“The difference between you and the reporter at your local newspaper is that in many cases, you may not have the benefit of training or resources to help you determine whether what you’re doing is legal”

This is most recently seen in the case of Dr Ben Goldacre who was not making a ballsy protest when he posted an extract from a certain London radio show but simply couldn’t comprehend that it would actually step on anyone’s toes – it’s been beamed out over the airways hasn’t it? This is neatly contrasted by the media lawyers retained by LBC/Global Radio who knew exactly what rights they had and sent him a letter to that very effect.

The EFF, and I agree with them, make it completely clear that this does not mean that you should stop using your ability to present your own view on things. The concept of this being a legal right is not so nearly ingrained in the British psyche (beyond the vague complaint of “it’s a free country” that crops up now and again). Your right to post on a blog is limited with a number of conditions – defamation, copyright, indecency, even blasphemy and other issues. It’s not a free right by any stretch. While I know better than most about the limits I can go to it’s not something that the average, non law student member of the public can do at the same time as their regular job.

Why would you need to have studied the law in an area to use your computer? That’s why we have professional lawyers. People can drive only by knowing the rules and learning some skills and don’t need to be practicing lawyers as long as they stay within the rules, and even if they do stray over the lines it can still be settled simply (in the case of a speeding or parking ticket, say) using a routine public procedure.

There are many differences between getting a parking ticket and getting a copyright violation, one involves a public authority and the other involves a private, generally commercial, entity. A commercial entity suddenly changes everything – there is a lot more money involved and there’s huge interests involved in keeping the content protected. I whole heartedly believe that everyone has a right to protect their property and that’s something that can’t be denied simply because someone has a lot of it and therefore, you need to be careful to remain on the side of fair dealing rather than copyright theft – it’s not something that the average blogger generally falls into. Ben Goldacre falls into the case of “copyright violation plus” and that’s because he also has a huge readership and spoke out extremely strongly on the subject and was highly critical of the presenter in question.

Defamation

Assuming that a blogger has been careful to avoid breaching anyone’s copyright unduly with his posts it is still possible that the blogger will land himself in hot water – perhaps for defamation. With some hesitation I say that the usual blogger will find it extremely difficult to actually falsely injure the reputation of a public figure unless they do utterly improbably effective rumour mongering and somehow find themselves with a vast readership. It’s extremely unlikely that anyone who will bother suing you will ever actually be affected by the vast majority of bloggers. However, if you post ludicrous hate messages on a blog be open to the possibility of your blog provider being contacted for content removal requests.

Secret content

The polar opposite of defamation is the unauthorised revelation of confidential material – this can just as validly be either be a leak or whistleblower in a company or a mole in a state’s military force and in either case information which is not for public revelation will be clear and it is possible to stay clear of this by simply using common sense. If you decide to (for reasons of conscience, for example) post this sort of content it is very advisable to retain a lawyer and to use their professional advice.

Obscenity

Blogs can simply break the law in terms of their content – that can be in terms of hate sites on racial or religious grounds, pornographic content (anything involving parties below the age of consent is particularly and obviously illegal) or perhaps obscene in another way. This is a particular concern for anyone who wants to maintain a professional looking blog – it’s very important to make sure that there’s nothing on your blog that you wouldn’t say to a client.

Blasphemy

This is highly unlikely but an interesting example of the rich and varied history that exists just under the surface. Britain is still, in some ways, a religious country and there are laws still on the books which reflect this. The ancient and nearly defunct charge of blasphemy is one of these holdouts which is rolled out every so often as a way of dealing with awkward cases of publishing which offend someone but they lack interest.

The last case I can recall reading of was Whitehouse v Lemon in which a poem about Jesus was declared to be blasphemy in 1977, resurrecting the charge for the first time in 50 years. Legal blasphemy is, broadly speaking, something like defamation, but against a (generally Christian) religious figure as opposed to an interested pursuer. It’s a useful “back-scratcher” in that it provides what is effectively a public policy avenue in cases when the pursuer themselves actually doesn’t have much in the way of a personal reason to be pursuing the case and it’s a way of reaching some fairly specialised legal “itches” when you otherwise couldn’t as an individual. On the downside, it is an uphill struggle just getting this action accepted by a court in the first place (and you have to repeat that in every appeal) and it’s the realm of the hobbyist litigant for all practical purposes these days and those are extremely, vanishingly, rare.

