Video Surveillance in Europe and Germany – Personality and Privacy Rights

Video Surveillance
Video
Surveillance

Video Surveillance in Europe and Germany – Personality and Privacy Rights

General guidelines on video surveillance in Europe and Germany are found (in English) at the Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein in an article by Dr. Thilo Weichert entitled “Current Legal Issues on Video Surveillance”, a Contribution to the SECURITY Congress 2000, Oct. 9-12, 2000 in Essen.

Data Protection in Germany

See the commentary in English by the German Federal Data Protection Commissioner about the Federal Data Protection Act, Bundesdatenschutzgesetz (BDSG).

The “Dussmann” Video Surveillance Case in Germany

This case involved the collision of the right to privacy with the right to protect private property by video surveillance. It is the first such court decision in Germany. It is in some respects a hard case, and as the saying goes, hard cases often make bad law, and this is one example of that phenomenon.

At my request, Nils Leopold – thank you – on February 24, 2004

– see Humanistische Union e.V., Bundesgeschäftsführung, Rechtsanwalt Nils Leopold, LL.M., Greifswalder Str. 4, 10405 Berlin, Tel. 030-20450256, Fax 030-20450257 –

kindly sent me a copy of the decision of the County Court for Berlin Center (Amtsgericht Berlin-Mitte), Docket Nr. 16 C 427/02 (Geschäftsnummer 16 C 427/02), issued December 18, 2003 (verkündet am 18. Dezember 2003) on “Video Surveillance of Public Space” (Videoüberwachung Privater im öffentlichen Raum). Leopold writes that the decision is not yet legally in force since an appeal to the Berlin Landesgericht (Berlin District Court) will most likely be made.

The defendant in this civil suit is the Dussmann Beteiligungsgesellschaft mbH & Co. KG.

The name of the journalist who brought the action is unknown, because pursuant to common practice in German courts, in order to protect the plaintiff’s identity, his name has been made unreadable by the court in the publicly available copy of the court decision (the court merely blots out the name using black magic marker).

The “Dussmann” Case – Short Summary

The Berlin Center County Court found that the defendant’s video surveillance along commercial storefront display windows in an arcade passageway would not be permitted to extend more than one meter sideways or one meter upwards from the storefront display windows to be protected. Otherwise, the surveillance was found to impinge on the privacy rights of individuals in “public space”. The critical factual point in this case is that the video surveillance is located in a covered arcade passageway on property OWNED by the defendant and extending nearly to the street. Nevertheless, the court held that the fact that the property was private was not determinative since the defendant had dedicated the arcade passageway to use by the public (“durch Widmung zur Benutzung durch die Öffentlichkeit bestimmt”). The court held that the “right to privacy” in public places was more important that than the defendant’s right of video surveillance.

THE ARGUMENTATION of the PLAINTIFF

The journalist who brought the complaint frequently used the defendant’s privately owned but publicly accessible arcade passageway to go to and from work and felt hindered in his privacy personality rights by being subject to 24-hour video surveillance whenever he walked through the arcade (even though the videos are erased every 7 days), alleging that it was not a viable alternative that he use the other side of the street if the surveillance bothered him. He alleged a violation of his “basic right” (constitutional right) of personality as set out in Article 2(1) in conjunction with Article 1(1) of the Grundgesetz (Basic Law, German Constitution) as well as a violation of his personal rights pursuant to Section 823(1) of the BGB (Bundesgesetzbuch, German Civil Code).

The Basic Law (German Constitution) is found translated into English at iuscomp.org courtesy of the Goethe-Institut as follows:

I. Basic Rights

Article 1 [Human dignity]

(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

Article 2 [Personal freedoms]

(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.”

The court also refers to the general tort liability provision, § 823 I of the BGB, which is translated in a lecture by Prof. Dr. Heinrich Dörner of the University of Muenster Law School:

§ 823 I BGB provides: ” A person who, intentionally or negligently, and unlawfully injures the life, body, health, liberty, ownership or any other right of another person is bound to compensate him for any damage arising therefrom.”

Professor Dörner comments in that lecture on that particular paragraph by writing:

“The judges [of the Federal Supreme Court (Bundesgerichtshof)] [have] explained that the protected right of the body in § 823 I BGB is the outflow of the general right of the personality that I mentioned before as one of the fundamental individual rights. This right is embodied in Article 2 I in connection with Article 1 of the German Basic Law (Grundgesetz) and includes the right to self-determination.

