Class action

Here’s a thing to gladden the hearts of my lawyer friends. Let’s say you’re a student and you’ve just got your exam results. You didn’t do as well as you were expecting. But you’re made of tough stuff and get on with your life. Some years later you think, hang on, if my result had been a little better I’d be a lot richer now. So why not sue the university and let them make up the difference in money.

As I suspect many readers of this blog will already know, that is not a far-fetched scenario. Pretty much exactly that happened in the case, now before the courts, brought by Oxford University graduate Faiz Siddiqui. He graduated in 2000 with a 2.1 in modern history. He went on to become a solicitor, but thinks he could have been a high-flying commercial barrister if he had got a first class degree. He values the difference in income to him at £1 million, and he has sued the university for that sum.

In fairness, there are some issues of concern worth mentioning here. It is admitted by the university that the quality of education in his course may have suffered, mainly because in one key module the availability of staff that year had been compromised by sabbatical leave. The university’s defence does not appear to be that nothing untoward happened, but rather that it happened too long ago too be a legitimate subject-matter for litigation now.

Of course this case raises all sorts of issues. Is the difference between a 2.1 and a first really £1 million in income? Do we think and agree that the primary value of a degree is measurable in pounds, dollars or euros? What kind of legal (as distinct from moral and educational) obligation does a university have regarding the quality of its courses? How can a court judge whether the degree classification of a university is appropriate?

It is expected that the High Court will issue a decision in this case before the end of the year. The judgement will provide us with a whole new insight into the relationship between higher education and the law, and indeed into the legal relationship between students and their universities. The impact could be huge.

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The higher education freedom of information dilemma

During the past academic year, my university received 294 information requests under the Freedom of Information (Scotland) Act 2002. Of these, 60 requests came from journalists or journalism students (the latter often given this as a task by their lecturers). Others came from a variety of people or organisation whose reasons for asking were not always clear. But significantly, 20 per cent of the requests came from companies or commercial organisations seeking information to assist them in putting business propositions to the university. Answering these requests took up 1.6 hours on average for each request – leading to a total in aggregate of six working weeks.

I bring this up because the Herald newspaper has reported that Scotland’s universities would like to be exempted from this particular burden, in line with a call to this effect made by Universities UK. In the Scottish context Universities Scotland is reported as saying:

‘Scotland’s HEIs are committed to transparency, which is guaranteed through the Scottish Code of Good HE Governance and many other regulatory requirements. However, they would welcome the removal of FoI obligations, which impose a very high administrative burden on institutions and, consequently, the diversion of resources away from core educational and research activity.’

It is of course a sensitive issue. Journalists’ investigations have revealed some uncomfortable stories from higher education, and freedom of information is an important journalistic tool. I suspect most university heads would agree with that. But is it our duty to spend public money on providing information to private companies wanting to business with us? Is it our duty to allocate serious staff time to queries which are unconnected with any public interest issues?

Its is, I suspect, inconceivable that the universities will be removed from the freedom of information framework. However, it is important that freedom of information is exercised in a way calculated to assure the general public that high standards of ethics and probity are employed in higher education, while not drowning the institutions in a sea of bureaucracy, staff time and costs. The time is right to review the system.

A critical book review does not constitute libel

In order to advance their careers, academics are expected to publish books and peer-reviewed articles. When they do so, they in turn hope for reviews and citations, because such recognition of their published output constitutes an endorsement by the wider expert community. Of course these reviews may turn out to be critical. A French court has now suggested that such criticism, where it stays within the limits of ‘the kind of criticism to which all authors of intellectual work subject themselves when they publish’, does not constitute libel.

The case involved somewhat unusual circumstances, as the author of the book, Karin N. Calvo-Goller, is resident and works in Israel, while the book review was published online in English on an American website. Dr Calvo-Goller chose to bring her action in France, and the French court, the Tribunal de Grand Instance de Paris, found for the defendant largely on technical grounds, in that they took the view that the plaintiff had been ‘forum shopping’ in an unacceptable manner: i.e. she had looked for a jurisdiction where the publisher would find defending the action most difficult but where there was no strong connection between the alleged libel and the jurisdiction chosen. But the court also does not appear to have shown sympathy for the idea that authors can seek to suppress unfavourable reviews by threatening or pursuing legal action for libel. That would be an important finding in support of academic freedom.

