Chancel Repair Liability Insurance

I'm hearing stories of those buying new houses or moving house being contacted by their solicitors or mortgage brokers with regard to the taking out of chancel repair lability insurance.

I'm guessing this has been prompted by stories of landowners suddenly being presented with invoices from their local church as their property, being within the diocese, are liable for its upkeep.

As such it seems that such insurance is being made a compulsory part of the mortgage agreement or that solicitors are badgering homeowners into taking it out.

All well and good if your particular church has such a provision in place, not so good if they don't. Not that such niceties seem to be concerning those pushing this insurance.

(Oh wait it seems the premiums for this insurance is quite low until it's confirmed that the property may actually be liable at which point they increase)

Indeed one homeowner pointed out to an insistent firm of solicitors that their local church had no such provision in place with written documentation to back up their claim yet this same firm continued with their selling tactics to the point they handed over money just to shut them up.

Given the PPI mis-selling scandal does this have the makings of another?

Guilty until proven innocent - trial by media

With the capture of the Boston bombing suspects and the recent arrest of three more suspects various social media and news media have discussed the initial failure to read the suspect his Miranda Rights. What has been interesting to me is how many seem to feel that the suspect shouldn't have been treated until questioned, potentially even water-boarded and should be treated as a enemy combatant.

After all he perpetrated this monstrous act why should he have any rights or privileges. Because perhaps he didn't do it?

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Does the press need to be regulated?

What with all the wrong-doings being levied at the press it would seem to be an odd question to ask whether the industry requires regulation, however given the exact nature of the wrongdoings it's rather more pertinent that it first appears.

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Twitter, Libel, and how to think of new media as old media

Various legal quakes are hitting Twitter as of late; there has of been the use of section 127 for malicious communications, but the mainstay seems to be forming around libel. To take a hypothetical case imagine a rumour spreading about the actions or character of a person given the current Saville situation let's say that they're a paedophile. Some publication alludes to "a person in power" as being one and Twitter becomes abuzz with people asking who they could mean.

Twitter A: Does anyone know who [publication] is talking about?
Twitter B: Yeah it's [person]!

Then everyone starts retweeting and spreading [person]'s name about with little thought to consequence. But what if this wasn't Twitter. Consider that Twitter B was a person wearing a Sandwich Board stating "[Person] is the paedophile that [publication] was talking about!" pretty easy to see that would be libel. The retweets - more people making their own sandwich boards. Still libel. People grabbing their friends and pointing out the sandwich boards to them - distribution of libel.

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Burning poppys

It's our good friend Section 127 of the Communications Act rearing its very ugly head again, this time aided and abetted by Section 1 of the Malicious Communications Act. This time it's someone posting a photo of a burning poppy on twitter who's been arrested by Kent police on suspicion of "malicious telecommunications". But why has the Malicious Communications Act been brought into play?

Well under the 127 CA the communication can be classed as offensive if it is so deemed by other people; under 1 MCA it's whether it was intended to cause distress to the recipient. In both cases it doesn't matter whether or not it was actually received it's the sending that counts as an offense.

Except there's a problem here with using MCA. There's no intended recipient so it's impossible that the message was sent with intent to cause distress to a non-existent person. Simple use of the CA would have (sadly) been enough, but that would leave the decision up to a group of peers. Using MCA anyone who received who found it caused distress could be enough of a case under that Act.

Now this is where it turns good - this application of MCA opens up a whole can o'fun because it covers "sending to another of any article which is indecent or grossly offensive, or which conveys a threat, or which is false" Just read that last bit again "which is false". How many newspapers now have an online version; how many 'send out' their articles via newsfeeds etc.? Any newspaper that exaggerates a story or just sends the first (and most eye-catching) parts via a feed may now face charges under the MCA for sending a "false" article.

Now, of course, one may argue that there was no intent involved as they send these things out to anybody who asks for them including their subscribers so it's not a targeted article... oh hey that's just like Facebook and Twitter; oh forget that then - get them arrested as quickly as possible.

On a completely unrelated topic I have a sudden urge to browse the Daily Mail website; can't think why.

