24 Feb 10 | Comment, News and features, Uncategorized
This article was originally published in the Guardian
An MPs’ report delivers a boost to libel reformers, a severe rebuke to the News of the World, and a final warning for the PCC says John Kampfner
It has become fashionable to give parliament a kicking. Once in a while, however, it is worth singing its praises. Today is such an occasion, with publication of a report that goes some way to defending the once-honourable and now imperilled profession of journalism.
When the culture, media and sport select committee began its work more than a year ago, many feared the worst. MPs gave every impression they subscribed to Tony Blair’s valedictory view that the media were “feral beasts” needing to be tamed. The title of their report Press Standards, Privacy and Libel did not bode well. The initial evidence they heard, particularly from Gerry McCann about the assault on his bereaved family’s reputation, reinforced that view.
Yet the more they probed and the more they heard from organisations defending free expression, the more the MPs began to understand the vital need to distinguish between investigative journalism, a noble cause, and prurient journalism, a less salutary one. Some aspects of the report are disappointing. One that relates to privacy is potentially alarming. On balance though this is an important step forward, giving cross-party support for fundamental change to England’s hideous libel laws.
The committee details the enormous costs faced by publications, particularly small ones, in defending themselves. The report criticises law firms for deliberately stringing out suits so they can ratchet up costs and force people into settling and apologising, even where they have nothing to apologise for. It stops short of reversing the burden of proof, but it does suggest reinforcing the defence in court for brave reporting and making it harder for companies to sue to protect their reputations. The committee’s chairman, the Conservative MP John Whittingdale, says he and his colleagues were eager “to correct the balance which has tipped too far in favour of the plaintiff”.
The MPs denounce the ease with which foreign-based oligarchs, sheikhs and their like have used avaricious legal firms and pliant judges to chill the free speech of NGOs, authors and others – so much so that US Congress has considered legislation to protect Americans from British courts. They criticise Jack Straw, the justice secretary, for not tackling the problem of “libel tourism”, and the damage to the country’s reputation, describing the measures taken by US legislators as “a humiliation”.
The findings are a devastating rebuff to the many voices in the judiciary who insist that the demands for libel reform are overblown. Both Labour and Conservatives held that view until recently. Over the past few months, since Index on Censorship launched its campaign for libel reform alongside English Pen and Sense About Science, the political parties have been forced to change tack as support gathered momentum. During this time we have lobbied in parliament, talked behind the scenes to the country’s top judges, and debated with legal firms furious that their lucrative income stream from rich and powerful litigants was being threatened. Several of our 10 recommendations have now been endorsed by the committee.
A Ministry of Justice working party established by Straw only a few weeks ago is set to report on specific changes. Straw says that in the few weeks left before the general election he wants to implement reforms that do not require primary legislation. He will be held to that pledge. Meanwhile, the Lib Dem peer, Lord Lester, will table a private member’s bill shortly after the election. His proposals are now more likely to be taken up by whichever party is in power.
The flip side to free expression in any healthy democracy is robust, but responsible, journalism. The MPs reserve their most damning passages for the News of the World and others involved in illegal phone hacking. The paper’s royal correspondent and a private investigator were jailed in January 2007, but the committee says many others played their part. For the Guardian, which has doggedly pursued this story, revealing last July that the NoW had paid more than £1m to suppress legal actions, the findings are a vindication.
The MPs say they were “struck by the collective amnesia afflicting witnesses” from the NoW. These “claims of ignorance … and deliberate obfuscation” reinforced the impression “that the press generally regard themselves as unaccountable and that News International in particular has sought to conceal the truth about what really occurred,” the report concludes.
The committee condemns the police, the Information Commissioner’s office and the Press Complaints Commission, for the weakness of their responses. The Labour MP, Paul Farrelly, a campaigner for investigative journalism, says his fellow members toyed with the idea of accusing the police of contempt of parliament in its lack of openness. Farrelly derided the PCC’s suggestion it had not investigated the McCann affair because it had not been asked to by the family.
