Tag Archives: youtube case

YouTube Tribunal Success!

Today was the culmination of a process which began in early 2009 when Conservative Cllr Ted Kemble filed a complaint against me for putting clips on YouTube. The full background can be read in my previous blog posts.

The Tribunal hearing was held in a room at the Hilton Metropole Brighton hotel. This was arranged by the Tribunal service. Whilst I was grateful for a good number of supporters in the public gallery, in the hot seat it was just me there to represent myself.

The Council on the other hand had brought Mr Wayne Beglan, an outside barrister along with two council solicitors, a press officer and the Chairman of the Standards Committee.

The Tribunal consisted of Simon Bird QC, Narendra Makanji and David Ritchie. I don’t know Mr Ritchie’s background, Mr Makanji is a Labour activist and involved in a number of public bodies. Mr Bird is a barrister from the same chambers as the Council’s barrister Mr Beglan. However that didn’t stop him rather comprehensively demolishing some of Mr Beglan’s arguments during questioning!

I presented my arguments first. You can view my notes for my presentation here [PDF], though I did range beyond my prepared remarks as the presentation unfolded. The tribunal panel challenged me on a number of points, but mainly on my argument that the code of conduct didn’t apply because I wasn’t acting in my official capacity as a councillor when uploading videos to YouTube. I had difficulty providing clear-cut, legally grounded responses to some of their questions and so I wasn’t surprised when in their judgement they didn’t agree with this specific argument. Thankfully that didn’t affect the positive outcome.

Then the City Council’s barrister made his remarks. I found them to be rather piece-meal and quite often misleading if not factually incorrect. It is hard to tell if these were deliberate attempts to spin the Council’s case or just oversights through failure to fully review all the paperwork. Mr Beglan tried to conjure up a view that I had changed my arguments each time I had been asked to defend my actions. But in fact I was able to rebut this with the paperwork already before the tribunal.

Mr Beglan completely failed to take on my arguments that the Council’s interpretation of the code of conduct impinged on my European Convention on Human Rights article 10 rights to freedom of speech.

I then had a chance to rebut Mr Beglan’s presentation, though the panel through their questioning had done better work than I could have done. To be fair to him, it wasn’t easy to defend the Standards Committee’s original decisions.

Much of the debate ended up being about what constitutes a council resource and what would be improper use of such a resource. Many metaphors and examples were wheeled out, which I think were helpful in exploring the ideas. In the end the copyright issues surrounding the webcast were sidelined by the primacy of the article 10 issues. But it wasn’t disputed that there are exceptions to copyright protection which I could use to legally excerpt clips, and I think this contributed to the view that no resources as meant by the code were used by my actions.

Essentially it came down to this… The Council’s interpretation of the code would result in discrimination against me because I was a councillor — members of the public could do what I had done without restriction, so why couldn’t I? The code of conduct could not and should not be interpreted to restrict my rights to freedom of political expression.

So after an adjournment of an hour and twenty minutes the panel returned to find that they agreed with me that I had not breached the code of conduct. They rejected the findings of the Standards Committee and the sanctions immediately cease to have effect.

The tribunal’s full reasoning will be published in 14 days and there are 28 days for the Council to apply for leave to appeal. In summary the tribunal stated, in reference to my actions that:

6.1 He did not fail to treat Councillor Theobald with respect;

6.2 The resources of the Council which he used in posting the video clips fell outside the scope of the resources to which paragraph 6b(ii) applied;

6.3 To find the Appellant breached paragraph 6(b)(ii) of the Code on the facts of this case would involve a disproportionate interference with his right to freedom of expression protected by Article 10 of the ECHR.

Whilst a stressful day, I didn’t find the legal debate and questioning quite as difficult as I had feared. For someone representing themselves (I refused to spend any money on this) I think I did reasonably well, mainly because a number of very kind people offered me tips and read my notes ahead of the hearing. Thank you to everyone who supported me in person, with messages or by signing ORG’s action on this.

I am absolutely delighted with the outcome. It completely erases the original sanctions and findings. It also shows that the code of conduct cannot be used to stifle freedom of expression, which is exactly what the local Conservative councillors were trying to do in filing the complaint in the first place. I address this further in the press release. For as long as the code of conduct still exists (Mr Pickles says it will be go), this result is important in giving councillors across the country greater confidence in their ability to express themselves freely.

Now, back to the work of representing my constituents as best I can. But I will also be following this up looking into a variety of issues. The Tribunal chose not to address my concerns with how the original Standards Committee panel worked including Cllr Lepper claiming not to have seen the videos in question (as supported by witness statements I collected) but then the Standards Committee subsequently flatly denying she said this. Also did the council really need to send so many people to the Tribunal, why did they fight my appeal so hard?