I don’t say all this to discourage people from writing a blog – please understand that people happily live their lives doing what they want and not dealing with the legal implications of their actions except in very vague terms of rules and guidelines and how to keep within it. I do feel that there is a difference between thinking an opinion and publishing it internationally and there’s extra responsibilities tied up in that choice.

8 Common Sense Tips for legal blogging

1. Don’t use your blog to distribute other people’s content, music, speech or videos, as a general rule. This does not prevent you, on the whole, presenting small chunks of the content as a visual aid in terms of your commentary unless you go over a threshold (about 5%-10% by time generally) in terms of extract and you are a seriously public figure yourself.
2. The more readers your blog has, the more influential it is and the more careful a blogger needs to be if they stray into negative content about other people – this is a good rule for life, the modern “if you can’t say anything nice (and you’ve got a million readers) don’t say anything” (without proof). This is good reporting practice and I’d like to think that people wouldn’t make unsubstantiated claims about me.
3. Serious blogs written by personalities have a stronger voice than anonymous comedy ones but comedy is not a defence from an action-
   (compare the readership of icanhascheezburger.com and badscience.net, yet the smaller, more serious site attracted the lawyer’s letter for negative comments in a moment of levity.)
4. Anonymous blogs are not completely anonymous; if a blogger reveals hugely damaging military secrets on their blog then great efforts will be made to track down that particular blogger and except for the very most carefully maintained anonymity it will merely slow down someone who’s tracking a blogger.
5. Obscene content varies from place to place – if you exceed the terms of your blog host then it is probably the case that you are sailing close to the edge of acceptability in that country. Other countries differ in terms of what rates as obscene and it is worth checking this issue for any country you are writing from, particularly if you are writing content you wouldn’t immediately show your parents which is always a good rule of thumb.
6. Wikileaks is a valid place to store content which suffers legal challenge. However it is not an automatic process. In Britain there is a traffic law that says you can’t take animals that you have knocked down yourself because that would encourage people to actively go out and kill them and it’s also a form of benefitting from your own wrong and this same rule applies to Wikileaks, if your blog receives a lawyer’s letter you are not allowed to take it off your site and go out and post it on Wikileaks – that’s not compliance. Some other person downloading it and then posting it to Wikileaks is perfectly ok since you are not responsible for the use your readers put your blog’s media files to. Posting it yourself is simply an aggravation of your copyright charge and will simply encourage your accuser to come after you with a vengeance.
7. It is clear what secret content is generally – if you are given a grainy, out of focus image of a picture of an unreleased product or anything stamped “top secret” and talking about active military operations then you should be careful about reporting it.It’s a leak and you may face prosecution for it (publishing military secrets is, at its worst, spying). Otherwise, aggregated blog and news content is no longer secret and can be used with impunity. Personal investigation will reveal in moments if you’re involved in something that is held in secret – for example details about your employer.
8. Blasphemy is very easily avoided in this day and age – avoid comparing homosexuality to Jesus in front of Mary Whitehouse.

I hope this is helpful to bloggers and to remember you don’t need to be a lawyer or a law student to be able to blog legally – it’s important to just act as you would in real life and not to let the apparent anonymity that’s available go to your head. If that’s not possible remember to stick to the truth, make sure your opinions are clearly just that (and not statements dressed up as opinions because that doesn’t count) and just generally be a responsible internet user.

The EFF legal guide for bloggers has been produced by the Electronic Frontier Foundation and can be found here: EFF (California)

This being said though, the issue that the publishers have taken umbrage to is not the content of the broadcast but is the fact that such a substantial chunk has been placed on Goldacre’s site (44 minutes is roughly one quarter of the 3 hour broadcast) and Goldacre has received a lawyer’s letter telling him to remove it or face legal action. This step of having the critical site ordered to remove the content is very unusual and what makes this situation so incredibly controversial – this is being regarded as censorship by solicitor. By challenging badscience.net on copyright grounds they have shifted the angle from the disagreement and negative criticism that Dr Goldacre has heaped upon Ms Barnett and onto an economic loss that they have suffered. The site itself is designed as a forum to critique poor logic and science in the media and the extract was originally posted as the soundtrack to a tongue in cheek game of “vaccination canard bingo” in which listeners were to count the number of urban myths about vaccines that were mentioned and he offered that anyone who could think of one that wasn’t mentioned would be given a signed copy of his book. To me that is clear satire and parody, although according to Jeni Barnett’s personal blog that is sarcasm and criticises “the Bad Scientist” for “making another person feel small” (I personally suggest that Ms Barnett is not acting like a professional broadcaster in this situation but that is another issue).

