Facebook contempt of court derails UK drug case

June 30, 2011

By Dr Melissa de Zwart

A major drug trial had to be abandoned and a juror and an (acquitted) defendant found guilty of contempt of court in the UK High Court, following contact between the juror and defendant on Facebook. This was the first prosecution for internet related contempt in the UK. The juror, Joanna Fraill, a 40 year old mother of three, created a Facebook profile called ‘Jo Smilie’, which clearly showed her image. She then used that profile to make contact with the defendant in the drug trial, Jamie Sewart, (34) who had been acquitted of conspiracy charges that day. The contact was made while the jury was still deliberating on other charges.

The complex multi-million pound trial, being heard in Manchester, had involved multiple defendants and charges and was one of a series of four trials. The high profile contempt proceedings came at a time of increased attention by the judiciary in the UK (and Australia) to issues related to jury members accessing the internet for information and attracted the personal involvement of the UK Attorney-General, Dominic Grieve. The case illustrates not only the allure of using the internet for research, but in particular the deceptive sense of privacy and intimacy created by social networking sites, such as Facebook.

Transcript evidence

A transcript of the Facebook chat, which took place in August 2010, has been made available by The Guardian. That transcript shows that Sewart clearly knew that ‘Smilie’ was a juror and asked her: ‘what’s happening with the other charge??’. ‘Smilie’ had asked her to clarify the question, but then went on to post a little later ‘don’t worry about that chge no way it can stay hung for me lol th’. Smilie was also clearly aware of the risk she was running, posting: ‘cant get anywaone to go either no one budging pleeeeeese don’t say anything cause jamie they could call mmiss trial and I will get 4cked too’.  Sewart reassures her: ‘I know I have deleted all the messages I wudnt do that to u don’t worry xx’. The pair also discuss nods, blinks and smiles that Smilie had been sending to Sewart in the courtroom (although Sewart seems to have been unaware that they were meant for her). Sewart later says that they should keep in touch and that she would get Smilie ‘a nice pressie’ if she got anything ‘out of um’, presumably the ‘compo’ she said she would be applying for. At the heart of the exchange is the sense that Smilie wants to show her empathy with Sewart and to explain that she had felt that she had shared the experience with Sewart, noting that she had laughed and cried along with her during the trial.

Despite her assurances to Smilie, Sewart told her lawyer about the Facebook exchange the next day. This resulted in the seizure of her computer and the bringing of the contempt charges. The jury was discharged and the case collapsed.

Both Fraill and Sewart were found guilty of contempt of court in June 2011. Fraill admitted that she had contacted Sewart, claiming that she had been motivated by her joy that Sewart had been acquitted of the charge of conspiracy to supply drugs, after being on remand for fourteen months and separated from her young child, and because she had felt that there were ‘considerable parallels’ between the womens’ lives which made her feel empathetic to Sewart’s plight. Fraill also admitted to having conducted internet searches on Gary Knox, Sewart’s partner and co-defendant in the trial.

Gary Knox, a defendant who was convicted in the original drugs trial and jailed for six years on charges related to paying a police officer to disclose information relating to drug dealer has also applied to have his conviction overturned on the basis of alleged jury misconduct.

The case was heard by the Lord Chief Justice, Lord Judge, Ouseley and Holyrode JJ.

Sentence and observations

Fraill was sentenced to eight months in jail for the contempt. Seward was sentenced to two months, suspended for a period of two years. The contempt action was conducted personally by the Solicitor- General, Edward Garnier QC, who stated that the case was necessary to protect jury integrity. After the trial, Garnier stated that: ‘Jurors should take careful note and know that the law officers will prosecute those who commit contempt.’ He continued:

‘The jury system is a cornerstone of our society and confidence in this vital part of our criminal justice system will crumble if jurors do not take their responsibilities seriously.’

The written ruling of Lord Judge stated: ‘Her [Fraill’s] conduct in visiting the internet repeatedly was directly contrary to her oath as a juror. And her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial.’ The messages exchanged between Fraill and Sewart ‘went much further than the expression of a compassionate concern’. The ruling warned that any similar action by a juror would result in a custodial sentence, such punishments being necessary to maintain faith in the integrity of the jury system. [sky.news.com.au]

In November 2010, Lord Judge had presented a paper to the Judicial Studies Board warning of the prospect of jail sentences for jurors engaging in internet research. He highlighted the risks posed to the jury system by jurors using the internet to search for further information on matters related to the trial. He stated: ‘I do believe that if it is not addressed, the misuse of the internet represents a threat to the jury system, which depends, and rightly depends, on evidence provided in court which the defendant can hear and if necessary challenge. He is not to be convicted on the basis of material which from his point of view is secret material – not only secret material, which is bad enough, but material which may be inaccurate and could also be false.’

