Data protection and the ‘right to be forgotten’ in practice: a UK perspective

We are in an uncertain and complex period for data protection and privacy in Europe, and especially so in the UK, following the result of the ‘Brexit’ referendum on 23 June 2016. Information law, and data protection in particular, are of increasing concern for those in the business of knowledge sharing and information dissemination: media organisations, academic institutions and libraries. The notion of the ‘right to be forgotten’ is particularly troublesome, as lawyers, archivists, historians and philosophers grapple with the theoretical and practical implications. This paper discusses a selection of recent European and British policy and legal developments, and discuss how they are changing social practice and citizens’ engagement with information rights

Launch of new survey on the legal experiences and views of journalists and online publishers

Most claims against journalists and bloggers are resolved out of court. As a result, there is very little written law to help guide these authors in their publishing and arbitration practices. A new survey for journalists and bloggers conducted by Judith Townend of the Centre for Law, Justice & Journalism aims to collect information about their out of court experiences and their views on libel and privacy law

Freedom of expression and the chilling effect

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Online chilling effects in England and Wales

Open and free internet-based platforms are seen as an enabler of global free expression, releasing writers from commercial and space constraints. However, many are working without the assistance of an in-house lawyer, or other legal resources. This may lead to undue suppression of public interest material, with important implications for freedom of expression and the democratic function of media. Two online surveys among digital and online journalists in England and Wales in 2013 indicated that the majority of encounters with defamation and privacy law take place outside the courts, with few formally recorded legal actions. This was particularly evident in a sample of ‘hyperlocal’ and local community publishers. In light of the results, this paper calls for a reappraisal of overly simplistic judicial and media applications of the ‘chilling effect’ doctrine, in order to expose its subjectivities and complexities. Additionally, attention needs to be paid to global and cross-jurisdictional media-legal environments, in order to help develop better internet policy and legal frameworks for protecting legitimate expression

Protecting sources and whistleblowers in a digital age

A working report published as part of an initiative supported by Guardian News and Media, based on research conducted at the Information Law and Policy Centre, Institute of Advanced Legal Studies. Launched at an event in Parliament on 22nd February 2017

Censorship and national security: information control in the Second World War and present day

- The recent criminal trials of Erol Incedal on terrorism-related charges, in which central details were kept secret from the public, suggests a lack of clarity about information control in a contemporary context - It is legitimate to restrict information in the interest of national security, but only where this is strictly necessary and when safeguards exist to maintain open justice and freedom of expression - The British experience of security censorship during the Second World War provides a compelling case study of information control in an otherwise open society that should be used to inform future policy - The self-regulated system adopted during the Second World War ensured considerable press freedom, but was hindered by a lack of planning and poor co-ordination between the press and competing authorities - The Second World War case study suggests that information control procedures will always be contentious but that they can be made more successful through careful planning and co-ordination, the involvement of a broad range of representatives, and an awareness of the public interest in imparting and receiving information - Both the historic and contemporary case studies indicate that information control in an open society will rely upon a degree of self-regulation and require clear guidelines, co-operation, and opportunities for dialogue

Open justice, transparency and the media: representing the public interest in the physical and virtual courtroom

In 2012, Lord Justice Toulson observed that the practical application of open justice ‘may need reconsideration from time to time to take account of changes in the way society and the courts work’. In this article, we undertake such a reconsideration in light of the declining role that institutional media organisations play in promoting and protecting the principle of open justice, focusing on courts in England and Australia. We argue that due to changes in the communications landscape, the media no longer have the resources or sufficient inclination to adequately safeguard the public interest in transparency in the courts. In order to place the media’s declining role into context, we also briefly explore three further categories of contemporary challenges facing the open justice principle: changes to judicial attitudes to open justice in response to new communication technologies; shifts in the priority given in law to competing interests in national security and privacy; and, finally, new and emerging changes to court processes and procedures that potentially limit open justice, including virtual courts. We then consider mechanisms that would offer enhanced protection of open justice. Most boldly, we examine a novel model in which an open justice advocate (OJA) intervenes in appropriate circumstances, with the overall objective of ensuring maximum transparency of court proceedings. We also suggest additional mechanisms for greater transparency and accountability regarding the state of open justice in the courts – namely, a statutory duty on courts to give written public reasons for all decisions regarding open justice, a public register of all reporting restrictions (and similar orders) granted by the courts, and annual open justice reporting requirements

The impact of charity and tax law/regulation on not-for-profit news organizations

UK case study in international report (pp. 56-78

Positive free speech and public access to courts

Even the most casual observer of courts in the UK, whether through crime dramas or news reports, will likely have some awareness of the guiding principle that for justice to be done, it must be seen to be done. But if one digs beneath that popular and well - cemented phrase, understood as critical to the rule of law, it becomes clear that open justice takes many different forms and is in practice a complex principle to administer and enforce. Clearly, the UK courts have a positive obligation in law to provide information about their activities, but to what extent? Just how much, and by what method and why, are questions that are contested and open for interpretation. This chapter uses the positive free speech framework and normative arguments forwarded in this collection to address these questions and to suggest how the judiciary and courts service should be publicly communicating what happens in court. Accepting the premise that there are positive duties on the state that ‘insist[s] that everyone be able to exercise their rights’ in order to ‘support diverse speech environments’, and that positive free speech is a ‘central element existing alongside concerns about legal limitations on speech’, it proposes a way forward for further enhancing positive free speech in a court setting

Justice wide open: working papers

These working papers are part of an initiative at the City University London Centre of Law, Justice and Journalism entitled "Open Justice in the Digital Era", which aimed to make recommendations for the way judicial information and legal data are communicated in the 21st century