UPDATE: Freedom of Information request now filed. Cllr Kemble and the chair of the original Standards Committee hearing panel are spinning that all I had to do was apologise. No, I overturned being found guilty of improperly misusing council resources (a serious finding which I had to clear) and faced censure + suspension unless I apologised and submitted to re-training.

UPDATE 2: You can hear on BBC iPlayer the tribunal being discussed on BBC Sussex Radio before and after the result. In the second piece Dr Wilkinson from the Standards Committee and Cllr Kemble both participate, sounding rather unrepentant if you ask me!

In a pickle? Not with Eric Pickles backing me!

Last Thursday, as I was preparing for the full council meeting that afternoon, a tweet suggested something extraordinary might be happening in Westminster. No, not a new rainbow coalition to stop the Tory cuts, but something still quite unexpected.

Local government minister Eric Pickles MP rose to answer a question about his planned abolition of the Standards Board, which runs the councillor code of conduct under which I am currently ‘guilty’ for my use of YouTube.

Rather than just provide the answer and sit back down again, Mr Pickles chose to cite my case as an example of why the Standards Board regime needed to go. Well, despite vehemently disagreeing with Mr Pickles on many things, I agree with him on this. The current regime for regulating councillors prevents them from doing what most would naturally assume is their democratic duty. The process is bureaucratic, needlessly involved and often abused for political point-scoring. Good riddance I say.

So Mr Pickles joins fellow minister Grant Shapps MP, John Hemming MP and a swathe of others in supporting my cause. I was invited to discuss Mr Pickle’s support on BBC Sussex Radio last Friday, with his colleague Bob Neill MP – you can listen again here. I’m told this was also covered on BBC South Today.

Until the localism bill is passed, the standards regime remains and I am still subject to it – so I continue to prepare for my appeal tribunal on 3rd November. It will be held from 9.30am at the Brighton Hilton Metropole — all welcome!

YouTube appeal links

I’ve been off for a few days, so inevitably there has been a burst of interest in my YouTube case whilst I’ve been avoiding checking emails, Twitter etc!

Here’s a round-up of links I’ve caught up with:

Thank you for all the support, it is greatly appreciated.

Update on my YouTube case: Tory Minister backs me!

I spent most of the day yesterday in a conference room, then spent the evening meeting Green Party members in Crawley from our Mid Sussex, Crawley and Horsham branch. Whilst waiting for a train I was astonished to discover support for my position from a Conservative minister!

ConservativeHome’s local government blog had yesterday posted a supportive piece which Local Government Minister Grant Shapps MP then tweeted a link to, adding his own view:

Surely no justification for reporting a Cllr who seeks to promote openness to the Standards Board

Indeed! The comments on the ConservativeHome piece are a fun read too.

Additionally Liberal Democrat MP John Hemming, who has long campaigned on the inadequate councillor Standards Board regime, is supporting me and has helped me in preparing my case. John was a councillor for 17 years and Deputy Leader of Birmingham City Council for a time.

To briefly recap on the story so far: Back in February 2009 a Conservative councillor filed a formal complaint that I had breached the councillor code of conduct when I put videos, already publicly available on the council’s online webcast system, onto YouTube.

A Standards Committee hearing panel consisting of two councillors (Labour & LibDem) and chaired by an independently appointed member decided that I had breached the code. Unless I apologised to Cllr Theobald (one of the councillors in the videos) and submitted to re-training I would be suspended for 6 months. I immediately appealed this decision to the First-Tier Tribunal. The Tribunal’s principal judge agreed to hear my appeal and suspended the sanctions until the hearing. The Council have decided to oppose my appeal and to hire outside counsel (costing thousands in tax payer funds) to fight me.

The hearing is due to be held mid-October. (My previous posts on this here and here)

In the meantime I have received widespread support across the city and further afield.

Mark Pack on Liberal Democrat Voice filed a very supportive post. As have Brighton Politics BloggerUNISON branch secretary Andy Richards, Gez at Delib and local musician Chris T-T. On Twitter I’ve received messages of support from Labour and LibDem activists.

The Argus have covered the story here and here. E-government Bulletin also reported on the story, with interesting discussions in the comments including someone from the council’s webcast supplier Public-i.

Finally Private Eye also covered the debacle in July as follows:

Mary Mears, the gaffe prone leader of Skidrow-on-Sea council who won a 2009 Rotten Boroughs “compassion in the crunch” award for expressing sympathy from the deck of a cruise ship for 150 staff she had just sacked (Eye 1253), has put her foot in it again.

