Is off the record legally protected?
OUT-LAW Radio, 13/03/2008
As an Obama aide resigns over off the record comments, we
investigate if a law that protected Prince Albert can do the same
for journalists' sources. Plus we talk to an MEP who wants to
decriminalise file sharing
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to out-law radio, the weekly podcast that
keeps you up to date on all the twists and turns in the world of
technology law.
Every week we bring you the latest news and in depth features
that help you to make sense of the ever changing laws that govern
technology today.
My name is Matthew Magee, and this week we investigate a ruling
that could neuter freedom of information law, and look into how
BT's wireless sharing technology keeps the police from your
door.
But first, the news:
AOL buys Bebo
and
Restaurant review libel ruling quashed
AOL has bought social networking site Bebo for $850 million in
cash. The Time Warner-owned firm said that the Bebo network would
be a valuable place for it to sell advertising.
Bebo was founded in 2005 by Michael Birch, who was born in the
UK. It claims 40 million people use the service each month to
publish details about themselves and keep in touch.
Bebo rival Facebook received $240 million in funding from
Microsoft last October in a deal that valued that company at $15
billion. MySpace was bought by Rupert Murdoch's News Corporation in
2005 for $580 million.
AOL Chief Executive Randy Falco said in a statement that the
acquisition would give it not only a platform on which to sell
advertising, but an insight into the minds of the network's
users.
A newspaper which published a review describing a restaurant's
atmosphere as smoky and joyless and its cola as flat has had a
£25,000 libel judgment against it quashed.
Goodfellas pizza restaurant in west Belfast was the subject of
an Irish News review in 2000 in which the staff were described as
unhelpful and the ingredients were claimed to be the cheapest on
the market.
The Court of Appeal in Northern Ireland has ruled that the jury
in the original trial was misdirected and has quashed the ruling
ordering a retrial.
Northern Ireland Lord Chief Justice Sir Brian Kerr issued the
ruling, having sat with two appeal court judges in a case whose
result was keenly awaited because of the implications it could have
for the business of reviewing any product or service.
The Irish News had defended the review as fair comment.
That was this week's OUT-LAW news.
If only Samantha Power knew more about Victorian consort Prince
Albert and his etchings, she might still be in her job as US
presidential hopeful Barack Obama's adviser on foreign
policy.
Power resigned last week after the Scotsman published comments
about Hillary Clinton being a monster that Power immediately tried
to claim were off the record. It was too late, though, the comments
had been made without an off the record agreement being in
place.
Had she handled the situation better, it turns out that she
might have been able to claim the protection of confidentiality
laws, according to one privacy lawyer.
But even Prince Albert can't help someone who only decides after
they've made a comment that they want it to be off the record.
Before we look at whether the law protects off the record
briefings, let's hear from Lincoln University journalism professor
Richard Keeble about exactly what off the record means.
Richard Keeble: They should obviously establish
at the very beginning that it is off the record. [It] essentially
means that a journalist speaks to its source and that whatever is
said when it's used the quote cannot be linked to any actual
person. So that's the important thing. It remains as it were a
secret. The source is anonymous and cannot in any way be
identified.
But what if you do get it right and you have a clear agreement
with a journalist that comments are off the record? If that's
broken, can you be protected?
Rosemary Jay, a privacy lawyer with Pinsent Masons, the law firm
behind OUT-LAW, thinks that the law of confidentiality might
help.
Rosemary Jay: I couldn't say yes it will be
confidential. What I can say is it could be confidential as long as
the information that was disclosed met the necessary tests of
meriting the protection of confidentiality and the relationship was
such that it was one where information was confided from one person
to another. There are some circumstances in relationships where the
court will say that is a confidential relationship. So if you talk
to your doctor or your confessor that will be a confidential
relationship and everyone will recognise it as such but in any
other circumstances the question of what was the nature of the
relationship with the person you were talking to, did both parties
accept that this was being transferred in confidence and, crucially
as well, you have to look at the nature of the information. The
information has to merit the sort of protection that the court
gives to it.
So the law of confidentiality may well apply to an off the
record conversation, but only if the information being transmitted
merits that protection, and only if there is clearly a relationship
of confidence between the two people. In practice, both parties
agreeing beforehand that something is off the record would probably
be necessary there.
So what kind of protection is given? What is the law of
confidence?
