Informationoverlord

Picked up this meme Via Organising Chaos / WoodsieGirlDo you snack while you read? If so, favorite reading snack?Does a nice glass of red wine, a cold beer, or a cup of Earl Grey tea (depending on time of year/location) count?Do you tend to mark your books as you read, or does the idea of writing in books horrify you?Whilst horrify might be too strong a word, I’m not personally a writing in books fan. However, that said, if you own the book in question then it you want to write in it then that’s your choice, just don’t do it to my books or books you borrow from libraries.How do you keep your place while reading a book? Bookmark? Dog-ears? Laying the book flat open?Bookmark of some sort – be it an actual bookmark or a scrap of paper, old postcard etc. I’m a bit of a book nazi where it comes to breaking spines, dog-eras and the like, and will tend not to lend books to people that I suspect do such things. Basically books don’t last that long these days – all the acid in the paper etc – and last even less time when treated badly. But, again as above, if it’s your book then do what you like.Fiction, Non-fiction, or both?Both, although I learn more towards fictionHard copy or audiobooks?Still a hardcopy man, but I do enjoy the occasional audiobook too – good for long walks (if alone) and also for in car entertainment too. Alan Alda reading his memoirs was fun.Are you a person who tends to read to the end of chapters, or are you able to put a book down at any point?I prefer to finish off a chapter or at least get to a natural break in the text. Of course, sometimes this is not practicable so I just put it down whenever I have to.If you come across an unfamiliar word, do you stop to look it up right away?I’d love to lie and say of course I do, but alas in truth I will usually not bother. I often intend to, but have usually moved on so quickly that I forget to go back and do so.What are you currently reading?Hilary Mantel – Wolf Hall, E.J Wagner - The Science of Sherlock Holmes, and Jane Austen and Seth Grahame-Smith - Pride and Prejudice and ZombiesWhat is the last book you bought?Hilary Mantel - Wolf HallAre you the type of person that only reads one book at a time or can you read more than one at a time?I’m very bad for having several books on the go at once. It’s usually two or three, but I have had as many as 7 on the go at once – not to be recommended!Do you have a favorite time of day and/or place to read?Not really, although quite like reading whilst relaxing in the Bath. What I will say though, is that one of my least favourite places to read is in Bed. Just never get comfortable enough.Do you prefer series books or stand alone books?EitherIs there a specific book or author that you find yourself recommending over and over?I have recommended Anne Tyler to a lot of people over the years. As for specific titles, Katherine Neville - The Eight; Ayn Rand - Atlas Shrugged; Booth Tarkington - The Magnificent Ambersons; Arturo Perez Reverte - The Flanders Panel; and Jose Saramago - Blindness all regularly find there way in as gifts.How do you organize your books? (By genre, title, author’s last name, etc.?)I used to be very very particular about this and it was always by author. These days the mix of hard back and paperback and different sizes within both of these means that for ease of putting on shelves, it is a highly dis-organised – where does this book fit approach.

Latest issue of New Media Markets has an interesting article on why Virgin Media could be a good target for a major mobile player. Whilst any move may still be months/years away, Christopher Nicholson from equity research firm Oraca identifies Telefonica and KPN as the most likely candidates to make the move.

Not an idea I had really thought about before, and one that certanly would not be without its share of risks, but Virgin’s fibre network would certainly appeal to any number of potential buyers. Certainly something to keep an eye on.

There are times when Ofcom really really annoy me. Case in point is a notification and draft direction issued today to Infolines Public Networks Limited (Infolines). Ofcom is proposing to suspend Infoline’s code powers for being breach of Regulation 16 of the Electronic Communications Code (ECC), as detailed in the Electronic Communications Code (Conditions and Restrictions) Regulations 2003.

The Code enables network providers to construct infrastructure on public land and to take rights over private land, with the consent of the landowner or approval from the County Court,or the Sheriff in Scotland

Regulation16 requires operators who carry out works on public highways, such as installing payphones, to ensure that sufficient funds are available to cover any costs that a local authority (so, us, the tax payers) might incur in reinstating the street should the operator concerned cease to trade and/or have failed to leave the street in a fit state of repair.

