Telco giants do the techno-legal time warp, again

Telecommunications giant Optus managed to convince the Federal Court in Sydney this week that there’s a legal blindspot in relation to its download pay-per-view service.

Telstra – given its business relationship with The National Rugby League (NRL) and Australian Football League (NFL) – had tried to prevent Optus from recording and re-broadcasting matches screened on free-to-air television.

But Justice Steven Rares found Optus’s mobile television service didn’t breach the Copyright Act for a couple of reasons: Optus keeps separate recordings for each customer, and individual customers are responsible for requesting the recordings.

So what’s going on here?

To my mind, former rugby league coach Roy Masters – ever the shrewd observer – hit the nail on the head when he wrote the following for the Sydney Morning Herald yesterday:

“They framed the copyright laws to protect the average punter from being sued for taping a TV show, including a football match on his home recorder. Now, their legislation is being used by Optus to sell a service.”

Naturally, Telstra has concerns. The AFL’s A$1.25 billion five-year rights deal signed last season with Channel Seven, Foxtel and Telstra, included a A$153m payment by Telstra for the online broadcast rights to games. The NRL, likewise, expected a proportion of its next deal to come from internet rights.

[first published on The Conversation, 3 Feb, 2012]

Whale(b)oil Slater hooked?

I have no beef with Whaleoil, but I am interested in his ongoing court case.

Blogger Cameron Slater (aka Whaleoil) has got himself into a bit of legal trouble and inadvertently made himself bottomfeeder food for the “repeaters” of the “Lame Stream” media that he so detests.

Even so, one gets the impression that Whaleoil is actually enjoying his 15 minutes of notoriety.

My impres­sion of the court sys­tem for peo­ple on first appear­ance is that it was about as organ­ised as a free for all piss up at a South Auck­land pub on Fri­day night.

Then I went down stairs and was met by about 30 repeaters and cam­era guys and photographers.

Here is the results of all that.

NZ Her­ald

New­stalkZB

TV3

TVNZ

Stuff (Video at stuff)

Eat that Far­rar, Every news chan­nel is cov­ered includ­ing NZPA which I don’t have access to. I don’t think this is going the way it was sup­posed to.

His brief appearance on a handful of charges in Auckland today (Tuesday 5 Jan) was ironically in courtroom adjacent to that in which yet another entertainer (loosely-defined) was remanded on child sex charges.

Although I can’t help won­der­ing if it is pure coin­ci­dence that I appeared the very same day as the “Come­dian” also appeared. Part of me thinks that was a stitch up.  [Court @ gotcha…]

So far Mr Slater has repeatedly said he will defend the charges that he breached a number of suppression orders and published information that might tend to identify a person with name suppression. The charges refer to two cases: one that was recently before the courts involving an “entertainer” who successfully argued for name suppression on the grounds that his earning capacity might be affected adversely if he was named. The second case is current and involves a former New Zealand Olympian who is facing serious charges of assault and sexual assault.

In both cases Whaleoil identified the men who have name suppression using a series of pictorial images to stand in for their names. In the case of the entertainer (who copped a guilty plea and got off with a warning) even PM John Key claims to know the name; so there seems little point in continuing the charade that the name’s suppressed. However, it is permanently suppressed, which is lucky for the guy, but not so lucky for his victim.

In the second case, as I understand it, the pictogram was a little harder to decipher. However, on the face of it, an offence may have occurred. If you look at the relevant sections of the law, it seems fairly clear cut.

As I read it, in cases involving a victim of sexual assault, publication of details that might identify the person – even the name of the accused – can be suppressed. In the entertainer case this was not the reason, but in the ongoing case of the Olympian it appears to be the reason for suppression.

a warning to social networkers

There was a horrible murder in Auckland a week ago. A young man, Augustine Borrell, was stabbed in the chest outside a teener party in the fairly well off suburb of Herne Bay. An 18 year-old gave himself up to police a few days later.

It’s teen death 11 0r 12 in Auckland in the last few years, there’s an incident pretty much every weekend in terms of fights outside parties. On the Saturday just past a young guy was shot in the face with a pellet gun.

But what’s got me interested in this story is the coverage given to an alleged confession by the stabber. According to reports in the NZ Herald, the unnamed guy posted an apology cum confession on the networking site Bebo.

Bebo has become both an online memorial to Borrell and a battleground between his friends and associates of the alleged killer. The New Zealand Herald is breathlessly reporting all of this from a perspective of Bebo’s “dark side” of guns, drugs and crime.

I’ve had a look, admitedly a quick squiz, around Bebo and can’t find the stuff that’s been written about in the papers. Though, I don’t doubt it’s there.

