Top Secret!

It may be top secret, but you need to know… (This is where the Bond Theme, or the Mission Impossible one, and we all slink around the house with our hands in gun shapes. Or maybe I do, by myself, that works too.)

We all want to know what is underneath those redacted lines. We all want to know what they don’t want us too. It’s human nature, right?

The government have been playing hide and really don’t try and seek with their documents for over a century now. The first statue being brought out in the 1800’s. However, the most notable has recently celebrated its centenary: The Official Secrets Act 1911. It was brought about due to the global political instability of the time – the build up to WWI. The British government did not want the Kaiser finding out about their dealings; however this Act, which was seemingly meant only for security purposes, seeped over into everyday life through the infamous s.2 of the 1911 Act. S.2 was worded in such a way that anything that an official was not specifically allowed to divulge became an official secret, this covered so many mundane things and thus you can see where the secrecy of our government derived from. Good intentions gone wrong. Sounds like a line from a cheesy Eurovision song.

Between WWI and WWII another two Acts were brought out, however none affected, or I should say amended, s.2 of the 1911 Act. An example of official secrets being used at their best can be seen in the recently released Imitation Game staring Benedict Cumberbatch. It is noted in the film that not even some of the most senior members of government were allowed to know that the Enigma Code had been broken so that the Germans would not find out. It also shows that they had to let some of the attacks through so that it was not obvious that the Code had been broken. These are prime examples of Official Secrets being used for security purposes, what the Official Secrets Acts were supposed to do.

This era of secrecy continued and was exacerbated by the Cold War. KGB spies and and defectors amongst the diplomats only made matters worse. Knowledge was power and it wasn’t for sharing… It can be noted that the use of official secrets within departments outside of security had become exponential, namely in matters that were merely private and not secret. I’ll try my best not to exaggerate… Probably half of the matters that were made secret were of no use to the KGB what so ever. So, was this secretive nature really needed?

It took over 80 years for s.2 to be repealed. The Official Secrets Act 1989 was passed during the Thatcher years and more notably towards the end of the Cold War.1989 saw the fall of the Berlin Wall and the beginning of the end of the USSR with revolutions (on the whole, bar one) which peacefully ended the communist rule. The Act confined criminal sanctions to security and the intelligence, defence, international relations, information obtained in confidence from states or international organisations, information that could be used to incriminate someone and other things such as special investigations and the monitoring of communications. Amusingly, it seems like the Act still covers quite a lot, but that just shows you how much the infamous s.2 had really covered.

It has been commented that an air of openness amongst governments and cabinets has been created. Some say it is due to the European Convention on Human Rights, although this openness can also be seen through the change in rules such as the now thirty year rule, previously fifty years under the Public Records Act 1958, which was amended by the 1967 Act. There is even talk of this rule being brought down to 15 years! Whether this actually happens or not is another matter… Other significant changes include the change of the official lines about MI5, MI6 and GCHQ, which had always been closed in times of peace. However, as we all know now (and probably suspected all along), they are always active and always have been. Perhaps to your dismay… Especially with this latest report released by the CIA concerning the interrogation of terror suspects.

Whilst there are still a lot of secrets about and things we don’t know it is slowly changing. I highly doubt it will ever be as it was, and probably for the best in today’s society of paranoia encased in an online presence of supposed transparency.

Until next time,

R

PS. A lot of this information was taken from this amazing radio programme. Take a look!!!

Who, What, Where, When?

Yes, it’s that time again, another post. Though, you don’t have to look at me with those same sad eyes as the dog in the picture! You don’t have to worry, you don’t have to put up with me for much longer! Oh, and the dog in the picture is my dog and he only looks sad because he is a Cocker Spaniel and that’s what they do; they look sad.

This week is about court reporting. The who, what, where and when inside a court may be confidential. In some cases the media is not allowed to report the names (and other information) and individuals involved in court cases, even though most cases are held in public and you can go and watch the case in court.

