Are we to expect an Apple eBook Reader Soon?

Rumours continue to suggest Apple may be working on a Kindle Killer. One of the most popular software downloads from the App Store has been the Stanza ebook reader demonstrating to Apple a demand for ebooks (even on the iPhone's 3.5" display). I'm sure Apple have not missed the importance of this. Then we saw the announcement of the new Kindle DX only two months after Kindle 2. Why are Amazon in such a hurry to get out a new 9.7" ebook reader? Is it because as suggested here Apple are busy building an e-book library for iTunes and are planning a 10" full colour ebook reader based on iPhone style touchscreen technology? If so it could just kill off the monochrome Kindle before it really gets going (given Apple's design history and their ability to make technology lightweight).

How then does one confirm or debunk these myths? One way is to search the Trade Mark Registry to see what TMs Apple owns. To me the most interesting thing was that in 2006 Apple rebranded their laptop range changing their name from iBooks to Macbooks. Nothing in this you say? Makes sense as it labels all Apple Computer Hardware as Macs. But it also leaves the iBook trade mark available for use on another device. Apple retain the iBook TM (currently to 2015) so will we soon see an iBook to go alongside our iPhone and iPod? I'm saying yes. Maybe to be announced late summer 2009 to coincide with the release of the Kindle DX.

Postscript: Just found this in PC World Magazine. Seems to suggest that the iBook may be on the way.

Secret Regulations, Repealed Regulations and Justice

With thanks to @loveandgarbage who brought this to my attention. 

The excellent Jonathan Mitchell blog has an extremely alarming post. Jonathan's post yesterday - link here - details four recent cases in which counsel have attempted prosecution on either out-of-date laws or "secret" laws or in which they have plainly misled the court. The four  cases (I discuss three of them here) raise different degrees of concern, nay worry and in some counsel should surely have been raised up on disciplinary inquiry. 

Heinrich is an Austrian reference to the ECJ. Herr Heinrich was banned from taking his tennis rackets on board a flight causing him to miss his flight. Apparently, he later found out, there was a secret, unpublished EU Regulation which listed banned items. Security staff could see it, we couldn't. The ECJ ruled that: 

An act adopted by a Community institution cannot be enforced against natural and legal persons in a Member State before they have the opportunity to make themselves acquainted with it by its proper publication in the Official Journal of the European Union … In particular, the principle of legal certainty requires that Community rules enable those concerned to know precisely the extent of the obligations which are imposed on them. Individuals must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly.

The list of banned items may now be found in Annex 4 of Reg.820/2008. Interestingly it does not include tennis racquets. Worryingly Jonathan Mitchell notes: "Eleven national governments had intervened; the UK Government had claimed that the reference should have been regarded as inadmissible, for no very clear reason, and had cheekily gone on to suggest that the Court should declare the secret regulations to be binding until replacement regulations were made and published."

USv Farinella is an extremely worrying case from the US. The official report of the decision appears to have been moved from the 7th Circuit website, I'm hoping this is the usual problem of broken links not the 7th Circuit rewriting history. However there are many reports of what went on including this Simple Justice report. The case was a prosecution for selling salad dressing after its best before date (really). There are two really worrying aspects of this case. Firstly the prosecution seems to have misled the trial court into thinking a best before date and an expiration date were the same thing when they were not and secondly to prove their case they drew expert evidence from a civil servant as to what the law was (what was the Judge doing? It's like an episode of Boston Legal). 

On appeal Judge Posner was damning. As to the misconduct of counsel in misleading the court he blasted: 

We asked the government’s lawyer at argument what an appropriate sanction for the prosecutor’s misconduct might be. We are not permitted to reverse a judgment on the basis of a lawyer’s misconduct that would not have caused a reasonable jury to acquit, but in this case, had the government presented enough evidence to sustain a conviction, we would have reversed the judgment and ordered a new trial on the basis of the prosecutor’s misconduct. That sanction is not available only because the government presented so little evidence that the defendant is entitled to an acquittal. That does not detract from the gravity of the prosecutor’s misconduct and the need for an appropriate sanction. The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to. We are not impressed by the suggestion. 

On the more worrying aspect of civil servants "interpreting" the law and testifying to this in open court he lectured that: 

If there is a requirement that the FDA’s approval must be obtained before a “best when purchased by” date may be changed, it would, to be a lawful predicate of a criminal conviction, have to be found in some statute or regulation, or at least in some written interpretive guideline or opinion, and not just in the oral testimony of an agency employee. It is a denial of due process of law to convict a person of a crime because he violated some bureaucrat’s secret understanding of the law. The idea of secret laws is repugnant. People cannot comply with laws the existence of which is concealed.

