TUPE Regulations when a Company is in Administration

The vexed question of TUPE and Companies in Administration

Paul McConville’s fantastic posts on the Rangers saga from the scotslawthoughts website can be viewed here. One of the more puzzling aspects of this entire story are the TUPE regulations and how they affect the Rangers players that want to leave oldco instead of transferring to Sevco.

Normally when a company purchases another company, TUPE regulations affect the employees to ensure the same contractual rights are established for employees moving from one company to another. If I am employed on 50K a year at Company A, then under TUPE when Company B buys Company A, I am generally speaking, ensured two things – a) my job, b) the same salary and other contractual rights.

For example, if I chose to stay on at Company B I would automatically transfer to the new company. There is no doubt about this.

However, Rangers situation is a bit different. It is in administration, each day closer to liquidation. Administration can be referred to sometimes as a Non-terminal proceeding. These are treated differently than other insolvency procedures. If the liquidators were selling my company to a new purchaser, my rights has an employee, if I choose, automatically transfer to the purchasing company.

In either scenario, I can “object” or “resign“. These words used in this context have specific legal meanings.  If I didn’t want to transfer, I can”object” to my transfer. My employment would be terminated without consequence, but I would not able to cash in on any rights or statutory protections.  It not treated as a dismissal in the sense of what you and I would call a normal dismissal, but there would never be any compensation.

Resigning is different from objecting. It may be in my interest to resign if there has been major and substantial changes to my contract terms at the purchasing company. I am able to claim statutory protections arguing unfair dismissal.

The Rangers story is a little different though. Rangers are still in administration, not liquidation. Yet. What happens when a company goes into administration? The company’s affairs are handed over to administrators. They run the day-to-day affairs of the business.  However, when a company goes into liquidation, liquidators sells a business or the assets or both.  In this scenario, neither the liquidator nor the purchaser need worry about employees transferring under TUPE because reg.8(7) dis-applies the relevant parts of the Regulations.

The contentious issue is whether or not a business sold by an administrator is also exempt in the same way. Existing case law had previously suggested that were the ultimate objective of the administrator to liquidate the business following a brief period of trading, TUPE would not apply because the administration was “analogous” to insolvency proceedings (Oakland v Wellswood (Yorkshire) Ltd). This has now been refuted by the Court of Appeal in Key2Law (Paul McConville writes extensively about this in his blog),which ruled that reg.8(7) of TUPE does apply in administration; therefore, employees will be transferred to the purchaser under TUPE when the seller is in administration if they choose to go.

In the present fiasco that is known as the Rangers Football Club, the first practical implication for Charles Green’s Sevco is this – The newco purchased the assets and business of RFC from the administrators, Duff & Phelps. Therefore, he should have been able to expect any employees that chose to move over to come with their terms and conditions of employment protected under TUPE. This point does not seem to be arguable. Therefore, players would have had the right to be consulted prior to the transfer and if this did not take place (this is the point that appears to be argued over) they will be able to claim protective awards after the fact. At least the position is certain, for the time being. It doesn’t in any way suggest that the players MUST go over.  They can either object or resign.

In the real world the problem is that purchases from administrators are often “shotgun fashion“, with the administrator anxious to achieve a quick sale and the purchaser just as eager to pick up a cheap asset.  In this case Charles Green picking up the players on the cheap. Normally when there is a slow process of sales, the purchaser and seller has time to undertake the usual TUPE consultations.

When Mr Green tried to do is pull a fast one on his players. When he says, “The transfer of contracts has already happened and the club’s clear legal advice is that players’ purported objection is ineffective. Rangers would like to make it abundantly clear to players, agents and the chairmen and managers of other football clubs that we will take whatever steps necessary to challenge what we regard as a breach of contract to protect the interests of our club.”

Yet in reality in a business sense, administrators are often “trigger happy” when it comes to dismissals. This is the purpose of TUPE. After all the objective of administrators is to shed liabilities and to sell any assets or business as quickly as possible, so the scope for claims of unfair dismissal for reasons connected with the transfer, and protective awards, is hugely enhanced. When a purchaser buys assets from administrators, the risk is very high and now even more so as a result administrators of the Key2Law decision as the previous “escape route” provided by Oakland is no longer available.