For the much-lampooned PCC this is the last opportunity to show that self-regulation can work and that free expression means more than editors defending their own and moguls doing as they please. In one area, the committee has got it dangerously wrong. Its proposal, albeit fudged, for prenotification of stories is designed to protect the privacy of individuals where no public interest is at stake. Yet this is likely to chill the investigative work of NGOs and others who will find themselves at the mercy of the injunction – the tool of choice of individuals and corporations with something to hide. This is a serious step back and will reinforce the determination of Max Mosley, who is taking his campaign for prior-notification to the European court of human rights. This ruling, if enacted, would put the UK on a par with a number of semi-authoritarian states of the former Soviet Union.
On the various thorny issues surrounding privacy, the MPs have not been sure-footed. The committee does call for a modernisation of procedures to reinforce the rights of parliament, after the Trafigura debacle last year. However, it disappointingly says little about the rise in super-injunctions – the most draconian of all measures which prevent anyone even mentioning that an injunction has been secured.
Yet for all the concerns, perhaps the most heartening aspect of the report is a categorical affirmation of free expression, which over the past decade has come under threat as never before. It is too early to celebrate, and there is a huge amount of work still to do to render good intent into good legislation. But there are signs that Britain may be emerging from its big chill.
John Kampfner is chief executive of Index on Censorship
15 Feb 10 | Uncategorized
In the wake of the John Terry case the Guardian gathered a panel of libel experts — including Index’s Chief Executive John Kampfner – to debate legal reform.
The discussion, chaired by the Guardian’s Director of editorial legal services, Gill Phillips, included three claimant media lawyers, Dominic Crossley from the law firm Collyer Bristow, Sarah Webb from Russell Jones & Walker and Jonathan Coad from Swan Turton; Kampfner, Jane Martinson, MediaGuardian’s Editor, and Gavin Millar a QC from Doughty Street Chamber who represents the press lined up on the other side.
The panel covered libel tourism, the public interest defence, codification, costs, procedure, juries and the burden of proof.
Libel tourism is a non-existent issue if you speak to claimant lawyers and judges — see Lord Hoffman’s speech earlier this month — but there’s an interesting quote from Millar who claims that our claimant-friendly system is particularly hospitable to the wealthy and powerful.
We have to be very careful about saying that there aren’t many visible cases of forum-shopping. Most of my American clients who have libel claims filed against them in the high court have stopped fighting them. They’ve decided it’s not worth it any more. Other foreign clients are reluctant to write on the internet because they are scared of being sued. The current law was formulated on the basis of principles designed for commercial cases, not for 21st-century media cases with significant freedom of expression elements.
John Kampfner argued libel law as it stands is chilling free speech, forcing journalists to self-censor. He gave an example.
[A] good broadsheet editor told me that his board had said to him: ‘Please lay off the oligarchs – it’s just not worth our while.’ How can you quantify that? Things are not reaching the courts in the first place because the journalism is not being done. That is what the current law is doing.
The only area the group seem to have found any common ground was an agreement that costs are spiraling. If you want an illustration of why the cost of defending a libel action is prohibitive, look no further that a recent example provided by Private Eye. The magazine reports that model Matt Peacock accepted £15,000 from the Sunday Mirror after the paper claimed his relationship with his former wife Jodie Marsh was violent. The legal costs were eye-watering. Carter Ruck claimed £380,000, an astonishing 25 times more than their client received.
11 Jan 10 | Uncategorized
In an interview in the Irish Times on Saturday, comic Dara O’Briain had some harsh words for Ireland’s new blasphemy law:
“I think it is a ludicrous notion that you can sue people for blasphemy,” he says. “I think it is an absolutely abhorrent idea that religion in and of itself must remain without question and cannot be insulted and cannot be attacked. I don’t say this in a childish, petty way. I am not going to rush to become a challenge or a test case for it, but it is insane in this day and age that a quasi-medieval church-and-state symbiosis should exist and that somebody will step in.”
