Monday, November 10, 2008

The hypocritical hypocrisy of the hypocrites

I normally prefer the straightforward style of writing exemplified, between others, by Unamuno, but I do recognize the need of sometimes resorting to the baroque form chosen by Borges in his “Universal History of Iniquity” or by Umberto Eco in “The Island of the Day Before”. The later used it to adequate his writings to the style prevailing in the time when the story occurred, while Borges used it to both show the flaunting and squandering of art, and illustrate by rhetorical exaggeration and adjectivation how things and people had gone wrong. The title of this post enters into the last category, where hypocrisy is elevated to unsuspected heights by a mass of hypocrite citizens and politicians.
Few weeks ago, that now seem centuries, two comedians during the recording of a radio programme made some allegedly not tasteful, not funny and out of place remarks, which were left in other comedian’s answering machine. The whole phone call is there and it seems that originated when Russell Brand called Andrew Sachs for a previously agreed on-air (not exactly because it was recorded) conversation. The fact is that it looks like Andrew Sachs was not at home to answer the phone as expected (agreed?) and then Brand and Jonathan Ross started to fill the time by making what they thought were funny remarks and leaving them in Sachs’ answering machine.
The whole “incident” was part of a pre-recorded programme and, therefore, before going on air the programme was supposed to be edited and vetted by some sort of editor/producer, who seemed to have thought that there was nothing wrong with the phone “conversation”. After airing it there were some complaints about the tone of the programme and there is when the hypocrisy’s pandemonium started.
It seems that there were about 37,000 complaints, but what some newslets forget to mention is that most of the complaints were made after the issue became news and not after the complainers originally listened to the programme (the original number was 1,585). Now, let’s assume that, out of an estimated regular audience of 400,000 (and the more than 1,300,000 that have listened to the tape via YouTube), the original number was 37,000 complaints ; do those people, representing less than 10% of the audience have the right to impose their sense of what is right or wrong on the rest of them and onto the BBC? One has to be very carefully with the answer because if the answer is “yes”, then there are many minorities that would have the right to stop main stream speech in the country…But this is still assuming that there were originally 37,000, which was not the case. It can be easily argued that those that complained after the situation hit the news had either never heard the programme or they heard it after the situation become public, which would imply that they had no right whatsoever to be offended for listening material that they previously knew that was likely to offend them (has anyone heard the principle of volenti non fit injuria?). What it seems that has actually happened is that we have a large but minority group that is acting out of unhappiness with both the TV licence fee and the way the BBC uses it, but that should not, one would say must not, influence the editorial line of any programme. If people have an issue with the licence fee should contact their MP and or send a petition to Downing Street Number 10; if people are envious of how much Jonathan Ross earns, well, they may need to see a doctor...
Then we have the legal issues. There is no much doubt that the programme has not infringed in any way the Obscene Publications Act 1959 (or the 1964 version). There the test is very straightforward and the publication would be deemed obscene if it tends to deprave and corrupt the readers/listeners and, regardless how much you may dislike either of the presenters or both, what they say could not be deemed to deprave and corrupt anyone. If someone, really trying to vent his/her anger through accusing the presenters or the BBC of something, claims that the messages left can deprave or corrupt I would invite that person to check any day any TV channel or even go around the city where you will see plenty of adds of a brand that, although having another meaning, has a very close resemblance to the offensive word in question (so much that the brand’s advertisement has been suppressed in countries with quite stronger freedom of expression laws than the ones in England). So, claiming obscenity under OPA 1959 seems out of place.
Some people have made reference to Section 127 of the Communications Act 2003, but, strangely enough, misquoting the act in question. S 127 does not “prohibit using the phone to send offensive messages” but it criminalizes the use of a phone to send a message that is grossly offensive or of an indecent, obscene or menacing character, and the test for grossly offensive has been established by the House of Lords in DPP v. Collins [2006] 1 WLR 2223, a test that the calls in question clearly don’t satisfy. The fact that there were several calls would not attract the liability referred to in s 127 (2) because due to the nature of the people involved it is unlikely that any court would seriously accept that the receiver of the call could be annoyed, inconvenienced or needless anxious. Although there has been a big fuzz about the age of the recepient of the call and how could have been affected by the call, it is important to remember that we are talking about a person that is famous for being a comedian that played a role that misrepresented the character of Spanish people in general and Barcelona in particular and that was constantly subjected and accepted to be subjected to physical and verbal abuse from his boss (with many references to being not only not able with English but also a “thick”, vg not smart, person, as when it got a common rat thinking that it was a Siberian hamster) , and there are no many records of him apologising to Spanish people (probably what makes the whole situation more hypocritical is the fact that his portrayal of a Spanish waiter is deem to be one of the most iconic characters of British comedy). It should be notted that his characterisation was funny and that it would be wrong to ask him to apologize to the Spanish people, because comedy sometimes could offend (and it is right if it does so).
Other issue to take into account is whether publizicing that Russell Brand had sexual relations with Andrew Sachs grandaughter violated or not the rights established in art 8 of the European Convention of Human Rights, incorporated into UK law by the Human Rights Act 1998. It is quite surprinsing to read several lawyers affirming that there is a “clearly a breach of Article 8 of the Human Rights Act in relation to her privacy over sexual relations and bears comparison to the recent Mosley case”, because if there is something clear here is that nothing is clear. The first thing that needs to be properly clarified is that the situation bears no comparison whatsoever with the recent Mosley case: in that case there was a clandestine recording, a publication of the information and still photographies and the placing of the video extracts on the News of the World website, while in the case of Brand and Ross, Ross is a third party that received the information from one of the participants of the consensual sexual relation, who seemed to not object to that information being made public. The legal authorities seem to support quite the opposite of what many lawyers have said. In the Garry Flitcroft case the Court of Appeal supported the view that not all relationships deserve the protection of the law and in Theakston v MGM Ltd it was clearly stated that “the very concept of a relationship for the purpose of confidentiality is simple inapplicable to […] transitory or commercial relations”. Furthermore, while in CC v AB (2006) it was recognized that there was a reasonable expectation of privacy in personal and sexual relationships, the court also said that a fleeting one-night encounter would attract less protection. So, not very clear counsellor…
Finally, what is at stake here it freedom of expression, for which I refer to the words of former Chief Justice of the US in Hustler Magazine and Larry C. Flynt v. Jerry Falwell,

