An inquiry into press practice will be good for free speech

21 Apr 11 | Uncategorized

This article first appeared in the Guardian

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.

 

Letter from America: will English libel bill make a difference for US publishers?

18 Mar 11 | Uncategorized

American publishers who’ve long felt constrained by British libel law saw the publication Tuesday of the UK’s draft defamation bill as a crucial step to reforming a system that can’t be addressed by protective US measures alone.

“It’s a huge milestone, because it had seemed that for years the discussion of libel law reform was one that only expert barristers and soliticitors who are steeped in that area of practice were engaged in,” said David Heller, a senior staff lawyer for the Media Law Resource Center in New York.

The MLRC has for about six or seven years been advocating on behalf of US newspapers, magazines, book publishers and broadcasters for reform of British libel law, as its impact beyond the UK has intensified in the age of the Internet.

“In a global publishing world, with the web — where you can if you want speak to a global audience, and if you don’t want to, your material on the web is generally accessible anyway — there was a growing clash of defamation laws between countries,” Heller said.

The draft released Tuesday still doesn’t include everything the MLRC would like to see. Heller pointed in particular to the burden of proof, which still lies heavily on the side of the defendant. The MLRC is also eager to see included specific protections for Internet service providers and limitations on the rights of corporations to sue. Heller was pleased, however, that the draft law addresses a requirement for establishing substantial harm — a standard more in keeping with US libel law — and provisions to curb libel tourism and to create a single publication rule.

American publishers and writers earned a degree of protection last year, when the US passed a federal law shielding citizens from foreign libel judgments inconsistent with the free-speech protections in the U.S. constitution. (A Florida-based website sued for libel in Canadian court has in fact just invoked the new U.S. law for the first time.) But the US SPEECH Act alone — without systemic reform of the British system — doesn’t entirely address the problem.

“There are American publishers and American authors with interests in the UK, and there are probably publishers who would like to be able to publish in the UK without a sword of Damocles hanging over their head,” said Judith Platt, who directs the Freedom to Read and International Freedom to Publish committees with the Association of America Publishers.

Her fear is not simply that US writers and publications have been sued in the UK, but that in many cases writers and publications have simply chosen not to publish at all for fear of being sued.

“It’s not quantifiable because it’s very hard to say what hasn’t been published because of the fear,” she said. “But that’s another incredible reason for reforming libel laws: things that are not published, things that are not said, information that’s not made available to the public because of fear of abusive defamation laws.”

Platt also appealed — as did author Rachel Ehrenfeld this week — to the notion that two countries so closely allied in many other ways should better align their protections for the shared value of free expression.

“George Bernard Shaw said we’re two countries divided by a common language,” Platt said, laughing. “But in point of fact, we are united, we are very interested [in each others’ work]. I read Booker Prize winners all the time, and American bestsellers are very popular in England. So just in the interest of the free flow of information, it’s an important part of it.”

Platt and Heller’s enthusiasm for the new bill — with a few qualified reservations — was shared this week by several other US organisations.

The US Center for Inquiry, which promotes a secular society based on science, reason, freedom of inquiry, and humanist values, has been particularly concerned by the impact of British libel law on scientific inquiry. Derek Araujo, the center’s vice president and general counsel, sent Index this statement on the draft bill:

 

“Scientists, scholars and journalists everywhere should welcome the UK government’s willingness to reform its draconian libel laws. The ill effects of these harsh laws extend far beyond the UK’s borders.  The [English] legal system’s infamous “libel tourism” has stifled freedom of speech, freedom of inquiry and scientific research across the globe.  At the very least, Parliament must ensure that any reform package contain a strong public interest defense.  Doctors, scientists and journalists should not be intimidated into suppressing their findings out of fear of ruinous UK libel suits.”

Freedom House, another US-based free expression organisation, has been closely following the reform movement as well because, according to Chris Walker, its director of studies, the law’s “multiplier effect in globally suppressing information on corruption and international security issues has far more dangerous implications.”

“The proposed reform in England is therefore an important step because it signals seriousness on the part of decision makers there to pursue reform,” Walker wrote in an email from the Czech Republic. “The proposed draft contains a host of important measures, ranging from restrictions on jury trials to statutory defenses against libel claims. At the same time, it is essential that in the end this reform initiative gets it right in ensuring that wealthy individuals can no longer succeed in muzzling free speech on major international issues by using English libel laws as a legal weapon to silence or cow those who criticise them.”

Heller also offered one more caution as advocates on both sides of the Atlantic await the next steps in the process.

“There’s factor here, which is also that some of these changes in the law will in the end have to be interpreted and applied by the judges in London who hear libel cases,” he said. “It also depends a little bit on that, whether they will apply any libel reform laws in the spirit in which they were intended.”