Medium Messages

A new Bill has been introduced to the New Zealand Parliament. It is called the Legislation Bill. It is meant to be the “one-stop shop” for the law relating to legislation. It is described in a New Zealand Law Society posting as “one legislation bill to bind them all”.

The Bill has some very good proposals. One relates to secondary legislation.  It will  give New Zealand a single, official, public source of legislation, excluding only legislation made by local authorities.

Over 100 agencies are empowered to make secondary legislation on a wide range of matters such as food standards and financial reporting standards. There is no single source for the legislative instruments, many of which are published on agency websites or in gazette notices. The Bill will make it easier to find and access secondary legislation by requiring it to be published on the New Zealand Legislation website alongside Acts of Parliament. This is an excellent move. It will enhance easy access to legal information.

In addition the Bill proposes to replace the Interpretation Act 1999. One of the terms that the Interpretation Act defined was “writing”. That definition reads as follows:

writing means representing or reproducing words, figures, or symbols in a visible and tangible form and medium (for example, in print).

Now that may have been excusable in legislation enacted in 1999 but in fact that definition was placed in the Interpretation Act in 2003 by section 38 of The Electronic Transactions Act 2002. When I saw that the Interpretation Act was being repealed and updated in the Legislation Bill I thought that we had a chance to see an updated medium neutral definition of writing.

But lo – here is the “new” definition which reads as follows

writing means representing or reproducing words, figures, or symbols in a visible and tangible form and medium (for example, in print)

No change at all. So why is this a problem? Simply that it does not reflect the reality of written material in the Digital Paradigm. It holds to the old association of the message (in written form) with the medium (paper) hence the exemplification “in print”.

I have no difficulty with the suggestion that writing is a representation of words, figures or symbols. It is simply a means of encoding and preserving the ephemerality that is oral language or orally based concepts. And of course, writing has to be visible.

But does it have to be tangible?

This is where we run into a problem – one that the law seems to have difficulty understanding in the electronic age. The issue of tangibility has nothing to do with the message. It has everything to do with the medium. The inextricable and historical association of the medium with the message is perpetuated in the requirement that the message be tangible.

This overlooks (or ignores) the reality of information in the digital paradigm. This is what I have said elsewhere ( see Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age) on the topic:

Electronic data is quite different to its pre-digital counterpart.  Some of those differences may be helpful to users of information.  Electronic information may be easily copied and searched but it must be remembered that electronic documents also pose some challenges.  Electronic data is dynamic and volatile.  It is often difficult to ensure that it has been captured and retained in such a way as to ensure its integrity.  Unintentional modifications may be made simply by opening and reading data.  Although the information that appears on the screen may not have been altered, some of the vital metadata which traces the history of the file – and which can often be incredibly helpful in determining its provenance and may be of assistance in determining a chronology of the events, and when a party knew what they knew, – may have been changed.  To understand the difficulty that the digital paradigm poses for our conception of data it is necessary to consider the technological implications of storing information in the digital space.  It is factually and paradigmatically far removed from information recorded on a medium such as paper.

If we consider data as information written on a piece of paper it is quite easy for a reader to obtain access to that information long after it was created.  The only thing necessary is good eyesight and an understanding of the language in which the document is written.  It is “information” in that it is comprehensible. It is the content that informs.  Electronic data in and of itself does not do that.  It is incoherent and incomprehensible, scattered across the sectors of the electronic medium upon which it is contained.  In that state it is not information in that it does not and cannot inform.

Data in electronic format, as distinct from writing on paper, is dependent upon hardware and software.  The data contained on a medium such as a hard drive requires an interpreter to render it into human readable format.  The interpreter is a combination of hardware and software.  Unlike the paper document the reader cannot create or manipulate electronic data into readable form without the proper equipment in the form of computers.

