human rights – Kelsey Farish

Media

Regulating the Raunchy? A look at free speech and obscenity under Miller v. California

June 21, 2019by Kelsey FarishLeave a Comment

One of the most interesting aspects of being a technology lawyer is that it necessarily requires a strong understanding of Internet regulation and digital rights, including the right to express yourself online. As such, free speech is one of my favourite areas of legal history and theory. Coincidentally, two major US Supreme Court cases regarding free speech were decided on this day — 21 June!

This post takes a look at one of them: Miller v. California [1973]. In a later post, I’ll explore a second landmark free speech case decided on 21 June: Texas v. Johnson [1989].

The Constitution in Court.

Most people know that the First Amendment of the US Constitution protects freedom of speech. However, it’s actually a bit more complicated than many would guess. In its entirety, the First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Putting the aspects regarding religion, assembly, and petitions to one side, what this Amendment essentially does is prohibit the government from prohibiting freedom of speech. But what does that look like in practice?

Of course, we cannot travel back in time to 1789 to ask James Madison what he meant when he drafted the Bill of Rights. Instead, American Courts have over time developed various methodologies to apply modern facts to something written 230 years ago.

Miller v. California – to what extent can the government regulate porn, and why should we care?

The case of Miller v. California, 413 U.S. 15 (1973) concerns pornography and whether or not the government is allowed to regulate obscene material. Marvin Miller was the owner/operator of a California mail-order business specializing in pornographic films and books. When his company’s brochures were sent to and opened by a restaurant owner in Newport Beach, California, the restaurant owner called the police. Miller was subsequently arrested and charged with violating California Penal Code § 311.2, which is paraphrased below:

Every person who knowingly sends into California for sale or distribution, or in this state possesses, prepares, publishes, with intent to distribute or to exhibit to others, any obscene matter is guilty of a misdemeanor.

The jury at Miller’s trial in State court had been instructed to consider the pornographic materials in question, and determine if they were “obscene.” The jury decided that they were, and Miller was found guilty. Because he objected with the way in which the jury had arrived at this conclusion, he appealed the decision to the Supreme Court.

Although the Supreme Court ultimately vacated the earlier jury verdict and remanded the case back to the California Superior Court, the matter became a landmark decision and the basis for what is now known as the Miller Test.

Writing the majority opinion, Chief Justice Burger reaffirmed in Miller that obscenity can be regulated by the government, because it is “unprotected speech.” Referring to Roth v United States (1957) and other similar cases, Justice Burger explained that obscenity was not within the area of constitutionally protected freedom of speech either under the First Amendment, or the Due Process Clause of the Fourteenth Amendment. “In the light of history,” Justice Brennan had said in Roth, “it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.”

Venus-in-the-Cloister — **Legal Fun Fact:** The first conviction for obscenity in Great Britain occurred in 1727. Edmund Curll was convicted for publishing erotic fiction titled “*Venus in the Cloister or The Nun in her Smock*” under the common law offence of disturbing the King’s peace.

Now that we are clear that the First Amendment does not protect obscenity, the next question is obviously therefore: what is obscenity?

In Miller, Justice Burger acknowledged the inherent dangers of regulating any form of expression, and said that “State statutes designed to regulate obscene materials must be carefully limited.” As a result, the Supreme Court was tasked with confining “the permissible scope of such regulation to works which depict or describe sexual conduct.”

This brings us to Burger’s three-part test for juries in obscenity cases. Obscenity is now defined as something: (1) the average person, applying contemporary community standards, would find appeals to a prurient interest; (2) which depicts or describes, in a patently offensive way, sexual conduct; and (3) whether the work lacks serious literary, artistic, political, or scientific (or “SLAPS”) value. In short, obscenity must satisfy as the prurient interest, patently offensive, and SLAPS prongs.

The Miller test changed the way courts define obscenity, and accordingly, what does – or does not – deserve protection as “free speech.”

This Miller obscenity test overturned the Court’s earlier definition of obscenity established in Memoirs v Massachusetts (1966). In Memoirs, the Court had decided that obscenity was material which was “patently offensive and utterly without redeeming social value.” Furthermore, the Memoirs decision made clear that “all ideas having even the slightest redeeming social importance have the full protection of the guaranties [of the First Amendment]”.