Why do I find this notification and draft determination annoying?

The Electronic Communications Code (Conditions and Restrictions) Regulations 2003 came into force on 23 October 2003. Regulation 16 contains a number of specific requirements to ensure that Code operators meet their obligations under the funds for liabilities regime:

16(1)(a) of the Regulations contains the general provision requiring Code operators to ensure that sufficient funds are available to meet specified liabilities;

16(1)(b) of the Regulations requires Code operators to provide Ofcom with a certificate on 1 April each year;

16(2)(a) of the Regulations states that, in the case of a company, the certificate must be signed by the director or a company secretary;

16(3) of the Regulations states that the certificate shall include a statement that in the reasonable opinion of the board, in the case of a company, the Code

operator has fulfilled his duty to put in place sufficient funds to meet the specified liabilities;

16(5)(a) of the Regulations requires Code operators to state on the certificate the amount of the funds which have been provided for;

16(5)(b) of the Regulations requires that the certificate states the systems and processes which enabled the board to form the opinion referred to in Regulation 16(3); and

16(6) of the Regulations states that the certificate shall be accompanied by a copy of any insurance policy, bond, guarantee or other instrument which will provide the funds.

This means, that Infolines – in common with all other Code operators – had a legal duty to provide Ofcom with a certificate on 1 April each year showing that the relevant funds would be provided for, and attaching proof of where said funds would be provided from. By Ofcom’s own admission it has ‘not received any one of these certificates or any accompanying documentation’ since the regulations came into force. Infolines has failed to provide this information for 6 years and Ofcom is only NOW (as Infolines winds itself up) proposing to suspend their Code powers. Who says regulations doesn’t work.

What makes matters worse is that this comes over two years after Infolines ignored a previous notification for failing to do the same thing and ignored an associated fine of £7,500. In the words of Ofcom: ‘ Infolines failed to comply with the 2007 Enforcement and Penalty Notification’.

Ofcom issued its first notification to Infolines in August 2006. This was followed up by a second with the ignored fine in March 2007, where Ofcom warned it must become compliant or face further regulatory action.

Fast forward to May this year, and Ofcom opened another investigation to see if Infolines was continuing to operate payphones and may also be applying to local authorities to install further payphones in contravention of the earlier enforcement notifications issued (and it seems ignored). Yes they were was the conclusion, and so we arrive at the current notification.

Seriously, What is Ofcom playing at? Also, how much money has it wasted dragging this out?

You don’t need an investigation to see whether or not someone has submitted a certificate or not. You either have it or you don’t. If you don’t, you issue a notification saying you’ll suspend code powers immediately unless you receive said certificate within a month/ 6 weeks etc. Really very simple and straight forward, and means you don’t get a situation where – as in the case – a company just sticks two fingers up at you for almost 7 years.

Ofcom notes that “Infolines has submitted an application, dated 14 August 2009, to Companies House to be struck off the register of companies. In applying to be struck off the Director of Infolines confirmed that in the past three months the company has not, among other things, traded or otherwise carried on business. On 1 September 2009 the Registrar of Companies gave notice in the London Gazette that, unless cause is shown to the contrary, at the expiration of three months from 1 September 2009 Infolines will be struck off the register and the company will be dissolved. Ofcom notes that Infolines may be struck off the Companies House register on or around 1 December 2009. If and when this process reaches its conclusion, Ofcom will consider what further action it may take.”

Would this further action be the action it should have been taking at least two years ago? – suspending code powers, getting its fine paid etc etc.???

So, what we learn from this is that if you are an operator with Code Powers, and you’re short of a few quid, then you don’t really have to worry about complying with the Regs, as Ofcom will happily let you string them along for 6 years before they’ll take any action that will really effect your ability to conduct your business.