However, the copyright suit is based on a very reasonable point that requires explanation:

Why is the extract so very long?

Ben Goldacre has explained his reasoning himself and I think that quoting his words is the best way to convey it:

http://www.badscience.net/2009/02/legal-chill-from-lbc-973-over-jeni-barnetts-mmr-scaremongering/#more-862 “

But thirdly, there is a question of the basic tools you need to illustrate a point. The clip I posted was, to my mind, hideous and unremitting: it went on for so long.

In fact it was so long, so unrelenting, and so misinformed that I really couldn’t express to you how hideous it was. If I tried, without the audio, you might think I was exaggerating. You might think that I was biased, that I was misrepresenting Jeni’s demeanour and views in this broadcast, that LBC and their parent company Global Audio are living up to the standards of basic responsibility which we might reasonably hold them to, as they shepherd Jeni’s views and explanations into our cars and kitchens. You might think that I was quoting Jeni out of context, cherrypicking only the ridiculous moments from an otherwise sensible, proportionate and responsible piece of public rhetoric.”

Dr Goldacre claims to have posted the long extract as it was the only way to convey the content which he took issue to without claims of bias or selective editing – in other words fair use of the extract for purposes of review. I think that’s a very carefully thought out reason to put the 44.2 megabyte file on his site and would be accepted without question in an academic debate in which you live and die by the rule “you cite your sources or people can’t trust you” .

MMR

The MMR issue is widely reported and I do not think that I need to repeat that here – I would like to point out that the few remaining advocates of the MMR-autism link run private autism treatment clinics and, with respect, have a massive commercial incentive to claim that anything at all causes autism. There is a clear potential for a conflict of interest in their testimony. Every other research project has failed to repeat their results. This does not help the millions of parents of young children who are determined to take the right course of action for their charges if they are barraged with negative media coverage of what appears to be, and always was, a false result by a now discredited scientist.

I personally feel that MMR is safe and this is not just because I have received it and I am still healthy because that’s not proof. It is possible for some individuals to smoke and use sun beds without contracting cancer even though nearly everyone would say there’s a definite link – some people turn out to be resistant or even just lucky.  It’s impossible currently to work out who will and who won’t be affected in advance just as it is with who will catch measles in an outbreak. Instead I feel the MMR vaccine is safe because I have read studies saying so which are much larger in scale, better equipped and more methodical than the one that tells me it’s not. To use a legal analogy I feel that the studies which have held MMR to be innocent are more authoritative and hold higher precedential value than those that dissent (not to mention that there are many more of them).

Jeni Barnett’s comments

Despite this there are still some seriously dubious statements made in the 44 minutes available on wikileaks including, and I feel this is the most horrifying single offence, reading out an unattributed email from an anonymous listener claiming that the MMR vaccine, as well as causing autism, contains cancer causing chemicals. This kind of comment should never be made on a public broadcast radio station by anyone whose name doesn’t start with “Professor” and has an incredible amount of valid and accepted research to back him up. Saying that children’s vaccines cause cancer is a sure fire way to terrify parents and this should have been as well received as Jonathan Ross and Russell Brand’s Radio 2 phonecall.

Apart from this she also shows undue bias towards callers who subscribe to alternative medicine (her first caller introduces herself as a young mother who looked into alternative medicine to keep her children safe but later admits that she is a homeopath and is therefore actually speaking as a businesswoman with the incentive against other forms of medicine that entails) and is dismissive of other opinions – I have included some of the transcript at the bottom of this post to show what I mean – and finally, when talking to a nurse, accuses her and the Government of scaring people in order to make money before apparently hanging up on the caller without allowing her a response.

The situation is already fairly murky due to a sketchy method of reporting in the UK press – for example, unsolicited quotes that were negative to MMR were sent to non-science section reporters in newspapers and, apparently deliberately, kept away from reporters who had the science background to look at the source critically. That is like sending skewed sports results to a business columnist so that they can report your angle and it reeks of unethical practice and quite a worrying trust shown by reporters.  Jeni Barnett’s comments will pour yet more oil on these troubled waters.

LBC’s reaction

The company who own the rights to the audio have an undeniable right to control (and profit from if they should wish) the distribution of their property and so they have sent a letter to Goldacre with a strongly worded request to remove the extract from his site. They ominously chose to “reserve [their] rights” in relation to him so it’s possible that, even though Goldacre has followed their instructions, there could still be a court appearance in his future. I think that is unlikely in all honesty but cannot be certain either way. While I’m prepared to call this a lawyer being careful to leave their client’s options open, the idea that he could be sued after complying with a letter just seems unfair – the copyright breach is closed now, surely? It wasn’t Goldacre who made the recording, he simply posted it on his site and he has since removed it. In more extreme cases, ones where there is a substantial loss incurred by the copyright holders which lasts after the party has complied with the letter, it makes sense to be able still go after them for the economic loss you have suffered. This is good in cases of libel, for example.