By adopting the Miller decision, the Supreme Court departed from Memoirs in favour of a more conservative and narrow interpretation of the types of speech which qualify for First Amendment protection. Rather than considering obscenity as simply that which is “utterly without redeeming social value” of any kind, obscenity is now a subjective standard. This offers wider discretion to State legislatures and police agencies, as well as prosecutors and jurors, to decide whether material is “obscene” under local community standards.

**Not everyone agrees! Unsurprisingly, the Miller decision was a narrow one, and split the Court 5-4.**

justices — Chief Justice Burger wrote the majority opinion, with Justice Douglas penning the dissent.

Justice William O. Douglas wrote the dissent and, at the risk of sounding like a total legal geek, I highly suggest taking a quick read of it! One of my favourite excerpts is as follows:

The idea that the First Amendment permits government to ban publications that are “offensive” to some people puts an ominous gloss on freedom […] The First Amendment was designed “to invite dispute,” to induce “a condition of unrest,” to “create dissatisfaction with conditions as they are,” and even to stir “people to anger.” The idea that the First Amendment permits punishment for ideas that are “offensive” to the particular judge or jury sitting in judgment is astounding.

Nevertheless, despite the dissent and criticism, the Miller test remains the federal and state standard for deciding what obscene. However, the rise of the Internet has complicated matters, not least because the concept of “community standards” is difficult to define given how interconnected we are today.

What do you think? After nearly 50 years, should the Supreme Court reconsider what “obscenity” means? Is the Miller Test due for an update?

data protection

Do Neo-Nazis have a right to privacy?

December 13, 2018December 13, 2018by Kelsey FarishLeave a Comment

Earlier this month, a leftist art collective in Germany called the Centre for Political Beauty (Zentrum für Politische Schönheit or “ZPS”) launched a website to name and shame neo-Nazis. At soko-chemnitz.de, people were invited to examine photographs taken during this summer’s violent anti-immigration protests in Chemnitz, and in exchange for identifying suspected right-wing demonstrators, would receive a crowd-funded reward of at least €30. The twist? The image recognition database was a honeypot: a sophisticated hoax to induce neo-Nazis into identifying themselves.

This recent project gives rise to serious questions regarding the exploitation of personal data for illegitimate or unlawful purposes – even if those purposes are seen by many as socially or ethically justified.

Image result for center of political beauty — **“Doxing”** – a portmanteau of **document** (“dox”) and **dropping** – is a term used to describe publicly exposing someone’s real identity on the internet.

The Chemnitz Context

Known as Karl-Marx Stadt when it was part of the Soviet bloc, Chemnitz is an industrial city in eastern Germany with a population of about 250,000. After German reunification in 1990, the political and economic systems changed drastically as democracy and capitalism replaced the communist regime. Similarly, as thousands of East Germans relocated to the more prosperous West, expatriates and immigrants filled shortages in the labour market and made their home in East Germany. For the first time in decades, the East was forced to deal with the challenges posed by multiculturalism, immigration and globalism.

Such problems have only intensified in light of Chancellor Merkel’s more liberal migrant policy, which has seen an influx of those seeking asylum and refugee status. Accordingly, Eastern Germany has seen a significant surge in far-right populism and xenophobic protests. In 2017, nearly 25 per cent of the city’s residents voted for the far-right German nationalist party, Alternative for Germany (Alternative für Deutschland, or “AfD”).

Tensions between “native” East Germans and immigrants made headlines again this August, when a German man was stabbed to death in Chemnitz. When police revealed that his two attackers were Kurdish (one from Iraq and the other Syria) far-right groups quickly organised anti-immigration protests. Nearly 7,000 people joined the demonstrations, which were marked by hate speech and violence against non-Germans. The swastika and other Nazi symbols, including making the Nazi salute, are banned in Germany.

The Honeypot

Known for its “activist art”, the ZPS uses satirical stunts, performance pieces and interventions to draw attention to various humanitarian issues. By way of example, the group designed a monument in 2010 to “memorialise” Western co-responsibility for the Srebrenica massacre. In 2017, they built a “Holocaust Memorial” in front of nationalist politician Björn Höcke’s house.