Rosemary Jay: But it started off as a method
whereby a court would ensure that if somebody has disclosed
something in confidence, has told you something in secret which
merits that sort of protection, then even if no money has passed
between you and you haven't got a contract the court would still
stop the person disclosing it. The court says in these cases if you
have confided a secret in somebody and you did it, you know, in
good faith then even if you don't have a contract which you could
enforce the court will stop the person telling your secret to the
world.
But off the record briefings are odd in that the person talking
to the journalist often wants the information to be made public,
but not their own identity. So can the identity of the person doing
the briefing qualify as the kind of information protected by
law?
Rosemary Jay: I think that it could do; and in
journalistic terms then you would think that it would do because it
might well be that that is the crucial bit of information. The
person has in effect disclosed their identity as the source of that
material.
Jay points out that the law and its application are quite
elastic. It's not a law passed by any parliament, but one that's
grown up through judgments and rulings, the first in a case
involving Prince Albert.
Rosemary Jay: Prince Albert did some etchings
and this man got hold of them and they were private etchings of the
royal family and tried to sell them. And the court defended Prince
Albert's right to keep them private and said no there's an
obligation of confidence. So it was used in private matters,
personal matters but also in commercial matters so it's a very -
it's seen as a very elastic doctrine and allowed, the courts have
said it can protect personal and private information, it can
protect government information, it can protect commercial
information.
Confidentiality, then, is a pretty fluid law, but as long as you
ensure that you agree exactly what off the record means with a
journalist before going ahead with a briefing, it could just help
you to avoid Samantha Powers' fate.
People who back the legalisation of file sharing are all
teenagers, techno-hippies or anarcho libertarians from Sweden or
Russia, right?
Well, not quite. In Europe the cause of decriminalising
personal, not-for-profit file sharing is moving towards the
political mainstream. This is embodied by Green Party MEP Carl
Schlyter, a man who's calling for copyright reform and file sharing
legalisation from the heart of one of Europe's mainstream political
parties.
Schlyter recently started his own campaign – 'I Wouldn't Steal'
– railing at the scare-mongering ads shown by the music and film
industries comparing file sharing with mugging and stealing
cars.
He made his own short film parodying the ads and claims that it
shot around the world, garnering support from the earth's four
corners.
Schlyter said he was inspired by the anger he felt at the film
industry's anti-piracy message, which he was forced to watch.
Carl Schlyter: Well it all started with the
first time when I rented a video. I saw this propaganda movie
saying you shouldn't download. I thought it was annoying that it
was something I couldn't avoid seeing. I thought it was a
ridiculous campaign thing so I wanted to make a parody on it and
also more seriously with a politically different message. In Sweden
we have nine million people, a bit more than one million have
downloaded music or films. If you want to criminalise one ninth of
the population then the rest of the population would be prison
guards and that's an impossible situation. If you - in order to
uphold an old fashioned law to protect old fashioned technology -
criminalise the whole population, it's impossible to uphold the law
and therefore it will be meaningless and if you would try to uphold
the law you will have enormous invasion of privacy rights in order
to do so. So the price to pay for upholding that right is
impossible.
Schlyter said he wants to put an end to laws that criminalise
the sharing of music, meaning an artist's music can be copied
without penalty.
Carl Schlyter: If I send you a music file
saying: "Hey did you see this artist, it's a great artist. Listen
to this song." I wouldn't be a criminal. But if I would say:
"Listen I have a lot of music here. You can download it but you
have to pay me first." then that will be criminal still. Of course
the big multinationals would be threatened by such a system but the
average consumer would tend to focus his spending more on - you
know - concerts or real life experiences but still spend money on
culture.
Schlyter told me of a Swedish music label that supports file
sharing. I put it to him, though, that anyone who wants to is
perfectly free to run a business on that model under current rules,
but that surely the law is there to protect material which its
creators do want to charge money for? Shouldn't they be allowed to
earn a living from their music?
Carl Schlyter: And if the price of protecting
them is outrageously high why should we pay €500 in tax money in
order to save €5 of profits? Actually if you check here the
statistics in Sweden approximately 2% of the income for the artists
in general are from these kind of rights and the rest is other
income. So it's a small minority of their income that comes
directly from these rights and if the cost to uphold them is much
higher than the benefit generated then it's a stupid law.
That's all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you know of a
technology law story? We'd love to hear from you on Radio@out-law.com.
Make sure you tune in next week; for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew Magee for
international law firm Pinsent Masons.
