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Friday, 20 May 2011

CTB v Twitter and Persons Unknown Begins

It has been reported that "CTB" has lodged a claim against Twitter and "persons unknown".

What could this possibly mean?


It is important at this stage to be aware of what one cannot know for certain:

1. that the "CTB" is actually the same person as "CTB" in the recent privacy case (though it appears the same law firm is instructed);

2. what the claim is for in terms of law - is it a privacy claim or is it under some other form of law; and

3. what the remedy requested is - is it a damages claim or is it for disclosure by Twitter of third party information (for example the information of those who have used Twitter accounts to break - rather than repeat - allegations), or for something else.

As yet, we simply do not know.

However, it is unlikely to be a mass law suit against all people who have retweeted the allegations.



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Saturday, 14 May 2011

WikiLeaks £12m Legal Gag: a legal analysis

Last Wednesday, the New Statesman published the legal gag which WikiLeaks sought to impose on its employees and associates.

This was then followed by an article in the Guardian by James Ball providing further background to this curious document.

The former WikiLeaks spokesman Daniel Domscheit-Berg was also reported as saying:

“WikiLeaks has become what it despises: a repressive organisation, using restrictive contracts to gag its staffers, cultivating intransparency and unaccountability”


For many commentators the document simply spoke for itself.

It was illiberal in its purpose and misconceived in its approach.

It was patently a commercial legal instrument, and the £12 million figure was preposterous and worrying.

Given the express aims of the WikiLeaks organisation, it appeared to be hypocritical and discrediting.


However, this view was not shared by all.

WikiLeaks itself tweeted:

"WikiLeaks works on information that can change the destiny of states and other powerful groups. We are proud of using every possible instrument to be to defend our sources, staff, volunteers, collaborators from these groups, whose actions against us include legal coersion, bribery and violence. Although we have not sold raw information to other entities, for legal documents to be enforceable, they must be put into monetary form."

(By the way, that final assertion is simply - factually - incorrect as a matter of basic law.)


Others have sought to explain the document away: to normalise it and to contend that it is somehow unexceptional.

It may be well that for WikiLeaks partisans (like "the Birthers" in the United States), nothing - not even a disclosed document- will shift their adherence to their cause.

If so, that would present rather a paradox, as one claim for the WikiLeaks enterprise is that publishing original documents can undermine artificial and self-serving narratives.


So for WikiLeaks and its partisans, and for anyone else who is interested, what follows is a technical legal analysis of this extraordinary document. I also, at the end, provide a suggested draft for the NDA they should be using instead.


The starting point, as with any contract or transactional document, is the choice of law.

Here, there can be no doubt: clause 9 provides that it is under English law.

This has two important consequences.

First, it means that it will be presumed that the English laws of confidentiality and copyright will apply as between the parties.

Second, it means that the English law in respect of penalty clauses will also apply.


Confidentiality agreements under English law

Under English law, one does not need a contract to have enforceable obligations of confidentiality.

All one needs is for there to be information which is confidential in its nature imparted under the terms of confidentiality. If the recipient of the confidential information misuses or wrongfully discloses the information, then the provider of the information can apply to the court for an injunction or to recover the wrongful profits made by the recipient.

No written or oral agreement is required. This is partly because the English law of confidence is based on “equity” rather than common law, and equity and common law were administered historically by separate courts.


Confidentiality agreements (or “non-disclosure agreements” or “NDAs”) then supplement the law of confidentiality in three ways.

They can identify and define the information which is to be regarded as “confidential”; they affirm that the information has been imparted under the term of confidentiality; and they provide for what the parties agree would be the appropriate remedy for any breach.

A well-crafted confidentiality agreement ensures each of these three points is clear and legally enforceable.


Such agreements can also serve important non-legal and ceremonial purposes.

Once a transaction or joint venture is envisaged, parties often sign a NDA or memorandum of understanding to show a mutual commitment short of a formal business arrangement.

And being presented with a NDA can ensure that the recipients are made to realise the seriousness of their obligations in respect of information with which they about to be provided.

There is nothing wrong with an organisation like WikiLeaks having a NDA; the problem is in the content.


