Now out – Medium Law – the book!

My book Medium Law (Routledge) has just been published. It’s available in hardback (from the publisher and from various bookshops) and for Kindle and as a Google Play ebook, and an extract/summary is available here.

Here’s the mission statement, more or less (taken from chapter one):

I will set out the case for continuing to acknowledge within regulation, and in some cases use as the basis for special regulation, the medium. This is not to say that every silo ought to be defended on equal terms. There are plenty of examples where the lines drawn for legal purposes make no sense, and may have never made sense in the first place. We will encounter Morris dancers and lap dancers, space invaders and streaming video, and surprisingly detailed consideration (by regulators) of everything from ringtone subscriptions to titles and credits in audiovisual works. But I will propose that the idea of converged, cross-platform, medium-neutral media regulation is unattainable in practice and potentially undesirable in substance.

What I’ve tried to do in the book is identify the role of the medium in media law. Chapter two is about the significance of the medium, historically and in the present day, including an extended discussion of Canadian media scholars Harold Innis and Marshall McLuhan, and examples from outside of conventional media law. Two long chapters, following a similar structure, investigate the medium within the film and game sectors – both affected by digital technologies and by specific forms of regulation. Then, medium-specific chapters consider medium-specific (and broader) approaches to the law, in radio, video-on-demand, premium rate services, and finally ‘entertainment’ (e.g. theatre, live music, circuses, and the like). I do hope people enjoy reading it – it was a long time in the writing for various reasons, but the result is something that, I think, reflects the way I approach my work and the different sorts of literature and ideas that I try to engage with.

Here’s what some other people have to say about it:

The convergence of media law and Internet regulation has caused some to question the need for medium-specific laws: a claim firmly rebutted in this comprehensive review of medium-specific law basing itself on the insight of the ‘Toronto School’ scholars Innis and McLuhan. Mac Síthigh’s excellent monograph provides meticulous case studies in the vagaries of medium law, essential reading for all those interested in the construction of medium-specific regulatory regimes, their evolution and their continued relevance.

(Chris Marsden, Professor, Sussex Law School, University of Sussex, UK)

Medium Law provides a rich and detailed overview of the tensions that exist in some of the less-charted areas of UK media law – from the regulation of online radio and video games, to live relay of opera in the cinema, music apps, and video on demand. Mac Síthigh challenges us to reconsider the role of the medium, alongside the message, in framing our media regulation of the future.

(Rachael Craufurd-Smith, Reader in EC Law, Director of Learning and Teaching, University of Edinburgh, UK)

This timely and highly ambitious book confronts head-on the debate on the development of technology-neutral, future-proof legislation across media platforms. By providing a careful and in-depth analysis of the laws concerning radio, film, TV, games, on-demand services and other entertainment platforms, this insightful book explains why the medium will continue to play a pivotal role in media regulation. Highly recommended.

(Peter K. Yu, Professor of Law and Director, Center for Law and Intellectual Property, Texas A&M University School of Law, USA)

To illustrate his argument, an eclectic mix of areas are drawn upon and some innovative examples explored. This is the beauty of the book. The examples Mac Síthigh chooses are well thought through and apposite, and beautifully delivered. Some of the chapters utilise, in part, previous work that some readers may be aware of, particularly perhaps important earlier interventions relating to computer games and film, but here they are skilfully woven into this broader theoretical frame. These perhaps more traditional or recognisable areas of media law are supplemented by the examination of fields such as licensing law and further utilises forays into areas as diverse as planning and ecclesiastical law, allowing a truly unique and innovative take on media law.

(Guy Osborn and Steve Greenfield, editors of the series Law, Society, and Popular Culture, in which the book appears)

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Disliking like

I have a new article in the forthcoming issue of the Journal of British Cinema and Television. JBCTV (Edinburgh University Press) is a journal that I have read and cited for some time, so it’s a particular pleasure to be published in it after all that.

The paper is entitled ‘TV-like’: aesthetics, quality and genre in the regulation of video-on-demand services (link is to pre-print version hosted by Newcastle University; updated link to final version will follow). It explores, in more detail than was possible in the on-demand chapter of Medium Law (chapter 6), the way in which ATVOD and Ofcom interpreted and implemented certain provisions of the Audiovisual Media Services Directive (AVMSD) concerning on-demand services. A big sticking point was working out, as required by the law, whether on-demand services were ‘comparable’ to the form and content of television services. Down the rabbit hole I went, and (with encouragement from my friend and sometime collaborator Keith M. Johnston in particular, and a most enjoyable presentation of a very early draft at an ECREA workshop in beautiful Aarhus), I found myself exploring whether the methods and conclusions of Ofcom could be better informed by other aspects of television studies. This arises because Ofcom needed to work out how to respond to the content of on-demand services, under headings such as titles and credits, the duration of the works, the quality of production, and much more. Of course, while all of this was being finished off, ATVOD’s functions were being folded back into Ofcom, and the European Commission was getting the rewrite of the AVMSD on track, so the article ends up as more of a reflection on an experiment, with an eye to how things might be better handled in future.