A few days after the online torrent of love and hate around the Borrell stabbing, the young accused was in court charged with murder. A suppression order is in place to prevent his identity being publicised. According to newspaper reports at the time, the sites where messages were being posted about the alleged killer were taken down.

What I think is most chilling about this is the blunt warning given in the court by prosecutor, Ross Burns. He basically said that the government is able to monitor sites like Bebo and is able to trace posts.

“The Department of Internal Affairs monitors internet websites and is perfectly capable of tracing postings back to the original poster and if that happens and they are found to have breached the order then they are liable for criminal prosecution.”

The other thing that’s got me puzzled is why the NZ Herald has been allowed to print the text of the accused person’s online apology/confession. Isn’t this a case of contempt of court?

One posting, written in response to allegations about who was responsible for the murder, said:

“hey there … i am real sory 4 tha incident ov augustine, an want u 2 know i had no intensions wat so ever 2 do so, an im not that kind of person an kuld neva du that 2 sum1 especialy 2 sumwun i dont knw an if u havnt heard iv handed maself in.and i am real real sorry, i didnt know wat hapend that nite. R.I.P augustine”

This case is a lot more serious that kids finding themselves arrested for driving stupidly and putting a video of their stunt on YouTube. I’m going to keep an eye on this case, the legal precedents are interesting. They highlight what I call the “techno-legal time gap”. There’s pretty much no regulation of what can be posted on social networking sites, it’s suck it and see.

media ethics, journalism

Blacksburg Massacre – the techno-legal time gap and new media

In an interesting article by Joe Garofoli at SFGate we are beginning to see a discussion about the many ethical and lego-technical dilemmas thrown up by the way that NBC chose to use the Cho Seung-Hui suicide video.
The basic question is should the news media use everything it can get – such as the “eyewitness” cameraphone footage and the Cho tape, just because it can? There are also issues of verification, authority and authenticity around this. Not to mention the traditional ethical issues, such as grief intrusion, the coverage of violent crimes and suicide and the rights of victims.
I have written (see link to my books below) about what I call the ethico-legal paradox (that there is a contradiction sometimes between the law and ethics in media decision-making) and the techno-legal time gap (that there is a disconnect between what the technology can be used for and any form of legitimate regulatory regime to govern its use).
We see both of these issues being played out in the raging debate about the use of the Cho video in NBC (and other) newscasts and on the web.
Garofoli wrote that in the Blacksburg situation we see the visible interdependence between old and new media for the first time. Well not quite. I have written and lectured on this over the past year to my colleagues and students. I call this phenomenon “Journalism in the Age of YouTube”.
It first came to my notice in July 2005 during the London bombings. The BBC and other media were running loads of amateur footage shot on cameraphones and many stills of the underground explosions. But the real tragedy of this was the shooting of Brazilian tourist, Jean Charles de Menezes by the police a couple of days later. Eyewitnesses told the BBC that they had seen “wires” poking out of his jacket when police tackled him to the ground and shot him between five and seven times in the head. The news that Mr de Menezes was a “terrorist” led the frontpage news the next day. It took the British police more than 24 hours to correct the wrong information from eyewitnesses. This is the real danger in this unmediated and uncorroborated fast-media world.
The second time I noticed this, and what sparked my interest even more was inNovember 2006 when a student at UC-Berkeley was tazered by over-zealous security guards. With in hours footage shot by eyewitness cameraphone was posted on YouTube and within 48 hours it was a big international story. I saw it for the first time on a commercial network bulletin in Perth, Australia.
What was interesting about this event was that it set up a referential feedback loop between YouTube and the mass media. YouTube hosted the phone footage, then it was picked up by the campus student press, then by local (San Francisco) news organisations, then it made it onto CNN and Fox and went global. But almost immediately, YouTubers were cross-posting the Fox and CNN clips back into their networks. When I last checked on 21 April 2007 there had been over one million hits on one version of the phone video, but there are several others that have similar hit rates.
I agree that there is a growing interconnection between traditional media and the digital natives, such as YouTubers. My interest in pursuing this is to know how far it’s going and where it might lead.
I am currently writing a book about this and would love to hear from EM readers about their own experiences, thoughts and incidents. If you come across more writing on this, pls let me know about it.
Here’s another thoughtful news report that really nails some of the ethical issues. The AP television writer, David Bauder, had this to say, and it’s a comment I agree with:

The pictures alone _ 11 showed a gun pointed at a camera lens _ were repulsive. Many who saw them viewed it as a second attack, an invitation to copycats and a fulfillment of Cho’s demented wish for attention.

There’s also some good coverage over at the UK Press Gazette blog.
Meanwhile, this is what the good burgher’s of Blacksburg have had to put up with. Would you like to have dinner with this sh!t blaring away from the widescreen TV over the bar?

media ethics, journalism