Definition of "information"

Turning now to the WikiLeaks document itself, you will see that the information to be covered is defined in the recital paragraph B.

This seems to be an extremely wide definition, which goes far beyond the leaked documents which the organisation possesses.

The definition is not that easy to follow. It is unclear to what the "it" at the start of the second sentence is referring (and this matters because the second sentence defines "information").

There are also three non-exhaustive lists of what the information "includes". It also looks as if there is a general test of "newsworthiness" as to whether information is caught by the definition, though this test is left undefined, and there is no indication as to whether this test of newsworthiness is objective (in the opinion of a court) or just in the opinion of WikiLeaks.


However, regardless of this woeful drafting, it could be arguable that the definition would cover all information leaked to and held by WikiLeaks that was worth leaking to a third party.

For an organisation which promotes transparency and accountability, one concerning element to the definition of "information" is that it purports to include the workings of WikiLeaks and details of its management and internal affairs.

That said, it would actually be difficult to enforce certain other provisions of this document in certain foreseeable cases, just because this definition of "information" is insufficiently precise.

If WikiLeaks was serious about enforcing this document, it needed a more precise definition of the information it should cover.


Ownership

I have noted elsewhere the extraordinary notion that WikiLeaks contends that it "owns" the information which has been leaked to it.

You will see clause 1 purports to claim all the "information" as defined "is...and remains the property of WikiLeaks".

In legal terms, this assertion of proprietary rights would mean that WikiLeaks has certain rights and remedies in respect of that leaked information which it otherwise not have but for this ownership.

WikiLeaks may, of course, have its own generated intellectual property. It may be also able to perhaps claim that it owns the databases in which the leaked information is stored.

But there is no legal basis whatsoever for WikiLeaks to have ownership of the information itself, especially when it has been provided in breach of various civil and criminal legal regimes.

For example, WikiLeaks cannot own the copyright in the leaked information (to the extent that the information is in a form capable of copyright protection). The creator has not assigned any ownership to WikiLeaks, and no licence has been given.

WikiLeaks cannot also take over the right of ownership of confidential information possessed by the original holders of the information before it was leaked.

And these points are crucial: without "ownership" then there is nothing at all which WikiLeaks can meaningfully sell. And, if this is the case, then various other provisions of this document become nonsensical.

Put simply, the leaked information cannot be "owned" but WikiLeaks would need to have something to own before it can commercially exploit as envisaged by recital paragraphs C and D of the document.

And so we come to commercial exploitation.


Commercial rights

The recital paragraphs C and D set out the basis of WikiLeaks ambitious claims to be able to commercially exploit the information (which they do not own).

The commercial value in the information is firmly connected to the "exclusivity" of these commercial agreements.

Recital paragraphs C and D (and indeed all the recital paragraphs A to E) contain absolutely nothing which, to quote the WikiLeaks tweet above, would protect "sources, staff, volunteers, collaborators [from...legal coersion, bribery and violence".

The only sensible reason for recital paragraphs C and D is to protect the commercial position of WikiLeaks in respect of its (imagined) exploitation rights in the information it contains.

And it gets worse.

For the most astonishing part of this document to me (more than the liquidated damages or penalty clause, on which more below) is in recital paragraph E.


Normally, a person in breach of a contract is liable for any direct loss caused. However, the law draws a line as to how much indirect loss one can also be liable for.

However, recital paragraph E provides for a person in breach of this document to be personally liable for the widest imaginable array of (entirely commercial) indirect losses so as to ensure that WikiLeaks can simply protect its commercial position.

It is paragraph E that makes the conclusion inescapable that this is wholly or primarily a commercial document. There can be no other explanation for the inclusion of this paragraph.

And now we come to the penalty clause.


Penalty clause

Unlike in some other jurisdictions, penalty clauses are unenforceable in English law. A party cannot include in a contract a provision which is there only to penalise a party in breach; any losses have to be genuine and flow from the breach.