There is a danger in thinking of electronic data as an object “somewhere there” on a computer in the same way as a hard copy book is in the library.  Because of the way in which electronic storage media are constructed it is almost impossible for a complete file of electronic information to be stored in consecutive sectors of the medium.  Data on an electronic medium lacks the linear contiguity of a page of text or a celluloid film. An electronic file is better understood as a process by which otherwise unintelligible pieces of data are distributed over a storage medium, assembled, processed and rendered legible for a human reader or user.  In this respect “the information” or “file” as a single entity is in fact nowhere.  It does not exist independently from the process that recreates it every time a user opens it on a screen.

Computers are useless unless the associated software is loaded onto the hardware.  Both hardware and software produce additional evidence that includes, but is not limited to, information such as metadata and computer logs that may be relevant to any given file or document in electronic format.

This involvement of technology makes electronic information paradigmatically different from traditional information where the message and the medium are one.  It is this mediation of a set of technologies that enables data in electronic format – at is simplest, positive and negative electromagnetic impulses recorded on a medium – to be recorded into human readable form.  This gives rise to other differentiation issues such as whether or not there is a definitive representation of a particular source digital object.  Much will depend, for example, upon the word processing programme or internet browser used.

The necessity of this form of mediation for information acquisition in communication explains the apparent fascination that people have with devices such as Smartphone’s and tablets.  These devices are necessary to “decode” information and allow for its communication and comprehension.  Thus, the subtext to the description of electronically stored footage which seems to suggest a coherence of data similar to that contained on a piece of paper cannot be sustained.

So why not forget about tangibility and this medium focussed approach to information. Interestingly enough a solution is proposed in the definition in the Bill which contains the following parenthetical remark

(but see Part 4 of the Contract and Commercial Law Act 2017, which provides for meeting written requirements by electronic means)

So what does that say. Simply this

A legal requirement that information be in writing is met by information that is in electronic form if the information is readily accessible so as to be usable for subsequent reference.

Not quite a solution, but getting there. It focusses upon two important concepts that underly any information in writing. First – it must be accessible. Second, there is the concept of utility.

So perhaps a 21st Century medium neutral definition of writing should go something like this

Writing means representing or reproducing words, figures, or symbols in a visible form and in such a format as to be readily accessible and usable for subsequent reference.

There is no need for tangibility. We have moved on from the inextricable message\medium association. But many lawyers and lawmakers seem to be unaware of the unique and paradigmatically different qualities surrounding information in the Digital Paradigm.

 

 

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The Queen’s English

The Queen’s English was
Good enough for Jesus Christ
And it’s good enough for me

Don McGlashan – performed by The Mutton Birds

 

In 1986 there was a BBC TV series entitled The Story of English. It was an excellent series that traced the history and development of a language of an obscure Germanic tribe to the present. There were 9 episodes that dealt with the rise of the language, its various changes as the language spread around the world. One episode dealt with the influence of the Scots and their variety of English upon various dialects in the United States and even into the effect that it has had upon the rolling “r” that is a characteristic of English speakers in Otago and Southland.

The series was accompanied by a book of the same title in 1986 which was reprinted in 1987 but which, alas, has gone out of print. It was a wonderful companion to a series that came and went to and from our screens. My copy served as a constant reference and source for information about the language that was both scholarly and accessible.

I often wondered if the programme was available on video-tape. The answer was Yes, but to locate a copy was very hard indeed. The programme was also released on DVD, not by the BBC but by an American publisher. I have no doubt that the programme screened on American TV, probably PBS. I managed to locate a copy on Ebay and have been watching parts of it again.

Co-incidentally a programme hosted by Melvyn Bragg entitled The Adventure of English has been screening on the Arts Channel on Saturday evening at 7:30. Like its predecessor, it approaches the subject in a thematic manner whilst maintaining an historical chronology. A recent episode, for example, traced the rise of English as a language of scripture from Wyclif and the Lollards through to Tyndale’s Bible and to the glorious King James version.