Yet another attempt to apply old laws to new situations

On Friday Azhar Ahmed was convicted of posting an offensive Facebook message regarding the deaths British soldiers. According to the judge his remarks were

"derogatory, disrespectful and inflammatory"

Ah yes it's my old favourite good old section 127 of the Communications Act.

Okay so saying we should rise up and kill all the soldiers is a bit... oh wait he didn't; he said:

"All soldiers should DIE & go to HELL!"

So that's expressing an opinion and not a wish, okay but it was still inflammatory to post that on the families Facebook pages... oh wait he didn't, he posted it on his own page and it was seen by one of the families and it was then subsequently copied around the internet.

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Ian Tomlinson verdict - WTF

So we know the police were involved and we know that no charges were going to be made before they changed their mind after the verdict that he was "unlawfully killed" and now finally the completely expected verdict of not guilty of manslaughter.

To remind manslaughter (involuntary) is where death is caused without intention through either recklessness or criminal negligence. By returning a not guilty verdict the officer has been vindicated that it was perfectly legal to hit Mr Tomlinson with a baton using "excessive and unreasonable force" and was the correct course of action to take in the circumstances despite the officer himself confessing that it was "wrong" to have hit and pushed him.

So with that verdict and a court giving up all rights to constrain the military let's see how many people get legally beaten to death or shot during the Olympics.

PS3 games - Disparity between age certification and Parental level

Given the Battlefield Bad Company 2 kerfuffle, in that a game is being sold at an age level of 16 yet had an internal restriction of 18, I thought to check through all my games to see if there are any more out there.

I'm using Sony's own guidelines on European age certification and how they match up to Sony's own parental restriction level. Now there are gaps for example a 12-age is matched to a 5-level, but a 16-age to a 7-level. So what's a 15-age? Logically I have to add it as a 6-level; there's also no PG-age rating shown so I'll match it to around the 3 or 4-level mark 5-level at a push. So how do they match-up?
The good news is that every single 18-age game I own has the correct 9-level rating. Likewise every
3, 7, and 12 age game I own. PGs and U-certificated games don't have an exact match, but again they're close enough by my standards.

The problem comes with the 15 and 16 age certificated games.

[Update - as per the comment I'll also show the US ESRB rating along with the level that should make it]

Firstly the ones who get it right:

Assassin's Creed 2; age 15; level 7 [Mature 9]
Assassin's Creed: Brotherhood; age 15; level 7 [Mature 9]
Batman Arkham Asylum; age 15; level 7 [Teen 5]
Batman Arkham City; age 15; level 7 [Teen 5]
Dungeon Siege 3; age 16; level 7 [Teen 5]
Enslaved; age 16; level 7 [Teen 5]
Heavenly Sword; age 15; level 7 [Teen 5]
Infamous; age 16; level 7 [Teen 5]
Infamous 2; age 16; level 7 [Teen 5]
Mercenaries 2; age 16; level 7 [Teen 5]
Mirror's Edge; age 16; level 7 [Teen 5]
Oblivion; age 15; level 7 [Mature 9]
Overlord; age 16; level 7 [Teen 5]
Overlord 2; age 16; level 7 [Teen 5]
Prince of Persia Trilogy; age 16; level 7 [Teen 5 & Mature 9]
Red Faction: Guerrilla; age 16; level 7 [Mature 9]
Sacred 2; age 16; level 7 [Mature 9]
Star Wars 2: Force Unleashed; age 16; level 7 [Teen 5]
The Orange Box; age 15; level 7 [Mature 9]

Well done to all of you. Now the ones who get it wrong:

Alice: Madness Returns; age 15; level 9 [Mature 9]
Assassin's Creed; age 15; level 9 [Mature 9]
Assassin's Creed: Revelations; age 15; level 9 [Mature 9]
Brutal Legend; age 15; level 9 [Mature 9]
Call of Duty World at War; age 15; level 9 [Mature 9]
Darksiders; age 15; level 9 [Mature 9]
Deus Ex: Human Revolution; age 15; level 9 [Mature 9]
Kingdoms of Amalur; age 15; level 9 [Mature 9]
Mass Effect 2; age 15; level 9 [Mature 9]
Rage; age 15; level 9 [Mature 9]
Resistance: Fall of Man; age 15; level 9 [Mature 9]
Silent Hill HD Collection; age 15; level 9 [Mature 9]
Skyrim; age 15; level 9 [Mature 9]