Sometimes a party may seek to avoid the effect of this rule of English law by dressing up a penalty clause as a "liquidated damages" clause where the parties agree a "pre-estimate" of any loss suffered by a breach. However, English contract law tends to deal with substance not form, and so a clause will be struck down as a penalty even if the parties have called it liquidated damages.

In this document, clause 5 provides a figure of £12,000,000 for loss in respect of a "significant" (presumably material) breach of the agreement. There is no basis provided for this figure.

It is not even obvious which heads of loss are covered. Damages for infringement of (non-existent) copyright? Profits in respect of breach of (non-enforceable) confidentiality? The indirect losses under recital paragraph E?

The figure appears to have been plucked out of the air.

It is so high that it can only be a penalty. As such it could not be enforced.


What this means is that, far from this being a document which would "defend our sources, staff, volunteers, collaborators [from]...legal coersion, bribery and violence" it is instead of almost no legal effect as the central protection (other than recital paragraph E) would be without effect.

Any competent commercial lawyer would tell someone producing this document that a court would be unlikely to uphold clause 5 as it was a penalty.

So, in seeking to make this an onerous document, WikiLeaks have instead produced an effectively pointless dud.

That is why, as I said in the New Statesman, this clause is ludicrous and undoubtedly unenforceable.

The penalty in clause 5 actually offers WikiLeaks no real protection at all.


What WikiLeaks should have done

You may have noticed that I have referred above to the lettered paragraphs as "recital paragraphs" and to the numbered paragraphs as "clauses". Unless you have the misfortune to be a commercial lawyer, this distinction may not mean anything.

However, for a contract under English law, the distinction can be very important.

In the event a contract is enforced, a recital basically tells a court what the parties intended by the agreement they had entered. A recital is thereby an aid to the court on how obligations are to be construed.

Whilst in badly drafted contracts, such as this one, recitals contain substantive obligations and liabilities, such provisions belong in the clauses which then follow.

In this document, you will see at the top of page 2 that "the parties hereby agree as follows" - the recitals lead up to this statement of agreement and the substantive clauses - the terms and conditions - then follow.

If this document was really to be used for the protection of "sources, staff, volunteers, collaborators" rather than for commercial exploitation then the recitals should be very different.

Instead of emphasising the commercial exploitation rights of WikiLeaks, it should be emphasising the need to protect sources and staff, the need to ensure information is disclosed properly without creating due risk to life and limb.

And instead of emphasising monetary amounts, the document should mention the public interest in uncontrolled disclosure of sensitive information.

A court would then be able to ensure that whatever remedy was ordered met the presumed intention of the parties in keeping the information safe for good reason.

Indeed, the WikiLeaks tweet quoted above, and the various justifications of WikiLeaks partisans on Twitter and elsewhere, would have been better recitals to this document than the ones actually used, unless - of course - the intention of WikiLeaks was in fact commercial rather than protective of its sources.

The fact that the document talks of commercial interests and liquidated damages, rather than the public interest, indicates it is a commercial document.


This blog does not provide legal advice.

But as I draft NDAs under English law as part of my day job, including for non-governmental and not-for-profit organisations, I would suggest that if WikiLeaks had been genuinely serious about protecting the integrity of its information and the safety of its sources, rather than commercialising the information, then the following would have been more appropriate.


Non Disclosure Agreement

Between

[WikilLeaks entity]

and

[Name X]

Whereas

A. [WikiLeaks entity] possesses and has access to information (including documents and other materials which has been passed to it in the public interest) which is of a sensitive nature the unauthorised disclosure or misuse of which could adversely affect the interests of third parties ("information").

B. [Name X] will have access to this information.

C. The carefully managed disclosure of the information into the public domain is in the public interest.

The parties hereby agree:

1. [Name X] shall not disclose to any third party or use for his or her own benefit or for the benefit of any third party, any of the information without the prior written consent of [WikiLeaks entity]. [Drafting note: same as clause 1 of the document.]

2. [Name X] shall not commercially exploit or otherwise misuse the information. In the event [Name X] does commercially exploit or otherwise misuse the information then [Name X] shall (a) account to [WikiLeaks entity] for any profit which is thereby made, and (b) indemnify [WikiLeaks entity] for any damages and legal costs thereby caused.