THE LEGAL ARGUMENT of the DEFENDANT

The defendant answered that video surveillance was permitted by §6(b)(1) of the BDSG (Bundesdatenschutzgesetz, Federal Data Protection Act, also known as the Privacy Act) for protection of one’s own property (Hausrecht) or for the protection of other justifiable interests for specifically declared purposes. The defendant argued that the video surveillance in the arcade passageway protected against shoplifting, attacks on customers, purse-snatching, graffiti-painting and damage to storefront window panes by scratching.

THE HOLDING of the BERLIN CENTER COUNTY COURT

The Berlin Center County Court held that §§ 823 and 1004 of the German Civil Code protect the individual’s general right to privacy.

The Court further pointed to §6(b)(1) of the BDSG (Bundesdatenschutzgesetz, Federal Data Protection Act, also known as the Privacy Act) which provides that surveillance by optical electronic devices (video surveillance) is only permitted for protection of one’s own property (Hausrecht) or for the protection of other justifiable interests for specifically declared purposes, provided, however, that the surveillance does not infringe on the protected rights of others.

The Court held that the privacy rights of the individual plaintiff were more important than the rights to surveillance by the defendant in an area which had been declared open to public access by the defendant and where surveillance was of a general around-the-clock nature.

The Court held that video surveillance was limited in such areas of public access and that this included public streets, sidewalks and arcade passageways.

The Law Pundit Opinion on this Decision

In the opinion of the Law Pundit, this is a bad decision as a matter of law and will hopefully be reversed upon appeal. The limitation of video surveillance to one meter in an arcade passageway is not only impractical but legally unsound. Someone could throw rocks through storefront picture windows from two meters away and never be caught by the camera, whose protective function would be unnecessarily hampered. What personality right is there in law that anyone has the “privacy right” to move “publicly” incognito? This sounds like a wonderland for criminals and terrorists. By this ill-designed standard, a house owner could not have video surveillance of cars parked on the street in front of his house, even if these contained potential criminals, because they would be “too far away” in a public place. Indeed, he could not even keep track by video of the public sidewalk in front of his home for possible intruders. Indeed, possible lawbreakers “casing the joint” from a “safe” distance would be immune from surveillance. This is not the kind of legal precedent that is of any use for anyone.

The notion that there is a right to “privacy” in “public places” turns the doctrine of privacy on its head. Heretofore it appeared that the right of privacy applied to “private” places. Now it is to be extended to public places and indeed, public commercial places. This means that people want their cake and eat it too – they want all the advantages of being “in public” which their private sphere does not provide for them, but they want to be “privately” protected in public. My own answer here is “no”. The need for protection of life and property in commercial and public areas far overrides the individual’s personality rights in commercial and public places. The Berlin Center County Court has decided here for the individual, whereas it is the right of society to peace, law and order in public places which is paramount.

It is time that these overbroad concepts of individual personality and privacy rights be stopped in their tracks. Society too has rights. The law-abiding citizen is not threatened by video surveillance. The criminal is. Obviously, some “reasonable” standard which draws a balance between individual rights on the one hand and protective rights for all on the other must be drawn. But the standard can not be the one-sided decision handed down by the Berlin Center County Court.

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Copyright Protection in the European Union

Library Research
Copyright Issues in the
Internet Age

Copyright Protection in the European Union

The European Union website (snipped URL)

cites to

Council Directive 93/98/EEC of 29 October 1993 (harmonizing the term of protection of copyright and certain related rights), Official Journal L 290 , 24/11/1993 P. 0009 – 0013) (snipped URL).

This Directive provides as follows:

Article 1

Duration of authors’ rights

1. The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public.

Article 3

Duration of related rights

1. The rights of performers shall expire 50 years after the date of the performance. However, if a fixation of the performance is lawfully published or lawfully communicated to the public within this period, the rights shall expire 50 years from the date of the first such publication or the first such communication to the public, whichever is the earlier.

Article 7

Protection vis-à-vis third countries

1. Where the country of origin of a work, within the meaning of the Berne Convention, is a third country, and the author of the work is not a Community national, the term of protection granted by the Member States shall expire on the date of expiry of the protection granted in the country of origin of the work, but may not exceed the term laid down in Article 1.

A good analysis of copyright protection in the European Union is found at the website of Arnoud Engelfriet at IusMentis (snipped URL):

That website brought to my attention the provision in the above cited Directive relating to anonymous and pseudonymous works, as follows:

Article 1

Duration of authors’ rights

3. In the case of anonymous or pseudonymous works, the term of protection shall run for seventy years after the work is lawfully made available to the public.

Media Law Newsletter from David Price Just Out

Media Law Newsletter from David Price Just Out

Media Law News

Media Law Newsletter from David Price

David Price (Solicitors & Advocates – Specialists in Media Law) has/have just turned out the new edition of their Media Law Newsletter.