And, as we stated in FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57
L.Ed.2d 1073 (1978):

"[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection […] government must remain neutral in the marketplace of ideas." Id., at 745-746, 98 S.Ct., at 3038.

See also
Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1366, 22 L.Ed.2d 572
(1969) ("It is firmly settled that . . . the public expression of ideas may not
be prohibited merely because the ideas are themselves offensive to some of their

What probably constitutes the apotheosis of hypocrisy is that the same people that believe that speech that is deeply offensive to a minority of the population should not be restricted seem to be quite happy with firing two comedians for their “excesses” (which don’t seem to be so exceeded). Is that the standard that these 37,000 people want for British freedom of expression? Would they agree when a minority objects the showing of women skin on TV because it offends their sense of religiosity?
The comments of the Prime Minister and other politicians don’t deserve a comment…I assume that they are also concerned with the manifest obscenity of some of the things happening under their watch…

Wednesday, November 05, 2008

IP homework for Obama

The show is over and we finally have a winner, and the process of reuniting the US with the rest of the planet started even before that: it seemed quite clear that most non-Americans wanted Barack Obama to win the elections and, after 8 years of discrepancy, the American people concurred with the rest of the world. After the 21st of January president-elect Obama will have to deal with a couple of wars, international conflicts and a quite complicated economic/financial situation, but it will also have to deal with more mundane issues, which may have longer term effect on the rest of the world and in American competitiveness. One of them is IP policy and legislation.
It has been argued for quite long that IP policy and legislation in the US has been captured by a small group of lobbyists with very deep wallets, who then convinced Washington that those policies needed to be exported for the benefit of the country’s wealth and competitive advantaged, but that the real effect of the current IP policies has been, at best, completely unknown. The numbers and recommendations of those lobbyists and the “independent” researchers hired by them have been taken by successive governments at face value, without the state fulfilling its duty to act as an arbiter between competing interests and truly establishing the value of different assertions. It can be sustained with certain degree of certainty that the current level of protection for intellectual property rights benefits some companies (the same certainty could not be applied to whole industries) and that the real effect on countries wealth is uncertain. There enters president-elect Obama.
In a interview with the Rolling Stone magazine, the then candidate Obama responded affirmatively to whether legislation had been outsourced to private interest and also said that the degree to which the US had had “drug companies writing drug legislation, without regard for the public interest [had] to change”. He also referred to the need for a 21st Century New Deal involving the use of technology for people’s participation in government and have campaigned on a platform promising more funds for research and education. And all that leads to IP rights. The current, ideologically-charged lobbyists-created answer would be that more protection would be needed to ensure that the researchers get rewarded and more technology is developed…but is that true? Always not friend of anecdotal evidence, I need to say that while being in St Louis, MO, last year I met several of the most prominent people in industry and research dealing with biotechnology and pharmaceuticals, and off the record they recognized that they did not have an idea whether the increased protection had given them any benefits (it could be) but they were sure that it created an extra burden to navigate through the net of patents already existing. As said before in previous posts, it is to expect that after bailing out banks for hundred of billions, their claims of wealth-creation will not be taken at face value and, taking into account that the cost that IP protection represents for society (not only on enforcement but the more dynamic costs of tolerating a monopoly), the same should be applied to IP, which leads us back to the new president.
What would be a sensible agenda for IP? The first and more important measure, and the one that should precede setting up any agenda is to get the state to become a independent third-party assessing the real needs of the industries and society and the costs and benefit of each option, and for that the solution seems quite straightforward: president Obama’s IP policy should certainly start with a Gowers style assessment and report that clarifies the current state of the policy and legislation, considers the cost and benefit of different options and propose a way forward taking into account the interests of society and industries alike.