Freesteel Blog » Reply to the written submissions to the tribunal relating to striking out

Reply to the written submissions to the tribunal relating to striking out

Wednesday, March 28th, 2012 at 10:31 pm Written by:

Still hammering away at this. The Tribunal judge served the Directions, which said: “Having considered the reasoning and effect of the Supreme Court judgement I now consider these appeals now fall to be struck out on the provisions of rule 8 (3) (c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. This is because I have formed a provisional view that these appeals no longer have a reasonable prospect of success.” The final hearing date is 5 April 2012.

My first reply referred to all my other detailed submissions, which no one seemed to have taken the trouble to read yet. Then the other Parties (the ICO and the BBC) weighed in with their submissions “inviting the Tribunal to strike out [my] consolidated appeals.”

My reply to their submissions is below the fold:


Appeal No: EA/2010/0139
Joined Appeal: EA/2010/0107



1. This Reply should read in accordance with paragraph 6 of the Further Directions, served on 3 March 2012 by Information Rights Judge Robin Callender Smith.

2. My FOIA requests are for information relating to an item of utility software, supplied by Autonomy/Blinkx, for enabling the raw video streams from several Parliamentary debating chambers to be made text searchable. The technique is flawed, has poor reliability, and there is no evidence that its output has ever been put to review within any of the BBC’s processes of quality control and public accountability that normally applies to its journalism. Aside from one single press release in 2009 on the day it was launched, there has no sign that anyone in the organization has expressed the slightest concern for accuracy and useability of this service. It is a machine that seems to operate wholly outside of all the BBC’s journalistic activities, and there is no staff member with a remit to answer questions about its inadequacies or advise on its practical use for the purposes advertised. (For a specific use case, see paragraph 16 of my 14 July 2010 “Reply to the Response of the Information Commissioner”.)

3. Just because the BBC buys a piece of utility software and runs it, does not by definition make it journalism, art or literature. For example, if the BBC deployed some virus checking software for scanning the emails its staff sends out, and I were to continue to receive viruses in emails from them that infected my computer, then I would not be amused if, when I asked to know more about the defective software they had bought, they replied that it was none of my business due to their artistic license.

4. Paragraph 12 of the BBC’s submission and paragraph 8 of the ICO’s submission both make separate reference to the Supreme Court judges considering the phrase “journalism, art or literature” as an aggregation that covers the whole of the BBC’s output without needing to determin the category. Whilst some of the numerous textual errors made by the Binkx/Automony’s software are somewhat amusing, the BBC has always marketed the service as a factual research tool, not as a form of entertainment. In fact, were they to do so, they would likely breach The Rules of Coverage for the House of Commons. There has never been any disagreement that this service was being exempted under the definition of journalism — which Lord Walker in paragraph 70 of the SC judgment commented was defined in reference to “journalist”, ie a person.

5. From paragraph 22 of its submission, “the BBC does not deny the Appellate’s submission that not all the content on the website is held for the purposes of journalism, art or literature”, providing as an example of biographies of senior staff.

6. The Appellate’s aforementioned submission was made in paragraph 7 of the 14 July 2010 Reply. I feel it is necessary to go into more detail: A modern website, such as that provided by the BBC, consists of numerous distinct components, such as embedded video streams, rolling subtitles, search engine results, interfaces to databases, interactive graphics, wordles, RSS feeds, twitter streams, viewer comments, paid advertising — in addition to any content that may have been written or edited by an actual journalist or artist. Some of these components are in fact edited and monitored by BBC staff, like the comment streams seen on many of the BBC blogs. Others are purely computer generated using software from external suppliers running against external non-BBC content whose output is not reviewed by any human (journalist or otherwise). The Autonomy/Blinkx video search engine is one such example.

7. The Sugar case — which concerned the review process of journalism — has so little similarity with the requested information that its failure should not be used as grounds for striking out the case. In fact, the situation is sufficiently unique and illustrative as to the modern means by which content can be selected and produced by automatic computer software that the case deserves to be heard. Ideally a decision in this case would establish that there must be an element of journalistic quality control and accountability applied to non-journalistic source material before it can qualify as journalism.

8. The parenthetical note in paragraph 6 of the BBC’s submission disputed the accuracy of the assumptions I made when drafting my 13 August 2010 FOIA request for the public tendering documents. The assumptions I made were that the project went through the normal published tendering procedure. As Democracy Live was rumoured to have been a pet project of the Director-General, and the system was supplied by a company owned by another member of the Executive Board at the time, I’d be shocked to learn that these assumptions were inaccurate.

9. Also from paragraph 6, the “fully disclosed” “editorial decisions relating to the BBC’s Democracy Live service” referred to the utterly trivial selection of the 8 Parliamentary chambers to go for. See paragraphs 7,8 and 9 of my 24 August 2011 “Reply to the Response of the Information Commissioner” for comments I have already made about this.

10. I completely reject the example given in paragraph 19, because this is not in the context of a programme, and I have not requested anything equivalent to storyboards or draft scripts, which would obviously be exempt.

11. The Autonomy/Blinkx supplied software for Parliament is neither art nor literature. The system as it is operates without human intervention is wholly outside of the Tribunal’s analysis of the term journalism in all three parts of its definition. And, finally, it does not appear to come under any recognizable process of journalistic quality control. For these reasons I invite the Tribunal not to strike out this appeal.

DATED 28 March 2012
Julian Todd.

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