Bragg traces the development of the English vocab and the origin of words and phrases. He is able to demonstrate the way in which new words, now in common use, were first used in the Bible and I have no doubt that he will conduct the same exercise when he gets to Shakespeare. But there is a term that he uses for vocab which resonates with me, and emphasises the aspect of “language as treasure” and the term that he uses is “word hoard”. This term has an historical resonance in the language for it calls upon a term synonymous with treasure in the culture and tale telling of the Old English and the Norse. I do like its use and the way in which Bragg demonstrates the growth of the “word hoard” over the centuries. The Adventure of English is also available on DVD and I would like to think that it is used as an educational resource, along with The Story of English. Either programme would certainly enliven a subject which for some is deadly dull.

It is a pity that the study of English has been folded into the broader field of “:communications studies” in many of our schools, and that in most schools the study of Shakespeare has been dropped from the curriculum. Part of the problem with Shakespeare is that his work is not taught properly. Shakespeare was a dramatist. His work was written to be performed, not read privately nor even read aloud. The teaching of Shakespeare MUST start with performance. After that, perhaps the text can be studied.

I recall in 2009 attending a performance of As You Like It at the Globe in London. The Globe is created pretty much as it was in Shakespeare’s day. The seats that surround the pit are wooden and hard and justify the expenditure of a couple of pounds for a cushion. The pit is standing room only. It was full to capacity with young people – school students and University students – all prepared to pay five pounds to stand for three hours and watch Shakespeare. I doubt it would happen here, but it gave me joy that it happens there.

So why am I writing about English in a blog that is about Law and Information Technology. There are a number of aspects to the answer. I said in an earlier article that law is all about information and information is communicated. The way in which information is communicated is by language and is aided by technology. For those reasons the language of information communication is of more than passing interest and importance. In these days the medium of communication plays its own important part.

Because lawyers communicate a particular type of information, the quality of communication of that must focus upon accuracy, precision and clarity. In the past lawyers have been criticised for the use of obscure and convoluted language, and to the modern ear or eye that is correct. In defence of those lawyers I suggest that perhaps they were seeking clarity and precision. Modern drafting emphasises the use of what is referred to as “plain English” although I sometimes wonder if the clarity that is sought in simplicity is often achieved.

An example may be seen in the language of legislation. Often a section of a statute will state a proposition in subsection 1. Subsection 2 will then commence with the words “for the avoidance of doubt”. The inference that arises from the use of those words is that there is a possible area of doubt that may arise in subsection 1. I would have thought that accurate draftsmanship would ensure that there was no doubt in subsection 1. Yet the practice of using “for the avoidance of doubt” continues..

Often the phrase “for the avoidance of doubt” is used to introduce an exception to the rule stated in subsection 1. In such a case the word used to describe such an exception was a proviso and the words used to introduce a provisio were “provided that”. Certain circumstances would be set out where the subsection 1 rule would not apply. The following example comes from the Copyright Act

81A Copying sound recording for personal use

(1) Copyright in a sound recording and in a literary or musical work contained in it is not infringed by copying the sound recording, if the following conditions are met:

(a )the sound recording is not a communication work or part of a communication work; and
(b) the copy is made from a sound recording that is not an infringing copy; and
(c) the sound recording is not borrowed or hired; and
(d) the copy is made by the owner of the sound recording; and
(e) that owner acquired the sound recording legitimately; and
(f) the copy is used only for that owner’s personal use or the personal use of a member of the household in which the owner lives or both; and
(g) no more than 1 copy is made for each device for playing sound recordings that is owned by the owner of the sound recording; and
(h) the owner of the sound recording retains the ownership of both the sound recording and of any copy that is made under this section.

(2)For the avoidance of doubt, subsection (1) does not apply if the owner of the sound recording is bound by a contract that specifies the circumstances in which the sound recording may be copied.

This section deals with “format shifting”. It allows people to make copies of sound recordings in certain circumstances. Subsection (2) addresses the situation where a copyright owner may impose contractual restrictions upon the copying of a sound recording. The CD that a person purchases may contain terms and conditions of sale that prohibit the exercise of format shifting where, under normal circumstances, the criteria set out in subsection (1) apply.