In the weeks following the Chemnitz protests, ZPS published pictures of far-right rioters online at soko-chemnitz.de, and asked visitors to “identify and denounce your work colleagues, neighbors or acquaintances today and collect instant cash!” The rewards started at €34 (£30) with special bonuses awarded for identifying photos of people who were police, or members of Germany’s domestic security agency, the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz or BfV). While the ZPS had indeed previously identified over 1,500 individuals who participated in the protest, the real goal of the campaign was to get far-right sympathizers to search for and thereby name themselves.

Related image — **Gesucht: Wo arbeiten diese Idioten?** / Wanted: where do these idiots work?

The honeypot design was simple. When visitors entered the website, they were presented with only 20 pictures at a time. Much to the delight of ZPS, Chemnitz protesters went straight to the site’s search bar to type in their own name and the names of fellow participants, to see if they’d already been named. The average visitor searched for the names of seven people.

In this way, the protesters “delivered their own entire network to ZPS without realising it. They told us more about themselves than publicly available sources ever betrayed.” ZPS founder Philipp Ruch claims that use of the website has created “the most relevant set of data on right-wing extremism that currently exists in Germany.”

The Controversy

The Special Commission Chemnitz site sparked a huge controversy in Germany for several reasons. Firstly, many questioned the legality of the website itself. Photos of demonstrators were uploaded without permission from the individuals pictured, an action which could potentially contravene German and European data protection law. Although no such private information other than photographs were revealed on soko-chemnitz.de, users were asked to send in names, addresses, and names of employers of demonstrators. DeutscheWelle, Germany’s public international broadcaster, reported that “Germany’s data protection commissioner’s office said it was looking into whether the ZPS site was acting within legal limits.”

Image result for center for political beauty — Members of the ZPS always wear black face paint during during public appearances, to symbolize the “soot of German history”. The group’s fundamental mission statement is that “the legacy of the Holocaust is rendered void by political apathy, the rejection of refugees and cowardice. It believes that Germany should not only learn from its History but also take action.”

Beyond the textual or purely legalistic overtures of data protection law violations, the website elicits serious concerns over whether doxing private individuals is ever justified. Much has been written about the free speech rights of those who promote abhorrent ideologies. Those with a more libertarian perspective on free speech will insist that Nazi speech must be defended because it is so especially controversial. But what about the right to privacy?

In his article entitled Why it’s important to name the Nazis, journalist David Perry argued that identifying those whose pictures appear online attending a public rally is justified. Neo-Nazi protesters are people intending to do or to advocate harm, and have therefore surrendered their right to anonymity. The right to freedom of expression does not extend to a right of social impunity. One could also consider that view that as such protests occurred in a public space, any reasonable expectation of privacy was materially lacking.

But in the European —and notably, German— context, rights to privacy are especially treasured given the history of both Nazi and Communist security service tactics. These regimes demonstrated in the most heinous ways possible that collection of personal information can lead to harm. The idea of encouraging and paying private individuals to “out” their friends, neighbours and colleagues —even if for a seemingly noble cause—does not sit well with many Europeans today. Interior Minister Roland Wöller went so far as to say that the ZPS website “endangered social cohesion”.

Consider the distinction between how the United States and Germany “name and shame” sex offenders. The United States was the first country to establish a national sex offender registration and notification system in 1994. By contrast, Germany has no national sex offender registration legislation, nor a public notification system. This perhaps illustrates the extent to which Germans value the protection of individual privacy, even where those individuals have committed criminal or otherwise morally reprehensible acts.

The soko-chemnitz.de project forces upon the public an uncomfortable question: do neo-Nazis have a right to privacy? Those who say “no” would likely choose to identify and denounce the Chemnitz protesters as potentially dangerous far-right radicals. In so doing, one could take comfort in having participated in some sort of righteous, anti-Nazi resistance movement. But at what cost? Doxing campaigns have gone terribly wrong in the past, and errors in identification can led to irreparable emotional and reputation damage, or even job loss and suicide. On the other hand, refusing to participate in the campaign could arouse suspicions that one sympathizes or even identifies with the Nazi ideology.