[So although all the incorrect ones would be correct in the US some of the correct wrongs would be incorrect; so it can't be used as an absolute guide]

As can be seen both the Assassin's Creed and Elder Scrolls series change despite the fact their age rating doesn't. Also on the odd note they're all 15s which doesn't have an exact match with Sony documentation, did the publishers just guess or default to level 9? I decided to do a little test. As these were all PAL European releases what are the age-certification for their German counterparts.

To pick a couple Infamous is listed as an 18; so does the German Infamous share our level 7 or has it been corrected for them to level 9? On the other hand Assassin's Creed is close to our 15 with 16; so again is theirs incorrectly posted to level 9? 16 is an age match for Sony so if it's some automated software matching age to restriction I'd guess the German version of Assassin's Creed should be a 7, if there is anyone who knows someone with the German version I'd be very interested to find out.

It may seem pointless, but in essence these games are being mis-sold in the UK. They are clearly stating they are for those of age 15, or 16 and above yet internally restricted to age 18. Sure they can still be played, but only after the input of a parental code.

For comparison imagine buying a universal remote control that states it will work with your TV, but you discover that you need to use the original remote in conjunction with it for the first time every time you turn the TV on. How irritated would you be?

It's the same with these games. The companies have got it wrong, need to be told, and need to do something about it. So why aren't they? Why when I do a search do I not find a horde of 15,16, or 17 year-olds complaining about having to have their parents tap in a code to play a game that they are legally able to play?

Because no-one uses the parental control systems?

The UK High Court messes up over Pirate Bay

For those keeping an eye out regarding such sneakiness as SOPA and PIPA etc will undoubtedly spotted the High Court ruling that UK Internet Service Providers must block access to the website Pirate Bay.

Beyond of course not actually working for anyone who really really wants to access it; it also turns out it may be completely unenforceable.

Yup, turns out the European Court of Justice has already ruled on a similar subject in which

Accordingly, the Court’s reply is that EU law precludes an injunction made against an internet service provider requiring it to install a system for filtering all electronic communications passing via its services which applies indiscriminately to all its customers, as a preventive measure, exclusively at its expense, and for an unlimited period.

Which is, in essence, what the High Court is telling UK ISPs to do and yet would you look at that Virgin Media caves in without a fight.

Hopefully one of our other ISPs will show a little back-bone and point at the EU ruling before pulling the plug thus rescinding the, possibly, invalid demand.

Why everyone on the internet should be aware of Section 127

I've touched on charges brought under Section 127 of the Communications Act 2003 before, but I think it well worth the time to point out how this (sadly like so many pieces of legislation) is being misapplied. In part the passage states that:

(1)A person is guilty of an offence if he—
(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b)causes any such message or matter to be so sent.

Seems okay at first; crank callers; heavy breathers etc all covered however the devil is in the details - firstly "message or other matter". What is an "other matter". Well this very blog is using a public electronic communications network (the internet) and thus qualifies as an "other matter" so does a tweet; so would a facebook message; any comments you make here would also fall under this meaning.

In essence anything published on the internet falls under this section of the Communications Act and that leads to the catch - "grossly offensive or of an indecent, obscene or menacing nature". And the definition of all those terms are... determined by case law and judges.

Call me a nasty name in the comments and you may well be charged for being grossly offensive. All that pornography on the internet could be deemed "indecent" or "obscene"? Better still as the internet is international; in theory someone in say the USA who posted something rude on my blog could be charged; in fact anyone anywhere could be charged with such an offence simply because they are causing such a message to appear on my UK blog.

Heck even the exceptions only apply to broadcast media so heads-up to journalists whose papers add their columns online - said something nasty about a person? Don't expect a civil suit, expect the police to knock on your door waving this bit of legislation at you.