Lord Judge concluded: ‘if the jury system is to survive as the system for a fair trial in which we all believe and support, the misuse of the internet by jurors must stop. And I think we must spell this out to them …  yet more clearly. It must be provided in the information received by every potential juror. It must be reflected in the video which jurors see before they start a trial. Judges must continue to direct juries in unequivocal terms from the very outset of the trial. And I should like the notice in jury rooms which identifies potential contempt of court arising from discussions outside the jury room of their debates, to be extended to any form of reference to the internet.’

Facebook ‘friends’

One of the interesting issues raised by this trial, is not so much that Fraill was tempted to discuss the case on Facebook, but rather what Jenny McCartney writing in The Telegraph described as the ‘illusion of intimacy’ displayed in the transcript of the chat. Fraill clearly wanted to be identified by Seward as a friend and ally. Although she had used the internet to search for information on Knox, it appears that she was mainly interested in getting some acknowledgment from Seward that they shared a special bond. Although she had been signalling to Seward in court, it was by no means clear that the signals had been received by Seward. In the same way that for example, fans of a popular musician or actor can gain a sense of contact through receiving a message via Facebook, Fraill sought some affirmation from Seward. This sort of contact would not have been possible in pre-Facebook modes of contact and represents a unique aspect of social network communication. This is an extension of the general problem of jurors being tempted to conduct their online ‘research’ during trials. It is now necessary for jury instructions to specifically prohibit using any internet enabled device to conduct research or to communicate with anyone regarding the case. Whilst this may appear to be common sense, experience suggests that we are still learning how to use Facebook and social networking sites appropriately.

Dr Melissa de Zwart is an Associate Professor in Law at the University of Adeliade.

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Posted by clarissaterry

ACTA reaches a critical new stage

April 23, 2010

By Kim Weatherall

What a difference a fortnight can make!

Two weeks ago on this Review, I noted that we had no (official) access to the text of the Anti-Counterfeiting Trade Agreement, or ACTA.  As of Thursday this week, though, we do (available here), following a decision by the negotiators last week to meet the demands of civil society and politicians for transparency.

There has been a reasonable amount of commentary already from the likes of Michael Geist, Margot Kaminski at Yale, and Sean Flynn at American University.  In fact, Michael Geist has a useful blogpost with links to commentary across the web.

This official text is perhaps most interesting in showing where the negotiators have got to since January.  My summary?  There are some improvements: there seems to have been some attempt to respond to industry and civil society concerns; and so some (definitely not all) of the nastiest stuff has been taken out and new flexibilities are proposed, if not yet agreed.

The language that had been interpreted as potentially imposing ‘three strikes’ legislation (or graduated response) – that is, requiring ISPs to engage in a process of graduated responses to file-sharing by customers in response to copyright owner complaints culminating in suspension or termination of internet service – that’s kind of gone.  It was in a footnote to the text that now starts on page 19 of the official draft text, and it used to refer (back in January) to ISPs having a policy for the termination of repeat infringers. Now the text just says (on page 21) that at least “one delegation proposes to include language in this footnote to provide greater certainty that their existing national law complies with this requirement”.  In other words, I think that the US, and probably Australia, and maybe another country want confirmation that their domestic requirement for a termination policy complies with the language of ACTA. But they won’t tell us what that text is right now – maybe its not been drafted yet.

There are some general provisions at the front now (at least proposed) referring to important concepts like the protection of privacy and confidential information, proportionality, and that the agreement does not require countries to redistribute scarce enforcement resources to prioritise IP over everything else (my paraphrase).

The statutory damages provision now includes a proposal to allow additional damages instead.  As I’ve explained at length elsewhere additional damages are better than statutory damages, largely because they allow courts to decide who is an appropriate person to be punished (rather than the rightsholders): they put in place more discretion.  That said, they can be pretty darn arbitrary. But better.