As a piece of political performance art, soko-chemnitz.de was certainly provocative. But it is also politically significant. Coverage of the website forced people to consider their own personal prioritisation of ideals associated with a democratic society: to what extent should we protect privacy, expression, freedom from interference, security, liberty, trust…? It’s a predicament as old as political philosophy itself, and an increasingly uncomfortable balancing act to achieve in today’s world of hyper-surveillance and social media. Perhaps this was the disquieting, satirical reminder the ZPS was hoping to convey all along.

*Note on soko-chemnitz.de

ZPS has replaced its original soko-chemnitz website with a splash page explaining the honeypot campaign. You can visit earlier archives of the page using the Wayback Machine. This is what the website looked like on 4 December 2018, absent the images of individuals, which have since been deleted.

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

data protection, Media

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

July 25, 2018October 18, 2018by Kelsey FarishLeave a Comment

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 Police, the 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…

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).

scne2 — the (not very exciting) footage shows plain-clothes police entering Sir Cliff’s estate.

scene1 — 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.

Briefing, data protection

Google prepares for the first “Right to Be Forgotten” trials in England

January 30, 2018May 28, 2018by Kelsey Farish2 Comments

All human beings have three lives: public, private, and secret.
― Gabriel García Márquez

The European Union’s Court of Justice decision in Google Spain v Agencia Española de Protección de Datos, Mario Costeja González (“Google Spain”) confirmed the “right to be forgotten” for European citizens. This right is further enshrined in the upcoming General Data Protection Regulations (GDPR). Accordingly, European data protection law grants individuals a qualified right to have personal data relating to them removed from search engines.

This right is however considered by some to be a uniquely European phenomena, which resulted from one unusual CJEU judgement. Now, two upcoming cases against Google will be the first time in which the “right to be forgotten” will be considered by the English Courts.

Two unnamed claimants, known only as NT1 and NT2, are bringing a companion case against Google to enforce their right to be forgotten. (NT1 v Google and NT2 v Google, [2018] EWHC 67 (QB) (Rev 3))

Continue reading “Google prepares for the first “Right to Be Forgotten” trials in England” →

intellectual property

Fame and fortune: how do celebrities protect their image?

November 25, 2017January 3, 2018by Kelsey Farish5 Comments

Famous movie stars and athletes earn big bucks beyond their day job at the studio or stadium. Their image can be used to in a variety of commercial contexts, ranging from endorsements and sponsorships, to merchandising and deals with fashion brands and magazines. Marketwatch reports that on average, signing a celebrity correlates to a rise in share prices, and a 4% increase in sales. After Chanel signed Nicole Kidman in 2003 to promote their N°5 perfume, global sales of the fragrance increased by 30%.

Celebrities today spend a huge amount of time and energy developing and maintaining their public image. But here in the United Kingdom, “image rights” have never been clearly stated in law. So how do celebrities protect and control the publicity associated with their name, image, and brand?

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Media

Lord Hutchinson, barrister who defended “Lady Chatterley’s Lover,” dies aged 102

November 14, 2017January 4, 2018by Kelsey FarishLeave a Comment

In October 1960, a jury formed at the criminal court in central London was asked to consider what would become one of the most important cases in modern English history. The trial concerned neither murder, treason, nor espionage, but the publication of D. H. Lawrence’s Lady Chatterley’s Lover by Penguin Books. In honour of Lord Jeremy Hutchinson QC, a member of the Penguin defence team who passed away yesterday, here is a reminder of why Regina v. Penguin Books was such an enormous decision for the freedom of expression.

First published in 1928, Lady Chatterley’s Lover tells the story of a young married woman, Lady Constance Chatterley. Her husband, Sir Clifford Chatterley, is handsome and wealthy, but paralysed from the waist down after injuring himself in the First World War. In addition to his physical (read: sexual) limitations, Clifford neglects Constance emotionally: her frustration leads to her affair with the estate’s gamekeeper, Oliver. A particular sex scene and liberal use of strong language including “fuck” and “cunt” led to it being banned in several countries.

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