Wednesday 21 April 2010

Call for Disclosure - a response

Last night, the writers of this blog, alongside a plethora of other copyright bloggers, received an email from one "Wayne Borean, aka the Mad Hatter", who blogs on (among other things) copyright matters in his home nation of Canada.

The essence of Mr Borean's email is the following "several writers who are legal professionals have written articles under their own names, which quite possibly are being influenced by their professional work. This is not to say that the influence is in any way wrong, but rather that if there is a connection, it should be disclosed, even if the writing is of a personal nature, so that the reader can consider that connection when evaluating the article..." - you can read his "call for disclosure" and his request that we should swear affidavits [sorry Wayne, no] in more detail here

From this writer's perspective, the answer is clear - under the ethics rules applicable to my profession, I can only disclose the names of my clients and the work I do for them with the consent of those clients. However, it would not take an interested reader (should such a thing exist) very long to find a range of client names either on my firm's website or in various legal directories, such as the Legal 500 or Chambers - from which they would discover that we have clients on all sides of many controversial issues of copyright law, from studios and record companies to ISPs and telcos. Indeed, many large companies have conflicting views between different divisions on some of these issues - think of what will happen when the Comcast/NBC Universal merger closes - or even within divisions; broadcasters are the creators of copyright programmes but are also heavy "consumers" of the works of other rights holders.

Most lawyers are the same - we are paid to argue for a client's position, whether it accords to our personal views or not. But when it comes to writing a blog, while I agree that, if one is advocating a cause on behalf of a client, that should be disclosed, the default should be taken as read that we have a professional interest in copyright matters.

At a more philosophical level, I wonder why legal professional bloggers are held out for particular scrutiny - surely the same accusation could be made against anyone in the blogosphere? The regular occurrences of people trying to (mis)use blogs for PR purposes are not normally conducted by lawyers or indeed using anyone's real name.

And why does it matter? It is not as if blogs such as this are in a position of power. I am reminded of a maxim often quoted by Tony Benn (who, for non-UK readers, was a high-profile left-wing politician here in the '60s and '70s), who used the following (and variations on it) to measure democratic accountability "If one meets a powerful person--Adolf Hitler, Joe Stalin or Bill Gates--ask them five questions: "What power have you got? Where did you get it from? In whose interests do you exercise it? To whom are you accountable? And how can we get rid of you?""

1709 falls at the first question - we have no power, so are free to express our views without answering the other questions. I occastionally read postings on this blog, posted by my co-authors, with which I do not agree - but I defend absolutely their right to say it - and if I do disagree, then like other people, I have the right to add my own comments.


Unknown said...

As John stated he replied to me by email. I posted the following on my blog in response:

So we have a situation where you think it is right to blog an opinion, which may be influenced by your client (we are all, after all, influenced by each other every day), and not disclose it? I would think in such a case silence would be more appropriate.

You can read more at the link below.


Ben Challis said...

This is how I responded to Mr Borean's comments in an email back to him. I also had a look at some of the websites of other 'named' individuals - Sam Trosnow for example is an acadmic and his CV is on his home page; Dr Michael Geist is similalarly a (well known) academic, and his 'about' webpage unsurprisingly carries his CV; Richard Owens makes it clear he is a practicing lawyer specialing in IP amongst other areas; and Barry Sookman, a lawyer at McCarthy Tétrault says on his blog "This site is published by Barry Sookman personally. It is not affiliated with McCarthy Tétrault or any of its clients" and gives his CV in some detail. What I said was this:

Dear Mr Borean

If you have a more careful look at my wesbite you would find a list of my clients at the top of every "Update" I write and at the top of each archive. That said, I would make it clear that when writing. it is my own opinions I am expressing, not those of my clients or the institution I teach at. I am not sure how I could be more open and I am a little surprised you have not acknowledged this. My website says this.

This resource is compiled by Ben Challis. Ben is a UK lawyer specialising in entertainment law and a graduate in law from Kings College London and The City University. He also holds the degree of Master of Arts in Mass Communications from the University of Leicester. Ben is a fellow of the Royal Society of Arts. Ben acts as General Counsel for 3A Entertainments, one of the UK's leading concert promoters, and is Executive Producer for television of the Glastonbury Festival. Glastonbury is the UK's leading music and arts festival attended by over 150,000 people. For Glastonbury, Ben combines the role of managing the Festival's broadcast and other media rights alongside acting as General Counsel for the Festival. Ben's other clients have included the Prince's Trust, the Granada Media Group, Pioneer LDCE and British Telecom. Ben regularly writes articles and other material on music business and intellectual property law, contributes to books and is a regular conference speaker in particular on the live music industry. Ben sits as a magistrate in Cumbria, England.

I took a look at your article where you say "I invite you, and the other professionals listed below to swear an affidavit stating who you are representing. If you do not do this, the only conclusion I can draw is that you are ashamed to declare your allegiance, and I will so write to the minister, and I will do that same for all of the others on this list". I must it make it clear that I will not be swearing an affidavit, not least as I am based in the United Kingdom and frankly I cannot see why I would want to do this or why your minister would be interested. If you draw the conclusion you state you from my position then you will be very very misguided. I am, for example, extremely proud to represent the Glastonbury Festival in the UK and I DO NOT hide this connection. How you came to this conclusion is quite beyond me.

Yours sincerely

Ben Challis

I have blogged about being a lapsed punk rock singer and some of you know I am personally very interested in the environment and with my 'AGreenerFestival' hat on I now wonder if to satisfy Mr Borean I should mention that I am compiling a CD of 28 of the best 'emerging talents' in the Britain today and supporting unsigned musicians - and maybe name them all. Naaahhh, I'll just get a cheap plug in for our all new 'FESTIVALS HARVEST' double CD -out soon!Go buy and support unsigned talent!

Unknown said...


My followup article:

This Ain't No Popularity Contest - It's Politics - Follow up to my article on Disclosure:


Anonymous said...

Well, at least now I can say I've been a pawn in the Mad Hatter's chess game...!