Thus with Rangers, the issues around transfer of players seems to revolve around whether or not D&P has sufficient time to consult all employees under TUPE. Short of going through the full and proper TUPE consultations, there is no remedy for this. The result is increased protection for employees and discouragement to buyers who will now be less willing to purchase assets from a company in administration.

For a business, the focus must be on carrying out the usual full TUPE consultations (if possible) when purchasing from an administrator. Outside of this Charles Green will have very little protection against what TUPE protects – the employee, unless it is possible for him to argue that TUPE does not apply on some other ground. He would have to successfully argue, that no actual undertaking has been transferred – obviously this is a fact sensitive defence and depends on analysis of what has actually transferred to Sevco Additionally, any redundancies for a reason connected with the transfer might also be justifiable if it can be shown they were made on economic, technical or organisational grounds entailing changes in the workforce. Not what Green is seeking to argue here at all.

Green could also look for indemnities from the administrator, but if Old Rangers are going into into liquidation, there will be no-one to enforce the indemnities against, so they will not be worth much.  The only other “protection” is to ensure that the assets are purchased as cheaply as possible so as to factor in the potential cost of any TUPE claims.

Following Key2Law and the recent decision in Spaceright Europe Limited v Baillavoine (that dismissals can be in connection with the transfer even where no prospective transferor has been identified), the Court of Appeal has confirmed that a dismissal can be automatically unfair under TUPE even if  the transfer itself is not in contemplation at the time that the dismissal is effected. In this case the administrators, who intended to sell the business as a going concern, dismissed a number of employees including the claimant. The business was subsequently purchased by Spaceright Europe Limited. The Court of Appeal found that the claimant’s dismissal was automatically unfair because he had been dismissed for “a reason connected with the transfer” and so was automatically unfair. The fact that the dismissal took place in order to achieve a sale at a future date was sufficient.

We can see that these cases deal with the rights of the employee to maintain their careers when the assets of the company are sold from administrators to a newco. These have nothing to do with the forced transfer of an employee to move over to a newco to whom an administrator has sold the assets. It only guarantees their contract if they choose to go over to the purchasing company.

What I dont see eye to eye with Mr McConville over is whether TUPE applies at all to employees that choose to move.  I would argue that players under contracts that choose not to go to a new company dont need to rely on TUPE for protection. Furthermore, there are statutory obligations that must occur when transferring employees.

The employee notification process is relatively simple. Under the Employment Act 2002 (Dispute Resolution) Regulations 2004 the transferor employer must provide the new employer with a specified set of information which will assist him to understand the rights, duties and obligations in relation to those employees who will be transferred. This is to ensure the arrival of the transferred employees is a smooth transition and the employees also gain because their new employer is made aware of his inherited obligations towards them. The information in question is:

– the identity of the employees who will transfer; – the age of those employees;

– information contained in the ‘statements of employment particulars’ for those employees;

– information relating to any collective agreements which apply to those employees;

– instances of any disciplinary action within the preceding two years taken by the transferor in respect of those employees in circumstances where the statutory dispute resolution procedures apply or from 6 April 2009 the ACAS Code of Practice on disciplinary and grievance procedures;

– instances of any grievances raised by those employees within the preceding two years in circumstances where the statutory dispute resolution procedures apply or from 6 April 2009 the Acas Code of Practice on disciplinary and grievance procedures; and

The information must be provided in writing or in other forms which are accessible to the new employer.

Mr Green should release this letter from D&P.

The Regulations place a duty on both the transferor employer and new employer to inform and consult representatives of their employees who may be affected by the transfer or measures taken in connection with the transfer. Those affected employees might include:

(a) those individuals who are to be transferred;

(b) their colleagues in the transferor employer who will not transfer but whose jobs might be affected by the transfer; or

(c) their new colleagues in employment with the new employer whose jobs might be affected by the transfer.

Long enough before a relevant transfer to enable the employer to consult with the employees’ representatives, the employer must inform the representatives:

• that the transfer is going to take place, approximately when, and why;

• the legal, economic and social implications of the transfer for the affected employees;

• whether the employer envisages taking any action (reorganisation for example) in connection with the transfer which will affect the employees, and if so, what action is envisaged;

• where the previous employer is required to give the information, he or she must disclose whether the prospective new employer envisages carrying out any action which will affect the employees, and if so, what. The new employer must give the previous employer the necessary information so that the previous employer is able to meet this requirement.

