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sydney alternative media - non-profit community independent trustworthy
Wednesday, 11 November 2009
Tort law aspect of googling around Rupert's Paywall?
Mood:  not sure
Topic: legal



We responded to this editorial on Crikey yesterday ....

 Dear Sole Subscriber,

Rupert Murdoch has had a lot to say lately about the internet, and how a modern media mogul might milk it for corporate gain.

Paywalls appear to be a key to the Sun King's strategic thinking, restrictions around content to squeeze micro-payments from an eager readership. We already have one right here at News Corp, Murdoch enthuses.

"We have it already with the Wall Street Journal. We have a wall, but it's not right to the ceiling. You can get, usually, the first paragraph from any story -- but if you're not a paying subscriber to WSJ.com all you get is a paragraph and a subscription form."

We hate to break this to you Rupert, but the WSJ doesn't so much have a paywall as a permeable membrane. You can read anything you like on the site, in full and for free.

This is how you do it:

  • Go to the site's home page (here it is).
  • Look for a story with one of the little key symbols next to the headlines. This denotes paywalled content.
  • Click on that headline. When the locked story page opens, cut and paste the headline of the story, in full, into the search bar of Google. Google will pull that story up to the top of its search page.
  • Click on that headline link and there, hey presto, is the story in full for free.

We point this out just by way of showing what a tricky thing these internets can be. Sorry Rupe, but there it is.

.... as follows ....

Sent: Wednesday, November 11, 2009 7:13 AM
Subject: your editorial, tort law and paywalls, for the future

I'd be a little cautious about that google method of going around a paywall, or promoting same. Forewarned is fore armed.
As true as it may be, it may be technically illegal to promote such a mechanism one day. Even if not currently, in the future.
Consider the tort (like negligence law but not negligence) called tortious interference in contractual relations.
So, say the News Corp website has a preface page saying, by opening this page you agree to our terms and conditions - no payment required. (A pretty common requirement on software downloads too, and who the hell reads them anyway.)
The terms and requirements tick the box would create 'a contract' - this is a technical issue itself (what is the contract?- Perhaps this: News corp provides webpage access to news precis, viewer agrees to terms and conditions like to not google around paywall, promise each way, contract? I do think so as former novice commerical litigator).
Now the viewer goes to news precis page, but now as a contractee not just a web surfer.
Now if other people (like Crikey etc) encourage a breach of the paywall then you will be exposed to a legal claim of tortious interference in contractual relations. That is you will have interfered in performance of a legal contract by tempting people into illegal non compliance. It looks quite arguable to me anyway. 
The tort originally was designed to prevent meddlesome third parties from frustrating normal commercial relations between folks as a public value in the emergence of capitalist society, but surely applies in the web 2.0 world.
And it probably matters not (?) if the interference is to the benefit of one or other party (by helping the viewer avoid the paywall fee).
Sure enforcement will be a big issue. But then the law is catching up with hackers too. Prison even.
Disclaimer: You will need to get your own legal advice. I don't have a principal solicitor in NSW only a restricted practising certificate and can't sell legal advice as a sole practitioner. Consider this an academic article.
Yours truly, Tom McLoughlin [Editor of this micro news website]

Posted by editor at 8:04 AM EADT

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