But this case does not fall under libel rules – there was no comment made by Goldacre which affects Jeni Barnett as a professional actress or radio presenter and she will not suffer an economic loss as a result of this blog post by Goldacre. She is, particularly, not a medical professional whose expert and professional reputation is hurt. He said she is misinformed; she accepted it in a blog post and called him a bad scientist in return. At this point I would advise Ms Barnett that a libel action, although within her rights, would appear petty and she would need to show that Goldacre has actually caused her some kind of loss (apart from saying she was wrong).

The extract in itself is from a single show and that should not cut into the radio station’s bottom line since individual shows (and especially not individual 44 minute sections) are not sold, only access to the back catalogue as a whole. For that reason I do not think there is much of a loss caused by this comment made by Goldacre.

Therefore that the letter still retains the right to procede with other action will probably not require that Dr Goldacre needs to start looking for representation – it is just a line in a threatening (as the client is paying for it to be) lawyer’s letter.

However Dr Goldacre is wise to remove the recording from his site simply because Global Audio is a half billion pound company and are simply much too big to stand up to when all you have is an opinion that someone is wrong. Goldacre should not stop thinking she is wrong but at the same time should not rely on that to convince a judge.

Copyright as a silencer?

But should he have to? Is this the right time to use, as Cory Doctrow put it, the “tank mine” that is copyright law if what they appear to really want is to hide the criticism of this particular broadcaster?  The difference in the two parties’ financial positions could only be more stark if Goldacre lived in a cardboard box, he’s an author. Copyright law was invisioned in a time when the only people capable of breaching a publisher’s copyright were equally massive publishing companies with their own mechancial press and the resources to send lawyers to defend their position.

Thanks to the computing revolution individuals today, with only the money they earn through their own jobs, are capable of disseminating copyrighted material on a scale of readership which may exceed that achieved by nefarious publishers in the past but without the resources of a large company to mount a legal defence. This imbalance in the position of debaters is potentially damaging to the quality of debates they feel they can safely produce. The quality of debate someone can have with the words “I am not an expert, this is what I have observed* is limited when book writing, letters after their name wearing members of the scientific community receive legal threats when they criticise. This is a terrible precendent to be setting and has horrible ramifications in any situation but particularly so in the case of public health (if the ratio of immunised to non immunised people in a society drops below 83-96% herd immunity breaks down and that society starts to be at risk from measles epidemics and that threatens us all – parts of London, in particular, are already far past this point and may only be a matter of time).

Conclusion

Jeni Barnett has said on her blog that she wants a debate on the topic – she also says that “acting is all about honesty, if you can fake that you can fake anything” but I digress – and she appears to have got one.  I would have preferred, of course, that the debate had already taken place and was on that fateful radio show.

I believe strongly that people are allowed to have opinions but should never treat them as better than empirically established, peer reviewed facts. This seems obvious to me at least but very few people are really willing to have their strongly held beliefs overruled because they can’t back up their hunch with evidence, especially on the spur of the moment, and that is something that is simply part of human nature but it doesn’t make it anymore credible to use anecdotes and gut feeling against 10 and 20 year long clinical trials and to behave as if they are on equal footings.

As for Ms Barnett, I think it is acceptable to say she is a non-medically qualified person with a strong preference for alternative medicine but she is all that as well as having a microphone, a radio show and a powerful position in the heart in of London and for that she should be careful to stay to the facts and to report both sides of any discussion, regardless of her own bias, as soon as she gets behind her seat in the recording booth and to avoid unduly covering one point of view which will scare a sizeable portion of her listeners.

Ofcom does expect her to, after all.

John: Afternoon Jeni. I’m not a medical expert, but I listen to the radio and I listen to LBC – I listen to your competitors quite a lot. Every single medical expert that you’ve ever had on LBC, always said MMRs are a good thing and all the evidence against them have been refuted.

JB: …yeah.

John: So?

JB: Does that make it right??

John: Well, yeah! I pretty much think it does, actually! Yeah!

JB: How come?