There’s a proposal to allow countries to choose whether to apply border measures to patent and design infringements rather than mandating their coverage.  As I’ve noted before, inclusion of patents is problematic because of the potential impact on legitimate businesses including generic pharmaceutical manufacturers.

On the other hand, some of the material I described as concerning in the post a fortnight ago, and in a more lengthy paper that’s available online, is still there.

There is still a proposal to allow rightsholders (and, by the way, rightsholders includes representative groups like the RIAA or MPAA) to get injunctions against intermediaries whose services are used by third parties to infringe – even where the intermediary is not itself liable – thus potentially turning the ISP into the enforcement arm of the rightsholders and courts.

There is still a provision that seems to be proposing the creation or ‘confirmation’ of secondary liability – something not found in international treaties anywhere else and something that is entirely about substantive law, not enforcement, and so inappropriate here.

The draft still proposes an elaborate ACTA superstructure which, for reasons Geist has explained, is pretty darn concerning.  Let’s face it: bodies like this need to justify their own existence and will create work for themselves.  Including working groups for new and even more exciting enforcement provisions into the future.

There’s a nasty possibility that Kaminski points out: they’re debating criminalizing “[i]nciting, aiding and abetting” infringement.  These provisions are both up for debate, and should not be included in the final draft if ISPs don’t want to become subject to criminal investigations.

And there’s still plenty of provisions where the possibility of applying the provisions to patent is still on the table, albeit with border measures those measures are optional.

And there’s more.  This post can only touch on the kinds of detail we are seeing in this proposal.  There is much yet to work through. At least we now have something to go on.

2 Comments | ACTA, Copyright, counterfeit, piracy, Uncategorized | Tagged: , , , , , , , , , | Permalink
Posted by Editor

The Digital Economy Act (UK) – preview for Down Under?

April 23, 2010

By Melissa de Zwart and Vicki Huang

The Digital Economy Act 2010 (the Act) was given Royal Assent on April 8th, 2010.  The Act regulates digital media and contains many of the suggestions from the Digital Britain Report of June 2009.  The Act is controversial for many reasons.  First, the lack of debate surrounding the Bill left many commentators reeling.  The first reading of the bill was presented to the House of Commons on March 16th 2010, was not debated at length in the Commons and pushed through in the dissolution of Parliament.  Second, whilst the Act touches on many areas of a digital economy such as the regulation of Channel Four, the most contentious parts of the bill are those centred on shutting down online piracy.  The spirit of these provisions is to use Internet Service Providers (ISPs) to police individual users and their use of peer-to-peer file sharing websites.

Under the Act, copyright holders can send a “copyright infringement report” to an ISP with evidence of a copyright infringement.  The ISP has the burden of notifying its subscriber of the alleged infringement (cl.4).  In addition, ISPs must provide copyright holders, upon request, with a “copyright infringement list” outlining each infringement by an individual anonymised user (cl.5).

The Secretary of State may tell OFCOM (the UK communication regulator) to order ISPs to shut down sites, suspend accounts or enforce other limits upon an ISP customer (cl.10).  ISPs that fail to apply technical measures against infringing subscribers can be fined up to £250,000 (cl.14).  The maximum criminal penalty for making copyright-infringing works is raised to £50,000 (cl.42).

Under cl.17, the Secretary of State may make provisions concerning the granting by a court of an injunction forcing ISPs to block access to “a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright”.  In other words, government sanctioned website blocking.

Why the Uproar?

When the Bill was originally touted, there seemed to be widespread panic.  Claims of shutting down You-Tube and restrictions on freedom of speech were widely reported.  Some of the more vocally opposed proposals such as the “three strikes and you’re out” policy for recalcitrant users seem to have been withdrawn but the Act still has many in the UK concerned.  The fears seem based on the prospect of shutting down of sites that host a combination of legitimate and illegal material and the shutting down of sites that may use copyrighted work but in a reportage capacity eg wikileaks.org.  At the extreme, some argue that, the inclusion of the phrase “likely to be used” in cl.17, may mean a site like Google may be blocked based on its assumed intentions rather than its actions.

The concerns from the ISPs seem to relate to their duty to send infringement notices to users and their potential obligation to shut down access.  The problem with the Act from an ISP’s perspective is that whilst copyright holders can link piracy with an IP address, and these may be linked to a household’s internet account, there is no guarantee that the infringer will be identified.  An IP address can be used by many people at once, for example by legitimate users, neighbours, visitors or hijackers.  For cafes and public places with wi-fi, the identification of a user is almost impossible.  This has led to a fear that many innocent account holders will be sent infringement notices.

