming that the device manufacturer could hardly be held accountable for what their customers chose to download” (nocable.org). Essentially, Tickbox’s fundamental argument was that it is merely a hardware company, and therefore no more responsible for copyright infringement than any other computer manufacturer.

Judge Fitzgerald disagreed with TickBox’s reasoning, explaining that “There is sufficient evidence that the Device can be and is used to access infringing content, and there is sufficient evidence of TickBox’s fault — primarily in the form of its advertisements and customer-support efforts. TickBox may be held responsible for the instances of infringement that would not have otherwise occurred in the absence of the Device.”

This successful action against TickBox is the first brought on by ACE that targeted a streaming device. Other similar “Kodi-Box” lawsuits remain pending, and the outcomes are likely to be similar now that this one against TickBox is on the books.

Worth noting is that one of Tickbox’s competitors, Dragon Box, was also sued earlier this year by Netflix, Amazon, and others for copyright infringement. Dragon Box then released the following statement: Instead of closing our doors and shutting down all boxes and riding off into the sunset we decided that it was in the best interest of you the customers and the company to change our business model and adapt to change and continue to try and bring you the best legal content we can and add in as many services we can to make Dragon Box the box that beats any competitors out there.

Briefing

Courtroom Catwalk: The Middle Temple explores Legal Fashion

September 30, 2018October 11, 2018by kelsey farishLeave a Comment

As a solicitor, my “legal fashion” normally consists of a black or blue dress, paired with a sweater and heels. But this fairly standard outfit worn by City lawyers like myself is quite a departure from those worn by our professional predecessors. Earlier this week, I visited the Middle Temple Library’s exhibit, Legal Fashion: From Mantles to Mourning Hoods to discover how English court dress has evolved over the centuries.

When the Romans left the British Isles in 425, they took with them their legal system. The Anglo-Saxon law which developed thereafter was based on Scandinavian and Germanic codes and folkright, and varied from village to village. It was not until after the Norman Conquest of 1066 that courts, or indeed any sort of trained legal professionals, began to appear in modern-day England (Maitland on English Law).

Read on to see nearly 1000 years of legal fashion…

Continue reading “Courtroom Catwalk: The Middle Temple explores Legal Fashion” →