I was interested this week to come across a new ‘browsewrap’ case. A browsewrap agreements are basically ones which say you accept the terms and conditions of the website you’re using. Generally it can only be enforced if a user assents to it – or there is a reasonable likelihood that they would be aware of the terms and conditions (T&Cs).

U.S. District Court Judge Sterling Johnson, Jr has ruled that the browsewrap agreements on Internet retailer Overstock.com’s website in unenforceable because there is no evidence that users of its website have ever read the T&Cs.

The ruling came in a dispute between the Overstock and customer Cynthia Hines, who had sued Overstock for charging her a $30 fee after she returned a vacuum cleaner. Overstock argued the case should be dismissed because its site’s T&Cs – accessed via a link at the bottom of Overstock’s home page - provided for mandatory arbitration.

Not so, said Judge Johnson.

“In the instant case, it is clear that Plaintiff had no actual notice of the Terms and Conditions of Use…Notably, unlike in other cases where courts have upheld browsewrap agreements, the notice that “Entering this Site will constitute your acceptance of these Terms and Conditions,” … was only available within the Terms and Conditions. Hines therefore lacked notice of the Terms and Conditions because the website did not prompt her to review the Terms and Conditions and because the link to the Terms and Conditions was not prominently displayed so as to provide reasonable notice of the Terms and conditions. Very little is required to form a contract nowadays – but this alone does not suffice.”

This seems a very basic mistake by Overstock.

Judge Johnson essentially found that the “browsewrap” agreement did not adequately notify Hines about the arbitration provision because the website did not prompt her to review the terms and conditions and because the link to the terms and conditions were not prominently displayed.

This is a similar rational to that was used in the case Specht v. Netscape, where Netscape also had an arbitration clause in their terms and conditions for the Netscape Browser software, but here too the Court ruled against Netscape because users were able to download and use the software without agreeing to the T&C’s, therefore would not have seen the terms without scrolling down their computer screens.

The lesson here is you need to make your T&Cs and acceptance of them very visible, and acceptance of those terms – via tick-box etc – needs to be very clear. Of course – in the UK at least – you also need to make sure that even if you’ve done this that the terms themselves are not in breach of the Unfair Contract Terms Act 1977.

A mixed week for ITV this week. News that the Competition Commission’s provisional view
was that the Contract Rights Renewal (CRR) Undertakings, given to protect advertisers from the loss of competition in the sale of TV advertising, following the merger of Carlton and Granada in 2003/4 should stay in place, would have been a big blow. The purpose of the CRR is intended to protect the advertising market by putting in place an automatic ‘ratchet’ which reduces the amount advertisers have to commit if ITV’s audience shrinks, and giving advertisers and media buyers the right to renew their contracts on a rolling annual basis, adjusted for changes in ITV’s audiences, with no reduction in the discounts they receive.

The CC’s Provisional Decision is that the CRR needs to be retained – because with double the market of Channel 4 (for example) ITV is still the place advertisers want to be advertising, even in a shirking market. It remains the only commercial channel were an advertiser can potentially reach audiences over 6 million.

The CC accepted ITV’s argument that the CRR had affected ITV’s incentives to some extent – being more risk averse in programming choices/over-investing in daytime programming etc – but at the same time wasn’t buying ITV’s argument that these were largely or wholly attributable to the CRR.

The CC did however concede that some variations might be justified including widening the definition of ITV1 to include any ITV+1 or ITV1 High Definition channel that ITV decides to launch.

The CC is now seeking views on possible variations, which would:

(a) take into account the decline in ITV1’s market share and the increase in the ability of media buyers to run campaigns effectively without ITV1; or

(b) mitigate the unintended effects of the CRR Undertakings, while addressing effectively the continuing adverse effects identified in the 2003 report.

These variations include:

a) Limiting the scope of CRR to address only ITV1’s advantage in delivering large audiences;
b) Removing elements of CRR while maintaining protection of media buyers through a requirement on ITV to offer airtime on fair and reasonable terms.
c) changing the definition of ITV1 in the CRR Undertakings;
d) incentives for ITV to focus primarily on maximizing ITV1’s share of commercial impacts (SOCI); and
e) the difficulties for ITV in reacting to changing demand.