Last year, Brighton and Hove’s Tory supremo took umbrage at the fact that Green Councillor Jason Kitcat had posted video clips of council debates on YouTube and his blog. The footage – already in the public domain via the council’s own website – mostly consisted of Kitcat giving Skidrow’s Jag driving cabinet member for the environment, Geoffrey Theobald, a hard time about communal rubbish bins, a fascinating subject close to Cllr Kitcat’s heart. Theobald was not fussed, but Mears leaned on an obedient stooge, Cllr Ted Kemble, to complain absurdly to the council’s standards committee that Kitcat had “failed to treat Cllr Theobald with respect” and had used the council’s resources “improperly for political purposes”.

More than a year later, the panel has found Kitcat guilty n the political purposes charge and decreed that he should, er, have a break in the form of a six months’ suspension unless he apologises within 28 days. Which he has no intention of doing.

Updated 14:30 9/9/10 to add information about John Hemming’s support.

Release on my YouTube hearing

Further to my previous post, here’s the release I’ve put out on the whole matter. Due to the procedures, I’ve not been able to discuss this publicly in detail since the complaint was filed in February 2009. Feels good to talk about it now!

For immediate release: 09 July 2010

From the Green Group of Councillors, Brighton & Hove City Council

TORY COUNCILLORS TRY TO BLOCK GREEN FROM PUTTING COUNCIL MEETINGS ON YOUTUBE

Open government in Brighton & Hove was dealt a blow today when Conservative councillors attempted to stop Green Cllr Jason Kitcat from putting clips of a council meeting on YouTube.

Cllr Kitcat was subject to a standards panel hearing over his use of YouTube, after a complaint was made by Conservative Cllr Ted Kemble (a Cabinet member at the time of his complaint) supported by Council Leader Cllr Mary Mears and Deputy Leader Cllr Brian Oxley.

The complaint centred on Conservative members’ unhappiness with how Cllr Kitcat had put clips of council meetings on YouTube. These clips are already published for all to see online, but in a less easy-to-access format through the Council’s website.

“Many residents don’t want to sit through entire three or four hour meetings nor watch the whole thing online; they want to jump to the bits they’re interested in. When I found I couldn’t reliably link to sections of the webcasts, I put them on YouTube for ease of access by residents,” commented Cllr Kitcat.
“Most of these clips featured my questions on behalf of residents about communal bins. This seems to have caused Conservatives to try blocking my actions through a politically-motivated Code of Conduct complaint.”

“Rather than celebrating and encouraging openness, transparency and greater resident interest in the workings of our council, the Conservatives seem to prefer that the webcasts of council meetings stay restricted to the less than user-friendly council site.

“Putting clips of these webcasts on sites like YouTube makes them much more accessible and easy to use. As a councillor I am committed to being as open and accessible to my constituents as possible, hence my use of a blog, Twitter and YouTube.”

Despite one member admitting to not having even viewed the videos before attending the hearing, the panel decided that Cllr Kitcat had failed to treat Cllr Geoffrey Theobald with respect and had used the council’s resources improperly for political purposes.

The panel decided that Cllr Kitcat should be censured for his actions and be suspended for up to six months if he does not write an apology to Cllr Theobald and submit to re-training on the roles and responsibilities of being a councillor.

“The panel completely failed to understand the arguments I made, that putting a video on YouTube does not deprive the council of any resources whilst also making its working more open,” says Cllr Kitcat. “Furthermore, the investigating officer and Cllr Theobald felt there was no breach of the code with regard to respect. Additionally the officer report accepted that there had been no material loss to the council through my actions. Yet the Conservative complainant and the panel chose to pursue this complaint when clearly my actions benefited the people of this city at no detriment to the council.”

“I shall be fighting this case at an appeal Tribunal, it has been a complete waste of council officer time and money investigating this matter and I refute the panel’s findings,” concluded Cllr Kitcat. “With Conservative-led changes to the council constitution including cutting down speaking times, the number of questions councillors can ask and limiting the number of motions at council meetings – this complaint is a another step in the Tory attempts to close down democratic debate in our city.”



NOTES TO EDITORS

* Cllr Jason Kitcat can be contacted for comment on 07956 886 508

* At Cllr Kitcat’s request the papers and (once ready) the minutes from the panel hearing are available to the public online at http://bit.ly/bqUmdS

* Cllr Kitcat’s YouTube channel can be viewed at http://www.youtube.com/user/jpkitcat

* Cllr Kitcat’s statement to the panel will shortly be available on his blog at http://www.jasonkitcat.com

Tories try to get me suspended for putting council meetings on YouTube

In haste, because I’ve got a busy afternoon working on some great upgrades for Netmums, this morning I had to attend a standards hearing due to a Tory complaint. Tories weren’t happy that I put clips of council meeting webcasts, which are already online, onto YouTube and then my blog.