None of us are safe.

Rights of Way

Another boring legal posting I'm afraid due to the minor kerfuffle over the blocking of an alleged bridle path in Kidderminster. It seems people still don't know the distinctions so let's try and solve that.

Firstly Right of Way. Sadly this can easily be conflated with 'Who gets to go first' as such I'll refer to it as 'Right of Use' instead. What a 'Right of Use' means is that whoever possesses such cannot be prevented from using that route except on a temporary basis (Roadworks, Scene of Crime, etc.) what it doesn't mean is that only they can use that route. So dealing with the main types:

Highway:  In this case the Public Highway which is a Carriageway possibly with an accompanying Footway. (This is why you can't beat a parking fine by using the 'pavement')
Carriageway: A 'right of use' for carriages.
Footway: A 'right of use' for pedestrians. A general restriction for carriages excepting for access (bicycles and horses count as carriages).
Footpath: A 'right of use' for pedestrians. General restriction on motor carriages except on lawful authority. (This is why groundskeepers can drive in parks)
Bridle path: A 'right of use' for pedestrians and horses. General restriction on motor carriages.

This means that horses and cyclists can ride on footpaths but not footways; but the council can choose (by application of a TRO) to prevent that. The council cannot prevent a pedestrian from using a footway, footpath or bridle path; nor a horse from using a bridle path or carriageway.

In theory we can add:

Cycleway:  A 'right of use' for cyclists. General restriction on motor carriages.

Which means a pedestrian or a horse can use such, unless a local TRO prevents it.

That's the simplified version. It can get complicated for example pushing a bike doesn't count as a carriage, but leading a horse does. Do skateboards, roller skates, push scooters or wheelchairs count as carriages. How about motorised wheelchairs? Still lots of fun for lawyers to chew over.

Summon the police (Whoop Whoop Whoop)

I've blogged before about the misuse and abuse of poweres granted to the police particularly in regards to photography and the terrorism acts.

19-year old Azhar Ahmed posted the following on his Facebook page in regard to the deaths of soldiers in Afghanistan

"People gassin about the deaths of Soldiers! What about the innocent familys who have been brutally killed.. The women who have.been raped.. The children who have been sliced up..! Your enemy's were the Taliban not innocent harmful familys. All soldiers should DIE & go to HELL! THE LOWLIFE FOKKIN SCUM! gotta problem go cry at your soldiers grave & wish him hell because thats where he is going"

In other words the typical type of rubbish that crops up from time to time complete with poor grammar and spelling. At the start this is little different from any commentator doing a 'how dare you get upset about X when Y' that appears from any part of the political spectrum. The latter part does go too far and may be deemed morally reprehensible, but that's it.

Does he threaten a particular soldier? No he doesn't. Does he threaten soldiers in particular? No he doesn't. Does he call on others to threaten soldiers? No he doesn't. Yet despite this he's apparently been arrested for a "racially aggravated public order offence".

Let's just check that posting again... nope I can't see where he calls for all white soldiers to die or all black soldiers; non-Muslim soldiers; Christian soldiers; British soldiers; Amercian soldiers. Just soldiers.

So when did "soldiers" become a recognised racial or ethic grouping? Has this been applied to others? Will the police be hunting through older comments for those who called for "bankers to be strung up" to face such charges? How about those stating that "come the revolution the first against the wall will be the lawyers"? How about any who said that the police should crack some heads regarding the Occupy movement?

Somehow I doubt it but state that our (actually not just ours as he's not that specific) boys and girls in the Armed Forces should die for what they're doing and face a potential six months jail-time.

So remember - if someone makes a statement you find offensive don't tell them you find it offensive; don't ignore them or try to reason with them just summon the police.... whoop whoop whoop?

[Update 21/3- hattip to Septicisle. It seems someone's had a quiet word and the "racially aggravated public order offence" has been dropped instead he's getting charged under the Communications Act presumably section 127 why he's being charged for his "all soldiers should DIE" remark while those who made much more explicit threats in return are not being charged is a mystery. No wait of course it's not a mystery - he said a bad thing about 'our lads'. the others just made racially aggravated remarks how's that against the law. Oh wait.]