Court briefs

Here’s a development I most certainly would not have predicted: the Lord Chief Justice of England (the very aptly named Lord Judge) has ruled that the use in court of Twitter on mobile devices is acceptable ‘as long as the judge believed it would not interfere with the administration of justice’. The matter had come up earlier in the proceedings involving WikiLeaks founder Julian Assange, where the judge had taken a similar approach.

Reporting of court hearings will of course be changed dramatically as a result, even if what we will hear will be limited to 140 characters. But it is part of what may turn out to be a significant modernisation of the judicial system in England, and maybe also elsewhere. It may also help to build up a picture of the courts as an institution more in tune with the age on which they are required to issue judgement. Most courts still have a ‘look and feel’ of a place where the telephone is only barely known, never mind Twitter. It is important not to confuse dignity with antiquity, and this is a step in the right direction.

I don’t anticipate that judgements will now be published in 140 characters, but it may be that they will not contain puzzled queries about the meaning of online social networking.

Sincere flattery?

In 1976 there was a landmark copyright infringement case taken in the United States by Bright Tunes Music against Harrisongs Music. This involved the claim that ex-Beatle George Harrison in his song My Sweet Lord had copied the basic musical structure of the earlier song He’s So Fine, sung by the Chiffons and written by Ronald Mack. The plaintiffs won the case and were awarded damages by the court.

Actually, if you listen to both songs it is immediately clear that they are remarkably similar. It is generally accepted that George Harrison did not deliberately plagiarise – in fact, My Sweet Lord in its origins was something of an improvisation – but was probably subliminally influenced by the earlier song. Technically however, it was certainly a copyright infringement. The question is, should it have mattered at all?

My purpose here is not to get into the details of musical composition. There is in fact a school of thought that every possible musical sequence has long been composed, and that all that anyone can now do is copy something or other, either deliberately or unconsciously. No matter. But can we ask the same questions of academic endeavour? Has every argument now been made, and is it really still worthwhile insisting that the only respectable material is whatever you thought up independently? Should we shift the focus somewhat from original discovery to better communication of ideas and research?

Some of this has been the subject of discussion in the United States, and an article in the latest issue of the Chronicle of Higher Education asks some questions about it all. It quotes American author Marcus Boone:

‘I came to recognize that many of the boundaries we have set up between activities we call ‘copying’ and those we call ‘not copying’ are false, and that, objectively, phenomena that involve copying are everywhere around us.’

It would be hard to re-consider the merits of copyright without addressing other forms of intellectual property, in particular patents, the purpose of which is to allow discoveries to be appropriately monetised as a way of recovering the costs of discovery. Is copyright different? And if it is different, are we barking up the wrong tree when we punish students for plagiarism?

The idea that ideas are public property once articulated has a kind of hippy-ish attraction to it, and I guess this might apply even more to music. But I suspect it would not be easy to say that you cannot protect and sell your ideas, and that you have no right to be (and remain) credited with what you have developed. But it is also clear that intellectual property now operates in a very different environment from when it was developed, and at the very least it should be re-assessed in terms of its functionality in the internet age.

I don’t think I am the first person to say this, by the way, but I cannot be bothered to find out who raised the issue first. He or she should feel duly (but anonymously) credited herewith.

Regulating speech on the internet?

When I was a law student in the mid-1970s, libel was a straightforward enough concept. Well actually, it was of course fairly complex, but nevertheless it was clear that the purpose of the law was to give a remedy to anyone who had been the subject of untruthful and damaging comment that had been published to third parties. What made it an effective cause of action for anyone damaged in this way was that the publication was always likely to involve a major corporate publisher whose pockets would be deep enough should a case be won: typically a book publisher or  newspaper.