Proponents say the current procedure of getting a court order before an ISP will identify the infringing user is inefficient and costly.  By making it clear that an ISP is obliged to identify the user and by imposing a penalty of disconnecting the user, the cost of enforcing copyright laws will lessen as owners are not forced to go the court for orders or seek a remedy through the courts.

Piracy in Australia

The legislative approach in the UK is an interesting contrast to the current position in Australia which relies upon ISPs adopting a voluntary repeat infringer policy. The ‘safe-harbour’ provisions, which were introduced into the Copyright Act 1968 as a consequence of the AUSFTA, were considered in the recent case of Roadshow Films Pty Ltd v iiNet  Limited (No. 3) [2010] FCA 24, reviewed in the Fortnightly Review in February and March. In that case the Federal Court held an ISP to be not liable for its user’s peer-to-peer distribution of copyright works.  The case is scheduled for appeal but the approach of the Court to the safe harbour provisions is interesting in the context of the Digital Economy Act.

Three key aspects of the iiNet decision are important in this context:

1. The meaning of the ‘power to prevent’ infringement under section 101(1A) with respect to authorisation liability.

    • Whilst iiNet had the power to suspend or terminate users’ accounts under its customer contract, the Court held that this did not equate to an obligation to suspend or terminate accounts for copyright infringement. The Court observed [at 430] that ‘copyright infringement is not a straight “yes” or “no” question’. Therefore, the concept of who would constitute a repeat infringer was not self-evident, raising the same interpretation issues as outlined above with respect to the Digital Economy Act.

    2. The operation of s112E.

    • Although this section of the judgment is obiter, the Court interpreted this section to have little or no practical effect. The only circumstance in which s112E could have effect is where the person merely provides facilities for the making of the infringement and does nothing more. However, of course, if this is all the person is doing, it would be unlikely they would fall within the concept of authorisation. Any knowledge of infringement would mean that the section is no longer applicable.

    3. The safe harbour provisions.

    • Again, this section of the judgment is obiter as the sections only apply once a finding has been made that the ISP is liable for infringement. The Court confirmed that as compliance with the provisions is voluntary, failure to adopt a repeat infringer policy cannot be evidence that goes to a finding that an ISP is liable for copyright infringement. In order to fall within the limitation of liability provided by the safe harbour provisions, ISPs are required to adopt and reasonably implement a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers.
    • Interestingly, the Court held that iiNet had a repeat infringer policy even if it had not been fully written down nor described to its subscribers: [at 593] ‘It is impossible to fail to notice the complete vacuum of legislative guidance in relation to any category A requirements when compared to the highly prescriptive requirements in relation to categories B-D found in s 116AH(1) and the Regulations. Neither the legislation, the Regulations nor extrinsic materials provide any guidance to the Court as to what the ‘appropriate circumstances’ for termination are, what ‘repeat infringement’ means or what the ‘accounts of repeat infringers’ means. The assumption must be that Parliament left latitude with the CSP to determine the policy, and left the meaning of those words to be determined by the courts.’

    The approach of the Court in this case demonstrates the difficulty of interpreting and applying such concepts, and it is likely that similar confusion may apply in the context of interpretation and application of the Digital Economy Act (UK).

    Outcomes

    Clearly, ISPs make much easier targets for copyright infringement actions than end users, but as a matter of public policy, the question needs to be asked regarding how much accountability and responsibility we wish to place on ISPs for monitoring and enforcing access to certain content. This broader policy question also arises in the context of content regulation and the Australian Government’s proposed introduction of mandatory internet filtering. Whether this is an issue for the courts or rather one for the legislature has to be questioned. The impact of the UK Digital Economy Act will certainly be closely watched by interested parties in Australia.

    Comments Off | Copyright, iiNet, piracy, Uncategorized | Tagged: , , , , , , , , , | Permalink
    Posted by Editor

    Internet Censorship in Australia

    April 9, 2010

    By Elisabeth Cooke

    When I think about censorship, I instantly recall the image of my mum jumping up off the couch to change the channel when a ‘grown up’ show came on too close to bedtime. Or seeing pictures in the newspaper with big black bars blocking out all the bits I was not meant to see. The censorship of radio, tv and print media now seems much simpler than the internet censorship issues we are faced with today. The concerns are predominately the same: protecting children, preventing criminal acts etc. However, the risk to our civil liberty seems substantially greater.