3. The liability of [Name X] under clause 2 shall be limited to £12,000,000.

4. [WikiLeaks entity] is proud of using every possible instrument to be to defend its sources, staff, volunteers and collaborators, and [WikiLeaks entity] thereby indemnifies [Name X] against any loss or damage caused by [Name X] assisting [WikiLeaks entity] in respect of the information.

5. The liability of [WikiLeaks entity] under clause 4 shall be unlimited.

6. Nothing in this agreement shall provide [Name X] with any ownership, licence or other rights in the information.

7. Damages may not be an adequate remedy in respect of a breach by [Name X] of this Agreement and that [WikiLeaks entity] shall be entitled to injunction or other interim order so as to ensure that the information is held and disclosed in accordance with the public interest and the rights of any third parties who may be affected.

8. Unless terminated by the agreement of both parties, this agreement shall last for a period of three years.

9. This agreement is subject to English law and to the non-exclusive jurisdiction of the English courts.

Executed as a deed by

[WikiLeaks entity]
Witness

[Name X]
Witness



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Sunday, 8 May 2011

The First Five "Without Prejudice" Podcasts

"Without prejudice" is a common but precise legal phrase. It is not often understood by non-lawyers nor, surprisingly, even by many lawyers.

What "without prejudice" covers is the correspondence and discussions between parties to a civil dispute (not criminal litigation) which invariably takes place alongside the formal (indeed, formulaic) and "open" exchanges.

The formal and "open" communications can, if the case goes to court, be put before the judge. However, "without prejudice" communications are without prejudice to the formal communications and usually are not put before a judge.

Accordingly, it is under the umbrella of "without prejudice" that the real meat and thrills of civil litigation take place: the deal-making and the positioning for the best possible settlement. Almost all civil disputes end in settlement, and so an understanding of the dynamics of "without prejudice" exchanges are crucial to understanding the real nature of civil litigation.

In contrast, "open" statements of the parties' positions, and the case reports in the event there is no settlement, at best tell you half the story of what is really going on between the parties.

Although academic lawyers - oddly - seem to think law is about the decided cases they teach about in class and write about in textbooks, in practice formal case-law plays a very small role: referring to it may provide some advantage in strengthening a party's position - but it is far less important than say procedural rules and legal costs as an influencing factor.

And so when Charon QC, the doyen of British legal blogging, Carl Gardner and I were kicking about ideas for a name of a new regular legal podcast, the title "Without Prejudice" was, for me, immediately appealing.

The special legal meaning of "Without Prejudice" - as well as its obvious lay meaning - signifies that this podcast is going to try and "get behind the scenes" of legal stories in the news.

Although between the three of us we should (and sometimes do) know the substantive law (what the cases or statutes actually say) is in respect of any relevant legal news story, what interests us most is to seek to explain - to use the name of another legal programme - the law in action.

We hope we are well placed to do this. Charon QC has an encyclopedic knowledge and sharp understanding of the mechanics of the legal world; Carl Gardner is an accomplished government lawyer with rich experience of advising both decision-makers and those implementing policy; and I am a jobbing media and commercial lawyer-journalist, with no academic pretensions, but with an intense curiosity as to how some legal cases end up the way they do and a skepticism about what other people tell me. We also attempt to have a guest on each podcast, generally a non-lawyer, to participate and ensure there is a fresh voice.

We have now done five of these podcasts, and early problems about sound and manner have been addressed. The latest podcast is, we think, the best yet, and covers the assassination of Bin Laden and the unlawful death of Ian Tomlinson.

The general link to the podcasts is here, and the there is an iTunes feed here and a RSS feed here.

And the five podcasts so far...please download, listen and, we hope, enjoy:

Without Prejudice I - with guest Joanne Cash: the Assange extradition, the British bill of Rights, legal TV drama, etc.

Without Prejudice II - with guest Catrin Griffiths, editor of The Lawyer: sexism in law and practice, contempt of court, libel, etc.

Without Prejudice III - no guest: superinjunctions and other myths, banning crucifixes, expert immunity, etc.