The panel decided I had breached the code and agreed some sanctions – I’ll type the details up later but in essence suspension hangs over my head for just putting some video on YouTube to make it easier for residents to see. So the Conservative attack on our local democracy continues – they forced through the cabinet system early, they have cut speaking times, the number of questions and motions councillors can put and now they’re trying to block our making videos more accessible. So much for their priority of openness and transparency!

I’m grateful to officers that, after my request, they have already published all the papers for the panel online. My presentation to the panel is copied below, more later. I will be appealing this decision.

UPDATE: Perhaps the oddest thing of this whole bizarre episode is that, in spite of their obvious unhappiness with the putting of Council webcasts onto YouTube videos, they haven’t asked me to take them down!

My presentation to the Panel

The Standards Committee’s Assessment Panel considered that Cllr Kemble’s complaint against me could be considered as being under three points of the code:

  • Failure to treat others with respect;
  • Failure, when using the resources of the authority -
    • To act in accordance with the authority’s reasonable requirements; and
    • To ensure that such resources are not used improperly for political or party political purposes.

I will argue that I have not breached the code under any of these three points. And just to clarify, the videos I put online were not edited in any way, just cropped down to be shorted. Full details of the meeting they were taken from was included next to the videos on YouTube.

I will address these three items in turn, briefly as most of the arguments have been covered in the papers.

Failure to treat others with respect

The investigating officer does not find that I have failed to treat others with respect. Cllr Kemble complained that I had been “underhand and devious”.

Given that the council meetings are held in public, broadcast to the world via the Internet, and I merely put portions of them on another part of the Internet (and so still in public) – my actions cannot have been underhand or devious – as they were clearly there for all to see!

If these had been videos of speeches delivered at private events I would accept the need to request permission before publishing the videos. But these videos were already published and the meetings already very clearly public.

Furthermore they did nothing more than show what happened at the council meetings. Anything “malicious or bullying” at the meetings themselves would have been ruled out of order, as well as the being subject of their own standards complaint. Merely pointing to sections of a meeting cannot be taken as being malicious or bullying.

So I refute this aspect of the complaint fully, and have done so in more detail in my letter to Mr Foley of 4th August 2009.

Failure to act in accordance with the authority’s reasonable requirements

Again, as the investigating officer notes, at the time of the complaint the webcasting protocol did nothing to restrict my actions in terms of putting clips on YouTube. The protocol did however encourage openness as do the Ten General Principles of Public Life included in the code of conduct and promoted by the Committee for Standards in Public Life.

I believe I acted completely properly in this regard and so agree with the report that there isn’t a case to answer with regards to failing to act in accordance with the authority’s reasonable requirements.

Failure to ensure that such resources are not used improperly for political or party political purposes

Section 6(b)(ii) of the code is the nub of the matter where I disagree with the investigating officer’s reasoning.

I would like to clarify my understanding of the word “political”. In my view everything I do as a councillor is political and politics is the ‘trade’ I am in when acting as a councillor. So when I said that I posted the clips onto YouTube for political reasons, that is because I believe council meetings and everything relating to them is political. However I do not believe my usage, as will be addressed late, was ‘political’ in the sense meant by the code of conduct.

In the investigating officer’s summary report he accepts that “there was no material loss” to the council – so it is arguable whether any resources were used at all. The report also mentions that facilities and resources can only be used properly if justified as being part of their roles as a councillor. The Independent Remuneration Panel’s definitions of formal councillor duties includes attending full council and cabinet meetings, which is exactly what I was doing in the clips published – hence their use was proper.

Of the 5 clips this complaint covers, one is just myself speaking to second a notice of motion on pre-pay energy meter charges. This was a motion jointly proposed with the Labour group – it was not party political. Furthermore, as the House of Commons allows MPs to post videos of their own speeches on YouTube without difficulty, I do not see why my own speech should be cause for concern under this complaint.

That leaves the four other clips involving questions about communal bins from myself with responses from Councillors Mears and Theobald.

Communal bins were at that time being rolled out in my ward, as they were in neighbouring wards. All councillors whose wards were being affected asked questions in council and cabinet meetings, as did those with an interest in the Environment Cabinet brief. At that time I was not the Green Group’s waste and recycling spokesperson, I was purely acting as a ward councillor as were others from all parties when asking such questions.

Furthermore, in his interview, Cllr Kemble alleges that I had placed the videos on my blog to further my ambitions for the European elections. I didn’t post anything on my site relating to the European Elections until 12th May 2009, more than two months after Cllr Kemble sent in his complaint.