John: Well, you sound like… when you say ‘My four kids, this ladies’ four kids’ – you sound like one of those people who say ‘My Aunty Flo lived to be a hundred and ten and she smoked a hundred cigarettes a day’! There’s always going to be someone, but in general…

JB: Uh, but wasn’t Aunty Flo ALLOWED to do that?

NB: I completely agree with Dr Goldacre’s decision to post the audio, would his suggestion that Ms Barnett was out of order have had nearly the same weight in text form as it did when the listener could hear her, before telling people that fresh air and star jumps will keep their children safe, ask the microphone “what’s so wrong with childhood illness?” but it cannot be categorically stated enough that this is my personal opinion (which is why it’s not in the body text) as opposed to my legal one and I am not a judge.

The Student Law Review, published by Routledge Cavendish is a publication bordering on the “terrifyingly polished” and I find it to be a very interesting read that I try to pick up whenever I can.

I’ve done a quick and rough digest of the contents of this edition, and it’s a very, very long post so I’ve added it after the break. I will be back later to fact check but right now I’m just impressed at myself for getting this typed up. These are in no way the whole articles, or indeed perfect outlines of the articles themselves, I was more interested in putting out what the publication covers instead of violating the copyright on the articles themselves:

The publication is split into sections by area of law covered and the Summer 08 edition covers :

Administrative Law

The Student Law Review provides two case reports for two very recent (this year) Canadian cases discussing the old standard question in any liberalist law school – separation of powers. In particular, the result of a challenge regarding the parole board. These cases are still wet on the page and overseas, so this is the first place that I found the reports of these cases which is very interesting.

Civil Liberties and Human Rights

The article on page 5 is particularly interesting – a report written by Professor Helen Fenwick from the Human Rights Centre at the University of Durham – about the viability of blasphemy law. It’s these kind of interesting, unexpected questions which makes the SLR so interesting to me. The article notes the issues arising from the (designed entirely to protect Anglican sensibilities) details of the existing and how this fits into the modern context, after it was resurrected on behalf of Mary Whitehouse of all people in response to the Gay News’ “The Love that dares to speak its name”, with other faiths and also the limitations it naturally places on freedom of expression and therefore – the European Convention on Human Rights.

Civil Litigation

This is an expose on the Limitation Act 1980 and the effect that this has in cases of sexual abuse – where allegations may be made with very little proof but yet there is a distinct, in my opinion, public interest in seeing a prosecution, however, this may be offset by the fact that defendants may have to spend many thousands of pounds defending themselves from allegationns for which there is nearly no evidence to be discovered at all – and to an unfavourable jury, failing to provide evidence may been seen as a very negative action indeed.

Constitutional Law

The constitutional law article is an interest particularly close to my heart – the extent of domestic covert surveillance and the legal foundation for it. I’m interested in watching the development of something which could utterly revolutionise both how people behave as well as how trials are conducted. I’ve seen enough on TV of the police patiently recording drug dealer’s conversations to see how useful it could be but I can think of how it needs controlled too and this article is interesting for this reason.

Criminal Law

The criminal law section this edition is actually interactive, which I think is a brilliant touch for a publication aimed at student. This section is looking at the accuracy of a number of fictious jury directions – for example:

Attempt
You have heard that the defendant entered the door of a bank where he was not a customer and that he had in his pocket a replica gun. He was spotted by the security guard and immediately turned round and left. He has been charged with burglary and attempted robbery… I now turn to the charge of attempted robbery. You must not convict the defendant of attempted robbery unless you are satisfied that he intended to commit theft and intended to use force in order to do so ar at least intended to put someone in fear that he would use force in order to do so. If you are satisfied on that matter, you still must not not convict the defendant unless you are satisfied that he had actually got as far as making the attempt, that is that his actions had gone beyond preparation such that he could be said to be “on the job”. You may consider that his actions were such that they had only one explanation, namely that he was ment on robbery. If so, that will make clear to you that his actions had gone beyond preparation and that he had made an attempt.

Commentary
Certainly the defendant cannot be guilty of an attempt if he das not got an intention to commit the full offence, here robbery. Certainly also, the defendant cannot be guilty unless his actions have crossed over from acts of mere preparation, so that he can be said to have made the attempt. The error the judges made was in the last two sentences of the extract above. It was wrong to direct the jury on what used to be know as the “equivocality theory” and to instruct them that the defendant must have gone beyond preparation if his actions were unequivocal, inexplicable on any basis other that that he had the necessary intention. That was wrong begause firstly the equivocality theory probably never was part of the law, it did not survive when the common law offence of attempt was replaced by the statutory effence of attempt in the Criminal Attempts Act 1981. Any specific pre-1981 tests of proximity no longer apply and the usse of whetther the defendant has beyond preparation is now simply one of fact for the jury: Gullefer [1990] 3 All ER 882.

