YouTube Tribunal win reinforces freedom of expression over other restrictions

This Wednesday saw me representing myself before a panel in the Brighton Hilton Metropole Hotel. The panel, from the First Tier Tribunal for Local Government Standards in England, were hearing my appeal against a finding by Brighton & Hove City Council’s Standards Committee that I had breached the councillor code of conduct.

Specifically they found that my putting excerpts onto YouTube of council meeting videos, which were already publicly available on the council’s own webcast site, was disrespectful of fellow councillors and was an improper use of council resources for political purposes.

If I didn’t submit to re-training (the detail of which hadn’t been defined) and apologise then I would be suspended for up to six months, and regardless of this the committee also censured me.

Key to the arguments used by the committee, and the Investigating Officer who prepared the report on the case for them, was that because of copyright law the webcast was the council’s intellectual property and thus a resource.

However what their findings failed to take into account was that copyright has exceptions for ‘fair dealing’ under which excerpts can be taken. Furthermore political freedom of expression is protected under Article 10 of the European Convention of Human Rights (ECHR) and this must apply to understanding of copyright law. So there are exceptions to copyright, it is not a blanket protection which automatically blocked my use of the clips.

Perhaps more importantly, what I did could have been done by any member of the public, so I didn’t take advantage of any access to council facilities I might have had purely because I am a councillor.

The code of conduct for councillors is designed to prevent abuse of elected office for personal financial or party political gain. So, for example, it’s intended to stop councillors using their exclusive access to council information to advantage in business deals or using council computers and telephones for political party fundraising. The code shouldn’t be about stopping councillors from doing politics, that is representing their constituents and holding those in power to account.

Ultimately the Standards Committee’s interpretation of both copyright and the code of conduct was excessively restrictive on my actions. It took far too broad an understanding of what constitutes a ‘resource’ in relation to the councillor code of conduct. The committee’s decision also had a rather low bar for what constitutes both ‘disrespect’ and ‘improper’ in the grand scheme of what those could entail.

Thankfully the Tribunal panel didn’t agree with the Standards Committee’s approach and cleared me on all counts, immediately quashing the sanctions against me.

The Tribunal’s full reasoning has not yet been published, but their summary judgement made it clear that, like a council-owned park open to the public, the publicly accessible webcasts were not a ‘resource’ within the context of the councillor code of conduct.

Furthermore, to find that I had breached the code under improper use of a resource in relation to copyright of a webcast, would have been a disproportionate interference in my right to freedom of expression un the ECHR.

So a good result, and an important reminder when dealing with intellectual property that copyright protections are not inviolable. There are both freedom of expression and public interest exceptions which can be called on. Perhaps something for the recently announced intellectual property review to consider…