March 30, 2009

Canute Was King of England, Too [7:25 am]

Link by Link - In Britain, Web Has Media Law Playing Catch-Up (pdf)

In the ruling, the judge in London, Nicholas Blake, also added a peculiar twist: The Guardian must not tell readers how easy it is to locate the documents at Web sites outside of Britain. It was only the latest example of British courts trying to preserve what it saw as litigants’ rights even in the face of an onslaught of information on the Internet. To some, this may be a final, futile effort.

In November, a court order prevented British newspapers from printing a leaked list of members of the far-right British National Party. Unfortunately for the court, that material was available at, among other sites, wikileaks.org, which also hosts the Barclays documents.

[...] “The Internet is throwing sharp relief to the illogical nature of our system,” said Alan Rusbridger, the editor of The Guardian. “Technology is way ahead of the law, and the law is limping along trying to make sense of it.”

The effect of the Internet on judges’ rulings is not a uniquely British problem, said Jonathan Zittrain, a Harvard law professor who taught at Oxford. There is at least one example, he said, of an American court ordering a Web site not to link to content it had been ordered to take down. But he added that “British courts may be a little more confident of their own power, and be less willing to cave in to practicalities.”

The Barclays case pits two interests against each other, said James Edelman, a law professor at Oxford who argues media law cases. Since 1988, Professor Edelman said, British law has given great protection to the right of confidentiality, applying it to third parties like The Guardian, which received the documents from someone else. Yet, the “public interest” in learning about what is contained in those documents, he said, can often outweigh confidentiality considerations.

Finally, there is a basic factual question: is the material already in the public domain? And this is where the Internet throws a wrench into the proceedings.

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