Here’s the full abstract, anyway, and hopefully some will find it of interest.

From 2010 to 2015, video-on-demand services in the UK were regulated by the Authority for Television on Demand (ATVOD), under an agreement with the statutory regulator Ofcom and applying the pan-European standards introduced through the 2007 EU Audiovisual Media Services Directive. A key question for the regulators and for service providers was whether any given service fell within the ‘scope’ of the law – that is, which services met the legal definition of an on-demand audiovisual media service. This is a study of how Ofcom exercised its role as the final arbiter of that definition, through a close examination of its 15 decisions in appeals against initial determinations by ATVOD. The use of the legal test for ‘comparability’ with conventional television services, and the regulatory focus on ‘TV-like’ on-demand services, has demonstrated the significance of production and aesthetics as a determinant of regulation. In particular, production decisions regarding titles, credits, and duration, as well as a range of issues of perceived quality (audio, video, voiceover, editing, and the like), have been taken into account. It is contended that Ofcom has relied on focus group research, rather than on wider insights from television studies research, in assessing these factors, and that the underlying Directive may have been flawed in its concepts and definitions.

Rebooting lexferenda.com

I’ve neglected this blog for quite a while now (and it was hardly all that active beforehand), so this is just a note of hello (and welcome back, hopefully) to readers. I’ve also updated some of the static pages at the tabs above (about my research, etc) and regular posts will resume in coming days.

The changeover may have disturbed subscriptions (for those still interested in such things), so if so inclined, please do check your RSS details or subscribe by email through the option in the right sidebar.

(Image: CC-BY https://www.flickr.com/photos/kalleboo/4611613067/)

Ten years!

This is a post made out of notes on the first ten years of this blog (2006-2016). Most of the activity was during that first half. I’m posting it now as part of the site reboot.

Some things of interest…to me, at least:

  • In that first period, the number of visits per year was consistently above 1,000 per month. Since then, it has been a good deal lower – although 2015′ total of 6,705 was the first increase in many years .
  • The most read post remains FOI and Universities from January 2009. But, the overwhelming majority (1500) of hits came on that day (via Ben Goldacre / Bad Science).
  • I joined Twitter myself in 2009. That was probably the beginning of the end of regular blogging.
  • But, many recent visits come via Twitter. (Oh, Google Reader, how you are missed).
  • The most read post in 2015 was an old one – July 2009, on data retention. The search-juice title (Data Retention Ireland – actually a play on the initials of Digital Rights Ireland, discussed in the post) is probably a factor. The other popular posts were newly posted within that period –  Computers and the Coalition – a speech at the launch of the Information Law and Policy Centre), and a note in memory of Greg Lastowka. (Sadly, not the first time I have used the blog to note the early passing of friends and colleague – e.g. Liss Jeffrey, Peter Fitzgerald).
  • In terms of popular outbound links, we see UEA (my employer from 2008-2012) and cearta.ie (who supervised my PhD, 2006-2009) in particular.
  • Update: I hardly posted at all in 2016 itself: just a handful of posts at the beginning of the year, with the old data retention stuff still being popular in terms of hits.

Campbell’s Scoop

Tom Bennett and I, along with the regular editors (Eric Barendt, Rachael Craufurd Smith and Tom Gibbons) have put together a special issue of the Journal of Media Law (volume 7, issue 2) arising out of the workshop we hosted at Newcastle Law School on the Campbell Legacy and broader issues of privacy law in the UK and Commonwealth. The original workshop (discussed here) was a ‘ten years on’ discussion of the decision of the House of Lords in Campbell v MGN [2004] UKHL 22. Papers in the issue come from Nicole Moreham, Jacob Rowbottom, Rebecca Moosavian, Paul Wragg, Eric Descheemaeker, and my co-editor Tom. We also wrote a short editorial, which appears below.

Introduction: The Campbell Legacy (2015) 7 JML 152

The early years of the 21st century have seen a number of significant developments in the law that have impacted upon the media. The impetus for many of these was the enactment of the Human Rights Act 1998 and perhaps the most dramatic was the recognition by the House of Lords in Campbell v Mirror Group Newspapers Ltd of a cause of action for ‘misuse of private information’ (MPI). This case is rightly regarded as seminal. For, in recognising a head of liability apt to protect against the wrongful publication of private information, the English judiciary took a step towards fulfilling Lord Irvine’s pre-HRA prophecy that English judges were ‘pen-poised’ to develop the right to privacy in domestic law.

