Monday, March 04, 2024

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Scottish experts have warned gagging orders are ineffective following the naming of Ryan Giggs and former banker Sir Fred Goodwin in the House of Commons.

Critics believe the UK government is to blame for not reacting quickly enough to the incorporation of the European Convention on Human Rights (ECHR) into UK law in October 2000. Prime Minister David Cameron has expressed concerns about privacy laws being developed in courts rather than in Parliament.

However, Dr Gillian Black, lecturer in law and privacy specialist at Edinburgh University, said successive governments had “ducked the issue” and must now introduce new laws as a matter of urgency.

“It is incumbent on Parliament to do so,” she said. “The media is very unhappy about the courts doing this (writing privacy laws], but they are only doing so because Parliament has ducked the issue.

“The article eight right to privacy (in the European Convention on Human Rights] has been here since October 2000, so Parliament has had long enough to go away and think about these things.”

However, she believes governments have long viewed more stringent privacy laws as a vote loser, with the press and public putting a high value on freedom of speech. Dr Black said: “They’ve not simply missed it. It’s a well accepted fact in the academic world of privacy that the government has not been willing to legislate because it’s not going to be popular.”

She said enshrining privacy laws in legislation would go some way to encouraging people to respect it.

“One concern is that the courts make this up as they go along,” she said. “What we need is a statutory right to privacy – a privacy bill.

“The government would not have to do much more than set down what judges have already done, but it would clear up what the media can and can’t do.

“The one thing they can address is the remedy. Super-injunctions are a failed remedy.”

Super-injunctions have become highly controversial as a court order that not only bans the media from publishing information, but also from revealing that the order even exists.

Former Royal Bank of Scotland chief executive Sir Fred Goodwin obtained one to try to hide details of an alleged affair with a colleague, although the order had to be altered after a peer revealed details in the House of Lords.

BBC journalist Andrew Marr also obtained a super-injunction to try to hide an affair with a colleague – he later abandoned it and admitted he was “embarrassed”. Since the UK became compliant with the ECHR, judges have had to balance the two competing rights within it of freedom of speech and privacy – such as when Mr Justice Eady ruled in favour of Manchester United footballer Giggs’ right to privacy – over Imogen Thomas’ desire to name him when speaking publicly about their alleged affair.

However, Frank Johnstone, convener of the privacy committee of the Law Society of Scotland, said it is not judges’ privacy laws that have been the problem, but the way they have tried to enforce them.

“I don’t take the view that the law on privacy has been broken,” he said. “The law was interpreted by a judge and he granted a remedy – the super-injunction. The remedy has proven to be ineffective, that does not mean the law was wrong.

“Rights are important but rather meaningless if you cannot translate it in effective remedy.”

He suggested tighter security might be imposed around the court proceedings, limiting the chance of the information getting out.

“What would be interesting to know is how did it get out in the first place, someone must have breached it initially, and it is that person that made it an ineffective remedy,” he added.

However, Maurice Frankel, director of the Campaign for Freedom of Information, warned free speech must be enshrined in any new legislation.

“My concern would be in cases where there’s genuine, or substantial, public interest that that (freedom of speech] should not be over-ridden.

“Freedom of expression is very important. It’s not an automatic trump card over everything else, but neither should it be set aside.”

Yair Cohen, a leading internet lawyer, said people should be given stronger powers to challenge inaccurate or defamatory stories before publication, as an alternative to super-injunctions.

However, he also warned that celebrities who cheat on their wives, husbands or partners, may have to accept the blame for hurting them if their antics later appear in the press.

Mr Cohen said: “The families of, let’s say a footballer, who is guilty of indiscretions might have to bear the consequences of this change in the same way that families of criminals have to live with the consequences of an unlawful act by one of their members.

“And the family member who committed the indiscretion will have to take some responsibility for his actions, including the effect of his actions on members of his family.”

He added: “Any change in the law of privacy should cement this principle but should also give an opportunity to aggrieved parties to challenge any publication in advance in the event that the information which is about to be printed is incorrect or defamatory.”

Meanwhile, French President Nicolas Sarkozy yesterday opened the first ever e-G8 forum in Paris. The event brings together leading figures from the technology industry to discuss the impact of the internet.

News Corp chief executive Rupert Murdoch and BBC director general Mark Thompson were due to speak at the event.

via Yair Cohen\’s Business Talks.

In the rapidly evolving world of the internet, laws are written that have unintended and unexpected consequences which means that laws which are made by Judges who passed their Bar exams a decade before the personal computer was invented and commercialised, could have an extra damaging effect on the internet savvy public.

Was this elite, led by the top lawyers in the country so naïve so as to believe that information published on websites which are based abroad cannot be viewed in England?

Between the political parties’ unelected and unaccountable  bureaucrat elite, which sits in Brussels, our own well intended, yet somewhat socially alienated  judicial elite and a small group of celebrity elite, we end up with ridiculous Super-Injunctions which only serve to demonstrate how wide the gap is between the new style law makers and those who have to live with the consequences of such laws. It is perhaps not a coincidence that those who have been seeking Super-Injunctions are also part of an elite group; a financial elite which has perhaps little to do with the intellectual elite which has imposed on us these Super-Injunctions but still, these political, judicial and financial elites somewhat managed to get together and conspire to ensure that those who can afford it are able to prevent their innocent victims from telling the truth about the ‘well-off’s’ misdemeanour.

