How does an obscure article in the Lisbon Treaty obfuscate Britain's efforts to formulate a post-Brexit relationship with the European Union? And what does this have to do with dead parrots? 

It was Margaret Thatcher who famously replayed Monty Python’s  ‘dead parrot’ sketch at the Tory party conference 28 years ago in 1990. This week, as the Conservative Party gathered in Birmingham for its annual get-together,  it would seem a dead parrot is once again at the centre of the debate.

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Social media companies and content sharing apps could have to foot the bill for a vast automated copyright protection scheme under the most recent EU proposal to update copyright law. For those who remember, this is Hadopi on steroids.   It’s a proposal that, history tells us, is unlikely to be workable.  

The battle over social media content sharing is moving up a gear as the the European Parliament goes for a major vote on new copyright legislation this September.  A single, controversial provision in the propoosed EU Copyright Directive has brought the matter  to a head  in this latest round of the Hollywood vs Silicon Valley conflict.  As currently drafted, it could mean that social media platforms and apps would have to restrict content via an automated copyright protection system – dubbed the “upload filter” -  and they could be asked to fund the entire system.  

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The British government’s White Paper for a new UK -EU partnership edges its way around the strict red lines of a hard Brexit in order to address the complaints of business and keep jobs in this country.    It does look rather like a bespoke form of trade agreement. But in trying to frame the  proposal such that it could be accepted by the deeply divided Conservative Party,  the paper seems to please no-one.  So how should we read it?

This post considers whether the White Paper addresses  the concerns of British businesses. It suggests  that the ‘common rulebook’  may be a problematic metaphor in an inter-connected  21st century business world.

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Galileo, a niche satellite technology programme,  has escalated to the top of the Brexit political agenda as  Britain and the EU  wrangle over access to it.  There is a thrilling  tension as the two have become locked in an  inter-governmental conflict overhung by industrial threats, against a  backdrop   of  science-fiction-like  technologies. Galileo symbolises the power of space communications for economic and security policy. And now the EU has signalled a red light to  Britain’s key demand for full access to a next-generation encrypted service.  

This analysis considers the EU’s new space programme proposals against Britains demands for inclusion in Galileo’s secure PRS service. It draws on the EU Proposal for a Regulation establishing the space programme  and the British government’s Technical Note: UK Participation in Galileo, with additional input from the just-released EU slides on space-related activities.

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A European satellite project unexpectedly finds itself at the uncomfortable end of the divorce wrangles  between  Britain and the EU. It illustrates the  direct and tangible  consequences of the government’s solid red lines, which put contracts and industry growth at  risk.  What is really at stake?  This article draws on evidence given by the space industry to the  House of Lords Select Committee on the European Union, and examines the Co-operation Agreements of Norway and Switzerland on Satellite Navigation Programmes. It views them through the prism of  the draft UK-EU  Withdrawal Agreement.

*Update 24 April 2018 - the Financial Times is now reporting an 'escalating row' between London and Brussels over Galileo.*

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<<On the publication of the draft of the entire EU Withdrawal Agreement, this article investigates  the Transition chapter and how far Britain’s influence could be  written out from the  very start. The analysis is based on the text published by the EU, and the British negotiators text which has been circulating online.>>

Will Britain become isolated and not influential, to paraphrase Sir John Major's words from his speech today?  There is one aspect of Britain’s proposed Transition out of the European Union that risks being overlooked. Britain – its  government, businesses and individuals such as academics, NGOs and researchers   -  could be excluded from EU decision-making bodies, agencies  and expert groups from 29 March 2019 during the Transition period. As others have already said, Britain risks becoming a rule-taker, but this goes further. It means Britain stands to lose influence not only in  law making and central banking, but regulatory and standards bodies, scientific and security agencies, and a plethora of smaller  groups that input to policy-making.

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Brexit means that Britain risks losing access to two vital EU satellite programmes. They deliver key communications technologies to power  Mrs May’s vision for a 4th  industrial revolution. It’s a failure to join the policy dots.  Has the government lost the signal?

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The European Parliament is not at the negotiating table, yet it does have ways of leveraging influence over  the Brexit negotiations. Why does its position matter? Especially now that the British  Parliament has narrowly won the right to vote on the final  Brexit deal.

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10 years ago in 2007, I started this blog, Iptegrity.com.  Over that time, I’ve had a ring-side seat on policy debates about the way the Internet should be governed, and the battles over controlling content and surveillance. Here I reflect on those 10 years.

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The latest 'compromise' from the Estonian Presidency on the EU Copyright Directive,  cuts right across a  fundamental balance in EU law. It seeks to embed  hosting intermediaries into copyright law and to impose  an onerous and heavy-handed form of prior restraint on Internet users.  Moreover,  in 10 years’ of working on EU policy,  I have rarely  seen legal drafting as  repetitive,  wordy and muddled as this. The problematic text is

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How far  does the French-British action plan against terrorism on the Internet impose new liabilities on Internet companies? Where does an upload filter become prior censorship?

When Theresa May met the French President Emmanuel Macron  in June this year they agreed a joint proposal to suppress terrorist content content on the Internet. They vowed to work together to block content, freeze user accounts and get access to encrypted content. This would involve stay down measures and access  to personal data behind IP addresses. The plan  has received little coverage, no doubt overshadowed by much bigger geo-political agendas. In this post, I consider how the Franco-British Action Plan puts pressure on Internet intermediaries and raises questions  for human rights online.

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The irony of Britain leaving the European Union is that that other side is driving.

The British have been forced  to accept that trade negotiations will not run in parallel with the 'divorce' talks, that the negotiators wll meet 4-weekly, that the default setting is 'transparency'.  How is the EU is able to impose terms, when this should be a joint negotiation? It is a manifestation of power play in an imbalanced relationship.  This article investigates the power relations of Brexit and suggests that the EU is able to wield 'structural power' in order to shape choices for the British.

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In seeking a response to terrorism, how can we protect our democratic values online as well as offline? Theresa May says there should be no safe spaces for online extremism, but attacking online platforms, and laying the blame entirely at their feet, is at best unhelpful and fundamentally problematic. How should we, as a society, ensure safeguards against the unintended consequences of such measures?

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Copyright enforcement remains an ongoing policy issue, with the current processing of the new Copyright Directive in the European Parliament.

This article is the text of my speech at the Council of Europe "Freedom of Expression Online"  conference in Nicosia, Cyprus on 28 April 2017.  The speech is entitled Balancing freedom of expression online: insights from copyright cases. I address Member State and ECJ caselaw, taking copyright enforcement cases, mainly from the UK, as examples. The cases concern the blocking or filtering of content, and balancing the conflicting rights of copyright versus freedom of expression. 

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The Closing of the Net   (Polity Press 2016)

"takes the pulse of the open web" Journal of IP Law & Practice

PAPERBACK & KINDLE FROM £15.99

If the open Internet is an essential precondition for democracy,  should governments or corporations be allowed to restrict it? This is the question at the heart of my book ‘The Closing of the Net’ and it discusses the backdrop to the political controversies of today around such issues as fake news,  terrorism content online,  and mis-use of data – controversies that result in calls for ‘responsibility’ by online companies. The book argues that any regulation of these companies must enshrine public interest criteria, which must balance the competing rights at stake.

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