They write:

“This is our monthly newsletter containing reports and comment on media law. We aim to cover all cases in the High Court and Court of Appeal as well as decisions of the European Court of Human Rights on freedom of expression and relevant adjudications of the Press Complaints Commission and the Broadcasting Standards Commission. Occasionally we may refrain from reporting or commenting on cases involving our own clients.”

Latvia – Government and Law Websites – in Latvian, English, Russian, German and/or French languages

Latvia – Government and Law Websites – in Latvian, English, Russian, German and/or French languages

Latvian Flag
Latvian Flag

Since the LawPundit speaks fluent Latvian, this post with a list of Latvian government, law and law-related websites is a natural for the LawPundit blog.

The Original List from Attorney Aldis Alliks (amended)

Attorney (Advokāts) Aldis Alliks (advocate@alliks.lv) in Latvia sent me a long list of Latvian government, legal and law-related websites similar to the list below. LawPundit has reorganized the list for English-language purposes and has added the – sometimes not well phrased – official English translations (as available at the respective online pages) – as well as the appropriate links to those pages – and has expanded the language key to include: lv = Latvian language, en = English language, fr = French language, de = German language, ru = Russian language, thus also adding some French and German language pages which Alliks does not mention, since these are few. Thank you Aldis for your excellent list which we used as the basis for this list.

Money and Banking

Bank of Latvia – Latvijas Banka lv en

Financial and Capital Market CommissionFinanšu un kapitāla tirgus komisija lv en

Institutions of Learning – Mācību iestādes … (plus Gazettes, Journals, Databases, Law Information Resources, State Archives)

University of Latvia Faculty of LawLatvijas Universitātes Juridiskā fakultāte lv en

Human Rights Institute, University of Latvia, Faculty of Law
– Cilvēktiesību institūts
lv en

Student Self-Government – Faculty of Law – University of Latvia – Studentu pašpārvalde lv en

Riga Graduate School of LawRīgas Juridiskā augstskola lv en

Latvian Police Academy – Latvijas Policijas akadēmija lv

The Juridical College – Juridiskā koledža lv (for legal paraprofessionals)

Legal Information and databases – Juridiska informācija, datu bāzes …

The Periodical – Laikraksts Latvian Official Gazette – Latvijas Vēstnesis lv

The Journal – Žurnāls Law and Justice – Likums un Tiesības lv en

Latvian Laws – LR likumi un MK noteikumi lv

NAIS – Latvian Legislation DatabaseNormatīvo Aktu Informatīvā Sistēma (NAIS) lv en

Translation and Terminology CentreTulkošanas un terminoloģijas centrs lv en

LURSOFTDatabase of Companies, Credit, Newspapers, Addresses, Court Claims, Licenses LURSOFT datu bāze lv en

JURIDICALaw Information resources – juridiskās informācijas resursi lv en

Latvian Legal Documents DatabaseJuridisko dokumentu datu bāze lv en ru

State Archives of LatviaLatvijas valsts arhīvu sistēma lv en ru

The Latvian Judiciary (Courts) – Tiesas …

Latvia Courts Portal Latvijas tiesu portāls lv en

Constitutional Court of the Republic of LatviaLR Satversmes tiesa lv en

Riga Regional CourtRīgas apgabaltiesa lv en

Kuldiga District CourtKuldīgas rajona tiesa lv en

General Information and European Union

The Latvian Institute – Latvijas institūts lv en de ru

The Latvian Development AgencyLatvijas Attīstības aģentūra lv en

Latvia – European Union – Latvija – Eiropas Savienība en

Public Policy IssuesSabiedriskās politikas portāls lv en

CIA – The World Factbook – Latvia – ASV CIP – fakti par Latviju en

Government Institutions – Valsts institūcijas …

The Latvian Parliament – The SaiemaLatvijas Republikas Saeima lv en

The Latvian PresidentLatvijas Valsts prezidenta kanceleja lv en fr de ru

Bank of Latvia – Latvijas Banka lv en

Cabinet of Ministers of the Republic of LatviaLR Ministru Kabinets lv en de ru

Ministry of Agriculture – Zemkopības ministrija lv en

Ministry of Culture – Kultūras ministrija lv en

Ministry of DefenceAizsardzības ministrija lv en

Ministry of EconomicsEkonomikas ministrija lv en

Ministry of Education and ScienceIzglītības un Zinātnes ministrija lv en

Ministry of Environment – Vides ministrija lv en

Ministry of Finance – Finanšu ministrija lv en

Ministry of Foreign AffairsĀrlietu ministrija lv en

Ministry of Health – Veselības ministrija lv

Ministry of the Interior – Iekšlietu ministrija lv en

Ministry of Justice – Tieslietu ministrija lv en

Ministry of Regional Development and Local Governments – Reģionālās attīstības un pašvaldību lietu ministrija lv en