For instance, all pre-trial hearings have statutory restrictions set on then in s.8C of the Magistrates Court Act 1980. This restriction lasts until the case is deemed no longer active. Pre-trial hearings can include issues such as summary cases, bail and the transfer of the case to a Crown Court. There are a few things that you can report on: the name of the court, the judges dealing with the case, a summary of the charges, the names, addresses, ages and occupations of the defendants and witnesses and the lawyers involved and the arrangements made as to bail… Unless it is a crime that comes under the remit of the Sexual Offences Act 1992, in which s.1 states that you cannot identify the victims.This would include what is known as jigsaw identification, where it is possible to piece together who they are by the information given.

Youth courts are open to the media, however they are generally closed to the public.This is due to the obvious reason of protecting the minor involved. Whilst the media are allowed in the courtroom they are statutorily obliged not to state anything that may be used to identify the individual, under s.49 of the Children and Young Persons Act 1933. This restriction may be lifted in certain circumstances, this has most recently been seen in the case involving Will Cornick who stabbed and killed his teacher. The judged stated that naming Cornick was in the public interested and should act as a deterrent.

Here raises another question of what should happen to those who turn 18 during or after the court case. In Todd v DPP [2003] All ER (D) 92 it was held that the courts role was not to protect those after they turned 18 as they were no longer a child. This is an interesting point as one would think that they should still be protected as they event took place whilst they were a child and therefore should not effect their adult life. However, it is clear that the court has to draw a line somewhere and they have clearly chosen here as there cut off point.

But what about those ASBO’s (Anti Social Behaviour Orders for those of you who can’t remember)? Can those lovely darlings be named in the matter of public interest? S.49 in the Children and Young Persons Act 1933 may apply here, however it is not automatic in relation to civil hearings. Basically any case that does not relate to criminal law may not be automatically covered by this Act. This would apply to the application of the ASBO, as the application procedure falls under civil law. However, if an ASNO is then breached it becomes a criminal case and would be heard in the youth court… A tad confusing, I know! Although s.44 of the Youth Justice and Criminal Evidence Act 1999 which covers the protection of minors within the media concerning civil matters should offer assistance. However, it has not yet been fully enforced and therefore it is possible to name an individual under the age of 18. Usually if a restriction is put in place a journalist can apply against this in the name of public interest. Good old public interest!

So there you have it, a low down on what you can and can’t report on in court. I hope this helps any young budding journalists out there that want to get their teeth into a great case and not get held in contempt of court!

Until next time,

R

Writing the Copyright…

Well done to all those who raised money for Children in Need. Obviously the total is still going up, but as it currently stands it is £32 million. What an amazing figure!!! Also, Band Aid 30??? It’s all going down this weekend!

I bet you’ve thought, probably on more than one occasion, “that’s a great idea, I think I might copyright it”. If you’ve paid any attention at all to anything I’ve blogged about in the past few weeks then you should realise that that statement is wrong. You can’t copyright an idea, if someone stole that idea then it could be breach of confidence, but not an infringement on copyright. Copyright is protecting something that already exists, that has already taken form, such as words on a page, such as a picture or music… But not the idea of it. I think I’ve drilled that point enough now… If I haven’t you can always re-read the paragraph!

In this country, being the UK, we do not have a registration system for copyright, unlike in the USA, for instance. All you really need to do is sign, date and (c) it, although this may be difficult to prove etc. The point behind copyright is to stop the unfair use of your work by others, to protect your work. Copyright forms part of Intellectual Property (IP) Law and thus as part of property law there are certain things you can do with your copyright. You have the ability to buy and sell copyright as well as license it (the equivalent of leasing). There are exclusive (having all the rights) and non-exclusive (having partial rights) licenses.

We are still running off the Copyright, Designs and Patent Act 1988 which has been amended and amended and amended some more due to the ever changing technological environment that we currently live in. However, due to all of these amendments things such as the internet are covered within this Act even though it was not around when this Act was made. Probably nearing the end of its rather over amended life it is currently being reviewed with the hope of a new Act being brought about in a couple of years time. A new Act would be ideal as it would bring together all of the amendments into one document, as opposed to continuously having to search to the end to see what the amendment is on a certain section. It would certainly make lawyers lives easier, if not anyone elses.