The problem with libel laws however was that someone with a lot of resources could sufficiently frighten a publisher by holding out the prospect of years of expensive litigation with an uncertain outcome. Faced with the prospect of this, newspapers and publishers were often tempted to take the easier and less expensive route of not publishing whatever the potential plaintiff objected to, even where the proposed publication was true and the putative plaintiff’s case had little merit.

Then came the internet, and everything changed. Nowadays everyone with a computer and an internet connection can publish anything they like at the click of a mouse. It is extremely easy and cheap. No major publisher or newspaper is needed for this. The crankiest and craziest of individuals with the most absurd chip on their shoulder can instantly take their case into the public domain. And if anyone is wronged, they may then be forced to take off on a wild goose chase as they try to find out where in the world, and under what defamation laws if any, the thing was actually published. They may also find that the person or organisation owning the server or hardware which facilitated the publication has protected themselves effectively (or at any rate may appear to have done so) from any liability for what the author has said. And they may find that the perhaps anonymous author cannot be traced at all.

So now, as night follows day, there will be increasingly aggressive attempts to find ways of creating effective legal liability that will allow people who have been damaged online to find redress. Equally, there will be energetic campaigns to protect the freedom of the internet and its status as a location where regulation is minimal or non-existent and where people can say things that are unsayable anywhere else. Close legal regulation of the internet is something that is seen by many as the end of the web as an interesting source of information and a place of free interaction, not least because some authorities may have more sinister things in mind than just giving redress to the unfairly wronged.

I confess I find it difficult to imagine that the idea of the unregulated internet can survive, as there are many powerful people and organisations who will want to bring order into all this. And in truth it is hard to argue that someone should be allowed to use the web to destroy another’s reputation with false assertions, rumours and lies. And yet… free speech is the right that perhaps most particularly protects democracy and freedom, and the opportunity for people to bypass powerful publishing interests and make information available without excessive risk is at the heart of that. In addition, many people write fairly casually on the internet – as for example on Twitter – and don’t expect what they write innocently to become subject-matter for detailed legal interpretation.  And others may want to write reviews of good or services without fear of legal reprisal, or make a case freely where they feel they have been wronged.

I shall be interested to see whether some form of regulation can be found that does not compromise legitimate attempts to publish views and information. But if as I suspect such a framework is unavailable, I remain on the side of free speech. I guess.

Academic freedom and religious belief

In Ireland, the concept of academic freedom is enshrined in law under the Universities Act 1997, section 14 of which provides:

‘A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.’

One context in which the application of academic freedom may perhaps be problematical is where an academic expresses views of a religious nature, particularly where these are addressed to students. In 2004 there was some controversy in University College Dublin when a Lecturer in Diagnostic Imaging was alleged to have persuaded students to attend Opus Dei events (Opus Dei being a conservative organisation within the Roman Catholic Church); the lecturer in question eventually retired early from the university after an internal inquiry had been conducted.

Now another case has arisen in the United States, in the University of Illinois, where a professor teaching in the Department of Religion declared to his students that the Roman Catholic Church (whose doctrines he supported) viewed homosexuality as ‘morally wrong’. After complaints were received from students, the professor’s appointment at the university was terminated, and he argued that this was a violation of his academic freedom. He is now preparing what may become a legal challenge to the university’s actions. Various points of view are emerging, some of which suggest that academic freedom does not cover the expression of personal opinions, as distinct from the dissemination of analysis and study. In this particular example, the issues could be complicated further if a person holding these views were to articulate the church’s position in such a way as to justify discrimination against gay people, which would bring him or her into conflict with equality legislation.

It seems to me that it is very difficult to know where to draw the line in all of this. Maybe it could be said that proselytising in support of any particular religion does not come within academic freedom; but then again, why should the expression of such a position be different from, say, advocating support for a controversial political position?

