Sunday, December 9, 2012

IPO and Censorship, a Recap/Update

For those that don’t know, I’ve had a running issue with the UK Intellectual Property Office (IPO) over their use of censorship in consultations. I thought I’d give a quick recap, and an overview of the issues.

First, the major issue is censorship. We have a government body, that’s asked for information in a pubic consultation, which then censors comments it’s received. Funny thing, all comments censored are negative, showing a negative picture of the consultation’s directed goal (which was clear from the questions)

To suppress comment critical of your plans, as was done here, makes a mockery of the consultation process. Then again, it’s not exactly new when it comes to this field. In 2009, Lord Mandelson effectively made a public consultation into the Digital Economy Act irrelevant, when he supported the bill and would hear no criticism of it, after a private meeting with a record label head.

However, it’s not ALL criticism that’s been redacted from the public view. Through the magic of a (badly complied with) Freedom of Information Request (FOI) we now know what was the criteria for censorship.

You had to be either
  1. A small company/body or an individual, or
  2. Providing 3rd party information (also known as ‘Evidence’)
However,if you are a big company or a frequent submitter, or a lawyer; you can say any old crap you want.
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.
That was an email from Hamza Elahi sent 29 June 2012 concerning redactions.

If you want to put that in perspective, then read this document that came out with the consultation. It’s called “open and transparent Evidence guidance” and boiled down to its basics, it says “if you make a claim, back it up!”, That generally means 3rd party sources.

It’s basically the death of independent citizen-based objections to policy.

Yet it gets worse. Despite including evidence, as requested, I was censored because of ‘possibly defamatory statements’. Whoever gave them legal advice is utterly ignorant of the law. Some of the redacted comments were actually references to court filings and rulings. Under UK law, this is protected from defamation by Qualified Privilege. It’s as textbook as things go for the law relating to libel and yet they still messed it up.

As a result, one of the things requested during the FOI was for a copy of the legal advice given by the IPO lawyers regarding this area. It was denied under s42 of the FOI act, which relates to legal privilege. Basically enabling lawyers’ protection in giving advice. However, it’s not absolute. There has to be a strong public interest to show it, and likewise a strong reason to otherwise reveal it.

When you have legal advice that blatantly ignores the basics of the law as written, and does so repeatedly, then there is a strong interest to find out what instructions were given, and by whom.

When the public consultation process is subverted by actions blamed on legal advice that has NO BEARING to the law in question, the public has a strong interest to see that advice. Especially when they've admitted they've redacted stuff when they should not have.

Good luck, however. It’s FULL ‘Cover your arse’ mode at the IPO.

A FOI request should take 20 working days. Thus my request submitted September 21 should have been responded to by October 19. It took until November 16. I submitted a request for an internal review that day, which again has a 20-day timetable. However, instead of being done by December 14, it’ll now be done by January 16. In case you missed it, what should have taken 8 weeks so far, is looking like 17 weeks (although I’ll concede a week of that for Christmas/New Year.

But through this all, two things are being overlooked.
  1. My submission was made publicly available, unredacted, in March of 2012, the day after submission. It’s also had the specific redacted (aka ‘potentially libellous’) comments repeated on my own site, and sites like Techdirt. Were there a case for libel, we would have heard by now (the statute of limitations is one year)
  2. In the covering note, they note that they were delayed in publishing, because “a small number of respondents had advanced criticisms or inappropriately criticised the activities of others in the sector.” Thus anyone seeing a redacted comment draws the inference that they were inappropriate criticisms, when it seems they were just ‘sourced criticisms’. It’s skirting the line of defamation itself.
We will see, though, what the next twist will be, and if the legal beagles at the IPO are man enough to admit they screwed up, and publish their advice.I wouldn't hold my breath though, as that would require integrity, which the last 6 months has shown to be severely lacking at the IPO.

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