He concluded simply:

Since we are directing an acquittal on all counts, the sentencing issues are academic and we do not address them, beyond expressing our surprise that the government would complain about the leniency of the sentence for a crime it had failed to prove.

Worrying though both these cases are, as a resident subject of the Courts of England and Wales I'm most directly concerned by R v. Chambers, [2008] EWCA Crim 2467. This was a prosecution under the Customs and Excise Management Act 1979 for failure to pay duty. Counsel for the prosecution (and it appears the Trial Court and Counsel for the Defence) failed to notice that the relevant regulation that was at the heart of the prosecution had been repealed seven years previously. The reason for this failure? Counsel was unaware that the OPSI website only publishes subordinate legislation as originally passed, not as amended; so the prosecution was based on the original regulations instead of the amended ones. This raises a question. How many lawyers and barristers/advocates assume the OPSI website (or the Statute Law Database for that matter) update subordinate legislation? How many cases like Chambers have there been? 

Chambers should be compulsory reading in all Introduction to Legal Systems courses and should be part of all CPE updates.  

Why Jack Straw must not allow himself to be bullied

The Times yesterday reports that "Jack Straw is to examine the 'chilling' menace of Internet libel which makes newspapers liable to legal action every time an article is downloaded from their websites." This story,written by Legal Editor, Frances Gibb, is a knee-jerk reaction to the decision by the European Court of Human Right on Tuesday to dismiss the case Times Newspapers Limited (Nos 1&2) v. UK. 

The Times had claimed that the so-called "Internet publication rule", this is the rule which states that each new access and download of a published online article counts as a new publication for the purposes of the one-year limitation period found in the Defamation Act, was a breach of Article 10 of the ECHR. The Court rejected this claim finding that "while Internet archives were an important source for education and historical research, the press had a duty to act in accordance with the principles of responsible journalism, including by ensuring the accuracy of historical information." For good measure the Court also noted that in the instant case that "although libel proceedings had been commenced in respect of the two articles in question in December 1999, no qualification was added to the archived copies of the articles on the Internet until December 2000".

Back to Jack Straw. A cursory read of Frances Gibb's article makes it clear that she is in fact referring to the already widely publicised Ministry of Justice Consultation on Internet Libel. There is in fact no statement of intent from the Justice Minister to deal with the Internet publication rule as a priority. Now lets get down to brass tacks. I've just spent three weeks writing a sixteen thousand word book chapter on exactly this subject. It's pretty hard to summarise the entire chapter in one blog entry but here is why Jack Straw must not allow the media to set the agenda on this one. 

I would have agreed with Frances Gibb that the Internet publication rule could "chill" free expression before a series of recent cases which put the brakes on somewhat. In Dow Jones Inc. v. Jameel the Court of Appeal rejected a claim in libel by Yousef and Mohammed Jameel on a de minemis  principle. Lord Phillips MR stated: "It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake. Normally where a small claim is brought, it will be dealt with by a proportionate small claims procedure. Such a course is not available in an action for defamation where, although the claim is small, the issues are complex and subject to special procedure under the Civil Procedure Rules." This approach has been followed at least twice in Amoudi v Brisard & Anor and Brady v. Norman.  The effect of these decisions is to set a de minemis hurdle for claimant's to clear. The harm caused by a publication must be substantial enough for the courts to entertain. This is not usually going to be a single publication or even two or three downloads.The point is the claimant must have suffered substantial harm before they can raise an action. 

If The Times, or any other online publisher wishes to escape ongoing liability for an article in their online archive they must police that archive. They make money from archive news stories (both through licensing content and though selling advertising) so they must have a responsibility to spend some of that money on policing their archive. As the Court noted in Times (Nos 1&2) they were aware of the potential libel in December 1999 (well within the 12 month limitation period as the pieces were published in September and October 1999) but no qualification was added to the archived copies of the articles on the Internet until December 2000. The newspaper continued to allow people to access the defamatory publication for a full year after they were aware of its nature. This is a publication within their control (and therefore distinct from print publications which are quickly outwith their control). Why should they not be liable for this?

The tort of defamation walks a fine line between freedom of expression and harm to individuals. Newspapers are powerful voices in the modern public sphere and as the famous aphorism goes "with great power comes great responsibility". If a newspaper publisher continues to libel an individual through their archive copy (from which I remind you they make money - according to Dominic Young, Director of Editorial Services at News International (who owns The Times) considerable money)* why should they not face a libel action. 

