CyberLaw Blog

Archive for October 27th, 2009

Hidden High Court Injuctions: “

The Twitter vs Trafigura case continues though it really is the Guardian newspaper and Wikileaks who have been driving this amazing story that illustrates the total lack of freedom of expression granted to the citizens of Britain.

For those who haven’t been following the case: The Guardian was attempting to report on Trafigura, a multi-national oil and commodity trader, but received legal threats from Carter-Ruck. This led to an injunction stopping them from publishing their findings. Yet not only were they prevented from publishing their article but the injunction also prevented them from reporting about the injunction!

These ’superinjunctions’ are an incredibly draconian power and in a strong democracy they would only be used as a last resort in the most limited of circumstances – and when used this would be public knowledge. However, it now transpires that not only are these injunctions granted by judges with seemingly not a second thought for open justice, but there is no record of the judge’s actions either.

The Parliamentary Under Secretary of State, Bridget Prentice said yesterday, in answer to a written Parliamentary question that the information is not currently available and the High Court has no intention to collate such data:

Paul Farrelly MP: To ask the Secretary of State for Justice if he will (a) collect and (b) publish statistics on the number of non-reportable injunctions issued by the High Court in each of the last five years. [293012]

Bridget Prentice: The information requested is not available. The High Court collects figures on applications, however injunctions are not separately identifiable, and there are currently no plans to amend databases to do so.

I agree with wikileaks: ‘Time for UK journalists grow some balls and start violating censorship injunctions’

It is bad enough that superinjunctions exist at all, but it is absolutely appalling that there are not even records kept of how often they are used. Pressure needs to be put on the High Court to record these occasions, and make the details public as a matter of urgency.

“

(Via Your Right To Know.)

COURT OF APPEAL JUDGMENT ON POLICE DATABASE: “

On 19 October 2009, the Court of Appeal, in Chief Constable of Humberside Police v Information Commissioner (2009) EWCA Civ 1079, allowed police appeals against a decision of the IC, upheld by the IT, that data on old minor convictions (of which there are probably about 1 million) must be deleted from the Police National Computer (‘the PNC’).  The Court of Appeal held that retaining information for police operational needs in the fight against crime and for other purposes was justified and did not infringe the data protection principles (‘the DPP’) under the DPA 1998, especially principles 3 (personal data shall not be excessive in relation to the purpose for which they are procured) and 5 (personal data shall not be kept for longer than is necessary).

Waller LJ, applying the approach from the Bichard Inquiry, following the Soham murders, said, at paragraph 43: ‘If the police say rationally and reasonably that convictions, however old or minor, have a value in the work they do that should, in effect, be the end of the matter.’

Carnwath LJ referred to the importance in a case of this kind having the involvement of a Judge with direct and hands-on experience of the criminal system. Hughes LJ, with direct hands-on experience of both the criminal and family systems, summarised the position as being that it is for the data controller to determine the purpose(s) for which the data is processed;  it is not open to the IC to impose his own determination of those purposes; the imposition of a concept of ‘core police purposes’ was misconceived; and in any event the proper purposes of the police in managing the PNC plainly include the retention of information for provision to others who have a legitimate need for it.

 Hughes LJ emphasized practical considerations and in particular the value, in the public interest, of the existence of a single comprehensive record of convictions and of its being held by police forces acting collectively.  Hughes LJ said, at paragraph 107: ‘Like both Waller and Carnwath LJJ, I take the clear view that if senior police officers with considerable operational experience are satisfied that even very old and comparatively minor convictions may sometimes be of assistance in police investigations, then unless that view is perversely or unreasonably held, it is not open to the Commissioner to substitute his own view of their potential use. But I should also add that the opinion expressed by the police witnesses in this case entirely accords with what is seen to be true from time to time in major criminal investigations. As was in evidence in these proceedings, Dame Janet Smith also reached a similar conclusion when considering the investigation into Dr Shipman. Such old convictions, if never subsequently repeated, may very well not be the kind of material which it is proper to put before a jury, … but that does not begin to mean that they have not been of use in the investigation. Quite apart from propensity (or lack of it) to offend in a particular manner, they are likely to be useful for other reasons, of which location and associates are but two simple examples. Moreover, the critical consideration is not the use of the conviction standing by itself, but its potential value in conjunction with other information pieced together by a skilled detective.’