O’Briain also voiced his support for the libel reform campaign:
“It is not that I think that comedians are going to be hit with this, I don’t think we are,” he says. “A company would look ridiculous for suing a comedian for a joke about a brand of shampoo, or a set of razor blades, but it is worrying that cardiologists can be sued for making quite justifiable and fair comments about medical equipment on Canadian TV in a British court.”
Read the full interview here.
Index on Censorship chief executive John Kampfner updated Observer readers on the campaign’s progress:
Just before Christmas, the justice secretary responded to the flurry of activity around our campaign by announcing his own inquiry. He asked our two groups, Index on Censorship and English PEN, to nominate one among our number to sit on his group.
When I found out that they had invited Carter-Ruck and Schillings, two major law firms which feast on chilling the free speech of scientists, authors, NGOs and journalists, I suggested to Straw’s people that the two authors of the libel report, Index’s editor, Jo Glanville, and PEN’s director, Jonathan Heawood, should both be members of the inquiry team. As it stood, the composition ran against Straw’s “apparent desire to be seen as a reformer”, I suggested. They quickly relented, arguing that my term “apparent” was unfair. We shall see. This Labour government, after all, has form, creating commissions with the purpose of delaying or diluting change or delivering whitewashes. Perhaps this time Straw may deliver positive change. If he doesn’t, we won’t be bashful in our response.
.
Read more here.
And in the same paper, David Mitchell defended the right to be offensive in the light of Islam4UK’s proposed demonstration in Wootton Bassett:
The thing about freedom of speech is that people are allowed to say offensive, indefensible things; that we needn’t fear that because we’re sure that wiser counsels are more likely to convince. “Let the idiots and bullies speak openly and they will be revealed for what they are!” is the idea. It’s a brilliant one and, in confident, educated societies, it almost always works — certainly much more often than any of the alternatives. Why has Alan Johnson lost confidence in this principle? Why have the 700,000 signatories of a Facebook petition calling for the event to be banned?
Read the full article here
22 Dec 09 | Uncategorized
Is Singapore really starting to change or am I being naïve? The question for me is no longer an academic one. I have, in a minor way, become an actor in this minor drama. During two visits in 2008 to the land of my birth I penned a blog in the Guardian setting out the arguments that I was preparing for my book Freedom For Sale. I talked of Singapore as a global model for a world in which prosperity and security were valued more highly than freedoms. I talked of consumerism as “the ultimate anaesthetic for the brain”. Within hours I had been ritually denounced. I received similar although more measured criticism after the book was published in the UK three months ago.
So it was with a mixture of delight, intrigue and a little trepidation that I accepted an invitation from the National University of Singapore (several of whose top figures I had interviewed for the book) to give a seminar there. I was very properly and well received, and the questioning was robust and well-informed. The biggest surprise was a one-page feature about me and the book in the Straits Times, the heavily-controlled newspaper. I bridled at only one line, the appellation that I was a “veteran” journalist, but the newspaper carried a relatively fair article about the book, including excerpts and advice to readers about where to buy it. (The Straits Times online is subscription only, so here is a different site that contains the original article, plus the ST’s “discussion board” that contains a standard official critique of my views and also several posts that support my thesis along with an article by ejected correspondent Ben Bland about the article ).
The response from my Singapore friends was guarded. Beware, they suggested, of becoming the official fig leaf. Each time a journalist is censored or sued in court, the authorities will cite my example to show that Singapore was open and democratic. That is a concern. In the three days I was there during my last trip a freelance journalist, Ben Bland, became the latest reporter to be barred. Yet I am more sanguine. Perhaps this is a sign, at the tail end of Lee Kuan Yew’s tenure of a certain willingness to embrace criticism. And even if it is not, then for one brief moment, the readers of the Straits Times had a chance to challenge some of Singapore’s assumptions.