I think the CC’s preferred option of changing the definition of ITV1 in the CRR Undertakings is probably the correct one. It recognises that ITV is still the dominant force in terrestrial TV advertising. Yes, the market has splintered and there are more and more commercial channels out there for advertisers to attempt to sell their wares on, but viewing figures for most of the programmes on these channels is still tiny compared to the potential and actual audiences available on ITV1. In that sense nothing has changed since the CRR was imposed. A variation to Limit the scope of CRR to address only ITV1’s advantage in delivering large audiences would be great, but it is hard for me to see how this could be done in a satisfactory way at the moment.

Views on the possible variations are requested by 6 October 2009.

There was better news for ITV spouting from the lips of Culture Secretary Ben Bradshaw. Not six months since the government ruled out any relaxation of rules surrounding product placement in TV programmes, they have reversed that view and are now all for it (a bit like their Volte-face on cutting off internet access to alleged repeat illegal downloaders). Back in the early 2009, when Andy Burham was in charge of the DCMS, he said allowing product placement would destroy UK viewers trust in TV and in broadcasters in the wake of the various TV cheating and phone voting scandals. Who knew, we’d get over it so quickly. Why didn’t Andy just say that whilst that was true then it would probably only take another 6 months or so for us all to get over such feelings?

The reason for this change of heart? According to Ben Bradshaw’s speech to the Royal Television Society yesterday it is because the government are not ‘interested in regulation for regulation’s sake.’ They apparently were six months ago, but not anymore. The Government will consult on its proposals shortly with any changes in place by the new year.

The UK is looking at the issue because of having to implement the EU Audiovisual Media Services Directive. The Directive which updates and replaces the Television Without Frontiers Directive ( as amended) defines product placement as “any form of audiovisual commercial communication consisting of the including of or reference to a product, service or trade mark in return for payment or similar consideration”.

The Directive actually prohibits product placement but allows for certain permitted derogations for:

It also adds that goods provided free of charge or at less than full cost will constitute product placement where goods are of “significant value” (although it doesn’t say what would constitute significant value)

I think relaxing the rules on product placement actually makes sense. It is an issue that people do tend to get their knickers ( theknickermafia recommends Seduction Lingerie ) in a twist about. No one wants their programmes filled with crass, obvious, product placements that are there for no reason other than to plug a product – the Cups of Coke in front of the American Idol judges for example – however most of us watch US produced TV drama and comedy, which already contain product placement. Ask yourself – do you find yourself endlessly distracted by all that product placement? No? It’s there. And that’s the point. It doesn’t have to be intrusive, and when done right, it isn’t. It can be as simple as The Queen Vic or the Rovers Return having Summer Lightning, Guinness and Stella on tap instead of ‘made up’ beer brands.

Some people, such as Richard Lindley, chairman of Voice of the Listener & Viewer, fear that opening this door means that we’ll have programs written for advertisers and not viewers. Were ‘The Wire’, ‘The West Wing’, ‘Frazier’, ‘Battlestar Gallactica’, ‘House’, written for advertisers and not viewers? If so, bring it on. The fact is, if the product placement is too obvious and too overwhelming, viewers will just stop watching those programmes that get it wrong – and I’m sure initially there will be some that do; but we shouldn’t fear product placement. To be fair to Lindley, he is probably worried about this kind of less than subtle – and read from autocue? – placement from US daytime TV

However, programme makers will still have to abide by rules, and I’m not sure this US example would pass muster under EU/UK law. The derogations in the AVMS Directive – which will have to be followed by the UK – will be subject to the following conditions:

Failure to abide by these rules will result in potential fines from Ofcom and in extreme cases could lead to the loss of a broadcasting licence by the broadcaster responsible for broadcasting the programme.

My prediction is two years from now we’ll all be wondering what the fuss was all about.