Hughes LJ further observed that many others depend heavily, and reasonably, on the maintenance by the police of these records. Those others include (but are not limited to) the criminal courts, the family courts and those concerned with the protection of children and the vulnerable.  He said that the criminal courts have a plain need for reliable and comprehensive information. The Rehabilitation of Offenders Act 1974 is expressly made not to apply to criminal proceedings. There are at least two situations in which the need for such records arises daily. The first is in sentencing. The second relates to the credit of witnesses, especially those relied upon by the Crown. The Secretary of State for Justice expressed the view in this case that ‘providing anything less than full information to the courts would potentially undermine the criminal justice process’.  Hughes LJ agreed.

Hughes LJ also stated that the importance of multi-agency working to child welfare in general, and to child-centred family proceedings in particular, has been recognised for many years, has been the repeated subject of judicial and ministerial exhortation alike, and is difficult to overstate. It is, nowadays, the daily norm of cases in the family courts. The Rehabilitation of Offenders Act 1974 is expressly made not to apply to these proceedings either.  It may well be that at times such co-operation throws up difficult questions about the extent of disclosure which a police force ought to make to social services or other child welfare professionals, but that is not a reason for failing to have available a comprehensive record in order to make a fully-informed decision about it.

As regards the vetting of potential employees, Hughes J said that, given the statutory framework, it is plain that it is part of the necessary public purposes of the PNC that it maintain a complete record of convictions etc to enable the statutory scheme to work.

(Via Panopticon Blog.)

Commission considers wider-ranging data breach notification law: “The European Commission will consider passing new laws forcing organisations that lose personal data to go public with that loss. The Commission has until now been opposed to the creation of wide-ranging data breach notification requirements.”

(Via OUT-LAW News.)

Culture minister confirms court oversight for UK disconnections: “UK internet users will not be disconnected from the internet for illegal file sharing without a court’s involvement, a Government minister has pledged. Culture minister Ben Bradshaw has told MPs that there would be a ’strict’ process involving the courts.”

(Via OUT-LAW News.)

Police make a mockery of data protection: “

Court judgment ‘forgets privacy rights of millions’

Comment While the police are very keen to retain as much data on the average citizen as they can ‘just in case’ it becomes useful, they are markedly less happy when the data being collected relates to them.…

“

(Via The Register – Public Sector.)

Judge shoots down challenge to Craigslist erotic services: “

Web 2.0 immunized

A federal judge has summarily dismissed a lawsuit Chicago’s sheriff brought against Craigslist, ruling that the website can’t be sued for prostitution ads posted by its users.…

“

(Via The Register – Public Sector.)

Anti-filesharing laws revive crypto fears for spooks: “

Blinded by Mandy

The UK’s intelligence and law enforcement agencies fear the government’s anti-illegal filesharing plans will lead to a rise in encryption, scuppering their own efforts to monitor the internet, it’s claimed today.…

“

(Via The Register – Public Sector.)

Article from: TorrentFreak, check out our new blog at FreakBits.

Court Orders The Pirate Bay To Delete Torrents:

In an attempt to ensure that Dutch citizens can’t access The Pirate Bay, BREIN took three of the tracker’s founders to court. The anti-piracy outfit won the case and Fredrik, Gottfrid and Peter were ordered to block Dutch users, a decision they decided to appeal.

Today the Amsterdam Court announced that the earlier default judgment has been nullified. That is, the three operators don’t have to block access to all Dutch users.

It was concluded that The Pirate Bay itself is not necessarily guilty of copyright infringement. However, according to the Court the site does assist in copyright infringement by allowing and encouraging its users to share torrents.