Ministry of Transport and Communications – Satiksmes ministrija lv en

Ministry of Welfare – Labklājības ministrija lv en

Air Space UtilizationLatvijas Gaisa satiksme lv en ru

Bankruptcy Administration – Maksātnespējas administrācija lv

Central Statistical BureauCentrālā statistikas pārvalde lv en

Civil Aviation Administration – Civilās aviācijas administrācija lv en

Competition Council – Konkurences padome lv en

Consumer Rights Protection CentrePatērētāja tiesību aizsardzības centrs lv en

Corruption Prevention and Combating BureauKorupcijas novēršanas un apkarošanas birojs lv en ru

Culture Capital Foundation – Valsts Kultūrkapitāla fonds lv en

Data State InspectionDatu valsts inspekcija lv en ru

Environmental State InspectorateVides valsts inspekcija lv

Food and Veterinary Service – Pārtikas un veterinārais dienests lv en

Health Quality Control Commission – Medicīniskās aprūpes un darbspējas ekspertīzes kvalitātes kontroles komisija lv

Housing Agency – Mājokļu aģentūra lv en

Land Register – Vienotā datorizētā Zemesgrāmata lv

Latvian Certification CentreLatvijas Sertifikācijas centrs lv en ru

Latvian Environment Agency – Latvijas Vides aģentūra lv en

Latvian Hydrometeorological AgencyLatvijas hidrometeoroloģijas aģentūra lv en

Latvian National Accreditation Bureau – Latvijas Nacionālais akreditācijas birojs lv en

Latvian National Human Rights Office – Valsts cilvēktiesību birojs lv en

Latvian Railway – Latvijas Dzelzceļš lv en ru

Latvian Security Agency Ltd. – Garantiju aģentūra lv en ru

Latvian State Construction Inspectorate – Valsts būvinspekcija lv en

Latvia’s State Forests – Latvijas valsts meži lv en de ru

Latvian Standardization Institution – Latvijas standarts lv

Latvian Tourism Development Agency – Tūrisma attīstības valsts aģentūra lv en de ru

Lotteries and Gambling Supervisory Inspection – Izložu un azartspēļu uzraudzības komisija lv en

Marine Environment BoardJūras vides pārvalde lv en

Medicines Pricing and Reimbursement AgencyZāļu cenu aģentūra lv en

Motor Transport Directorate – Autotransporta direkcija lv

National Board of Fisheries – Valsts zivsaimniecības pārvalde lv en ru (older pages with English and Russian here)

National Energy InspectionValsts energoinspekcija lv en

Naturaliziation BoardNaturalizācijas pārvalde lv enin Russian ru

Office of Citizenship and Migration Affairs – Pilsonības un migrācijas lietu pārvalde lv en ru

Patent OfficePatentu valde lv en

Public Utilities Commission – Sabiedrisko pakalpojumu regulēšanas komisija lv en

Purchase Control Bureau – Iepirkumu uzraudzības birojs lv

Radiation Safety Centre Radiācijas drošības centrs lv en

Register of EnterprisesUzņēmumu reģistrs lv en ru

Riga International Airport – Rīgas starptautiskā lidosta lv en

School of Public Administration – Valsts administrācijas skola lv en

State Agency of Compulsory Health Insurance – Veselības obligātās apdrošināšanas valsts aģentūra lv

State Agency of MedicinesValsts zāļu aģentūra lv en

State Audit OfficeValsts kontrole lv en

State Border Guards – Valsts robežsardze lv

State Civil Service Administraiton – Valsts civildienesta pārvalde lv en

State Education Inspectorate – Izglītības valsts inspekcija lv

State Employment Agency – Nodarbinātības valsts aģentūra lv en ru (English under construction on February 14, 2004)

State Firefighting and Rescue Service – Valsts ugunsdzēsības un glābšanas dienests lv en

State Forest Service – Valsts meža dienests lv en

State Geological Survey of Latvia – Valsts ģeoloģijas dienests lv

State Information Network Agency – Valsts informācijas tīkla aģentūra lv en

State Labour Inspectorate – Valsts Darba inspekcija lv en

State Land Service – Valsts zemes dienests lv en

State Pharmaceutical Inspectorate – Valsts farmācijas inspekcija lv

State Plant Protection Service – Valsts augu aizsardzības dienests lv

State Police of Latvia – Valsts policija lv en

State Real Estate Agency – Valsts nekustamā īpašuma aģentūra lv en

State Revenue ServiceValsts ieņēmumu dienests lv en

Telecommunication State Inspection – Valsts elektrosakaru inspekcija lv en

Traffic Bureau – Satiksmes birojs lv en

Treasury – Valsts kase lv en

Other Organizations – Citas organizācijas …

Business Software Alliance lv

Latvian Chamber of Commerce and Industry – Tirdzniecības un rūpniecības kamera lv