The decision of the House of Lords in Campbell has been followed by a decade (or so) of cases and discussion on the shape and purpose of privacy law in England and Wales. The judicial recognition of the MPI cause of action has had a significant impact on the media. Moreover, the decision and its subsequent refinement have formed part of a transnational conversation on privacy, reputation, celebrity, information, and speech, with many other legal orders continuing to grapple with common law and statutory approaches to privacy. Courts in Canada and New Zealand have, whilst developing their own privacy torts, given substantial consideration to the Campbell model. Furthermore, the Australian Law Reform Commission recently recommended the adoption of a ‘misuse of private information’ tort, taking its preferred nomenclature directly from Campbell. Clearly, then, Campbell’s legacy – whatever else it may be – courts global attention.

This ‘legacy’ was the subject of a one-day workshop held at Newcastle University on 23 April 2015, convened by the guest editors of this issue. With support from the Journal of Media Law, Schillings, and the Newcastle University Conference Fund, we were joined by speakers and participants from universities and legal practice, spanning England, Wales and Scotland. In addition, we were particularly pleased to welcome Dr. Nicole Moreham from the Victoria University of Wellington (New Zealand), who gave the closing keynote address.

This special issue of the Journal of Media Law brings together a selection of papers first presented at the workshop, and subsequently revised by the authors. The contributors address the Campbell legacy from a range of perspectives including tort law, human rights, and comparative law; they discuss broader themes of power, metaphor, consistency, and technological change.

Nicole Moreham, who has written extensively on post-Campbell developments, focuses her attention on one of the most recent MPI decisions: Gulati v MGN in the High Court. Concentrating on the treatment of ‘intrusion’ in New Zealand and in Canada (Ontario), and the evolution of doctrine in England and Wales, she concludes that the decision in Gulati is a new and welcome extension of privacy law in this jurisdiction.

Like a number of contributors to this issue, Jacob Rowbottom situates Campbell in the long history of English privacy law. Doing so allows him to highlight the interaction between the development of the law on MPI and broader concerns on the power and influence of the mass media. However, with cultural, economic and technological factors in play, the concept of media itself is under strain; Rowbottom asks whether alternative approaches to what was promulgated in Campbell might be more appropriate in certain cases – especially concerning the use of the Internet.

The decision in Campbell is replete with provocative and complex terms such as ‘balance’. Rebecca Moosavian’s concern is with the poorly-understood significance of metaphors within legal discourses. She traces the use of the ‘balance’ metaphor in Campbell and subsequent cases (with particular regard to articles 8 and 10 ECHR), arguing that it promotes acceptance of decisions by alluding to justice and appearing certain and calculable.

Like Moosavian, Paul Wragg focuses on the ‘ultimate balancing exercise’ undertaken at the second stage of Campbell’s methodology. Wragg presents a more sceptical response than Moosavian, however, offering evidence that the courts have failed properly to engage in ‘balancing’ at all. He contends that, on many occasions, courts have adopted a substantially blunter instrument (a ‘zoning’ approach) in their efforts to decide between the interests of claimants and defendants in MPI.

Thomas Bennett’s essay considers one way in which cases subsequent to Campbell have expanded the law more broadly than might have been expected, given the restrictive undertones of the pre-Campbell decision in Wainwright v Home Office. Focusing on the issue of third parties’ interests in MPI cases and the manner in which the common law develops (‘incrementalism’), Bennett finds cause to be critical of Wainwright for what he sees as a short-sighted and unnecessary insistence upon leaving the law to develop in such a piecemeal fashion.

Eric Descheemaeker’s article, like Bennett’s, concerns Campbell‘s place in the field within which MPI is most often thought to sit – tort law. Focusing on the recent case of Gulati (also discussed by Moreham), Descheemaeker brings to the fore the question of where ‘harm’ lies in MPI cases. This, he observes, is an issue of high significance within tort law generally, and the failure of the courts adequately to theorize it in MPI cases leads to conceptual incoherence.

A number of the articles, then, strike a distinctly critical note. Despite its significance, Campbell is readily identified as a doctrine with imperfections. The contributors to this volume offer up their criticisms regarding doctrinal coherence, the protection of various rights, and the quality of judicial decision-making. The initial decision, while not entirely unexpected, left us with an inchoate doctrine that, in the ten years or so since, the courts have begun to develop further. Each of the authors here, in their own way, cautions against complacency. Clearly, the accumulated caselaw and commentary of the post-Campbell decade point to a clearer notion of what privacy law in England and Wales should look like. Some measure of redress for infringements of privacy is here to stay. Nonetheless, both the doctrinal imperfections and the underexplored alternatives from elsewhere should be given greater attention in Campbell’s second decade.

After the Coalition

Last March, I wrote a blog post (itself based on a speech given at the launch of the new Information Law & Policy Centre at the Institute for Advanced Legal Studies) on what happened in the field of IT law over the five years of the Conservative / Liberal Democrat coalition government in the UK. An extended version of that speech and post has now been published in the journal SCRIPTed, and can be found here:

Daithí Mac Síthigh, ‘Computers and the Coalition: Legislation on Law and Information Technology, 2010-2015’ (2015) 12 SCRIPTed 141