Two cheers for Ed Miliband. In calling for an independent review of the way newspapers behave he is taking a big political risk, opening the door to concerted hostility from media magnates. He also happens to be right on the principle that freedom of expression and holding truth to power are not synonymous with dodgy journalistic practice. He might deserve a third cheer if it were not for the brazen opportunism he and his party are showing by taking on Rupert Murdoch only now that the love is lost.
Before the caveats and the cavilling, credit should be given where it is due. Miliband is seeking to take on the good work carried out two years ago by the cross-party Commons select committee on culture, media and sport. When the MPs issued their report they correctly identified and separated out three related strands: the need for libel reform; issues of privacy; and press standards.
Their inquiry looked at the media in the round, but also at some egregious cases of abuse. This included the hounding of Gerry and Kate McCann, and the bugging of telephones of politicians and celebrities by the News of the World – which News Corporation is only now, drip by drip, beginning to admit.
The MPs made a point that should be blindingly obvious to the media profession – that legitimate investigation is vital to keeping checks on the powerful, but that intrusion into people’s lives, particularly through subterfuge, is not.
Seen from one level, the British media are forced to operate under considerable constraint. Until now England and Wales have been global pariahs, sporting some of the most restrictive libel laws in the developed world. It is a tribute to all political parties, but mostly the coalition, that the Libel Reform Campaign led by Index on Censorship and its partners has produced draft legislation that goes some way to removing the chill on free expression and investigative journalism. Sure, the bill is not perfect, but the great should not be the enemy of the good. After all, this is the first serious attempt in 70 years to tackle the problem.
Privacy is the thorniest problem. Hypocrisy should be exposed. What about the celebrity who parades their private life in choreographed photoshoots for glossy magazines but then wishes to hide from public view when things go awry? That is a moot point. Assuming you are a public figure but you make no pronouncements on lifestyles or ethics and you do not parade your life in the glare of the cameras, surely you are entitled to privacy? You are, thanks to the Human Rights Act. But as ever, our suspicious judges are interpreting the legislation in a manner hostile to a free media.
Ranged against the long lens is the epidemic of the super-injunction. The master of the rolls (the second most senior judge in England and Wales) is due to report on an issue that serves as a perfect example of rich man’s justice. The very idea that the media should be gagged and that the public is prevented from knowing that such an order exists is more in keeping with a dictatorship.
This brings us back to media standards. One of the biggest hindrances to strong investigation is cost. Editors and the bean counters who oversee them are reluctant to invest in long-term projects that might prove fruitless. The democratic deficit in the demise of investigative journalism is immense. But gossip, spleen and prurience are no substitute, and no remedy for budget cuts and falling sales.
As for dodgy practice, this is where taste meets the law meets expediency. Chequebook journalism? Secret recordings? Fine, one might think, if properly authorised and if in the public interest. Where should the line be drawn?
To take a few famous recent examples: the Telegraph’s use of young and attractive female reporters to trap Vince Cable into making indiscreet remarks about Murdoch and other public figures (dubious but compelling); the same publisher’s use of a stolen computer disc to reveal MPs’ expenses (now seen as triggering a clear-out of parliamentary sleaze); or the Guardian’s publication of unauthorised US state department data, otherwise known as the WikiLeaks affair or Cablegate. Everyone has their own view about the ethics behind these incidents and more.
The News of the World phone-hacking scandal is of a different order. Allegations of illegal practices are being investigated. Its pond might be considerably murkier, but nobody’s is entirely free of weed. Nobody has come out of the Screws affair well – least of all the police or the Press Complaints Commission. The commission has still to apologise for, or learn from, its supine approach to the affair. As the last hope for self-regulation, for keeping politicians and meddling judges away from the Fourth Estate, the PCC is under scrutiny as never before.
The commission gives frequent assurances that it really doesn’t work as a shop steward for the industry but as a protector of free speech and of fairness, accuracy and standards. Its appointment of three senior and respected figures to its board bodes well, but there is a long way to go.
Miliband, in his interview in the Guardian, said he had no grand plan for a review into print media – while making clear it should be fully independent of government “and from those involved in the day to day running of newspapers”. He added: “I think that would help the industry. There has to be a sense that the future is not going to be like that past. Wider lessons have to be learned.”