Long before and long after Cllr Kemble’s complaint I have been posting on my blog reports of my council work including text, sections of meeting minutes, photos and videos. So his accusation that these clips were posted for those reasons do not stand up.

Finally, if webcasts were deemed political they should have been taken down during the election ‘purdah’ periods but they were not this year nor last year. The videos just show members undertaking their democratic duties, as is right and proper.

So, the clips were not posted for political or party political reasons because members from all affected wards and all parties were asking similar questions. I was not campaigning for European Parliament at that time and I was not the Green Group’s spokesperson on this matter at the time, Cllr Rufus was.

So on that basis I do not believe I have broken 6(b)(ii).

However I also would argue that I have not broken this section of the code on the basis that I have not used the council’s resources. So not only was the act not political, but furthermore no council resources were used to post the videos to YouTube.

As repeatedly stated, and agreed by the investigating officers, I used my personal computer and broadband to view the webcasts as I often do to refresh my memory before writing a blog post.

On seeing some pertinent sections I screen grabbed the video for posting on YouTube. Technically this did not touch the Council’s servers further whatsoever. To view the webcast the video file is downloaded to your computer over the Internet. Rewinding to view sections already viewed just retrieves the video from your computer’s local memory, no further Internet access is required. Hence the video capture used no council resources in terms of computers or broadband beyond what I used to view the webcast normally. Viewing the webcast alone cannot reasonably be considered a breach of the code!

Furthermore digital files like the webcast videos are what economists call ‘non-rival goods’. That is they are unlike a cake, for example. If I eat all of a cake then you cannot eat it too, but with a digital file I can use it and so can you with neither of us being any worse off.

Indeed, I can copy a digital file online a thousand times at zero cost for all my friends and the original will still be in perfect condition. A cake cannot manage that feat – you would need to bake a new cake, with the costs of all the ingredients, to copy it even once.

So in my copying the video for use on YouTube I did not deprive anyone of the ability to view or save the webcast in the future. In fact I made it easier for people to view certain points of interest from council meetings.

The final argument made by the investigating officer is that the webcast’s copyright is a resource of the council. As a matter of principle I disagree. These webcasts show elected members, officers and residents participating in public meetings which make up the workings of our local democracy. If they belong to the council they only do so in trust for the good of the entire city. Indeed if one were to take the idea that the copyright is a resource of the council then should each person shown on camera not get a royalty payment for each sale of the webcast covering their recorded performance?

There is no serious commercial market for these webcasts, they are a public good. A £35 charge is made for copying them onto disc, that is to cover the cost of someone actually doing the job of retrieving the archive, getting a disc and delivering it to the member of the public who wants the disc. This £35 charge is in no way a meaningful source of income for the council.

In Form A (ii) the investigating officer rebuts this argument claiming good authority for intellectual property having financial and commercial value. However the citations provided relate to the world of commerce – of course Apple or Hewlett-Packard have plenty of value in their patents, copyrights and other intellectual property. But this council and its members are owned by the people of this city and acts on their behalf.

Parliament, despite complex TV licensing agreements for video coverage, already allows MPs to post videos of their own speeches on YouTube and is shortly going to allow all clips to be posted by anyone on sites such as YouTube.

Indeed minutes from council meetings are already regularly copied onto local blogs by councillors and members of the public. The council has, as yet, not been seen to pursue any of these bloggers for breach of the council’s intellectual property. If the investigating officer’s line of argument was to believed, these bloggers too are depriving the council of financial resources. But no action has arisen, because of course these are resources for the good of the whole city. In addition, copyright law has a provision for ‘fair dealing’ which permits the use of limited excerpts, even in commercial works, without recompense or license to the copyright holder.

So, I have already made the case that these clips were not political, and so the charge of “Failure to ensure that such resources are not used improperly for political or party political purposes” falls. I have also argued that technically, I did not use any additional IT resources beyond those needed to view the clip. So I did not breach the code on that count. Finally I have detailed how I did not deprive the council of any intellectual property or implied financial resource because digital goods are non-rival, the council has not previously chosen to enforce any intellectual rights on previous copying, they have no meaningful commercial value and there is a fair-dealing option under copyright which covers reasonable excerpts.

Thus, I respectfully put to the panel that there is no case for me to answer. I have not breached the code with regard to:

Failure to treat others with respect


Failure to act in accordance with the authority’s reasonable requirements

Failure to ensure that such resources are not used improperly for political or party political purposes

I thank you for your consideration, I urge you to reject these charges and am open to your questions.

[ENDS]