When dealing with copyright issues the courts have tended to look into the amount of skill and effort that has been put into a certain piece of work. A good example of where the judges may have been a little out of touch with the industry concerned can be seen in Exxon Corp. v Exxon Insurance Consultations International Ltd [1982]. The issue here was over the name, as you can see both companies had the same name. The Court of Appeal sort to look at the amount of effort and skill that was used in selecting a name. It was held that there is typically no copyright in the selection of a name. You may think this a little odd considering the amount of money publicists are paid, the marketing campaigns and so on which are all based around a name. If successful then you will forever associate that name with that company, even simple words such as Apple are now linked to huge companies. Perhaps the court was right in deciding that there is little skill or effort put into choosing a name, however the decision seems a little out of touch with the industry in which this case effects.

In Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] it was held that there must be a “requisite degree of skill, judgement and labour”, which they felt had been met through the football coupons. These are basically grids on football matches in which you have very little choice in how you layout the page, if the judges felt that there was a “requisite degree of skill, judgement and labour” involved in that then filling out tables in a specific order which you have no choice about is a skill we should all learn more about! This, however, contrasts to the earlier case of G A Cramp Sons Ltd v Frank Symthson Ltd [1944] where it was held that grids in the front of a diary did not have copyright… If you’re feeling a little confused by the judges contradictory judgments then you now know what it feels like to be a law student. Welcome to the club.

One case I should probably mention, just as it is a huge sore point for IP barristers is the case of Waterlow Directories Ltd v Reed information Systems Ltd [1992] FSR 409 where it was not argued that there is no copyright in a phone directory. Why would you agree with the opposition that there was copyright in a phone directory? Could you really, honestly say that there is copyright in a phone directory? Really? Apparently one not entirely with it barrister thought so.

And something to amuse you… Copyright Math. Our lecturer showed us this and I thought it was pretty great!

Until next time,

R

How Protected is your Data?

God of our fathers, known of old—
Lord of our far-flung battle line—
Beneath whose awful hand we hold
Dominion over palm and pine—
Lord God of Hosts, be with us yet,
Lest we forget—lest we forget!

                                                                                         – Rudyard Kipling

How protected do you think you are? And no, I’m not talking about car insurance, although that is also pretty important! Data protection is one of those things that many of us think very little about until it all goes wrong, the same as most things then if we’re being honest.

You’ll probably be a slightly surprised to here that there isn’t a single piece of privacy legislation. Yes, there are things such as the right to respect of your private and family life (under s.1 (1) (a)) in the Human Rights Act 1998 which comes from Article 8 in the European Convention on Human Rights (ECHR) and even the Data Protect Act 1998 (DPA 1998), however none of these are specifically on the subject of privacy.

The DPA 1998 is the main piece of legislation that concerns the protection of personal data. It was implemented due to an EU Directive which stated that member states had to protect individuals rights in freedoms including the protection of their personal data. It set out eight principles, which state that personal data must be:

  1. Processed fairly and lawfully,
  2. Obtained for specified and lawful purposes,
  3. Adequate, relevant and not excessive,
  4. Accurate and where necessary kept up to date,
  5. Should not be kept any longer than necessary,
  6. Kept and processed in accordance with the subject’s (individual’s) rights,
  7. Securely kept and,
  8. Not be transferred to any other country without adequate protection in place.

One of the sections in this act, that many of us would be very interested to find out about, is s.7 DPA 1998. This section states that we are legally entitled to ask what data a specific company has on us, they may ask you for an administrative cost, however they should comply. There are some exemptions to this, as always, and includes military personnel, judicial appointments and many more all for various policy reasons, as with most things in law.

Another Act that many of us are aware of would be the Freedom of Information Act 2000. This most notably provides us with the ability to ask any public body for information and they must provide it. Things such as the Expenses Scandal came to light, mainly through the hard work and persistence of Heather Brooke, the journalist who broke the story. Thus it works both ways, we should have our personal data protected and we should be able to find out what is going on with public bodies as it is tax payers money that is being used and in some cases wasted on duck ponds.

So now you know about all the things the companies we entrust with our details should be doing, however we all still get those calls at random hours of the day asking us if we want to buy windows or get our credit scores checked, or in my case being asked about that loan I supposedly took out a few years ago, if only they knew I wasn’t old enough to take out a loan a few years ago. Something is going wrong somewhere, but as with all crimes, something always goes wrong somewhere. Maybe this is just what we have to learn to deal with in this age of instant communication, or maybe something should be done. But what? The DPA 1998 is currently under review, however it is unlikely that anything will come from this until 2017 at the earliest, so don’t hold your breath… Really, don’t. I’m not even sure the Dr could pull that one off.