The defense had argued that not Fredrik, Gottfrid and Peter were not the owners of the site, but a Seychelles based company named Reservella. The Court rejected this defense as the defendants could not name the current owners or provide any documents proving that the site was sold. It concluded that the three defendants are responsible for the site.

The Court ruled that The Pirate Bay has to remove a list of torrents linking to copyrighted works. The list is to be provided by BREIN, and is similar to the earlier ruling against Mininova. The defendants are given three months to comply, if not, they will face penalties of 5,000 euros ($7,500) per person, per day.

In addition to removing the torrents the defendants have to block Dutch users from accessing certain parts of the site (across all their domains) where users can download copyrighted files. Finally, the three have to cover the costs BREIN made for the court case.

Ernst-Jan Louwers, the lawyer for the three Pirate Bay defendants told TorrentFreak that his clients are currently considering whether or not to appeal this judgment.

More info will be added as it comes in… (Court ruling in Dutch)

Article from: TorrentFreak, check out our new blog at FreakBits.

3-Strikes For Pirates Makes European Comeback Tour:

The threat of 3-strikes based legislation had been reduced in recent weeks, with strong protests in the UK and proposed legislation elsewhere meeting stiff opposition.

However, none of this stopped the lobby groups, or the politicians looking to push for the ruling.

In the EU, the amendment, which would protect against 3-strikes laws by requiring due judicial process to occur before any sanction (such as cutting off Internet access), has been substantially watered down. Meanwhile, in France the Constitutional Court has ruled in favor of a slightly modified version of HADOPI – their legislation which includes a 3-strikes sanction.

On Tuesday, the Parliament gave up on Amendment 138, which had been voted on twice by the assembly, gaining a majority both times. The amendment was supposed to protect the rights of citizens from being treated as guilty upon the accusations of an industry group, and punished based on the same. It read;

Applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent.

Instead, they are now considering a version which does not guarantee the right to an effective and timely judicial review.

Christian Engstrom, the Pirate Party’s MEP, commented on the amendment in his blog. He included the differences in text that have been made since Tuesday (bold denotes added text, strike-through indicates removed) in a meeting between three negotiators for the European Parliament and representatives for the Council of Ministers.

The changes included the removal of the judicial guarantee, that any measures should come only after a fair an impartial procedure (and should now just ‘respect’ such things), and the ACTA-like inclusion of ‘National Security’ clauses.

He summarized things simply, saying: ‘It shows utter contempt for Parliament by totally ignoring everything it says. The Council plans to bypass Parliament and once and for all prove that it is they who make the decisions, end of story.’

Meanwhile, France’s highest Constitutional Court has approved a slightly modified version of HADOPI. While initially blocked last September, a change to require a judge to sign off on the disconnection action (rather than the Agency itself) has meant it passed the Court. However, such court measures will be ‘fast tracked’ rather than given full judicial process, a situation the New York Times describes as ’similar to traffic violations’.

This has angered many, including (of course) the Pirate Party. Laurent Le Besnerais of the Parti Pirate and Pirate Party International called it ‘a huge blow for Internet Freedom.’

‘In June 2009, this same Council declared that Internet access is a fundamental right which cannot be restricted without judicial process,’ he told TorrentFreak. ‘Today, the council gives a judge the right and responsibility to pronounce a closure of Internet access to anyone suspected of having shared illegally. Furthermore, the suspect will have to prove his innocence, which creates a presumption of guilt.’

With the flip-flopping over these measures, it can only be seen as a greater boost for the European Pirate Parties in future elections. However, since much of the party works and draws its support online, there is the risk that members could start having their net connections cut off. With evidential standards so low, would it really be beyond the realms of possibility that political critics of these plans could end up being cut off at the say-so of those they oppose?

If all goes as planned the agency will be staffed next month, with letters starting in the new year, and terminations starting as soon as next summer. How long the law will stay once the innocent start being punished is harder to predict. As with IPRED, the people the law aims to deal with will just use seedboxes, VPNs, and open WiFi hotspots instead of their home connections.