Mr Green should release the details of this notification to the players, and if the player is in the union, then their player representatives. 

When Mr Green has tried to do is pull a fast one. When he says, “The transfer of contracts has already happened and the club’s clear legal advice is that players’ purported objection is ineffective. Rangers would like to make it abundantly clear to players, agents and the chairmen and managers of other football clubs that we will take whatever steps necessary to challenge what we regard as a breach of contract to protect the interests of our club, ” he is saying he transferred the players over to a newco without notifying the players or the agents. As a Newco is, well,  a “newco”, then the players can choose to leave, and Sevco is without any legal authority to sue the players, the agents, or other clubs for remuneration. Those that do transfer over without notification may have a case against Green and Sevco if their contracts aren’t automatically honoured under the original terms for unfair dismissal.

In my humble opinion.

Web3dLaw

The truth about the 20th century

The 20th century was a wonderful time. The following is a list of some of the “great” events that happened.

2 world wars

250 civil wars

311 holy wars

1 cold war

516 wars of liberation

331 wars of containment

691 wars of honour

296 declared wars

856 undeclared wars

4 bushfire wars

2 vest pocket wars

413 limited wars

1,987 acts of war

7,756 warlike acts

88 police actions

2 nuclear attacks

6,578 government massacres

4 holocausts

943 jihads

693 pogroms

614 long-term prosecutions

12,111 acts of treachery

575 betrayals of the masses

958 grabs for power

400 putsches

50 total enslavements

837 partial enslavements

4 total genocides

461 partial genocides

13,658 cease-fire violations

3,115 boundary disputes

1,432 border clashes

3,047 social conflicts

798 sectarian rivalries

13,678 civil disturbances

946 carpet bombings

4,288 threats to security

286 popular uprisings

1,877 areas of unrest

622 strife-torn regions

165 internal upheavals

745 political repressions

12,194 acts of sabotage

1,633 swift reprisals

818 arms resistances

639 repressive measure

1,126 violent outbursts

9,876 mass detentions

11,904 guerilla operations

3,466 suicide missions

823 slaughters

1,200 bloodbaths

43,096 atrocities

161 reigns of terror

715 rebellions

28 revolutions

21 counter revolutions

746 coups

745 counter-coups

457 insurgencies

458 counter insurgencies

4,622 covert operations

3,422 direction interventions

617 enemy incursions

13 measured responses

295 commando strikes

694 retaliatory raids

844 surprise attacks

236 protective reactions

2,155 frontal assaults

213 responses of kind

17,687 hostile incidences

4.756 belligerent moves

938 naked aggressions

849 foreign adventures

601 overseas entanglements
307 arms races

98 international powder kegs

515 regional tinderboxes

818 military flashpoints

2,415 heated exchanges

911 shows of force

668 heightenings of tension

735 deliberate provocations

921 military confrontations

639 dangerous escalations

3,721 terrorists bombings

438 preemptive strikes

630 outside aggressions

8,571 violent disturbances

646 surgical strikes

4,392 diplomatic deadlocks

82,879 ultimatums

788,969,747 heated arguments

823,285,571 shoving matches

917,704,296 fistfights

942,759,050 snotty phone calls

Punishments to maintain Sporting Integrity

A certain Rangers “blogger’s” recent appearance on Newsnight was unmemorable except for the statement that “Rangers have been punished enough”. Of course, Scottish football message boards exploded with laughter at this comment, and looking at opinion polls from around the SPL, the rest of Scottish society find it even more hysterical.

Lets look at the facts. Firstly, “Old” Rangers were docked 10 points for entering administration. This is a consequence, not a punishment.

Secondly, as of today, the transfer ban that was imposed on “Old” Rangers has been overruled by Lord Glennie. Owner Charles Green is still unsure how to proceed, with some saying he is trying to accept the transfer ban in order to avoid more stiffer and severe punishments.

Thirdly, the fines charged by the SFA for bringing the game into disrepute have yet to be paid. Furthermore, liquidation is a financial consequence of coming out of administration, not a punishment. One is not “given” liquidation as a punishment. Liquidation, too, is a consequence of financial mismanagement.