Subsection (2) is an exception to the rule. There is no ambiguity or doubt about the circumstances in which the rule in subsection (1) may be engaged. Thus, the use of the words “for the avoidance of doubt” suggests a doubt exists where in fact there is none. The use of the phrase “provided that” should be used to create the exception to the rule.

What has happened with this use of plain English drafting is that the language that is used is imprecise and inaccurate. The statement of the rules contained in legislation and which are binding upon us all should be clear and unambiguous and should not use imprecise or inaccurate language. In addition, it should be unnecessary EVER to use the term “for the avoidance of doubt” in legislation. There should NEVER be any doubt as to the meaning of the language of legislation.

An example of language in legislation where there is no room for doubt or ambiguity may be seen here:

Interceptions not to target domestic communications

Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.

I have looked at clarity and precision in the use of the English language that is necessary in communicating the law. Another area that is of interest and that causes me concern is the communication of information that informs the Court and upon which a Judge bases his or her decision. Once again information should be communicated clearly, accurately and unambiguously. An impediment to those objectives is the improper use of the language. Whilst grammatical error may be subject to automatic error correction., and whilst the occasional grammatical lapse – which prima facie should never occur – may be tolerated, it becomes a matter of concern when grammatical errors become consistent and common.

The issue that concerns me is the proper use of the past tense. When a prosecutor is informing the Court of the allegations that are made against an accused, those allegations should be stated in the past tense. The following is an example:

On Sunday 20 April the defendant came home. He was intoxicated.

He went into his home and demanded his dinner.

The complainant put a plate of food in front of him.

The defendant said that the food was cold and inedible.

He threw the food across the room and struck the complainant four times about the body with a closed fist.

He then left the house.

This is a clear narrative of past events. The prosecution rely upon this to establish the elements of the crime of assault upon a female. The use of the past tense is proper, because the events described took place at a fixed time in the past.

What I have observed with increasing frequency in the Courts and on shows such as Police Ten on television that Police officers adopt a different means of describing past events that is both inaccurate and grammatically wrong. This is how the narrative of events above translates into a summary of facts presented to the Court.

On Sunday 20 April the defendant has come home. He has been intoxicated.

He has gone into his home and has demanded his dinner.

The complainant has put a plate of food in front of him.

The defendant has said that the food was cold and inedible.

He has thrown  the food across the room and has struck the complainant four times about the body with a closed fist.

He has then exited the house.

The first  thing that should be observed is that the use of the word “exit” as a verb is quite permissible and is of some antiquity. The Oxford English Dictionary (2nd ed), which is one of my sources of absolute authority in matters of the English language, gives the following examples:

1607 – Much like unto a Player on a stage‥As one distract doth exit in a rage

1652 – My souls better part exited, left The other languishing

I should say that my other authoritative source is Fowler’s Modern English Usage – an oldie but a goodie.

What is grammatically wrong in the amended passage is the misuse of the of the present perfect tense – that is the use of “have” with the present participle. The effect of this is to describe a past act or series of acts but by using the present perfect, the meaning becomes completely different in that the use of that tense suggests that not only did the action take place in the past, but that it is still continuing. Have or has are auxiliary verbs and modify the finality of the past tense. We use has or have with a past participle to describe an action that started in the past and is (or may be) still going on. In addition  the present perfect may be used to say that an action happened at an unspecified time before now. The exact time is not important. But the present perfect tense CANNOT be used  with a specific time in describing past events. The past tense MUST be used.

With criminal offending a date or date range is always an aspect of the charge. In the above example a specific date is alleged. The timing of the events is crystallised. In such a case the past tense should be used, and often it is not.

By now you are probably thinking that all of this is unnecessary pedantry but I argue that it is not. It is part of the quest for accuracy and precision in the communication of information. That quest involves the proper, accurate and grammatically correct use of language, specifically the English language. I do not accept the argument that the meaning is clear even although the grammar is wrong. The meaning is not clear BECAUSE the grammar is wrong. The rules of grammar are there to ensure clarity and accuracy of expression. Without those there is the chaos that arises from misinterpretation and ambiguity of meaning. And that is not what the Queen’s English is all about.