Imagine all the People, Sharing All the World: Privacy v Piracy

When John Lennon, in 1971, asked us to imagine no possessions, and prophesied that the world will live as one, little would he have imagined that he was, ironically, in 1978, going to take newspapers to task for allowing all the world to share in the contents of his private married life. And Lennon did not succeed (Lennon v News Group Newspapers Ltd and Twist [1978] FSR 573, Court of Appeal). English law then did not recognise a right of privacy (Kaye v Robertson [1991] FSR 62).

Neither as a songwriter nor singer would Lennon have imagined that 30 years later, a young man by the name of Shawn Fanning was going to take his imagination to the context of making free music available on the internet (A&M Records Industry Association of Inc v Napster Inc C99-5183 (ND Cal)). Or that Stephen King was going to allow serialised versions of his new book, The Plant, to germinate on the internet.

Indeed, a virtual makeover confronts the media and entertainment industry with the phenomenal growth of the internet and digitisation. And with it, a whole new world has opened up to lawyers with the advent of a new area of law known as media and entertainment law, straddling issues of privacy, intellectual property and even constitutional and human rights law.

Copyright protection has become hotly contentious as artistic works are increasingly digitised. Authors, artistes, entertainers, recording companies, television stations and movie moghuls alike fear the dilution of income and investment returns, thanks to new distribution channels, sophisticated piracy techniques and a paradigm shift in consumer attitudes.

The music industry was in an uproar when MP3 technology enabled music lovers worldwide to download free CD-quality sound through the internet. The legal furore caused by Napster.com, where a system searches for MP3 files across an internet user base, facilitating song and album swaps for immediate play or downloading, has provided fodder for a major legal battle, with 19 music companies alleging that this is direct copyright infringement.

The movie industry also faces great challenges in the digital age. DVDs, VCDs and videotapes of motion pictures are being sold via the internet and internet savvy producers are promoting and advertising new movies over the internet. Soon, movie buffs will be clamouring to use their personal computers to watch movies over the internet through streaming media, with the aid of a fast bandwidth connection. Whither traditional distribution rights then?

Interactive television will likely create the next tidal wave of change. America Online offers AOL TV, which allows viewers to email and surf the web whilst retaining a channel on a part of the TV screen. Sony and Philips' Ti-Vo recorder works out what programmes to record for the busy viewer and the Ti-Vo service offers an electronic programme guide and can recommend shows based on what you watch. Could the words internet and television become virtually synonymous, with viewers wielding their remote controls, giving vocal commands to their smart TVs and connecting with strangers and friends alike over the internet with the aid of huge television screens daily?

Even the publishing industry has not been exempt from sweeping changes. Last year, best-selling author Stephen King's e-publishing experiment succeeded in achieving sales of more than half a million copies of Riding the Bullet, his 66-page electronic book. Later, he teased fans by unfurling the leaves of his e-novella, The Plant, in stages at his own website for $1 to $2 a download on condition that 75% of his readers paid him for the instalments. Scott Pitfield's small hip and portable electronic Modo delivers a digital lifestyle magazine to readers who pay US$95 for the device and free access to information updates.

Authors can easily hawk their works over the internet, bypassing traditional distribution networks. Will traditional book and magazine publishers eventually become obsolete? Will readers of e-books want different twists in a single interactive tale, wanting to choose a story's conclusion with the click of a mouse? Will all our books and magazines be delivered to readers via tiny palm sized electronic devices, enabling us to carry entire libraries in our hands?

Privacy issues also abound more than ever, in a society where individuals and celebrities alike have unprecedented opportunities to gain global exposure.

Thanks to the web camera, the man in the street can share the events in his life with the whole world. Last year, The Times of London reported that a Manchester lawyer would spend a week in full public view 24 hours a day, in a city bar on the internet with a view to publicising the Manchester 2000 exhibition and his law firm's services.

However, unwanted intrusions of privacy occur more frequently. Recent breakthroughs in the law of privacy in foreign courts are also noteworthy. Actor-couple Catherine Zeta-Jones and Michael Douglas have met with more success than Lennon in the English Court of Appeal in its recognition that an individual had a right of personal privacy which was grounded in the equitable doctrine of breach of confidence (Douglas & Ors v Hello! Ltd, The Times, 21 December 2000, Court of Appeal). The decision is being hailed as a powerful warning to tabloids which trade on the activities of celebrities by arguing that since they covet fame and are already in the public eye, they are fair game.

The French Tribunal de Grand Instance de Paris has also granted Mohamed Al Fayed, chairman of Harrods, leave to sue the French government over the investigation into the details of the deaths of Diana, Princess of Wales, his son Dodi Al Fayed and driver Henri Paul, alleging a failure by inquisitorial Judge Herve Stephan to properly pursue the invasion of privacy complaint Al Fayed had lodged against the paparazzi.

Dame Elizabeth Butler-Sloss of the UK High Court, Family Division, has gone so far as to impose a controversial ban prohibiting publicity on the new identities and whereabouts of the young killers of two-year-old James Bulger after their release this year to protect their lives and physical wellbeing (Venables & Anor v News Group Newspapers & Ors, The Times, 8 January 2001).

Will other countries follow suit in this digital interconnected economy, where personal records and movements are too easily monitored by the technology savvy and see the beginnings of a world of cyber criminals which knows no borders? Will international investors and a highly mobile international workforce demand privacy rights as a price for investments and services?

Already, e-commerce lawyers are being called upon to interpret the scope of new laws in the UK which give firms a licence to conduct random and routine interception of employee emails or checks on telephone calls. Claire Swire's 'sauc-e-mail' to her lawyer boyfriend Bradley Chait, talking about their relationship and other steamy details a la Monica Lewinsky and Bill Clinton, found its way to interested millions worldwide after Chait proudly forwarded the email message to six male friends, but legal repercussions are soon to follow for Chait, as well as subsequent forwarders of the email.

What does this mean for lawyers? Opportunities in a whole new world, I say! Given that the practice of real property law may soon be facing its sunset, lawyers will do well to venture into the area of media and entertainment law for more intellectually stimulating and lucrative fodder. With the challenges being posed by privacy and piracy, legal rights in the media and entertainment industry are becoming at once both elusive and ephemeral but, nevertheless, existing in some form.

Well, 'you may say that I'm a dreamer, But I'm not the only one'. Still, it may be a long way before 'the world will live as one'.

Palakrishnan
President
The Law Society of Singapore

Your President Listens Mr Palakrishnan, President of the Law Society, continues to be available to meet Law Society members on alternate Saturday mornings between 10.30 am and 12 noon at the Law Society's premises. The sessions next month will be on 10 and 24 March 2001.