Latvian Consumer GuidePatērētāja interešu aizstāvības klubs lv en

Latvian Junior Chamber International lv en

Latvian Patients’ Rights Office – Latvijas Pacientu tiesību birojs lv en ru

News and Information – Uzziņas …

Business Information – Biznesa uzziņu portāls “ZL Hotline” lv en de ru

118 News and Information – Uzziņu dienests “118” lv

Interactive Zoomable Map of Latvia – UzKartesinteraktīvās kartes un izziņas lv en de ru (language change applies only to map commands)

Professional Organizations – Profesionālās organizācijas …

Latvian Maritime Law AssociationLatvijas Jūras tiesību asociācija lv en

Latvian Sworn Notary CouncilLatvijas Zvērinātu notāru padome lv en

The Hutton Report : Law, Politics, Truth and Freedom of the Press

The Hutton Report : Law, Politics, Truth and Freedom of the Press

What is True and What is False in Reporting by the Press ?

What is true in reports by the news media and what is false? In the battle for viewers, readers and subscribers, to what degree has unmitigated “hype” and “yellow journalism” become a much too prevalent news form?

news extra
What is Really True in the News ?

Has the Media Lost its High Standards of Reporting ?

This writer has been increasingly put off by biased journalism (I am not alone – see One Man & His Blog) and indeed – as proven e.g. for one reporter at the New York Times – intentionally falsified reporting by the major news media. “Fair and balanced” has become as much of a myth in news reporting as “all the news that’s fit to print”. As noted by Dave Aeillo at CTDATA about the New York Times in discussing the Times extremist reporting on Augusta National Golf Club:

“The problem that The New York Times is experiencing is part and parcel of its editors’ disingenuousness. The motto shouldn’t be All the News That’s Fit to Print– it should be All the Left Wing Opinions that Are Fit To Print, or All the News That Fits Our Agenda.”

For the vast population of golfers and non-golfers, Augusta is a non-issue. It is only an issue for political extremists.

BBC reporting and the War in Iraq

The New York Times is not the only “once reputable” news reporting outfit to come under recent heavy criticism. The ordinarily and heavily “mainstream-entrenched” BBC in the United Kingdom has received a legal rebuke without parallel in modern journalistic history.

The British government had reported its belief, prior to the war and based on a high source in the Iraqi army,

“[T]hat Iraqi forces could use chemical or biological weapons on the battlefield against invading forces in less than 45 minutes…. Sir Richard Dearlove, head of MI6, told the Hutton inquiry that the information contained in the dossier relating to the 45-minute claim came from a single “established and reliable” source serving as a senior officer in the Iraqi army.”

The BBC reported that this claim – as repeated by the government – was “knowingly” false. This report by the BBC then marked the headlines about the war for some time. Lord Hutton found that the BBC and not the government erred.

The Hutton Report finds BBC reporting to be “Unfounded” and “Defective”

The Hutton Report is an inquiry by Lord Hutton, a law lord in the United Kingdom, regarding the propriety of BBC news reporting which contains what Lord Hutton found to be false allegations against the government on issues involving the war in Iraq, including false BBC statements about the government’s alleged role in the death of weapons expert David Kelly.

As a result of this report, BBC Chairman Gavyn Davies resigned, followed by the resignation of Greg Dyke, BBC director general. As written by the BBC in “BBC chairman quits over Hutton”:

“He quit after Lord Hutton said the suggestion in BBC reports that the government “sexed up” its dossier on Iraq’s weapons with unreliable intelligence was ‘unfounded’.

Lord Hutton also criticised ‘defective’ BBC editorial processes over defence correspondent Andrew Gilligan’s broadcasts of the claims on the Today programme.”

The Hutton Report exonerates the Government – Did Blair and Bush lie to Us? – No

Prime Minister Tony Blair is quoted as saying that:

“The allegation that I or anybody else lied to the House or deliberately misled the country by falsifying intelligence of weapons of mass destruction is itself the real lie…. I simply ask that those that have made it and repeated it over all these months now withdraw it fully, openly and clearly.”

Obviously and logically, similar claims brought against President Bush challenging the information basis and subsequent motives for the war are thus equally unfounded. Moreover, we find that the reporting of the war at the New York Times and at CNN was equally “defective” and one-sided, tending to the generation of political “controversy” and “arm-chair quarterbacking” rather than concentrating on a “fair and impartial presentation” of actual events. Undesired political and personal commentaries by reporters often prevail in situations where nuts-and-bolts facts are required by the public.