On the basis of the report, I am inclined to think that the University of Illinois got it wrong (though I certainly do not support the position expressed on this occasion by the academic in question); or if it got it right, then it is hard to see how a meaningful concept of academic freedom could be protected. But one way or another, academic freedom is a complex concept, and protecting it is not easy, particularly on the margins (where most disputes are likely to arise).

LA’s advisory on the legal profession?

Should you spend a few moments in the terminal buildings of Los Angeles main international airport (LAX), you will every five minutes or so hear the following PA announcement:

‘You are not required to give money to solicitors. This airport does not sponsor their activities.’

I guess that’s good advice. Maybe the announcement might prompt visitors from Ireland to think again about reform of the legal profession, which is badly needed.

Switching off the internet?

Here’s an idea from left field. US Senator Joe Lieberman, one time Vice-Presidential candidate for the Democrats (on the Al Gore ticket) and now an independent senator, is apparently introducing legislation that would allow the US President, in the event of an ‘imminent cyber threat’, to ‘take over our civilian networks’. This has been interpreted by commentators as a proposal to allow the US President to ‘switch off’ the internet.

The Senator seems to be slightly unsure (based on interviews he has given) whether he does mean this or whether he means something else, but it throws into relief again the question as to whether, how and for what purpose the internet should be regulated or constrained. There is a strong global culture now that sees the internet as ‘no man’s land’ and that does not accept that there should be any legal or governmental restrictions on it. Sooner or later there will need to be a formal international consensus on this, not least because governments in many parts of the world see the internet as a threat and may be tempted to censor or restrict it (as some do).

It’s not as if all reasonable people would always insist on a totally unfettered internet. I would know few, for example, who would argue that online child pornography should just be tolerated. So if there are to be restrictions at all, we need to be clear about what should drive these, and how far they should be tolerated, and how the overall free and democratic nature of the net can be preserved. It is time for these matters to be addressed explicitly.

Getting closer to our constitution

In an interesting opinion piece in yesterday’s Irish Times, Dr Fiona de Londras of UCD’s School of Law, one of the authors on the always interesting website Human Rights in Ireland, voiced her strong support for the Irish Constituion of 1937, Bunreacht na hÉireann, and expressed her doubts about the wisdom of replacing or amending it. Her main theme, if I am correctly summarising it, was that as a people we are not in sufficiently close touch with the constitution, and it is this rather than its inadequacy or inappropriateness that is undermining its standing in the community.

In fact, she has put forward this perspective on previous occasions, notably in an article on Human Rights in Ireland. In this she argued we needed to develop what she describes as a ‘constitutional imagination’ for the Irish people, in which constitutional ‘myth’ is replaced by a deeper understanding of what the constitution says and what it can do for our aspirations and how it can reinforce our values.

I should say that her take on the constitution is interesting and certainly worthy of comment, and her attempt to stir up a constitutional debate is entirely welcome. But when all that is said and done, I still think she is wrong. The social and political influences which shaped the wording of the Irish Constitution are ones that do not speak to us today. They included some of the undercurrents of 1930s fascism, or at any rate the Mediterranean version of it as found in Salazar’s Portugal with state-sponsored corporatism; the particular ethos of the Roman Catholic church at the time (which was anything but progressive or liberal); the kind of rural idyll for what de Valera called a ‘frugal society’; and a view of women that saw them as homemakers subservient to the male population. It is entirely true that the courts have, over the years, thrown a more liberal veil over the original wording and allowed it to be used in jurisprudence to reform outdated laws. But even that is, it seems to me, of doubtful value, as it sets up the judiciary as a non-elected legislative body, using a document which on the face of it lends very little support to what they are doing.

I’m afraid I cannot help feeling that if we are to create a ‘constitutional imagination’, it needs to relate to a document that more easily expresses the principles and values that guide society today and for which we would want constitutional protection. A constitution should not express a kind of opaque mystique that only a special judicial class can elucidate as they currently happen to see fit; it should be a document that speaks to the people  directly  rather than through intermediaries.

I believe it is time for fundamental constitutional reform.