Friday, November 30, 2012

IPO Office – Only Censoring the Small Guys

I finally got a response back from the IPO regarding the redactions they made in their consultations. You can see them in the PDF below. There were some quite interesting revelations in there, that show a serious problem in the redactions made and applied in this whole case.

Indeed the whole aspect of a FOI was thought about, as the first email in the list shows, they were looking with an eye to FOI requests. However, their compliance with the FOI leaves something to be desired.
Almost 2 months ago, I asked for:

  • A copy of the criteria for redactions
  • Any internal documents/emails concerning the redactions
  • The names and positions of those involved in the redaction actions
  • Minutes of any meetings with involved/covered the redactions

From that I got a grand total of SIX emails. The weird thing is that I already had NINE emails from Hamza Elahi at the IPO office, and the contents of them were strongly indicative of more emails and contacts. For instance, the last email given was dated July 13 2012. The first contact from Hamza to me was July 24th. From there I know there were other emails, meetings, etc. How? Because he SAID SO.

There are references to half a dozen other communications that were not seen fit to be included. In total, they ignored point1, gave a half-hearted attempt at point 2, flat out denied point 3 and ignored point 4. Not exactly a good response.

Their justifications can be seen in the emailed response, but it bails down to ‘most people involved are too junior to be named’ and “we won’t reveal what legal advice we got”, even if it was a load of crap.

Additionally, these 6 emails (PDF / web version)  are ‘redacted’, or at least supposed to be. Changing the text background to black doesn’t redact the text though. Indeed the only name supposed to be revealed is that of Edmund Quilty, the Copyright and IP Enforcement Director. But the other names are not exactly THAT junior. Nadia Vally, who I spoke to on the phone, wrote the impact assessment for Extended Collective Licensing (the topic all my redaction issues fell under). The assessment was published with the consultation documents. Her participation, and email address are hardly a secret then.

But even the few emails they have provided have shown an amazing thing about the whole redaction/libel situation. Mostly, that’s it’s not really about libel at all.

Here’s the thing. If you’re worried about libelous statements, you’re going to be careful about things. You’re going to cross the t’s and dot the i’s to make sure you only do what you need to, and you don’t violate laws by censoring needlessly. By the same token, you’re going to examine everything to make sure nothing slips through. That’s not the case here, illustrated by two sections

Having invited comments on collecting societies, it seems we will not be able to publish a lot of them. Many of the specific comments on collecting societies I had identified, but the ones on collecting societies as a group I had not.  Charles suggestion on contacting senders seems the best one: if comments on specific submissions are redacted, there is FOI to think about. If whole submissions are removed, there is potential for loss of lots of evidence (not least if that evidence has been used in IAs - although this danger might also exist for some redactions).  
Grateful for any views.

That’s by Hamza, and is the first email released.

The reply sent 15 minutes later by Edmund Quilty indicates the mind-set behind the redactions

It might be (moderately) amusing to have whole swathes of responses blacked out on the basis that they were defamatory.

Amusing to you, but a criminal use of censorship to many.And note that defamation is given as a BASIS, but not because they are (a court has to prove that). It's a justification, not a reason. But at least it’s even-handed, right? No.

On June 29th Hamza says in an email

Further to my email last week, PSA a list of those submissions (marked with an "n") Nick and I think won't need reading for defamatory comments or third party material, because the stakeholder making the submission will very likely have employed legal resource/is legal resource/is a larger organisation/is an experienced enough public operator, for the submission to very likely not contain defamatory comments or third party material.
In marking up these submissions we've erred on the side of caution.
If you've any additions or deletions please let me know by close Monday

So, if you’re a big company, defame away, they’re not going to bother to check. But if you’re a small company, or individual, don’t criticise anyone, because it’ll be gone.

Also, notice the ‘third party material’ line. It’s rather an odd comment to make, since the evidence guidelines for the consultation said that claims should be backed up with evidence. Generally, that evidence will be from a third party.

So, what have we learnt about the consultation? We have learnt that it was a sham. In fact, it may be criminally inept.
  • Third party evidence was more likely to be removed, than taken into consideration, exactly contrary to the guidelines of the consultation, and the recommendations of the Hargreaves review.
  • It’s also a two-tier system. If you’re a big company, likely to have the services of a lawyer, then your submission will be accepted at face value. However, if you’re a small company, an individual, or challenge the underlying assumptions then your submissions are likely to be censored.
  • Finally, the last thing we know is that the legal counsel for the IPO is utterly clueless. This is why they’re trying to hide behind section 42 of the Freedom of Information Act. I’d LOVE to see the advice justifying censoring public comment on the grounds of potential libel, when sections of it are about as clear a case of speech protected from libel possible.
In fact, when the legal advice is this bad, and leads to a distortion of comment on proposed public policy, then it’s very much in the public interest to examine this advice, and understand and evaluate its validity. So, it’s a good thing that section42 has a public interest qualification, where it is only permissible to hide the legal advice if it’s not in the public interest.

It’s clearly in the public interest.

And just to think, To get me these 6 emails, and (ineffectively) redact them, they needed a lot more than the 20 working days (which would have been October 19 2012) but sent an email October 18th saying they need ANOTHER 20 working days on top of things, to answer. In the end, 40 working days (September 21 – November 16) were needed.

It smells like some people were busy doing a whole lot of CYA at the IPO office.

In return, it took me less than a few hours to reply back, requesting an internal review. So they’ve promised to get back to me, within 20 working days (although 14 December seems like 21 to me) so I’m expecting a response around mid-January.

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