|Topic:||The increased importance of a digital Magna Carta|
|Author:||Christopher Page & Vanessa Barnett|
|Title:||Senior Partner/ Head of the TNT team|
|Organisation:||Charles Russell Speechlys LLP|
Christopher Page, Senior Partner
Christopher is a Private Client lawyer who specialises in tax and estate succession planning and management, particularly for owners of landed estates, of large farms and of other rural businesses. His team acts for over fifty substantial landed estates throughout England and Wales.
Christopher qualified in 1985 and joined Charles Russell in 1997. He is well known for his ‘quietly spoken but ‘authoritative demeanour’ and ‘plain speaking, effective’ approach. After leading the Cheltenham office and Private Client team for many years, Christopher was elected as Senior Partner in 2013 and now chairs the Charles Russell Board.
Christopher Page is a member of the Society of Trust & Estate Practitioners (member)
Christopher holds an MA, History, Exeter College, Oxford
Vanessa Barnett, Partner
Vanessa is a commercial lawyer who specialises in advising clients on intellectual property rich contracts. These include agreements for marketing, brand promotion, events and sponsorship, as well as agreements for content and technology development. Vanessa has particular expertise in the use of technology to market, engage and transact with consumers. Vanessa also advises on consumer-facing issues affecting brands, including data protection and consumer law.
Through representing a range of clients from high growth start ups to global household names, Vanessa has a deep knowledge of a wide range of business models and contract structures in this area.
Vanessa Barnett holds an LLB Hons, from Exeter University
We can show ourselves to be global leaders by creating a digital Magna Carta which guarantees free and neutral access to the Internet, gives freedom from unwarranted surveillance and data gathering and cements digital freedom of expression. This is not a wholesale law change, but a readjustment. This creates an environment where technology based business can thrive, where there is trust in the digital environment.
In June 1215 King John stood on the banks of the Thames at Runnymede near Windsor. He didn’t have a good day. The feudal barons had organised themselves: they forced on him a document which for the first time in English history sought to impose limits on the powers of a monarch and give citizens rights and freedoms. This document was the Magna Carta and it set in train everything that followed to create the constitutional democracy that the UK has today. Aspects of the original Magna Carta still survive, for example that no person should be punished otherwise than in accordance with the rule of law. Important stuff.
Rights and freedoms and the proper policing of the exercise of power are as relevant in 2014 as in 1215. But in 2014 the battle ground is digital.
On the 25th anniversary of the World Wide Web, we have Tim Berners-Lee calling for a ‘digital Magna Carta’. His choice of words is significant, the reference to Magna Carta drips with the significance of history. He has a deep desire to protect the thing he gave us.
Tim Berners-Lee’s view of the modern world is that technology is everywhere, everything is connected, we are using it in more pervasive ways, it is getting smarter and AI is coming. He believes that we need to make sure that all citizens have access to the Internet on a neutral, inclusive and fair basis. He also believes that any monitoring of our behaviours on the Internet, whether by companies or spies, is done lawfully.
Tim Berners-Lee is not the only one banging the drum for digital rights. Neelie Kroes, the European Commissioner for the Digital Agenda, has been equally vociferous and the EU is pushing through a Digital Agenda with 101 action points. In the UK the Coalition Government’s ‘digital by default’ initiative is a recognition of the importance of digital in everyday life.
Looking at our European landscape today, we may feel that the political narrative is digital-positive – good for economies, good for business, good for consumers. But when we scratch the surface all is not well.
Access to the Internet is key to our future well-being as citizens and businesses. Therefore an unfettered right to access on fair, reasonable and neutral terms becomes critical. At present, in the UK and wider EU, the concept of access is not under threat because there is an obligation on Member States to ensure universal access to electronic communications services.
But the neutrality of access is under increasing threat. In the US Netflix has been commercially strong-armed into paying higher carriage fees to ensure that its digital content can be delivered. This erodes net neutrality and without specific protection, the approach of Comcast and Verizon will travel. At present we have no right to an open access and technologically neutral Internet. A digital Magna Carta could and should give that. Other countries are leading the way. Brazil is in the final stages of bringing the Marco Civil da Internet into force and this specifically protects net neutrality subject to very limited exceptions.
Each packet of data we set free online is capable of surveillance, interception and analysis. There are already a number of laws in place to protect citizens from unfair surveillance. Under English law this is a well-regulated area: the old Regulation of Investigatory Powers Act (RIPA) was our framework that meant specific permissions were required for interception of communications and these could only be done by a government agency. In the pre-Snowden era the Act was unpopular but we can only see now what a false comfort against over reaching by governments it provided. Post-Snowden, we have all had to readjust our views. Notwithstanding the letter of the law, a world of mass surveillance and data gathering has come to light, domestically and internationally.
On the surveillance and interception front the UK has been at the foreground of the digital battlefield this summer, with the enactment of the Data Retention and Investigatory Powers Act (DRIP) to replace RIPA. DRIP was rushed in after a European Court of Justice ruling that the Data Retention Directive was invalid.
There has been an understandable reaction to this and it has triggered Members of Parliament in the UK to lobby for firmer protections for citizens not to be subjected to mass surveillance and data gathering, for example the digital bill of rights proposed by the Liberal Democrats.
The reaction to DRIP has been strong and loud, not only from civil rights groups but also from our MPs. Indeed, David Davis and Tom Watson (both MPs) are launching a judicial review of DRIP, backed by Liberty. The essence of the rationale behind the review is summed up by David Davis: “… a constitutional scandal. A piece of fundamental legislation was put through without proper scrutiny – without any real scrutiny. We were told it was simply reinstating the policy, but that is disingenuous. It was reinstating a policy which had been struck down by European law, without doing anything to make right the flaws which led to it being struck down, and it was reinstating policy which had fallen into very serious disrepute.”
The judicial review is undertaken by Liberty on behalf of Davis and Watson, with Director Shami Chakrabarti saying: “In response to a three month old European Court of Justice decision, the government stitched up a private deal between three party leaders and allowed Parliament only three days to scrutinise this so-called emergency legislation. The fightback begins this week”.
So, this is definitely an area to watch and the judicial review is expected to be heard in the autumn.
Privacy is wider than protection from surveillance. In the EU right now the data protection reform package continues to progress, and if it does end up being successful (and with a fair wind it may well be), stronger laws will be put in place regarding the protection and use of personal data more widely.
The final aspect of a digital Magna Carta is freedom of expression. This is the area where pre-existing law is most helpful. The European Convention of Human Rights, Article 10 protects freedom of expression. Under English law this is incorporated into the UK’s Human Rights Act. However, it is not a limitless right – threats, harassment, abuse and insults all curb the right to freedom of expression. From a digital Magna Carta perspective though, this is a less concerning area. We don’t necessarily need a new law.
Timing, as they say, is everything and in the UK we have an election next year. Put another way, our citizens and businesses have a chance to speak out in support of a digital Magna Carta.
We have an opportunity to create something that will benefit for years, and maybe even centuries, to come. We can show ourselves to be global leaders by creating a digital Magna Carta which guarantees free and neutral access to the Internet, gives freedom from unwarranted surveillance and data gathering and cements digital freedom of expression. This is not a wholesale law change, but a readjustment. This creates an environment where technology based business can thrive, where there is trust in the digital environment.
The biggest stumbling block to the UK leading the way globally on this is the possibility that the current momentum for change dissipates and apathy sets in. Let’s wait and see!