Tuesday, August 21, 2012

The IPO Redaction Saga Continues

The on-going saga of the redactions by the UK Intellectual Property Office (IPO) continue. After a phone conversation with Hamza Elahi on August 2nd, which also had Nadia Vally (who wrote the impact assessment championing the Extended Collective Licensing (ECL) that prompted the Consultation, and who will be “responsible for regulating them through these measure that they will be putting in place”.) participating. It's been 4 weeks since the first email about potential problems, and we're still no further on in getting it sorted. so I thought a quick post about what had happened since I listed the redactions was in order. As a fun side-note, this was published 5 months to the minute from the time the submission was sent to them.

Let's start with the call and the underlying issue, what IS the problem in the IPO's eyes?

During the telephone call, it was again stated that the redactions were because of legal advice concerning libel. Hamza was clear on this point. Barely a minute into the call, he says he’s sorry there’s no lawyer with them on the call…
“…but, it’s worth reiterating that the redactions that were made, were made on legal advice. I will try my best to try and convey what they told us.”
This reiteration is to the statement made by email July 25th saying
“I wanted to speak to you, as a courtesy, to tell you that on legal advice we were going to have to redact some of the more forthright comments you made on collecting societies.”
Here’s the problem with that. Any barely competent legal counsel would know that at least two of the sections just in the first block redaction alone (Kwik Fit, and the reference to the European Court of Justice) would fall under a libel exception called Qualified Privilege. Of course, while the first is debatable the second is as clear-cut and textbook a definition as it is possible to be. Likewise, the last redaction (that of UMG) likewise would fall under it, as it was “a fair an accurate reporting of matters put before any court in the world”.

Now I will admit that I did make one mistake when I submitted the original consultation document. In my haste (and I WAS rushing) I neglected to include one information source. That source was a report by the British Chamber of Commerce (BCC), who had surveyed a number of their members and found that the majority had issues with Collecting Societies. The descriptions of members interactions with companies like PRS included words like “aggressive” and “threatening”, and led the BCC to contact the Communications Minister (then Lord Carter) with their concerns.

Without this source, some of the later redactions were perhaps not put into the full context, I can see that. Absent the link some of the assertions (such as “intimidate” and “same category as low-level debt collectors”) might be potentially actionable (although with the source, they’re not, as they’re “reasonable opinions any fair-minded man might hold” – another affirmative defence – knowing that)

Timetable of action

There’s also a question of timescales. There have been big gaps with no actions, and things delayed and put off. To give you some idea, here’s a breakdown of things.
Wed March 21
closing date for Consultation. My Consultation response submitted 04:04 UTC on the 22nd
Tues July 24
email asking for a call to discuss response.
Wed July 25
Email saying some redactions would be happening. No details of what, or why, just ‘a fair few’ on the basis of legal advice.
Thur. July 26
Responses published. Email alerting all other submitters sent, I was notified by another responder. First indication that the issue is apparently one of libel is in the paragraph accompanying the response release, and the email sent to other submitters. Sent email back saying that I see no actionable libel in these redacted bits, because they’re all true. Did first post on topic.
Mon. July 30
Email back saying ‘since you’re in the US, we will call you on either August 1st, 2nd or 3rd, when we (Hamza and Nadia) are both in the office
Wed. August 1
Phone call set for 1500 BST / 1000EDT. Techdirt covers the story.
Thur. August 2
10am EDT 15 minute phone conversation at the agreed time with Hamza and Nadia. Took 2 attempts, the first one had bad call quality. Call recorded. The UMG redaction was brought up specifically, and Hamza noted ‘he didn’t find anything where UMG acknowledged that their copyright takedown was fraudulent. Promise to provide additional evidence on this as a show of good faith and competence of my position as soon as possible.
11:09 am EDT In response, an email was sent with specific citations substantiating the claims of UMG, the nature of the takedown (a copyright notice) and UMG acknowledging that they did it because they could, not because of a valid copyright claim.
Fri. August 3
Email acknowledging my UMG points and advising that he would be on leave for the next 2 weeks.
Mon. August 13
15 page (6,400 word) detailed statement (see bottom of page) sent to Hamza. Redacted statements were broken down into 22 specific phrases for ease of handling. It listed additional supporting evidence, and citing applicable UK defamation law, exceptions to it, precedents, defences and the actionability of the various redacted statements. It also included all the evidence submitted in the 11am August 2 email about UMG.
Tues. August 21
Email from Hamza saying he saw the email come in when on leave, but the pdf was quarantined by IT. He now has the August 13 document and will read it shortly.
There you have it. In the 5 months  since my submission was made, nothing was done for the first 4 months. In the last 4 weeks, I’ve had 7 emails, and one 15 minute phone call, and yet we’re no closer to sorting it out. I’ve heard no legal reasons beyond ‘legal said this, and they’re always over-paranoid’.

The concern stems from, as Hamza says during the call 
“If we publish something negative that someone says, or a criticism or something of a third party; if we publish that and we cannot prove it’s correct, then we can either be sued by the group or person being criticised or we can be reported to the information commissioner for not doing enough diligence in checking what we’re putting up. So that’s the process we have to go through here.”
Now, I can see the concern. And had I seen the later redacted things, I would possibly have thought the same. However, the first redaction is fully sourced. The evidence to prove it is true is there, included, on the same line. It is sourced, it is verifiable. The rest are assertions, but ones backed by these earlier claims (and the one missed out but included now).

And frankly, I'd LOVE to see what the information commissioner would say about their dilligence in checking facts when the evidence is provided for them, but not checking everyone else's stuff. A point he makes clear later.
“we did try to ensure that ... made us legally secure. We can’t vouch for all submissions being factually accurate” – Hamza Elahi
This statement, towards the end of the phone call says it all. I CAN vouch for all my statements being factually accurate (and to prove it I, you know, included links, as the evidence guidelines REQUIRED). However, they’re redacting me because they can’t be sure, but not redacting others who they can NOT be sure about, and admitting it, so the evidence requirement document wasn’t even worth the disk space the PDF takes up. I’ll come back to this another day.

Plus, they may not be as legally secure as they think.

Article 10 of the European Convention on Human Rights gives a number of exceptions when it’s justified to stifle free speech. One of those is protection of reputation. However, the reputations are already so bad, that repeating true facts in the public record has only minimal (and justifiable) impact on their reputations, and so a restriction of justified public comment would amount to a disproportionate interference with freedom of expression. Not a slam-dunk case, certainly, but they’re NOT legally secure.

In addition, by stating that they have redacted inappropriate or defamatory comments, they may well have libelled me. Anyone reading the response via the IPO office website and seeing the redaction might well wonder what inappropriate or defamatory statement I made, and would then question my professionalism and quality of work. Thus my reputation has been negatively impacted. The indirect reference makes it tricky, but it's possible. I've not really looked into this though, as it just occurred to me as I was writing these last few paragraphs. However, I have 12 months to make a claim of libel.

Right now, the ball’s in the IPO’s court. We’ll see how they choose to go from here on. By the way, not a peep from any collecting societies about how libelous my unredacted response was - better hurry, only 7 months left!.

Ipo Consultation Redaction Detailed Response

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