He is entirely correct but selective in drawing his conclusions. For more than a decade New Labour was slavish to the Murdoch empire, and initially too to the Daily Mail and Associated Newspapers. Tony Blair did everything – including flying around the world to an Australian island – to ingratiate himself with Rupert Murdoch. It was only after the empire had dumped Gordon Brown in favour of David Cameron that Labour ministers such as Peter Mandelson began to bleat about media cross-ownership and assorted injustices.
Would Miliband now be making these same noises if he had not been left out in the cold by the omnipotent Antipodean? Of course not, but that does not make him wrong. Free speech is not threatened by good practice. It is defended.
Just when you think you are over the worst, the forces of secrecy bite back. No sooner had the Government published a draft Defamation Bill, going some way to reversing many of the most hideous aspects of Britain’s libel laws, than the judiciary set a dangerous new precedent.
The recent decision by Mr Justice Tugendhat to grant anonymity to a claimant in a libel case is believed to be the first of its kind. The case, the details of which the media are not allowed to report, concerns a wealthy financier, a multimillion-pound family trust, and lurid allegations online.
I have no interest in the tangled web of people involved; nor, I suggest, do most readers. The trouble is that many legal disputes involve dark and often nefarious acts, which individuals might seek to prevent being exposed. Their interests, naturally, should be taken into account, but these should not override other considerations.
The only true justice is open justice, yet increasingly judges in the UK see the right to secrecy as paramount. Super-injunctions and other gagging orders are being handed out with alarming frequency. These forbid not just the revealing of information, but the revealing of the very injunction preventing the release of that information.
Currently one super-injunction prevents the media from calling someone a banker. I can, by law, say no more than that. Super-injunctions have been used by footballers “playing away” with team-mates’ girlfriends, and by companies who believe their reputations could be damaged by newspapers having the temerity to expose their polluting practices. The most outrageous such case involved the oil trading firm Trafigura. In 2009, Carter Ruck, the solicitors’ firm, warned that a newspaper would be in contempt of court if it published a parliamentary question about the company dumping toxic waste in Ivory Coast. This led to a frenetic meeting in the House of Commons which my organisation, Index on Censorship, convened with MPs furious at the attempt to ride roughshod over the longstanding right to parliamentary privilege.
The conclusion drawn then applies equally now: the rich and powerful will do whatever it takes, aided by certain legal firms, to chill legitimate journalistic and public inquiry. Soon we may see public figures taking out super-injunctions or other requests for privacy to prevent the disclosing of their financial affairs. We would not just be denied the right to know about the detail; we wouldn’t know that the cases even exist.
When we asked the Ministryof Justice how many super-injunctions were in place, we were astonished to be told that they had no idea. They apparently hadnever counted them. In one respect that was understandable. It is not easy to count something that,officially, does not exist.
Unofficial estimates put the number of super-injunctions issued over the last 18 months at around 20. Most of them relate to sex and most of them relate to footballers. Some of these gags fail, most famously in the case of John Terry, who was relieved of the England captaincy as a result of newspaper allegations about an extramarital affair.
A special committee, chaired by the Master of the Rolls, Lord Neuberger, has been looking at the use of super-injunctions. Its findings, due to be published just before Easter, are awaited with interest.
Super-injunctions and other anonymity devices are doing incalculable damage not just to free expression but to the credibility of the legal system.
There are perfectly sound reasons for conventional injunctions to be served – safeguarding evidence deemed unreliable and protecting individuals from blackmail are just two. Perhaps in one or two of the most extreme cases, such as where a vulnerable adult or a child might be imperilled through secondary identification, a super-injunction could be justified. But not otherwise.
There is an important broader debate to be had about privacy. Currently, courts are applying article 8 of the European Convention on Human Rights, which guarantees privacy, with greater determination than they are applying to article 10, which enshrines the right to free expression.
Is everyone entitled to privacy, come what may? Should exceptions be made for public figures whose private actions contradict their public pronouncements, or for public figures who seek commercial gain from one kind of private life, only to lead a different one behind the scenes? Is everyone in public life fair game? These are all valid questions, but even the most stringent interpretation of the right to privacy surely does not require the legal process to be conducted in secret.