As you can see, the direction sounds perfectly correct on the law except in one point which is technically not an accurate point. While robbery is not a Scottish crime equivocality theory is an issue which appears up here too, with the same caveat of the statutes which limit it. It’s perhaps a little early for a student to be learning about how to make jury directions but nonetheless it is a very effective way to revise exact (and exact knowledge is important) knowledge of legal principles.

Employment Law

The Employment law section is of interest to students who do not work on a permanent contract as it concerns the legal rights of agency workers – since agency workers do not qualify under some of the strongest workers protective legislation, and lose some of the protectiotns that permanent workers have. Andrew Bell, from Nottingham Law School uses the case of James v London Borough of Greenwich [2008] EWCA Civ 35, which showed the rights arising to an agency cleaner who had to take some time off of work due to illness. The council who had previously used her services argued that she was not entitled to the same benefits as a permanent employee and could be replaced at any time.

English Legal System

Gary Slapper, from the Centre for Law at the Open University, writes an interesting article about legal professional privilege, a tradition which he explains as being due to:

“You don’t want to live in anarchy, you want to live in a soriety of laws and rules. As there are thousands of laws, you don’t want to have to become an expert yourself on them all, any more than you want to learn medicine just so that you can be your own doctor. You want experts on the law: lawyers. So, a society should encourage citizens to go to its lawyers for advice whenever they are in difficulties. To ensure the client-lawyer communications are completely private and confidential.”

It’s an interesting issue, one that I have most often seen in relation to the confidentiality that exists between a priest and a confesser. While, admittedly, this would be fine for an advocate because if the client admits to their crimes to them there is still a process in place for them to either be convinced to plead guilty or to change their representation. The example where it becomes strained is where a client goes to a solicitor not for representation, but for advice about a situation which is illegal. The typical example goes to R v Cox and Railton in which a libellous publisher went to his solicitor to be informed that he couldn’t sell property for his business partner and the man then asked if “anyone knew about the partnership except for you”. The solicitor was later called as a witness in the resulting trial and the testimony was part of the case which convicted them.

You would never admit to a crime to a lawyer if you knew this would then lead to your own prosecution but how about for events which you do not know are illegal? But, also, the other thing issue is that, unlike a doctor keeing a patient’s details private, there could be a public need that the information – for example a confession about a crime, be reported leaving this a contested area morally.

Equity and Trusts

This section includes a series of collected by M A Ramjohn, from Thames Valley University from around the world. Again these are right up to the minute and represent the current opinion of case law in the field. It’s a very useful resource to have a collection of extremely relevant cases which have only just been decided. As well as giving recent authorities it also lets a student see how recent events have played out behind the scenes legally. The cases cited here revolve around dishonesty and the tests for this. Dishonesty is a massive problem in trusts (ironically) because so much of the legally binding element in directly suited into keeping the parties honest.

European Union Law

Again, this section is a recent case report but, for some reason, despite the astonishing length that I generally associate with European Court of Justice and European Court of Human Rights reports I still find the reports fascinating and exotic – even down to the party names. I suspect this feeling of the exotic will fade rapidly the more I read of them but the fact is, right now, I think there’s a lot of charm to the European cases that I’ve read. I think that the fact that the European courts are the very last resort and tend to be for only the most serious and meritorious cases means that it weeds out a great number of cases which won’t be as interesting or as contested.

The case which Jim Davies, from the Centre of European Law and Integration at the University of Leicester looks at is a computer law one which came before the ECJ in January of this year – Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU which involves the issue of the downloading of copyrighted materials. The question which was referred to the ECJ was if the Spanish law which Telefonica based its argument on, while valid in Spain may have broken Community law. This was to deal with the issue of if ISPs could be used to gain real world information which would then be used to locate the people who are responsible for the downloading. This comes from the Belgian case SABAM v Scarlet which made this possible.