Until next time,

R

Phone Hacking, An Inquiry and a lot of Posturing.

Two years on and most still feel a little hacked off, if we’re being honest. Now I’ve got you thinking… Yes It really has been two years since the first Leveson Inquiry report. Breaking news at the time, but has anything really changed, or have we been fooling ourselves all this time thinking that it would have made a difference in how our press operates and how it is regulated?

As you’ll most rightly remember the Leveson Inquiry was conjured up by the Prime Minister, David Cameron, in the wake of the News of the World Phone Hacking Scandal; 13th July 2011, if you want the exact date. Probably the largest scandal involving the press in modern times, this scandal even led to the fall of the News of the World newspaper. High profile victims such as Hugh Grant and Charlotte Church were involved, but what shocked the public more was the fact that people such as the McCann’s, victims of the 7/7 attacks and Milly Dowler were all targeted by journalists. You can clearly see why we so desperately needed an inquiry into the press.

Lord Leveson was asked to chair the an inquiry into the culture, practices and ethics of the press, this inquiry would become known as the Leveson Inquiry. Leveson was called to the bar in 1970 and in 1986 he took silk, since then he has become a prominent judge in the English and Wales Judiciary and he is currently the President of the Queen’s Bench Division of the High Court.

The inquiry was split into two parts, most originally named Part One and Part Two… To me that is like naming a street “The Street”, but who am I to comment? Part one was broken down into four sections which dealt with the relationships the press had with the public, the police and politicians and also set for recommendations concerning the regulation of the press. Part two of the inquiry is yet to be published and will not be so until current police investigations and court proceedings have been completed.

Now here is the interesting part, well at least it was for me… You see, I could tell you about the backlash from the media and political merry-go-round that ensued the publication of the Leveson Report, however, I was hard pushed to tell you more than one of the recommendations that Lord Leveson had set forward. So here they are!

It was stated that the Press Complaints Commission (PCC, the current press regulatory body) was not sufficient and that a new independent body was to be set up. The PCC was seemingly pretty useless from what our lecturer was telling us, for she had many dealings with them in the past. This is probably due to the fact that the PCC was set up, funded and headed by those at the top of the press industry… As you can imagine, they weren’t prepared to start giving themselves lectures on ethical codes. It was also stated that this new body that was to be set up would be given the power to impose fines and sanctions, amongst other things. However, membership to this would not be arbitrary, with only things such as kite-marks to be used as incentives. Even with these recommendations of more stringent regulations it was strongly denied by Lord Leveson that this was a form of statutory regulation of the press.

The media reaction to the report was strong, to say the least. A fun little fact provided by someone in my class: there has been the equivalent of six articles published everyday for a year about the Leveson Report… You know, I don’t think they were bothered in the slightest. Only six articles a day for a year, not that many really…

Mainly papers felt that the freedom of the press was being threatened and whilst most agreed that Lord Leveson’s recommendations should be implemented it was to be done on their terms in their time. The BBC have given a very good summary on the reaction of the press: http://www.bbc.co.uk/news/uk-20546397

So here we are, two years on, we could swim in the newspaper articles written on the subject, we still gasp at the extent that some people are willing to go to get a headline, but has anything really changed? Although a regulatory body has been set up: Independent Press Standards Organisation (IPSO), not all of the national papers have signed up to it and it has recently been stated that this new body resembles its predecessor. The political headache that followed the Leveson report saw the Lib Dem’s and Labour back peddle from a statue to a royal charter, but who could really blame them? They still want the papers to help with their election campaigns and that is very unlikely to happen if they backed a statue that regulated the press.

The whole fiasco has seemingly left us with the status quo that many wanted to be rid of. Whilst there may be better intentions floating around now, nothing is happening which leaves a rather unsatisfying taste. Maybe when Part Two of the report is published it will re-light the fire and something may actually happen. We can all live in hope, right?

Until next time,

R