For years the English courts indulged the wealthy around the world to come to London to sue charities, scientists, doctors and others for libel. The law was skewed against openness, accountability and legitimate investigation. Thanks in large part to our work on the Libel Reform Campaign, the Government was persuaded to rebalance the law. Just as responsible campaigners do not seek to abolish libel or create a free-for-all for scurrilous and malicious accusations, so they do not deny the fundamental right to privacy. That has to be balanced, however, against the needs of a society to an open justice system. Super-injunctions are but the latest tool to chill free speech.
John Kampfner is chief executive of Index on Censorship twitter@johnkampfner
The cases
1. A leading sportsman won a gagging order after learning that ‘The Sun’ was planning to publish a story that he had been cheating on his partner with two other women. Lord Neuberger said the sportsman’s private life could be “unlawfully exposed”.
2. A married television broadcaster won a court order in 2008 to prevent public discussion of an affair which he believed had led to the birth of a child. The injunction remains although he has received confirmation that he is not the father.
3. A married public figure won a gagging order to hush up his infidelity after claiming it would be “very distressing” for his family . A judge agreed it would breach his human rights after hearing that the woman was demanding substantial sums of “hush money”.
4. A married football manager gained an injunction banning a cuckolded husband from revealing details of his alleged affair with the man’s wife. The manager argued for privacy because he was trying to rebuild his life.
5. A high-profile television presenter secured an injunction stopping his ex-wife writing about their relationship and claims that they had resumed a sexual affair after he remarried. Neither the star nor his ex-wife can be identified.
6. A high-earning footballer won an injunction preventing the reporting of claims of a “sexual liaison, encounter or relationship” with an international female sports star. The injunction banned publication of “private or personal photographs” on mobile phones.
7. A prominent footballer playing in England won an injunction preventing coverage of an alleged blackmail attempt over sex with three women at a hotel, supposedly recorded on a mobile phone.
8. A world famous sportsman – who was not, on this occasion, a Premier League footballer – and who is married, obtained a gagging order preventing the publication of any suggestions
Yesterday’s Defamation & Privacy industry conference neatly coincided with the publication of the government’s draft defamation bill, in time for the final panel to dissect and critique it after lunch.
Tracey Brown, director, Sense About Science, and part of the Libel Reform campaign, welcomed the bill’s content while expressing caution over certain elements, for example Section Two proposals for the “Responsible publication on matter of public interest”.
“My first reaction is that we need to look again under [section] Two, items A-H, which I think still represent hurdles which the court may use as a checklist before making a defence available. I am quite concerned about that — [it] may really limit the availability of the defence for citizen journalists.”
“I’m really disappointed that corporate claimants haven’t been addressed,” she added. “The bill is yet to address ISPs and the internet in a forceful way.”
Sarah Jones, head of litigation, BBC said she was pleased to see jury trials going because “a lot of preliminary issues you would like to have answers to have to be left over to trial, and for the defendant that could be the difference between being prepared to defend and not.”
On the back of that, she said, there was a new procedure for early determination of questions, which would have otherwise been left to a jury. “On the downside, of course, that may mean there are a lot of satellite applications knocking around, that perhaps otherwise we wouldn’t have seen, I don’t know.”
Pia Sarma, head of legal at the Times, said she was glad to see jury trial issue tackled. Fair comment, as a more “subjective” defence was her main concern, leaving questions still to be answered, such as how a statement of opinion will be established. She wasn’t convinced it mattered whether it was called honest opinion or honest comment.
For Justin Walford, legal manager at the Sun, juries had been a “luxury in the past” which vastly added to costs, so he was pleased by this reduction in costs, but asked for clarification about what conditions would require a jury and at what stage it would be decided. He questioned how the “new procedure for defamation cases” would work. Would it be possible to arbitrate some matters before proceedings were issued, or rather than having to go to a High Court hearing? Issues could be decided early without “wasting huge amounts of time pleading justification pleas to different meanings”.