Is the Hutton Report Falling on Deaf Ears ?

Numerous instances can be cited that the lessons which should have been learned from these events have still not been learned.

As written in a user’s opinion posted – intentionally – by the BBC (who said they would otherwise not comment on the Hutton Report) at the BBC’s own website, quoting instead what we would regard as a defiant stance of a reader:

“Democracy in this country owes more to the BBC than it does to this government – Steve Price, Overton, UK”

That of course is not the issue. The actual issue is simply that negligent and reckless FALSE reporting by news media is not permitted, regardless of their past track record.

A Misreading of the Law ?

An extremely critical review of the Hutton Report is found at “A Misreading of the Law” by Conor Gearty at the London Review of Books (we subscribe to their newsletter, but this review is not one of our favorites). Gearty writes:

Imagine a BBC that checks all its output all the time for potentially ‘false accusations of fact impugning the integrity of others, including politicians’, and refuses to broadcast anything that might conceivably pose such a risk. And there is no reason to stop at the BBC: Lord Hutton’s supposed rule must apply generally. So we must also imagine the kind of ‘democratic society’ we would have if all television, radio and print news organisations followed with Huttonesque rigour what Lord Hutton says is the law. There would be calm, certainly, and quiet reportage of ministerial achievement, but there would not be democracy as we know it.

The Right to Impugn Integrity based on Sloppy Research ?

The Law Pundit disagrees completely with Gearty’s opinion. In our view of the law, NO MEDIA has the right to falsely impugn the integrity of others – and if they do not check their work conscientiously and still publish such things falsely, then they should be liable. No one is denying news media the right to engage in CRITICAL reporting – but the Hutton Report is denying FALSE reporting resulting from improperly researched reporting (recall, RESEARCH is the specialty of the Law Pundit.) If your research does not support what you write to be a fact – then do not impugn another’s integrity. That seems to be a clear and laudable legal standard. It surely cuts a lot of the irrelevant ad hominem out of news reporting.

Someone who has his integrity falsely impugned in print has a difficult time reestablishing his or her reputation as the damage is normally done and everyone is on to different things and new events. See here for a Guardian article by David Clark for proof that not even the Hutton Report is stopping what is clearly politically-motivated reporting. Slashes on the integrity and intelligence of other persons continue on unabated. That article is not “reporting” – it is one man’s vituperative opinion. It is a lambasting of “persons”, rather than a fair and impartial reporting of facts and issues. Should that kind of lambasting be permitted? No, I think not, but it is common at news media such as the Guardian.

The prospect of bringing a libel suit against news media in order to obtain a printed retraction has almost no chilling effect on the publication of false and maligning opinions. The media is powerful and individuals less so. Here at least the government was battling the media, i.e. two large powerful forces were pitted one against the other. But imagine the BBC doing the same thing to John Q. Citizen that it tried to do to Tony Blair and his government. John Q. Citizen’s reputation would be irrevocably destroyed, without any chance of resurrection – even Blair is still having trouble, because the news media has so firmly implanted falsehoods in the brains of the public. Indeed, one must ask WHY the news media would even attempt to impugn someone’s integrity if the complete well-researched facts did not support it? The only answer can be that the media is pushing THEIR own political agenda. They are trying to profit at another’s expense and to gain an advantage for their causes against the causes advanced by others.

Hence, contrary to Gearty, we say YES to “democracy” and to “freedom of speech and the press”.

But we say NO to any press right to impugn the integrity of others through sloppy reporting. That is not what we regard to be a foundation of democracy. Reputations are easily destroyed by the press – but this is not a constitutional right.

The Major Findings of the Hutton Report

The major findings of the Hutton Report in abbreviated form are found here at the Guardian and here at the BBC.

The Full Hutton Report

The full Hutton Report is available

1) as a book at online booksellers as Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly CMG by Lord Hutton (published by Stationery, 740 pages, £70.00), and

2) online at Hutton Inquiry at Report and Rulings

Lord Hutton’s Main Rulings in the Report

Lord Hutton’s rulings in the “Hutton Report” find false reporting by the BBC with respect to matters involving the war in Iraq:

The Questions

The major questions raised were, in the words of Lord Hutton:

“(1) Was there a failure by the BBC to exercise proper editorial control over Mr Gilligan’s broadcasts on the Today programme on 29 May?

(2) Was the BBC management at fault in failing to investigate properly and adequately the Government’s complaints that the report was false that the Government probably knew that the 45 minutes claim was wrong even before it decided to put it in the dossier?