Evidence

The evidence column comes from the pen of Lisa Mountford, who is a solictor and a Barrister who is also attached to Staffordshire University Law School and discusses something fundamental to evidence law – the “admi[ssion] of hearsay in the interests of justice”. We have all seen legal dramas in which the hero witness has said “I didn’t do it, I heard that [...] did it, not me!” and the opposing laywer stands up and says “Objection – hearsay” and the judge immediately shoots back a “sustained” and tells the jury to disregard it. This example is uniquely American legal drama but nevertheless – this is a genuine point which has to be got around if the only evidence that can be provided is hearsay. If the only reason that your witness knows that someone did a crime was that someone else had told them, then there is no way that you can. The Criminal Justice Act 2003 actually defines what kinds of hearsay can be admitted, generally on the basis that they are essential to the case and there is a very difficult test involved with a lot of discretion on the part of the judge. The article also mentions that the admissability of a confession depends on the person who makes it, up until R v Y, where not only the person who made the confession is implicated, but also the people who were mentioned in it.

Family Law

The family law column comes from M E Rodgers from Nottingham Law School and describes probably the most extreme case in family law – a child being removed at birth. This case is chosen due to the topical nature and the fact that it is an effective cautionary tale where the effect that the removal would have been acceptable – had the correct procedure been followed and since there were mistakes made in the process that ended up in the child being removed from G the whole case was decided in G’s favour.

Health Law

Andrew Alonzi, who is a solicitor and a senior lecturer at Nottingham Law School discusses the Mental Capacity Act 2005 which came into full force on the 1st October 2007 and codified the issue of advance decisions to refuse medical treatment. It’s the living will for someone who does not want medical treatment for an illness or in the case of a heart attack or the like – however, there are a long series of checks before it can be confirmed that the person who refuses treatment is mentally capable of deciding that they do not want to be treated. This has to be a careful process because if someone decides to refuse potentially life saving treatment this is a weighty decision which is one that.

It is a very picky area of law which needs to be specifically addressed by someone who wants to decide to refuse treatment – because should a person who has refused, say, to be intubated if they stop breathing suffer a heart attack they can still be resucitated with a defibrilator and the events which are specified must be present (say, a loss of mental capacity after a stroke – up until there is a loss of capacity, they can still be treated in the way that they have refused) and should someone be able to prove that there are reasonable grounds (a fairly broad standard) that the person who refused treatment was unaware of circumstances that would have reasonably affected their decision – something which a reasonably diligent lawyer working with a doctor can almost certainly very quickly work out in short measure.

Intellectual Property Law

There is an interesting crossover here – with an IP challenge to a bioinformatic system. This leads to a question of the policy associated with patenting software in the UK – previously software inventions were not protected by the UK patent office. However, the European policy will allow software to be be protected this way.

Mark Van Hoorebeek, from Bradford University Law School, show that there are only four main requirements that are required for an invention to be patented – the invention must be new, must involved an inventive step, has an industrial application and (according to the Patent Act 1977 it must not be excluded by 1(2) or (3), which is unfortunately – at 1(2)(c):

It is hereby declared that the following (among other things) are not inventions for the purposes of this Act, that is to say, anything which consists of: a scheme, rule or method of performing a mental act, playing a game or doing business, or a program for a computer.

Which sadly means that the whole computer program is forbidden, no matter how well it qualities under the other three points. However, in Europe, it is possible to patent a software application and therefore, there is a gap in the domestic law which, according to my professors, would be filled by the Community law.

International Trade Law

Dr Jason Church, from the University of Westminster, provides a student eye view of how to use the Hague Visby rules in your studies to deal with issues of international carriage. It’s a reasonably short article packed with practical advice for law students faced with questions on this topic – Church reports that the questions are popular because of the schematic layout of the system and this advice may come in useful in the future once I start to look at jursidictions outside Scotland.

Jurisprudence

Stuart Toddington, also from the University of Westminster, gives an interesting look at the jurisprudence of “Universalism, Multiculturalism and the Rule of Law” which looks at the faults of the traditional universalised way of looking at people under the law to looking at the individual traits of the people involved and how this affects their position. It’s a fundamentally different approach which has begun to slowly sweep the legal field, one very heavily publicised example is in the changes to the treatment of victims of rapes in trials. Technically a rape victim is just another eye witness but there is a major difference from them to someone who spotted a drunken driver enter a car. The issue of multicultuarism leads to another problem – one in which societies which have vastly different priorities to the standard English or Scottish legal system, for example, someone who rates their loyalty to the State (the sworn oath of honesty) less highly than their loyalty to family (who may be on trial) may not be as honest a witness as would be hoped. The issue of dealing with this is a big problem in a modern, multicultural world where people are different but considered to be exactly the same before the law. It is also seen in the famous “same but different” decision which meant that segregation was still allowed in the US up until fairly recently.