The “Newco” problem for the SPL is labelled as a battle between the supposed financial necessity of having Rangers in the SPL and one of “sporting integrity”. Although much has been written about the “history” of Rangers being lost when it entered into liquidation, and even more has been written about the situation that engulfed Leeds, Middlesborough, and Fiorentina, this blog is not about sporting integrity as it relates to financial impropriety. This blog entry is about sporting integrity as it relates to cheating.

Is there any guidance from other sports on how governing bodies have dealt with sporting cheats? The Big Ten Basketball conference is one of US largest basketball conferences. In the US, where collegiate sports are cash-cows for American universities, the Big Ten has led the country in attendance every year since 1978. Its basketball rivalry is huge and within the conference is a “Big Three” rivalry which includes the University of Michigan. The Big Ten brings in hundreds of millions of dollars to the University of Michigan. The rivalries are huge and the team brings in the best players and recruits from all over the country.

In American collegiate sports, there is one rule considered sacrosanct – the absolute ban on the paying of players. Match fixing is criminal, of course, but the integrity of the game relies on the fact that the ten people on a basketball court at any given time are amateurs. In other words, they financial footing of every player at any given time is equal.

In the late 1990s, the University of Michigan was rocked by a scandal that had deep repercussions to the University and the Big Ten.

The case began when the investigation of an automobile accident during basketball player Mateen Cleaves’ 1996 recruiting trip revealed a curious relationship between a legitimate sports agent named “Martin” and the Wolverine basketball program dating back to the 1980s. A six year investigation resulted in several Michigan basketball players implicated over the next few years and by 1999 some were called before a US federal grand jury. Four eventual professional basketball players were discovered to have borrowed a total of $616,000 from Martin. During the investigation, Webber claimed not to have had any financial relationship with Martin, but eventually confessed to taking loans from Martin. He was both fined in the legal system and briefly suspended by the NBA after performing public service.

The university investigation looked at four players behaviour and came to the conclusion that they had briefly compromised their amateur status. In response, the University placed the basketball program on two years’ probation. The punishment was to withdrew from postseason consideration for the 2002–03 season, the program had to vacate all or part of five previous seasons and to remove the players’ names and achievements from its record book.

In all the punishments were as follows:

• No postseason play in 2002–03, even though the players who took Martin’s money were no longer at the school.
• The school vacated the entire 1992–93 season and every game it played from the 1995–96 season through the 1998–99 season. This included the 1997 National Invitation Tournament title and the 1998 Big Ten Tournament title. It also vacated its two Final Four games in 1992 and its entire NCAA tournament record in 1993, 1996, 1998 and 1999. There is a difference between forfeiting a game and vacating a game; a vacated game does not result in the other school being credited with a win.
• Returning $450,000 received from the NCAA for postseason play in 1992, 1993, 1996, 1997, 1998 and 1999.
• Banners commemorating the 1992 and 1993 Final Four runs, the 1997 NIT title and 1998 Big Ten Tournament title would be removed from the rafters.
• Two years’ probation.

Of note, these punishments were self-imposed.

The governing body for mens basketball, the NCAA, accepted Michigan’s sanctions. It also imposed an additional two years’ probation and docked the school one scholarship a year from 2004–2005 until 2007–2008. The NCAA also barred Michigan from postseason play for the 2003–04 season. On appeal, the NCAA reversed its decision to add a second year of postseason ineligibility after hearing an appeal by the University.

Compare this to the present situation at Rangers. What we likely have here is a club and/or a business run by a group of men who knowingly and willingly paid their players through multiple contracts, likely failed to lodge them with the SPL, and didn’t pay their taxes along the way. They withheld £21 million in PAYE and VAT this season alone. They have failed to pay transfers fees owed to their contemporaries and they have failed to pay ticket sales to other member clubs. The EBT and double contract story likely extend to the best part of a decade. There is also reports about non-employees receiving funds from EBTs pre and post departure. The amount owed to the Revenue is upwards of £97M.

For an example of how the financial doping allegedly committed by Rangers, see my previous post on how EBTs hypothetically benefitted a club here.