Blue lights on vehicles

Over the past week I've been spotting more vehicles porting blue front LEDs. "Huh" I thought "Aren't blue lights reserved for emergency vehicles only?". Turns out maybe they're not.

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Taking photos

Once again we see the misconceptions over taking photos being applied. This time to the Braehead shopping centre in Glasgow. Sadly like so much it's a case of 'he said, they said' so the exact terms being bandied about cannot be verified, but the context is clear.

Firstly the obvious statement that I Am Not A Lawyer, but the statements I make echo and combine statements made by those who are.

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Defamation

It's been an interesting time; as mentioned Tav over at the WFA has been warned about libellous comments on his site; Johann Hari from The Independent has been 'caught' lifting live quotes from written works and Angry Mob has had to remove a story regarding Paul Dacre.


As I've already mentioned the Catch-22 for Tav I'll turn to Hari. The word plagiarism has cropped up; that is claiming someone else's work as your own; is that fair? Hari has supposed lifted written quotes from people and placed them in the context of a live interview complete with body language descriptions etc. His claim is that he has done so only when the verbal conversation was less straightforward than a corresponding written statement. This would be vaguely acceptable if said quotes were lifted from other times he'd interviewed them; except allegedly they're not they're from other people's work. That would be using other people's work and claiming it as your own...

Has he been misleading his readers though? Well no. He hasn't claimed to have held interviews with people he hasn't; he hasn't written about subjects that didn't occur in the interview; and, most tellingly of all, none of the people he's interviewed have charged him with misrepresentation. If they don't care why should we? Well we might not, but the people whose work he's supposedly copied might have a thing or two to say about the matter.

Angry Mob's situation is also interesting as he hasn't directly been asked to remove material regarding Paul Dacre, instead said instructions have been relayed to him via his webhost. As such this falls into the same category I outlined for Tav. Strictly speaking the webhosts are 'couriers' and therefore can't be held accountable for what is published via themselves. However at the same time they will have little interest in defending, possibly in court, one of their clients and so will place pressure on them to cave in. If the webhost removes the 'offending' item they are taking an active role; if they put pressure on the publisher to do so or threaten them with termination of their hosting they show that they'll back down in the face of any threat no matter how ludicrous. If they do nothing they may have to defend their position in court which will cost time and money.

As it stands the ball is firmly in the court of the lawyers - don't like something published on the internet; threaten the hosts rather than the person who published it and chances are you'll get it taken down.

Are there any methods around this? Host your own site, all that can happen then is the ISP disconnects you and you reconnect with any of the multitude offering the same service. Or host your site with a foreign company; such rulings in English courts have zero standing outside our borders and any attempts to sue will have to be laid at the English publisher (as it should be) rather than the foreign host.

Libellous comments

One of the topics over at the WFA has shifted (as does almost every thread anywhere) and as a result Fran posted the following:

Some of the comments about John Campion have been pretty libellous and it is Tav, as the site host, who would be legally responsible for all your comments! 

So how does that work? First I need to add the obligatory "I Am Not A Lawyer". Looking at cases where this has arisen the main point used seems to be the difference between passive and active participation.

If I allow anyone to comment and leave all and every such item unchanged, intact and visible, basically doing nothing to them, I am taking a passive role. As such I claim the same protection afforded to ISPs and the Royal Mail. I can't sue the Royal Mail for delivering a libellous letter.

However where this gets interesting (stupid?) is what happens if someone who thinks they have been libelled in one of these comments contacts me informing me of such. What do I do?

If I leave the potentially offending item up after being informed of it I am tacitly endorsing it and can be sued. However if I take it down I lose my passive role and can be subsequently sued possibly for that very comment or future any comments.

This seems to leave the question of moderation in a flux - you're damned if you do and damned if you don't. However judging by the cases it seems to be the degree of activity involved. If the only active role I take is to remove obvious spam and anything that has been requested for removal I should be safe. However if like Tav I corrected spelling or grammatical errors or de-threaded comments to create new thread that would be a much more active role and he might well fall into the double-damned category.

