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Monday, March 30, 2009
Courts - "In Britain, Web Leaves Courts Playing Catch-Up "
The ILB found this article in today's NY Times, by Noah Cohen, really interesting. Here are some quotes:
ON March 17, hours after publishing leaked documents on its Web site showing the lengths Barclays had gone to in order to reduce the taxes it paid in Britain, The Guardian newspaper was ordered by a judge to take the material down. His reasoning was that the bank had a right to confidentiality.In the ruling, the judge in London, Nicholas Blake, also added a peculiar twist: The Guardian must not tell readers how easy it is to locate the documents at Web sites outside of Britain. It was only the latest example of British courts trying to preserve what it saw as litigants’ rights even in the face of an onslaught of information on the Internet. To some, this may be a final, futile effort. * * *
“The Internet is throwing sharp relief to the illogical nature of our system,” said Alan Rusbridger, the editor of The Guardian. “Technology is way ahead of the law, and the law is limping along trying to make sense of it.”
The effect of the Internet on judges’ rulings is not a uniquely British problem, said Jonathan Zittrain, a Harvard law professor who taught at Oxford. There is at least one example, he said, of an American court ordering a Web site not to link to content it had been ordered to take down. But he added that “British courts may be a little more confident of their own power, and be less willing to cave in to practicalities.”
The Barclays case pits two interests against each other, said James Edelman, a law professor at Oxford who argues media law cases. Since 1988, Professor Edelman said, British law has given great protection to the right of confidentiality, applying it to third parties like The Guardian, which received the documents from someone else. Yet, the “public interest” in learning about what is contained in those documents, he said, can often outweigh confidentiality considerations.
Finally, there is a basic factual question: is the material already in the public domain? And this is where the Internet throws a wrench into the proceedings.
The courts recognize, Professor Edelman said, that there is no point in banning the publication of something already widely disseminated. In the Barclays case, the court met in secret to determine if the material had crossed that threshold. * * *
Professor Edelman of Oxford said that Judge Blake’s order could represent a last example of British courts ignoring the changed reality of by the Internet.
“What is significant about the ruling,” he said, “is that it will open people’s eyes that even if you can get an injunction to preserve information that is able to be obtained over the Internet, I suspect that the injunction won’t last.” The publicity over the injunction creates more interest in the material, leading other sites to publish it. The Guardian will be able to return to court, he said, and argue the injunction no longer serves any purpose.
Posted by Marcia Oddi on March 30, 2009 11:27 AM
Posted to Courts in general