It is a sad state of affairs in this country that a single director (let alone two directors/owners) of a company can get away with this level of corporate malfeasance. It is even sadder state of affairs that the sport’s governing body has allowed such a stranglehold by one of its members that it now claims it cannot manage to survive without it.

If Rangers were playing in America and did what they did here there, they would have been expelled. Without question. They would have been expelled, had their seasons vacated, titles removed, and fined. There would have been criminal charges brought against the directors and they would be sent to jail if convicted.

On the other hand, what do we do in Scotland? Here, our sport’s governing body asks its existing members to consider allowing a newer version of the former entity that screwed its creditors and competitors to the tune of £124 million by giving them a vote on whether its newer form can re-enter. The former company which doesn’t exist anymore gets to vote on this at the expense of another former member, Dunfermline Athletic, who too were an existing member of Club SPL screwed by the actions of the Old Rangers. There has not even been a punishment for the Lee Wallace fiasco – fielding a player bought from another member without payment. At a minimum, on this offence alone, those games in which Lee Wallace played, should be vacated. Period.

It is ludicrous. This is not a sleight of Rangers, this is my condemnation of our sports governing bodies and the UK’s corporate governance laws. In any other sporting context we would not even be having this conversation. We would be asking how long are they expelled for? Looking at American collegiate sports for guidance, the University of Michigan self-imposed the aforementioned punishments over $616K (£400 pounds) and four young men taking pay from an agent, while in Scotland, the SFA has done nothing. Even in the University of Michigan scenario, there was no suggestion that any of the basketball games played were compromised. The punishments were handed out for cheating, nothing more, nothing less.

Scottish Football is dead. This is why.

Defamation Act and Networking Filtering/Blocking

I have been thinking about the consequences of installing network level filtering, as TalkTalk have indicated recently they would do and  Claire Perry would like.

“TalkTalk customers get internet porn filter choice”

http://www.metro.co.uk/tech/899019-talktalk-customers-get-internet-porn-filter-choice

As I understand current UK defamation law, ISPs have an “innocent disseminator” defence provided in the Defamation Act 1996 [1].

1. (3) (e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.

[1] http://www.legislation.gov.uk/ukpga/1996/31/section/1#section-1-3

I found it extremely interesting that mobile phone companies provide over their network access “no effective control” affected by the editorial control (selective blocks, trivially administered).   TalkTalk ISP, and (by extension) all network providers according to Claire Perry’s should move toward an OPT-IN and a  suggestion of mandatory network filtering.Could it, in theory, become possible to sue an ISP for not blocking access to material originating outside of UK jurisdiction? What would happen if a court was asked to issue an injunction to filter for defamation or a privacy breach? Could TalkTalk be compelled to block material?

For section1 (secondary responsibility defence) under the Defamation Act  one needs to show reasonable care so that, in theory, the repeat defamation situation case that would not be met. For an interesting case, see the dicussion in McGrath v Dawkins [2012] EWHC B3 (QB). At present common law innocent dissemination survives –however see Metropolitan Schools.

The Ecommerce directive prevents any general obligation to monitor. See the cases of Case C-70/10 Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) . There  is also a firm rule against prior restraint of defamation –so that not even the courts by court order will restrain defamation pre-publication (as opposed to privacy) –to avoid the courts acting as censor. It would be an unlawful restraint on speech/expression and so engage Art 10.

its an interesting question and I am not entirely sure what the correct answer is.Two points: (1) the High Courts power to issue an injunction is very wide Take a look at s37 of the Senior Courts Act 1981 here…(2) Secondly, however, an ISP is not themselves liable as a publisher of material which passes over their wires. The BPI thought that would mean they could not obtain an injunction under the SCA against ISP’s to block copyright content, which is why they lobbied hard for s97A of the CDPA 1988 and even then they were nervous of proceeding any further. In the event s97A has proved quite powerful enough.

As you know, there are 4 main types of case where the court will refuse an interim injunction to restrain publication. The Solicitors from Hell case was one in which Bonnard didn’t apply because the defendant did not indicate an intention to plead justification would a decision at hearing turn upon questions of the general character of the claimant, but I failed to communicate that was what I was talking about.