Without Prejudice IV - with guest Dr Evan Harris: TwitterJokeTrial, the Crown, free speech and the criminal law, referendums, etc.

Without Prejudice V - with guest Alex Novarese, editor of Legal Week: Bin Laden assassination, Tomlinson, bribes, etc.

(Key to the voices: Charon QC, Aslan meets Alan Clark; Carl Gardner, think Professor Brian Cox in a lawyer's wig; me, Barry from Auf Wiedersehen Pet.)


All feedback - apart from on my Brummie accent - appreciated below. We especially want to know how we can do to make the podcasts better.


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Saturday, 7 May 2011

Today the Alternative Vote Campaign is in Mass Denial

Yesterday the Alternative Vote proposal was decisively rejected, by a two to one majority.

And today the supporters of the proposal are in mass denial.

Excuses are being deployed; blame is being apportioned; bad faith and knavish tricks are being alleged.

But the one reason which cannot be admitted is the rather obvious one: that people looked at the proposal and, er, did not actually want it...



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Monday, 2 May 2011

The death of Bin Laden and the justification for torture

As Richard Rorty and Judith Shklar, amongst many others, articulated: cruelty is the worst thing we can do.

As such, even a good liberal - who will otherwise tend to avoid moral certainties - can contend that torture is absolutely wrong.

By being absolutely wrong, this means that in all places and at all times there is no justification for torture.

There are no exceptional circumstances - no beneficial outcomes - which can justify its use.

This goes both for imaginary situations (the "ticking bomb" scenario beloved by first year philosophy students) and practical predicaments: torture is always wrong, whatever the "greater" suffering which could supposedly be avoided by its use.


However, it would appear that it is possible that the killing of Bin Laden was made possible by the use of information extracted by torture.

If this was the case, would that be an exception to the otherwise absolute rule?

Or are liberals bound to say that such torture should not have been used, even if it meant that Bin Laden would have stayed at large (as far as he could) and free to engineer another 9/11 or 7/7?

Is this a difficult real life counter-example?

Or can it be safely disregarded as an attack on the absolute principle that torture is wrong?


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Sunday, 1 May 2011

In defence of Pippa Middleton's Wikipedia page

There is a certain type of person; you will know the sort.

They are the sort of person who is a Wikipedia editor.

This is not to say that all Wikipedia editors are the same; but there is a certain type of person who edits Wikipedia and takes special delight in deleting pages because they deem the person to not be sufficiently "notable".

What this often means is that the earnest dullard does not think that the subject should be notable.


The latest person to face such deletion is Pippa Middleton, currently one of the most discussed people in the world, or at least that portion of it which watched the royal wedding.

(You can read the dullards on this proposed deletion here.)

It may well be that such a maid of honour, sister, and a socialite-party organiser should not have a Wikipedia page; but Wikipedia was certainly the first place I looked when I wanted to know more about her.

Surely this is the point of Wikipedia: someone out there taking time to write a page knowing that someone like me will want to read it.

In any case, her sudden fame over the last couple of days is a notable cultural event in itself, and that is worthy of record

So, if the dullards want to take a page down, I can gallantly offer this one instead.

And the dullards should just be glad no one has also done a separate Wikipedia entry for the one attribute of Pippa Middleton which has been the real reason for most of the attention.


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Were our ancestors aquatic apes?

This is not a question I would have ever thought of until I was followed today on Twitter by the intriguingly named @AquaticTheory.

When I clicked to see their tweets, I saw an array of superficially plausible contentions to support the proposition that we are, indeed, descended from apes that wallowed in water; it would explain our mainly hairless bodies, and so on.

I also saw that others dismissed the views completely.


I realised this was a moment where I could incur the infamous wrath of skeptics and Neo-Darwinist.

I knew that, if I said anything which seemed not to accord with the official version of human evolution, I could just be dismissed as a crank and a quack.


Or would those who promote an evidence-based approach and critical thinking welcome a different point of view, and perhaps constructively show me the errors in this interesting theory?


There is one way to find out, and so I ask the readers of this blog: are we the successors to aquatic apes?

And does it matter?


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