The key to the Internet publication rule is control. They control it, they can stop the harm. If they fail to act they should be liable. Jack Straw do not be bullied. This could be a vital point in the future of Internet journalism. Journalists and publishers must police their archives lest individuals face continual, and possibly perpetual harm in a way a paper publication never could. 

ps the image at the top of this post is © News International. If they want they can sue but this may be seen as "chilling expression" something we now know News International is against.

* This was told to me by Dominic Young at the AOP IP and Copyright forum of 20 November 2008 when I asked why his organisation and others could not consider following the lead of the BBC and use a creative archive licence for archive material. 

In the Court of Public Opinion

Yesterday morning on the A.M. show with Andrew Marr, Harriet Harman, Leader of the House of Commons, stated that although Sir Fred Goodwin's £650k pension "might be enforceable in a court of law" it was "not enforceable in the court of public opinion and that's where the Government steps in".

This is a most bizarre statement for a QC to make. As a qualified lawyer Ms. Harman knows that our legal system is founded upon certain key principles including that individuals, corporations and groups are bound by their obligations. If you start to subject obligations to the vagaries of "the court of public opinion" legal certainty is gone, and with it the foundations of our legal system and legal process. This is all the more bizarre given Ms. Harman's background as a former legal officer for Liberty and defender of the principles of human rights and protection for the individual from state oppression. See all about Harriot. But then there is something sinister about Labour Governments. People of principle before entering politics become abusive of power once they have it. It is almost as if when they were young they railed against power and the powerful because they felt impotent and thought they would never hold power. Once they get power they wield it dictatorially.

Then I got to thinking maybe Harriet has something after all. Let's set up a popular court of public opinion. Maybe we could ask Simon Cowell to be the Lord Chief Justice with Bruce Forsyth filling in as Master of the Rolls. This court would only be binding on the Government for as Harriet says "that's where the Government steps in." Let's imagine their first ten decisions:

1. Cabinet Ministers who accept campaign contributions in breach of electoral commission rules should be forced to immediately resign and should lose their ministerial pension rights. See The Daily Telegraph 28/11/07; The Daily Mail 28/11/07; The Daily Telegraph 30/11/07.
2. Cabinet Ministers who claim second home allowances for their family homes in their constituencies while "renting a room from their sister" should be forced to immediately resign and should lose their ministerial pension rights. See BBC News 18/02/09; The Daily Mail 11/08/09 [in particlar read the comments surely the best baromoter of public opinion]; The Guardian 18/02/09.
3. Ministers who claim back the insurance premiums they pay out on their life assurance policy for their husband under "parliamentary expenses" should be forced to immediately resign and should lose their ministerial pension rights. See The Sunday Times 25/05/08 [again the comments make good reading]; The Daily Telegraph 25/05/08.
4. Prime Ministers who failt to declare rental receipts or who have kitchens refitted at taxpayer's expense should be forced to immediately resign and should lose their ministerial pension rights. See The Daily Telegraph 24/05/08; The Daily Telegraph 05/02/08.
5. Ministers who co-sign financial documents at the heart of an international bribery scandal involving the Italian Prime Minister should be forced to immediately resign and should lose their ministerial pension rights. See The Indepdendent 27/02/06; The Daily Mail 27/02/06.
6. Chancellors who fail to move to protect inverstors from the first run on a UK bank for over 100 years be forced to immediately resign and should lose their ministerial pension rights. See Channel 4 News 14/09/07; The Guardian 18/02/08.
7. Oh and while we are at it the Chancellor who allowed for the personal details of 25 million child benefit recipeints to be lost on his watch should...well you know by now. See The Daily Telegraph 26/06/08; The Sun 21/11/07.
8. Cabinet Ministers who fail to act on information given to them which leads to the death of a child in social care should be, that's right, be forced to immediately resign and should lose their ministerial pension rights. See The Daily Telegraph 18/11/08; The Daily Telegraph 18/11/08.
9. Cabinet Minsters who cover up the use of UK air bases for CIA extraordinary rendition flights should...yup resign, no pension etc. See The Times 27/02/09; The Guardian 21/02/08.
10. Cabinet Ministers who deny votors the chance to read Cabinet Minutes fo the most important Cabinet decision of probably the last 20 years, despite an order from the information tribunal to release them, should well just go why don't you? See The Guardian 24/02/09; The Daily Telegraph 25/02/09.