I suspect there’ll be an increasing opportunity for cases where neither Bonnard v Perryman nor any of the other situations (such an intention to plead honest comment or where a communication is prima facie privileged) apply. There’ll also be situations – such as election comments – where I can see people finding it attractive to obtain an injunction, but the rule against prior restraint is superseded by statute. I n those sorts of situations where a court will make an order, do will it make an order against an ISP using filtering technologies? I cannot think of any situations where that has happened or something analogous has happened?

More generally some information about orders to block directed at ISP’s outside s97A:

In modern practice the rule against prior restraint applies whenever a defendant has a defence –not just when that defence is Truth. The rule was affirmed in Green v Associated [2004]  EWCA Civ 1462.  There is also now a significant body of human rights jurisprudence to support the rule. Eady had questioned whether the rule was compatable with the new convention jurisprudence and the test for balancing Art 8 (reputation and privacy) and Art 10 (freedom of expression) which gives no precedence to either Article as applied in privacy cases (see Campbell and Re S) in Sunderland Housing v Barnes –but the rule has held except where as in the Solicitors from Hell case the defendant has evidenced an intention to repeat. The rule is good law and not under attack.

Enterprise and Regulatory Reform Bill to Amend Copyright Law

The Enterprise and Regulatory Reform Bill is set to amend Copyright Law in the UK.

See here…

Please note the explanatory notes:

“Repeals section 52 of the Copyright, Designs and Patents Act 1988 so as to provide full copyright protection for the period of the author’s life plus 70 years.
Creates a power to amend exceptions for copyright and rights in performances without affecting the existing criminal penalties regime.”

Under Section 52 of the CPDA, you can see that Section 52 of CDPA 1988 relates to designs for artistic works. It applies where an artistic work has been exploited by the copyright owner by making 50 or more copies by an industrial process and marketing those copies. In those circumstances, the designs lose their protection after 25 years and copies can then be made without infringing copyright. That section came into effect on 1 August 1989. In Lucasfilm the items were first marketed in the 1970s and, accordingly, the earlier Copyright Act 1956 applied, which imposed a shorter time period of 15 years.

Mann J and the Court of Appeal found that while McQuarrie’s paintings were artistic works, they were exploited by more than 50 copies made in the form of the stormtrooper toys (and also, potentially, by the 50 costumes made by Ainsworth at the behest of Lucas for production of the film). This established a defence for Ainsworth under s52 once the relevant time period expired.”

Francis Davey expands on this on his blog here:

What about clause 56?

I suspect someone has pointed out that the effect of s.52 is that a great many depictions of Mickey Mouse are almost certainly no longer protected by copyright, having been reproduced on an industrial scale for well over 25 years. If this provision is repealed, the transitional arrangements are going to be fun to draft.

In relation to Lucasfilm v Ainsworth, the defence was in the end redundant as Mann J held that Ralph McQuarrie’s paintings were design drawings within the meaning of s51 and so were not infringed by the making of items based on them (i.e. the Stormtrooper costumes at the heart of the case). However, the defence had been run as a fallback and there was discussion of exactly how many costumes had been made at the time.

The intersection of UK design and copyright law is a mess that has only got more confusing with time. The effect of s51, as interpreted in Lucasfilm, is that Imperial Stormtrooper armour is not protected by copyright, but Iron Man’s suit is. Why? Because the initial drawings for the Stormtroopers were done specifically as designs for a 3D article that was later deemed not to itself enjoy copyright protection, whilst Iron Man was drawn as a comic in its own right.

CRAZY…

Internet Freedom is Under Attack…

‘Father of the Internet’ warns Web freedom is under attack

“Father of the Internet” Vint Cerf  recently warned that Internet freedom is under threat from governments around the world, including the United States.

Cerf, a computer scientist who was instrumental in the Internet’s creation and is now employed by Google as its “Internet evangelist,” said officials in the United States, United Kingdom and Europe are using intellectual property and cybersecurity issues “as an excuse for constraining what we can and can’t do on the ‘net.

“Political structures … are often scared by the possibility that the general public might figure out that they don’t want them in power,” he said.

He sounded the alarm about the International Telecommunications Union (ITU), arguing the group is poised to assume the role of global Internet cop.

