This post is on the BDSM Activism web board.
| 23 Jun 10, 12:39 AM emark UK, 9 yrs |
Has anyone really ever been sued, because someone else decided to mistake their words as legal fact, even when it's obvious they are not giving the person legal advice? (An honest question.) Most of the media talk about laws - if they worried that some idiot might sue them, they'd never get anything printed. (Can we also sue the Government? Because they pretty much said the same thing...) Sign the Consenting Adult Action Network's statement Edited 23 Jun 10, 12:46 AM by emark | ||||||||||||||||||||
| 23 Jun 10, 1:09 AM doulos UK(SW), 7 yrs  |
I don think cached digital content is relevant to the OPA as that regards publication not mere possession of images. There is a related precedent regarding indecent images of children: http://www.backlash-uk.org.uk/wp/?page_id=334
"Democracy is the theory that the common people know what they want, and deserve to get it good and hard." H. L. Mencken | ||||||||||||||||||||
| 23 Jun 10, 9:06 AM Jane_Fae UK(W), 3 yrs |
ocimum - and bohnanza...of course i am responsible for the content of my articles. I am not responsible for every piece of tenuous interpretation that individuals such as you decide to place on them. Some of what you write is total stretch...and suggests a determination to obfuscate rather than any sort of interest in what went down. The issue is pretty clear...and it is the CPS statement that makes it so. To wit, they declined to continue the prosecution because..they could not tell when the image had been last viewed and since it was arguable that the last viewing took place BEFORE the ep law came into being, they would then have needed to show possession within established legal definitions of same. The precedents here do exist, are of long standing, and emerge mostly from cases involving indecent images. Nothing whatsoever to do with the OPA - and if you think about it, you'd realise why that is a daft place to go looking for this sort of precedent. Those precedents arise from legal debate about deletion - and make it clear that knowledge of how to retrieve images is crucial. In some early cases in respect of indecent images, it was held that simple deletion was not enough to avoid a possession charge...more recently the argument has become more nuanced, with level of user ability also being brought into play. The nub of those arguments hinge absolutely on the degree to which individuals are in a state of knowledge - or lack knowledge - about using their computer. Last time i looked, "ignorance" was pretty good short-hand for lack of knowledge: but if you have an alternative, please propose it. The suggestion that a "defence" cannot be advanced until the full trial is frankly bollocks. Legal argument goes on at all manner of hearings in advance of a trial, including defence submissions that there is no case to answer. That is how some of the more ludicrous cases get weeded out before they hit the courts and waste a load of public time and money. Touchy? Slightly, as i do get very tired of the various cliches paraded across comment boards about the level of work that goes into articles. There are different levels of criticism that may be made of a piece, from misinterpratation of the law, to sloppy research to invention of fact. The last - which is where bohnanza went very early on - is seriously serious. I have previously observed, tongue-in-cheek, that someone who seems to think they know something about the law ought to think twice about making statements of that sort. Nonetheless, it irritates. I am always happy to debate interpretation...but think about it: this is my day job...and to allege seriously and publically that a writer paid to provide interpretation of legal matters is "making it up" takes you into fairly deep waters. If you actually read the words, it is usually very clear what is reporting, what is fact...and i'd say that is very much the case here. The reportage consists of a report of the case, plus a par at the end couched in terms like "appears" and "might" which are very deliberately there to remove the possibility of advice being given. But then, the other thing that jars is the ignorance - yep, that word again - displayed by yourself and bohnanza of the process these pieces go through. Because i do court reporting, i am subject to greater stricturs than writers about other issues. One story - likely to be of great interest to these boards - is currently languishing in purdah because of the editorial concern that it might just be contempt of court. Not my "fault": just a very sensitive subject we aren't sure we can write about at all. There are strict rules about what i can write in this respect and my pieces are regularly checked by lawyers to make sure i am a) not in contempt and b) not "giving advice". Bloody tedious...but does mean things are checked. Even where there are reports of stuff in the press..on court issues, i am usually required to double check directly with the court...and often with prosecution and defence counsel as well. This "simple" story took about five separate interviews to nail down. I will shortly be doing a legal series for the Beeb...very first conversation i had with them is how to distinguish what i write from "advice": i WILL be discussing this with their legal department. No. I don't have formal legal qualifications: rather, i have been working alongside the courts and lawyers on certain specific issues for the best part of 15 years. I get paid as an expert witness on some (legal) issues...and if that is worrying, it is for judges - not you - to decide that. Otherwise, the feedback i get from lawyers, academics, solicitors and barristers is that in the areas i focus on, i am one of the few writers who knows what i am writing about. If you have similar creds, fair enough. I suspect otherwise. jane xx
Personal: http://janefae.wordpress.com | ||||||||||||||||||||
| 23 Jun 10, 9:14 AM ClassAct2005 UK(N), 7 yrs  |
There is nothing wrong with the article. The CPS' position is explained. They seem to be saying it was all about the timing. If there was no proof the material had been looked at where it only remained cached but not newly downloaded since the law came in then they did not have enough evidence. This will become less and less a point of interest as more time goes by since the Act came in however so it might well have helped that man but not many others. I don't actually myself know how to find material which is cached or previously downloaded which I haven't saved but if I really wanted to I could go a google search and find out whereas someone less computer literate might be foxed even by that. Not that I'm into images anyway, just words but they are interesting issues. | ||||||||||||||||||||
| 23 Jun 10, 9:22 AM Degenerate  UK(M), 5 yrs   |
*fingers her beard* Hmm very interesting Jane.. De Sign up to CAAN's statement www.caan.org.uk | ||||||||||||||||||||
| 23 Jun 10, 1:40 PM Degenerate UK(M), 5 yrs |
just to clarify I was referring to this:
Sign up to CAAN's statement www.caan.org.uk | ||||||||||||||||||||
| 23 Jun 10, 3:54 PM ocimum_sanctum UK(EH), 2 yrs |
An issue which I addressed further down my post when I said:
Ah-hem.
