The Law Society Public Debate: Privacy, Free Press and the Public Interest

21 Sep 11 | Uncategorized

With this year’s slew of superinjunctions and the exposure of the phone hacking scandal, the fine lines  between free speech, privacy, media regulation and public interest have never been so topical. On 20 September, lawyers Gideon Benaim and Hugh Tomlinson QC were joined by the Guardian’s David Leigh and Index editor Jo Glanville at the Law Society to pick apart this complex balance of principles and interests and evaluate the press’s role in upholding it.

It was first put to the panel whether the UK’s current privacy laws were working. Hugh Tomlinson QC argued they were, but he felt that rather than continuing to leave such decisions to judges, there needed to be legislation.

Leigh, meanwhile, was concerned about what he dubbed “the ballooning approach to privacy law” and its potentially restrictive effects on the journalism trade and free speech. Benaim, however, did not buy into what he termed “Doomsday” rhetoric — the assumption that investigative journalism and democracy were on the brink of tighter sanctions.

The subject of whether — and how — the press should be regulated in light of the recent phone hacking scandal that has marred Rupert Murdoch’s News Corporation proved contentious. While Benaim was in favour of more controls, Leigh, Tomlinson and Glanville expressed concerns. “Regulation is attractive on the surface, but it cannot work because where journalism ends and blogging begins is not clear,” Tomlinson said.

He added, however, that he would like to see an “independent quasi-judicial regulatory body for the press” that mixes incentives and disincentives for reporters.

An audience member asked whether or not phone hacking would have occurred had regulations been in place and the reporters involved had received more rigorous journalistic training. For Leigh, this was a non-issue in News Corp’s case: “The tabloid culture of anything goes took over.” In this atmosphere, hacking unsurprisingly became acceptable.

Glanville agreed that controls may well have proved futile. “Even if regulations were in place, how would they have stopped hacking when even the police and the CPS ignored it?”

The panel added that the very reason phone hacking persisted was due to widespread concerns — and fear — over the power of Murdoch and his media empire. An issue raised, but left unanswered, was whether or not an independent regulator would have held back over such concerns.

Glanville closed the debate by noting how we are seeing a “massive cultural shift in how we treat our own privacy. This is mismatched with what is legally possible in terms of what is published.” In the short term, the upcoming Joint Committee on Privacy and Injunctions and the Leveson Inquiry into phone hacking should provide a pause for thought and help refocus both British journalism and the public’s relationship with it.

Marta Cooper is an editorial assistant at Index on Censorship.

Letter from America: US court upholds right to record police officers

06 Sep 11 | Uncategorized

A US court of appeals ruled this past week that citizens — whether they’re journalists or not — have a right under the First Amendment to peacefully film or record police officers on the job in public. The question has come up repeatedly as the widespread use of sophisticated camera-ready cell phones has enabled a level of transparency and accountability in public safety that potentially makes every civilian on the street on a backstop against police misconduct.

Police officers from Maryland to California have cited vague state wiretap laws to not only object to the practice but also arrest citizens caught doing it. Some state laws make it illegal to record audio or video of a person without his or her consent. Police officers have also argued that such footage violates their privacy.

Many legal scholars, though, have countered that such logic can’t reasonably extend to police officers performing their duties in public — and that such a policy clearly violates the public interest. A three-judge panel for the U.S. Court of Appeals for the First Circuit unanimously agreed, writing:

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws ‘abridging the freedom of speech, or of the press,’ and encompasses a range of conduct related to the gathering and dissemination of information. … The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’

The case began in October of 2007 when Simon Glik, a lawyer, shot video footage with his cell phone of police officers in Boston whom he believed were using excessive force to arrest a young man. Glik objected to one of the officers, explained that he had recorded footage, and was promptly arrested himself. His cell phone was also taken.

The charges against Glik — which also included disturbing the peace — were dismissed by a judge several months later. Glik attempted to file an internal-affairs complaint with the Boston Police Department against the officers involved. When that complaint went nowhere, he filed a lawsuit, in February 2010, against the officers arguing that his civil rights under the First and Fourth Amendment had been violated.

In siding with Glik, the court stressed that the right to collect information on public officials in public belongs equally to journalists and civilian bystanders, particularly in the age of “citizen journalism” and ubiquitous camera phones. The judges wrote:

Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

The decision was praised this week by the New York Times editorial board, the ACLU and legal scholars.

Emily Badger is Index’s US editor