In a way, one cannot help feeling a bit sorry for all those who took part in this shameful attempt to conceal the truth. Did they not realise that these Super-Injunctions would not possibly last forever? Did they really believe that the whole world will slavishly adhere to court orders which are created with the sole purpose of suppressing the truth? Did it not occur to them that the internet also exists in the USA,Canada, Africa or the Middle East? Did they honestly believe that they can force an American based website to refrain from publishing the truth about corrupt celebrities, in particular as injunctions granted overseas are hardly enforceable in any of the American States?

One can perhaps understand how an anxious footballer, who perhaps might not be well versed with the ins and outs of the internet, could get carried away, and be willing to spend tens of thousands of pounds on worthless international gagging orders. But didn’t the lawyers bother to explain to their clients how the internet works? Did they forget to explain that it was inevitable that these ‘permanent’ worldwide injunctions could not have possibly lasted for long because of the way the internet works? Perhaps it is just that our elite is not as intellectual as it would like us to think it is.

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via Web Host Liable for Contributory Infringement.
A South Carolina jury’s recent $770,750 verdict against Bright Builders Inc. marks the first time a Web-hosting company has been found liable for contributory infringement without actual notice that a customer’s website lists fake products for sale.

South Carolina District Judge Margaret Seymour’s March 14 judgment in Roger Cleveland Golf Company Inc. v. Prince followed the jury’s March 10 verdict.

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How To Destroy A Reputation In 5 Minutes. Don’t Repeat At Home!!!

Everyone has got their own soft spot. Depending on your profession, being called by a particular name in public, could cause you a lot of damage and harm your career. For a doctor, being commonly described as ‘negligent’, for a solicitor, being described as ‘incompetent’, for a builder, being described as ‘a cowboy’ or for a teacher, being described as ‘stupid’, would be regarded by any of these people as a personal attack on their reputation and integrity.

But not all insults are as harmful as the insult suffered by a top civil servant who worked as a social worker for the Children’s Service at a District Council in the North of the country. Having specialised for many years in children with learning difficulties and having achieved a tremendous professional respectability within his County Council and beyond, Stuart Granville (not his real name) was surprised to find out from a colleague that upon searching his name on the internet, the top three results that came out were news stories about social workers who had been jailed having been convicted of offences involving child pornography.

The news stories were not about Stuart Granville at all, but for one reason or another, they appeared at the top of the search pages against the search term ‘Stuart Granville’. The implications of this, as you can imagine were very serious for Stuart. The association of his name, as someone who has been working with children, with articles about convicted child molesters were damaging to him beyond comprehension.

Stuart immediately became concerned about his career and later on about his personal reputation and it was not long before he started to fear for his personal safety as well as for the well-being of his family. Stuart did not have his own website, in fact he was not allowed to have one because of the delicate position that he held within the Children’s Service, which meant that the vacuum which was on the internet against his name, was filled by someone who wanted to harm his career and who had the know-how on how to associate a name with an article.

So who did this and how was it possible for one individual to cause so much devastation to an innocent and a very respectable member of the public? We will come back to the question of who did this in a moment. But first, let me show you the incredibly simple technique that was used to inflict such damage on Mr Granville and his family. The technique that was used in this instance to attempt and trash Stuart Granville’s reputation is incredible in its simplicity and is one which any individual or company should be aware of.

The trick that was used here is called Tagging. Think of tagging as a description of an item. The purpose of tagging is to make it easy for internet search engines to associate an article or a product with certain keywords.

The best way to understand tagging is to forget for a moment about the internet and think instead about a can of Coca Cola. If you were asked to tag a can of Coca Cola with the most relevant words that come to mind, most people will say ‘red’‘fizzy’ ‘cold’ ‘can’ ‘drink’ ‘refreshing’ and so on.

Now, think about this article that you are currently reading. How would you tag it? Or in other words, what would be the best way to describe it in simple short words? I would say, the first words that come to mind are ‘internet law’ ‘tagging’ ‘social worker’ ‘online reputation’ ‘reputation attack’ and so on.

In the internet world the tagging helps the search engines to associate a word, or a phrase with a product or an article. A tag can be added to any article which is posted on the internet by its publisher and sometimes also by third parties, if they are given permission to do so by the publisher. So tagging is simply a series of keywords, which aim to describe an online item, whether a product, a service, a news story or an educational material.

The publisher of the webpages, which contained news articles about a social worker who had been convicted of sexual offences involving children, had tagged each of these articles with a ‘Stuart Granville’ tag and from this point onwards, whenever an internet search was being carried out (particularly using Bing and Yahoo), the search engine made an association between Stuart Granville and the news articles which were tagged with his name.

This process of copying a news article and publishing it on the internet with damaging tags could be done in less than 5 minutes. It can however devastate people’s careers, families and reputation permanently.

Simple? Yes. Powerful? Most certainly. In any event, tagging is something to be aware of and to keep at the back of your mind at all times.

As for the perpetrator of this reputation attack on Stuart, Stuart believed beyond doubt that this was a parent who had had her children taken away from her by Social Services following a serious allegation of abuse. At the time, she promised Stuart, who had been in charge of the Social Services Team which intervened and took the child away from his abusive mother, that he will live to regret the event. Stuart however, has never been able to prove who this person actually was. To be fair, he never even seriously attempted to do so because once the problem was taken care of by specialist internet lawyers, and in fact disappeared within days, Stuart, very understandably just wanted to get on with his life, which is exactly what he did.

Yair Cohen

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Dedication

Years of Internet Law Experience