    Last month, newly declared ‘Villain of the Internet’ Communications Minister Stephen Conroy announced a mandatory censorship proposal, grabbing headlines around the world, as the proposal joined Australia to the ranks of Iran, Saudi Arabia, North Korean, Burma and Vietnam. Legislation to implement the mandatory ISP blocking of blacklisted websites is expected within the coming weeks. While the proposal is cause for concern, it is worth discussing the current model before critiquing the proposal.

    The current model of internship censorship in Australia is complaints driven. The Australian Communications and Media Authority (ACMA) receives complaints about internet content and reviews it according to the Internet Industry Association Codes. Based on their assessment, the ACMA has the right to issue notices and direct Internet Service Providers (ISP’s) to comply with industry standards. However, the ISP’s are not always responsible for the content unless they are themselves the hosts of the content in question. Of course, the ISP’s require government licenses to operate and it does not take a stretch of the imagination to fathom instances where ISP’s may censor content on governmental request. The ACMA can require hosts to comply with the law in Australia, but hosts outside of Australia are beyond the reach of the ACMA’s jurisdiction. It is worth noting that personal communications are not with the scope of the ACMA. The content of emails and attachments are not regulated under this model of censorship.

    There are a number of concerns regarding the current model. The fact that the model is complaints driven begs the question ‘who is complaining’? Are specific interest groups able to lobby the ACMA to remove ‘questionable’ content? There is also no formal and open appeals process to review decisions. Notably, the members of the AMCA are not elected, they are appointed from varying backgrounds.

    Understandably, the ACMA does not have an easy task. They sift through shocking content for the benefit of our society and a critique of the current model is by no way intended to diminish the vital role they play. However, the proposed model is of much greater concern.

    The Proposed ISP Filtering Plan

    The proposed model, Australia’s ISP Filtering Plan, would initiate mandatory ISP-level filtering on all Refused Classification content. The Refused Classification content is defined as:

    - Child sexual abuse imagery

    - Bestiality

    - Sexual violence

    - Crime instruction

    - Drug use

    - Terrorist act advocacy

    The list has been compiled by the ACMA based on public complaints and assessed against National Classification scheme criteria. There is an appeal process – to an industry body, the Internet Industry Association. At first glance, the list seems reasonable- it certainly isn’t the type of content my mother would have wanted me to be exposed to. But the list of content is quite broad and would apply to the strictest threshold at state level to determine Australia’s threshold on each of the areas of refused classification. For example, Queensland’s abortion laws are stricter than any other state or territory. Therefore a mandatory ban would sit at the Queensland threshold for the entire country.

    Of further concern is the broad scope of the topics. There is growing concern that topics such as euthanasia, abortion, safe injections sites, graffiti art, gay and lesbian content and social/political forums fall into the Refused Classification topics. Adding sites to a blacklist with such a broad scope increases the risk that legitimate sites were also block, never mind the negative impact on internet speed. Of further concern is the idea that even if sites are blocked, there is an important element in indexing sites so that at least you know what material is unavailable. Otherwise we are ignorant to the existence of broad scope of information.

    Mandatory censorship provides a false sense of security. The technology used to block sites is not 100% accurate. Changes in domain names or search words would result in a never ending cat and mouse game, trying to chase illegal or legitimately blacklisted content out of Australian. The likelihood of being able to successfully block ‘bad’ content comes at an extraordinary risk to our civil liberties.

    The balance of protecting Australian society and the welfare of children with freedom of information and free speech is delicate to say the least. A proposed solution to cope with this balance is to educate the public about the internet and to provide tools for peoples homes in order to allow them greater and direct control over what their families can assess. Interestingly, the Australian Government is implementing mandatory censorship after taking away the initiative providing free home control packages to families, claiming the software was not being used. There can be no doubting the abhorrent content of some internet sites and need to censor material according to our laws. But we must consider what we are willing to gamble to attain even the false sense of security provided by the proposed mandatory internet censorship.

    Comments Off | censorship, Internet, Uncategorized | Tagged: , , , | Permalink
    Posted by Editor

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