A small footnote. While Ms. Harman wants to overthrow 1000 years of legal history over a pension payment of £650,000 per annum MPs expenses in 2006/07 were in excess of £43 million. Which do you find more scandalous?

New Publication: Twittering Could Harm Your Wealth

lI have had an comment piece published by the Guardian On-Line. I realise this doesn't make me David Aaronovich but I can truthfully tell people that I'm a Guardian columnist - well of sorts. Anyway have a look at the column and leave your comments at: http://www.guardian.co.uk/commentisfree/2009/feb/20/twitter-internet

Andrew 

Frybombing

I've noticed a new phenomenon "Frybombing". This is the term I've given to those occasions when a twitter from Stephen Fry causes a site to crash under the weight of his 178,000 (and rising all the time) followers all rushing to see the latest site, video or pic the glorious Mr. Fry has lauded in his latest tweet. It should be said Mr. Fry is completely innocent in this, in fact rather to the opposite he is always supporting the site in question and the site quickly recovers as the initial rush subsides. It does though demonstrate the immense appeal of Stephen Fry who (although second in number of followers to Barack Obama) is indisputedly Twitter's no.1 star. In several recent tweets he has apologised for this Frybomb effect. The problem seems to be that his followers have grown in number so quickly (from just 50,000 just over month ago to probably 200,000 by next week) that Mr. Fry is only now seeing the effect of leading such a massive following.

The solution to "Frybombing" is simple. Mr. Fry must carry on as normal.He is providing a valuable service to both his followers and the sites he promotes. I suggest though his followers may need to modulate their actions. When Mr.Fry posts a link in his latest tweet instead of all rushing to view it immediately followers should put on the kettle and make a cup of tea (or coffess if you prefer) and have a HobNob or two. Assuming we all consume our beverage at a different pace this should lessen the impact of the massive following Mr. Fry now commands. 

So if you follow the Fry don't just visit a linked site immediately. Take a tea then visit. If we all do that Frybombing may cease to be an issue.

photo credit: lewishamdreamer cc BY-NC

Media Coverage...

My Article on Extreme Pornography in the Modern Law Review is getting a fair bit of attention. The article (which may be read for free online http://ping.fm/cTMdE) argues that the newly activated s.63 of the Crime and immigration Act 2008 was badly drafted following inadequate consultation and may lead to police pursuing the BDSM community at the cost to the intended purpose of the provision to control violent and rape image pornography. The paper was given an LSE Press Release and it has now been picked up by Charlie Beckett in his POLIS blog and by The Financial News Service.  

It will also apparently feature in The Barrister Magazine next week. I'll keep you updated...

Just realised that although I'm talking about the book in detail readers may not know the structure of it. You can therefore read about it here.

Is this genuine?

Would you reply to this message?

"From: Customer Support [mailto:customercare@xxxxxxxxxxxx]
Sent: Mon 02/02/2009 10:58
To: Murray,A
Subject: BACS Transfer

Dear Sir/Madam,

In order for us to proceed with your BACS withdrawal request, our Accounts Department has requested that you provide an additional 4 forms of ID.

The ID required is as follows:-

A copy of your passport or driving license

A copy of the front and back of the current card

A copy of the current Debit/Credit Card Statement, containing the card number along with your name and address ), that you have registered on the website. (On-line statements require additional ID in the form of a utility bill with name and address)

A copy of the bank statement where you wish the BACS request to be made showing the Sort Code and Account Number.

This information can be sent via E-Mail or faxed to Customer Services at XXXXXX on XXXXXXXXX

Alternatively you can post to the following address:

Customer Care
XXXXXXXX

We look forward to hearing from you

Regards,

XXXX XXXXXXXX

Customer Care Advisor
T:- 0800
E:- customercare@xxxxxxxxxx

This was the response I got when I asked to withdraw some funds from an online account to may bank account. It looks like a classic phising message - no account name in the greeting (just dear sir or madam), no option to visit your online account and use HTTPS to secure your upload etc. etc. It is though a genuine request. After a thirty minute phone call to customer services the only concessions I could secure were that I could submit three forms of ID (as that was what their T&C's say they may ask for), and I could obscure the CVC and middle eight digits of my card number and the automated check code on my license.

This to withdraw just over £100 from an account. I arranged a mortgage more simply.

ps If you want to know which company requires all this just mail or PM me.

It's still snowing here. It reminds me of playing in the back garden when I was a kid. May build a snowman later.