It's a mess and just another example of how so many of the laws in this country haven't caught up with modern methods.

Imogen Thomas and the super injunction

It's in the news thanks to the missive from Mr Justice Eady which just goes to highlight how bad the privacy laws (or lack thereof) are in the UK.

The Judge's decision to award the injunction was based on "ample reason not to trust" Imogen and that "appeared strongly to suggest that the claimant was being blackmailed". Except no charge of blackmail seems to be forthcoming.

So Imogen has had her reputation damaged by allegations of blackmail. As injunctions are ordered to protect reputation doesn't this mean that Imogen could have had an injunction taken out against Eady to prevent him publishing this, or that now it's out pursue him in court on a charge of libel.

I'd like to see her sue him.

Osama legality

I find it interesting to look at the arguments of those who claim the death of OBL was legal. The two most prominent arguments are:

1. The law allowed the President  to take this action.
2. It was a military action taken during wartime against the opposition's leader.

Let's look at each. In the first case there is a law passed during the W Bush era that allowed the President to take any necessary action against anyone he thought was involved with the 9-11 atrocity. That is the US Congress passed a law that allowed the US President to take any action he wants against an individual. Somehow that's supposed to apply legally outside the US? Of course not. It does mean that legal action can't be taken within the US and as they tend to ignore anyone else there's little point in trying such outside; however that doesn't make it legal in the same way that an American citizen can't claim fifth amendment rights in a UK court hearing. Your laws don't apply outside your country.

The second case is that this is war. Except is it? Several countries have been attacked by Al-Qaeda and they have claimed responsibility and OBL has claimed leadership of them and issued what amounted to a public declaration of war against them. We in turn have retaliated and thus a state of war can be said to exist. Except if that's the case certain restrictions come into play such as the Geneva convention regarding humanitarian treatment of prisoners. Everyone now look at Guantanamo Bay and other facilities. If this was a war actions taken in them were illegal under international agreements; if it's not a war than this second case argument is moot. You can't have your cake and eat it.

Some of those pushing these views attack the opposition by calling them hand-wringing lefties; and in some cases that might be true. However look at the liberties being lost or constrained in the name of this war; look at how they're being misused and applied to cases that they were never meant to cover.

If you can justify the actions taken it becomes precedent.

Injunctions and superinjunctions

This topic has cropped up once again in the news. I've already made points about it and how as with so many laws made for specific reasons it's being used in a general way, but what's the legal basis behind all this?

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Car clocking

A quick report on BBC Breakfast this morning about mileage alteration with some MP calling for it to be made illegal. Worrying in terms of the implications if this were to happen.

There are legitimate reasons to alter an odometer and the report mentioned them - a faulty unit, or converting from kilometres to miles.

When they called up various operators advertising such services they mentioned that there was nothing wrong with the unit and that they were looking to sell the vehicle, but the reporter made a point that none told him that to sell the car without disclosing the mileage alteration would be illegal.

Well no because it's not their job to.

Consider a museum takes out a contract with a firm to make replicas of their Saxon gold horde. Are the manufacturers obliged to remind them that they have to sell them as replicas that they're not allowed to sell them as the real thing?

If the museum then does try to sell them as the real thing should the manufacturer be prosecuted for making them?

If someone buys one from the museum as a replica and then tries to sell it as the real thing should both the museum and manufacturer be charged?

No because doing such a thing is not illegal; it's only when you try to pass one thing off as something else does it become a crime. In the original case trying to sell a car as having a certain mileage when it doesn't.

However can't we make it illegal to 'clock' a car unless it's done for a legitimate reason? Except who determines what is and isn't legitimate? It's my car how can someone dictate what I can and can't do with it for my own private use?

This is what is worrying to me. This is what would make breaking the DRM on the PS3 or XBox360 illegal even if you kept that information to yourself and never made it public. This is what would make altering a car to render it non street-legal a crime even if you never drove it on a highway.

This is a precedent as to what you can and can't do with your own property even if it affects no-one beyond yourself.