John Kampfner, CEO, Index on Censorship, while disappointed in the omission of corporations and ISPs, said he saw it as a “good bill” and a good starting point. Section seven of the draft bill, addressing Jurisdiction, is very important, and would deter cases of libel tourism, he said. “The courts must in the future be satisfied that England and Wales are the most appropriate place, not just equivalent, but the most.”
In two fell swoops, by correcting the body of law and dealing with jurisdiction, “this most important area, and one of the greatest symbolism, hopefully will have been tackled.”
The Government’s draft defamation bill, published yesterday:
When Robin Cook tried to tighten rules on British arms sales to dodgy regimes in 1997 he was told by Tony Blair’s team to grow up. Planned changes to criteria for weapons exports were so watered down that they made no inroads into the trade. Cook’s professed “ethical dimension” to foreign policy was stillborn.
Downing Street had been heavily lobbied, but it needed no convincing. This is one area where the boardroom and the unions are in harmony, and one that does not change whatever the government. Britain is a market leader in fighter jets, electric batons, sub-machine guns and teargas. Why add to the jobless total for the sake of morals? If we don’t sell the kit someone else will.
The announcement, therefore, of a revoking of licences to Bahrain and Libya should be taken with a pinch of salt; I predict that British firms will be back at it as soon as the coast is clear.
The coalition government’s commendable, but limited improvements in civil liberties at home have not been replicated in foreign policy, which is brazenly mercantilist. Go forth and flog Britain’s wares is the message. The notorious Export Credits Guarantee Department, responsible for some of the most economically foolhardy and unethical business deals of the past 20 years, has been boosted. From arms sales to Saudi Arabia and Indonesia, to oil and gas pipelines in central Asia, to mega-dams in sub-Saharan Africa, the ECGD has backed projects that have been implicated in corruption, environmental destruction and human rights abuses.
At the weekend, the UK arms industry descended on Abu Dhabi for Idex, the region’s most important weapons fare. A tenth of all the global exhibitors are from Britain. Gerald Howarth, the minister leading the delegation, declared that “we have ambitious plans”.
The most unequivocal message since the election was made by Peter Luff, the defence equipment minister, who told a defence show in June: “There will be a very, very, very heavy ministerial commitment to arms sales. There is a sense that in the past we were rather embarrassed about exporting defence products. There is no such embarrassment in this government.”
Indeed there is not. The regimes currently using brute force to put down pro-democracy protests are all longstanding partners of the UK. As the Campaign Against the Arms Trade notes on Bahrain: in 2010, equipment approved for export included teargas and crowd control ammunition, equipment for the use of aircraft cannons, assault rifles, shotguns, sniper rifles and submachine guns. No requests for licences were refused.
Algeria, Egypt and Saudia Arabia have provided rich pickings for UK arms exporters. Of all the bilateral arrangements of recent years, perhaps the most despicable is the one with Libya. Colonel Gaddafi morphed from terrorist sympathiser to friend of the west, which then turned a blind eye to his internal repression. Libya is regarded as a priority partner, with the UK boasting the largest pavilion at the Libya’s arms fair.
CAAT figures show that in the third quarter of 2010, equipment approved for export to Libya included wall-and-door breaching projectile launchers, crowd control ammunition, small arms ammunition and teargas/irritant ammunition. No requests for licences were refused.
Earlier this month, the trade minister, Lord Green, announced that ministers will be “held accountable” if companies fail to secure deals and foreign investors favour Britain’s economic rivals. Beside him was business secretary, Vince Cable.
In opposition the Lib Dems were vocal about arms sales. In government they have grown silent. In January 2009, Nick Clegg wrote on these pages that Britain should stop supplying Israel following its bombardment of Gaza. He made a broader point: the UK should not supply weapons to countries involved in external aggression or internal repression. I have heard nothing significant from Clegg on the issue since he became deputy prime minister.
He may believe that if he spoke out, he might suffer a similar fate to Cook. There is too much riding on an industry that abets authoritarian regimes, while providing rich profits for UK firms and jobs. In the current economic climate, who would stand in their way?
In the week that super-injunctions broke new legal ground, John Kampfner attacks a growing threat to press freedom