Land Law

Dr M J Dixon, Reader in the Law of Real Property, Queen’s College Cambridge, writes about the effect of an Appeal Court decision (Ofulue v Bossert [2008] EWCA Civ 7) about adverse possession. The interesting fact is the issue of the now settled spill over of ECHR decisions which affected this case which means that the state of European law more tellingly affects this area of law, the possession of land, than previously confirmed.

Tort Law

Firstly, you immediately see that this publication is not entirely Scottish in intent and, in fact, it really could not be any less Scottish with serious effort. The cover story is about how to qualify to the bar, in New York and this section here happily talks about an area of law which is huge in the rest of the world – especially in common law systems because of its origins in England, but called Delict here. Nevertheless, although the systems are distinct and different this does not mean that the issue of fault and injury differ that dramatically even though the jurisdiction changes and the basic lessons from both are pretty much directly applicable.

Roderick Bagshaw, Tutor and Fellow from Magdalen College, Oxford gives a report on limitation and a report on negligence. In the first case, the tort case is one which is raised by victims of sexual abuse during care who missed the time limit but argued that they should still be able to claim. They claimed that the claims for deliberate abuse were for breach of duty”. This meant that, as the abuse was in the line of employment it circumwents the issue of Stubbings v Webb [1993] AC 498 which held that “claims for deliberate assault were not ‘for negligence, nuisance or breach of duty’ and thus, the employers of the abusers should be vicariously liable for their injuries. “The decision turned on the interpretation of the phrase ‘for negligence, nuisance or breach of duty, in a statute”

The case also provides guidance on the point at which the claimants have knowledge – that is they know “a) that the injury in question was significant” and “c) the identity of the defendant” and this is tested under the stanadardof the reasonable man – which leaves a lot of discretion the courts. It is interesting even from a lay perspective to see what counts as knowing from a legal perspective.

The other case, which deals which negligence relating to a public authority, is Jain v Treant Strategic Health Authority [2008] 2 WLR 456, this is to do with the question of an unlicenced nursing home. The challenge resulted from the owners being alledgedly reckless with their registration, the appeal was allowed, although one judge dissented. This case also looks at the

Book Review

The books reviewed this edition are:

The main piece is about “Revenue Law – Text and Materials” byDavid Salter, Natalie Lee and John Snape and the short piece by Tim Vollans, Coventry University Law School highlights the strength of previous books on the subject and the strength of this one. It’s an interesting sentiment where the field can be covered by a textbook and a casebook.

The other books recieve less attention but nonetheless have a useful mention, sounding like a blurb:
International Law 6th edition, Malcolm Shaw

“Malcolm Shaw’s engaging and authoritative International Law has become the definitive textbookfor instructorsand students alive in this increasingly popular field of academic study. The hallmark writing style provides a stimulating account, while maintaining detail and academic rigour. The analysis integrated in the textbook challenges students to develop critical thinking skills.

Key Features
Completely updated 6th edition contains:
New chapter on international criminal law
Dedicated chapter on the International Court of Justice
Detailed references throughout encourage further reading on the part of the student at either an undergraduate or postgraduate level.
High level analysis ombined with stimulating and engaging writing style.”

Also noted in the book review section is:
The Law and Policy of the world Trade Organisation, Peter Van den Bossche

Also worth noting is the 20% discount code offered from Cambridge University Press if you use the discount code on this page, with the price of law textbooks it is always worth looking at any savings you can find.

For those whose law schools are not as generous or would prefer to have a copy delivered to their home the Student Law review costs £16.50 for a 1 year subscription or £39.50 for 3 years, which includes a 20% discount. The publication comes out 3 times a year. The magazine is subsidised through adverts which dot the pages. The adverts are, for the most part, uninvasive and they are all scrupulously

The Student Law Review subscription line can be contacted on +44(0)17553 681813 and the subscription form is inside the magazine.

This was an unexpected challenge of a post. Normally, I would have split this post up into separate reports on each of the articles and publish each one as an individual post but in this case I wanted to show what the typical edition of Student Law Review contains and I think I have shown that it contains a great deal of unusual content, however I was trying to do it in a minimal style. The full edition is nearly 60 pages long and full of dense text so these few thousand words were not the easiest to cut down. I personally think that any law material you read during down periods is beneficial to your overall development as a law student – one of my tutors actually recommends trying to read three cases a day -presumbaly for four years, which is a staggering undertaking, so I feel that reading periodicals which are themselves entertaining may not train you to read the primary sources of law but are still a side of legal reasoning that is worth exposing yourself to.