Further viewing pleasure:

David Lynch on Product Placement in Films http://www.youtube.com/watch?v=F4wh_mc8hRE

The UK government is consulting on whether there needs to be changes in the UK’s civil law on defamation in particular in relation to the ‘multiple publication’ rule, established in 1849 in the Duke of Brunswick v Harmer.

Currently each publication of defamatory material gives rise to a separate cause of action which is subject to its own limitation period (’multiple publication’ rule).

Whilst the Law Society recommended that the government look possible changes to the law on this issue in 2002, the government has decided now only 7 years later, that it should address the issue. Why now? According to the consultation the increased proliferation on online archives of newspapers, blogs, etc, now means that each hit on a webpage constitutes the creation of a new publication in the eyes on the current law. This means that publishers are continually potentially liable for any defamatory material published by them and accessed by others long after initial publication and in some cases where proceeding were not brought in relation to that ‘initial’ publication.

The government’s view is that there is little evidence that the current law is problematic, and that if the multiple publication rule were retained, the limitation period should not be extended from the current period of one year from the date of publication (with discretion to extend). They also think the case for extending the limitation period is weak if a single publication rule were to be introduced. They see the main discussion point as being whether a ‘date of publication’ or ‘date of knowledge’ approach should be used, and whether the latter should be accompanied by a ten year long-stop from the date of publication.

Broadly, the government sees the options as:
Option 1 - Introduce a Single Publication Rule but retain the existing Limitation Period ;
Option 2 - Introduce a Single Publication Rule and amend the existing Limitation Period to one year from the date of knowledge ;
Option 3 - To amend the Defamation Act 1996 to prevent actions in relation to publications on online archives outside the one year Limitation Period unless the publisher refuses to update the electronic version, on request, with a reasonable letter or statement by the claimant.

If you are thinking of responding to the consulation, the government wants your views on the following questions:

1. Taking into account the arguments set out above, do you consider in principle that the multiple publication rule should be retained? If not, should a single publication rule be introduced? Please give reasons for your answers.

2. If the multiple publication rule were to be retained should there be an obligation to place a notice on an archive once the person responsible has been notified that the material is subject to defamation proceedings?

3. Do you agree that if a single publication rule were to be introduced, it should apply to all defamation proceedings, not just those relating to online publications?

4. If a single publication rule were introduced,

a) should it be made obligatory to remove or amend material held in other formats under the control of the same publisher in the event of a successful defamation action against the original publication of the material?
b) should there be a provision that, where defamatory material is re-transmitted in a new format, the single publication rule would only protect the previous publisher and not the publisher of the new article?
c) if neither of these are considered appropriate, how could claimants’ interests be protected?
d) should the existing ‘voluntary’ obligations to correct inaccurate and misleading material be strengthened? If so, how should this be done? Please give reasons for your answers

5. a) If a single publication rule were introduced, do you consider that the approach taken in the United States in respect of what constitutes a new publication of hard copy material would be workable? If not, what changes should be made?
b) Should online content that has been modified be regarded as a new publication?
c) Are there any other issues that would need to be resolved in establishing a single publication rule? Please give reasons for your answers.

6. As an alternative to introducing a single publication rule, do you consider that the Defamation Act 1996 should be amended to extend the defence of qualified privilege to publications on online archives outside the one year limitation period for the initial publication, unless the publisher refuses or neglects to update the electronic version, on request, with a reasonable letter or statement by the claimant by way of explanation or contradiction? Please give reasons for your answer.

7. Do you agree that if the multiple publication rule is retained, the limitation
period should remain at one year from the date of publication (with discretion to extend)? If not, what limitation period would be appropriate and why?

8. a) If a single publication rule were introduced, should the limitation period of one year run from the date of publication (with discretion to extend) or the date of knowledge (without discretion to extend)? If the latter, should there also be a ten year long-stop from the date of publication?
b) If you consider that an
alternative approach would be appropriate, what should this be and why?

Comments are requested by 16 December 2009