There is a massive difference between talking *about* the law and legal issues, and giving advice. If someone were to take that advice and incur a loss based on it, it could form an actionable claim for damages. And yes, as far as I know people do sue over incorrect legal advice rather frequently. I would imagine that one could sue the government? I'm fairly sure there is a general principle that one cannot sue the Crown, although I think there are exceptions. Not sure on this, perhaps someone else can clarify for you.
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| 23 Jun 10, 5:18 PM ocimum_sanctum UK(EH), 2 yrs |
It's hardly tenuous, it is at the very heart of the discussion: you said the issue was ignorance, I'm saying it is not as it was not fully tested in front of the court.
Please try and avoid attempting to discern my intentions, others that know me far better than you have tried and failed. To clarify: it is not my intention to obfuscate, rather to ensure that what you're reporting is not misleading. Your thread title, for example, was misleading. While I cannot speak for others, I do have an interest in this area and your work is of significant value. Furthermore it is generally not reported elsewhere. Being of higher value or significance also means a higher level of accountability.
This is the first time you've mentioned the importance of the date, i.e. that whether it was after the introduction of the new law - it does make the issue significantly clearer! Were there any interim decisions made in this case?
Your assistance in elucidating this topic would actually be of use to us, for example a reference list to existing case law.
Were these cases decided in an appelate court, or a Crown/Sheriff Court? If it was the latter, then surely it is only of utility in discerning a trend and the decisions are in no way binding to future cases. Correct me if I'm wrong?
That's not the issue. You presented the case in question as being supportive of the premise that ignorance of the existence of those images was a valid defense; you cannot say that because the prosecution dropped their case and the issue was not tested fully before the court. There may be previous cases involving the same issue, but this one cannot support that premise.
I did not suggest as such. Perhaps you should pay more attention to detail generally. What I did advance was the idea that the defense was not actually decided upon as the prosecution dropped the case. You have no idea whether that defense would have held water on a final judgment.
When did I use the word 'touchy'? If I was making a serious criticism, I would not be making it on a BDSM board - I would have written formally to your editor.
Yes, but as you said you get paid to write the article and you posted it on another board to get more readers. You do have a responsibility to handle queries, even if they are somewhat blunt. Most people would see this type of conversation as an opportunity to improve, I wonder why you say it irritates?
In instances where you have a confidential source yes. In this instance all your sources are public and you will ofcourse be able to publiclly state who said what. If you are accused of making something up, I would have thought all you needed to do was refer to your sources and the issue would be resolved in your favour. Why do you feel it requires language such as "deep water"?
On reading the article and not seeing any link to a "terms & conditions" for the website, it would suggest TheRegister may be leaving itself open. That was a piece of advice, not a criticism. Publications have been sued over less, and I actually rather like having TheRegister available. You missed the "appears" and "mights" with:
Sounds pretty darn definite to me.
If you are subject to stricter guidelines then why do you find it so difficult to defend you piece?
Despite our debate, I would still appreciate hearing about it if restrictions are lifted.
Cool. Well, folk with a law degree are more qualified than I am in this respect.
Then it sounds like you're getting off lightly
Good for you - I hope it goes well.
The last I heard I can decide my own opinion on matters and do not need to refer to a judge to discover what I should be thinking.
Questioning my credentials - do you feel that I need credentials of any description to point out problems with what you wrote? If I had a law degree, would my opinion suddenly carry more weight with you? Actually, I do have reasonable experience both with presenting cases in court and in information security forensics. Although I doubt a metaphorical "pissing contest" is really of utility here.
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| 23 Jun 10, 8:33 PM Attitude_Adjuster UK(N), 6 yrs |
This kind of nonsense will wind up being stamped out in time as the full absurdity is realised. I do want to see the first prosecution that tries; D "I deleted it!" P "Yes but you could recover it" D "I know nothing about computers, or how to undelete stuff" P "Yes, but you knew where to download it from, so you could recover it from there" QED deletion can never be permanent whilst you retain a working brain. Also pity the poor sod who works for GCHQ - he has to incinerate his hard drive every time someone sends him a dodgy web link, simply because he has a lot of knowledge. And all men kill the thing they love, By all let this be heard, Some do it with a bitter look, Some with a flattering word, The coward does it with a kiss, The brave man with a sword! | ||||||||||||||||||||
| 23 Jun 10, 8:41 PM Jane_Fae UK(W), 3 yrs |
which i will get back to when my finger is feeling better.
sliced it at supper time tonight in the course of an argument involving a very sharp knife and some stupidly indestructible plastic packaging. pah! jane xx
Personal: http://janefae.wordpress.com |
(for avoidance of doubt, that was a joke)