Cerf said the ITU is likely to try and lock in mandatory intellectual property protections as a backdoor for easy Web surveillance. Even good-faith efforts at Internet policymaking should be viewed with skepticism, Cerf said, because balancing freedom and security “isn’t something that government alone is going to figure out.” He criticised the Cybersecurity and Intelligence Protection Act (CISPA) legislation passed by the House to encourage companies to share information about cyber threats with the government, because it lacks “adequate constraints” on how the information is used. Cerf said he has the “optimistic belief” that attempts by hostile governments to restrict access will be circumvented by resourceful engineers around the world. Cerf also urged vigilante groups such as Anonymous to stop using cyberattacks as a means of activism, saying the hackings are counterproductive.

“I don’t think lawlessness is our friend,” he said.Ultimately, there is a legitimate role for law enforcement on the Web, he said, adding that “it would be bad for us as a community to say … that all the good things outweigh the bad.” “That’s not a credible position to take,” he said. Cerf said activists and regulators alike harm themselves by using terms like “cybercrime” because they suggest that “every bad thing that happens on the Internet is a crime.” “Some are just bugs,” Cerf said, while suggesting a better goal for policymakers should be “cybersafety.”

These are my favorite lines, and are what i beleive as well.

I haven’t gotten to the point of believing that governance work is a complete waste of time yet, but have decided it is time to get my programing skills out of mothballs and get back up to speed. It is not easy talk about freedom, safety, neutrality, cybercrime, IP pirate, CISPA…with different interest… personal interest, national interest… business interest of the stakeholders …

Anything that are not following somebody interest will be bad and sometimes considered as a crime … cybercrime…

“Either you with me or against me…..” Sound familiar?  This is the challenge for the future global dialog, not as easy during the period of cerf when he started the Internet everybody has one goal.

Increasingly Governments are moving towards control of Internet Freedom. Freedom of expression, although debatable, is a fundamental right and is often the center piece of a democracy. However, Governments are sometimes preoccupied with finding ways to protect national security and human rights pertaining to Internet usage. I believe that the mechanisms for enforcement of copyright laws  or illegal content laws through DNS filtering is disproportionate and  is too restrictive. In total, DNS filtering undermines security on the Internet and may block legitimate content from the Internet. Therefore, this negatively impacts freedom of expression.

It is important to note that the blocking of domain names does not actually remove illegal content off the Internet.  As a result, there is need for various human right agencies within the government, private sector, academia and civil society to negotiate the terms and conditions for Internet Regulation.  However, I believe that these agencies should have a basic understanding of the Internet before negotiating Internet regulation. Moreover, Governments need to realize that harsh regulations of the Internet may impede innovation through various ICT tools.

Recently we have seen a few examples pertaining to Internet Freedom see below:

“Iran’s telecommunications ministry has barred local banks, insurance firms and telephone operators from using foreign-sourced emails to communicate with clients, a specialist weekly said on Saturday.  “The telecommunications minister has ordered the use of domain names ending with .ir” belonging to Iran, Asr Ertebatat reported.” See http://j.mp/KDVUWK

In addition, we see that India is pushing for the creation of a forum called ‘Committee for Internet Related Policies’ (CIRP) to develop internet policies, oversee all internet standards bodies and policy organizations, negotiate internet-related treaties and sit in judgment when internet-related disputes come up. The catch is that India’s formal proposal is for CIRP to be funded by the U.N., run by staff from the U.N.’s Conference on Trade and Development arm and report directly to the U.N. General Assembly, which means it will be entirely controlled by the U.N.’s member states. See:

http://www.thehindu.com/news/national/article3423018.ece

We can effect change let us bring these issues to the fore at the various (ICANN, IGF, WSIS, IETF etc) Internet Governance meetings.

I have posted vid of this at https://www.youtube.com/watch?v=dwtTUMXpxLk&list=PL18388B00C798AEFC

The Internet is the next stage of human evolution. We look at ourselves as separate beings but the reality is that humans are far more interconnected than a hive of bees. The Internet is our collective minds. We are externalizing our collective intelligence. It allows us to collectively comprehend the universe. And since we are the universe – we are the universe contemplating it’s own existence. And it is the Internet that creates the physical structure to allow humanity to this as one and we can contemplate what no single person could ever do.

My 2p worth.