(3) Was there a failure by BBC management to inform the Governors of the BBC of the extent of editorial concerns about Mr Gilligan’s broadcasts in relation to the 45 minutes claim?

(4) Whilst the Governors were under a duty to protect the independence of the BBC from Government interference, were the Governors at fault in failing to investigate properly and adequately the Government’s complaints about the report on the Today programme in relation to the 45 minutes claim, and were the Governors too ready to accept the opinion of BBC management that the broadcasts were proper ones for the Today programme to make.”

The Answers

The answers to these questions by Lord Hutton – after interviewing 74 witnesses in 25 days – are:

“(1) The allegations reported by Mr Gilligan on the BBC Today programme on 29 May 2003 that the Government probably knew that the 45 minutes claim was wrong or questionable before the dossier was published and that it was not inserted in the first draft of the dossier because it only came from one source and the intelligence agencies did not really believe it was necessarily true, were unfounded.

(2) The communication by the media of information (including information obtained by investigative reporters) on matters of public interest and importance is a vital part of life in a democratic society. However the right to communicate such information is subject to the qualification (which itself exists for the benefit of a democratic society) that false accusations of fact impugning the integrity of others, including politicians, should not be made by the media. Where a reporter is intending to broadcast or publish information impugning the integrity of others the management of his broadcasting company or newspaper should ensure that a system is in place whereby his editor or editors give careful consideration to the wording of the report and to whether it is right in all the circumstances to broadcast or publish it. The allegations that Mr Gilligan was intending to broadcast in respect of the Government and the preparation of the dossier were very grave allegations in relation to a subject of great importance and I consider that the editorial system which the BBC permitted was defective in that Mr Gilligan was allowed to broadcast his report at 6.07am without editors having seen a script of what he was going to say and having considered whether it should be approved.

(3) The BBC management was at fault in the following respects in failing to investigate properly the Government’s complaints that the report in the 6.07am broadcast was false that the Government probably knew that the 45 minutes claim was wrong even before it decided to put it in the dossier. The BBC management failed, before Mr Sambrook wrote his letter of 27 June 2003 to Mr Campbell, to make an examination of Mr Gilligan’s notes on his personal organiser of his meeting with Dr Kelly to see if they supported the allegations which he had reported in his broadcast at 6.07am. When the BBC management did look at Mr Gilligan’s notes after 27 June it failed to appreciate that the notes did not fully support the most serious of the allegations which he had reported in the 6.07am broadcast, and it therefore failed to draw the attention of the Governors to the lack of support in the notes for the most serious of the allegations.

(4) The e-mail sent by Mr Kevin Marsh, the editor of the Today programme on 27 June 2003 to Mr Stephen Mitchell, the Head of Radio News, which was critical of Mr Gilligan’s method of reporting, and which referred to Mr Gilligan’s “loose use of language and lack of judgment in some of his phraseology” and referred also to “the loose and in some ways distant relationship he’s been allowed to have with Today,” was clearly relevant to the complaints which the Government were making about his broadcasts on 29 May, and the lack of knowledge on the part of Mr Sambrook, the Director of News, and the Governors of this critical e-mail shows a defect in the operation of the BBC’s management system for the consideration of complaints in respect of broadcasts.

(5) The Governors were right to take the view that it was their duty to protect the independence of the BBC against attacks by the Government and Mr Campbell’s complaints were being expressed in exceptionally strong terms which raised very considerably the temperature of the dispute between the Government and the BBC. However Mr Campbell’s allegation that large parts of the BBC had an anti-war agenda in his evidence to the FAC was only one part of his evidence. The Government’s concern about Mr Gilligan’s broadcasts on 29 May was a separate issue about which specific complaints had been made by the Government. Therefore the Governors should have recognised more fully than they did that their duty to protect the independence of the BBC was not incompatible with giving proper consideration to whether there was validity in the Government’s complaints, no matter how strongly worded by Mr Campbell, that the allegations against its integrity reported in Mr Gilligan’s broadcasts were unfounded and the Governors failed to give this issue proper consideration. The view taken by the Governors, as explained in evidence by Mr Gavyn Davies, the Chairman of the Board of Governors, that they had to rely on the BBC management to investigate and assess whether Mr Gilligan’s source was reliable and credible and that it was not for them as Governors to investigate whether the allegations reported were themselves accurate, is a view which is understandable. However this was not the correct view for the Governors to take because the Government had stated to the BBC in clear terms, as had Mr Campbell to the FAC, that the report that the Government probably knew that the 45 minutes claim was wrong was untruthful, and this denial was made with the authority of the Prime Minister and the Chairman of the JIC. In those circumstances, rather than relying on the assurances of BBC management, I consider that the Governors themselves should have made more detailed investigations into the extent to which Mr Gilligan’s notes supported his report. If they had done this they would probably have discovered that the notes did not support the allegation that the Government knew that the 45 minutes claim was probably wrong, and the Governors should then have questioned whether it was right for the BBC to maintain that it was in the public interest to broadcast the allegation in Mr Gilligan’s report and to rely on Mr Gilligan’s assurances that his report was accurate. Therefore in the very unusual and specific circumstances relating to Mr Gilligan’s broadcasts, the Governors are to be criticised for themselves failing to make more detailed investigations into whether this allegation reported by Mr Gilligan was properly supported by his notes and for failing to give proper and adequate consideration to whether the BBC should publicly acknowledge that this very grave allegation should not have been broadcast.” [emphasis supplied]

Two Additional Issues regarding Dr. Kelly

Lord Hutton also ruled on two additional issues:

“First, did the Government behave in a way which was dishonourable or underhand or duplicitous in revealing Dr Kelly’s name to the media, thereby subjecting him to the pressure and stress which were bound to arise from being placed in the media spotlight?

Secondly, if the Government did not behave in a way which was dishonourable or underhand or duplicitous in revealing Dr Kelly’s name to the media, did the Government fail to take proper steps to help and protect Dr Kelly in the difficult position in which he found himself?”

Lord Hutton writes:

“Having concluded that the Government did not behave in a dishonourable or underhand or duplicitous way in revealing Dr Kelly’s name to the media I then consider the second issue, whether the Government failed to take proper steps to help and protect Dr Kelly in the difficult position in which he found himself. In paragraph 430 I state that the evidence has satisfied me that officials in the MoD did give some consideration to Dr Kelly’s welfare and did take some steps to help him, and I set out the steps which were taken by a number of officials.”

Blogs Referring to the Hutton Report

Blogs that have referred to the Hutton Report are:

Jay Currie

Currie has numerous postings on the Hutton report and a link to Let It Bleed.

KeepingLegal

BeSpacific

KWSnet Weblog

“There was criticism, condemnation even. But almost all was aimed at the BBC.

For the Government, there was just the tiniest of slaps on the wrist for a few underlings at the Ministry of Defence.

For all the legal-ese, the precise and impartial weighing up of a mountain of evidence given by 74 witnesses over 25 days, it was clear as he presented his findings that Lord Hutton, the former Lord Chief Justice of Northern Ireland and a respected law lord who retired two weeks ago, is much more at home in the world of civil servants and politicians than that of journalists.”

BaraksBlog writes “Now hold on a minute!” in commenting on Clark’s article in the Guardian.

The content of this link at the Guardian, as linked from FullSpeed is, well… you decide.

Ofcom Watch speculates whether the BBC is ripe for government regulation.

Hutton’s findings will strengthen BBC critics who say the broadcaster should fall under the oversight of media regulator Ofcom. Conservative leader Michael Howard said the case for outside regulation of the BBC “has never been stronger”.

Lincoln Plawg (PLawG=Politics and Law Blog) points to a link which may be the definitive discussion of investigative reporting in this context for news media and reporters, an article by Jeffrey A. Dvorkin, Ombudsman, National Public Radio (NPR), entitled “Sentence First. Verdict Afterwards?

Zahi Hawass and the Rule of Law

Zahi Hawass and the Rule of Law

The Law Pundit is a fan of Zahi Hawass, a great personality and showman, no doubt, but also a sincere man by our estimation in his position as head of the Giza Pyramids of Egypt and as secretary-general of the Supreme Council of Antiquities (SCA) in Egypt. Nothing happens at the pyramids without the OK of Hawass. We agree with that philosophy. Someone has to be in charge.

He is quoted by Ursula Lindsey in a special to the Daily Star online entitled “Zahi Hawass: ‘A strong personality is essential for a good archaeologist’: Head of Egypt’s antiquities council explains how to preserve ancient treasures” as follows:

Every place in the world needs laws. You have to follow rules. The pyramids (fell into) chaos, because they’re controlled by people who care about their own business. They don’t care about Egypt, about the heritage of Egypt.”[emphasis added]

The Law Pundit regards that to be a succinct statement of the benefits of the Rule of Law, which applies to all parts of the world, to all sites – ancient and modern, to all societies, to all nations, to all enterprises and to all humans. In a world under the control of people who care only about their own “business” – broadly defined to include political and religious aims – everything falls into chaos. Only the Rule of Law – and its proper enforcement – guarantee the kind of peace in the world that the vast majority of people wish to have.