08 Apr 11 | Uncategorized
News International’s apology over phone hacking, welcome and overdue as it is, cannot “draw a line” under phone hacking.
This gesture, and the settlement of some of the private claims for breach of privacy by hacking victims, must not bring to a halt the process of exposing the facts, because so far we have only seen a small fraction of those facts. The litigants and their lawyers have transformed our understanding of what happened by their relentless demands for documents from the police and the company, but we need that process to continue.
As the former Tory Cabinet minister, Lord Fowler, has said, only a public inquiry will get to the bottom of this. That’s what it will take to address the full breadth of issues at stake, from the role of the police and the Crown Prosecution Service to the relationships between News International and government, and from the sinister silence of the rest of the tabloid press to the conduct of senior company executives right up to Rupert Murdoch himself. Who was doing this? Who knew? When? Was there a cover-up? What was the role of the phone companies? Who was implicated? We need an exhaustive investigation.
What we are dealing with here, after all, appears to have been a sustained assault on the privacy of dozens and possibly hundreds of people, from royalty to Cabinet ministers, and from film actors and sportsmen to journalists and ordinary private citizens. We still have no idea of its full extent — whether, for example, other newspapers were engaged in the same practices. All this has important national security implications and raises big questions about how Britain is governed. And as with Watergate, the crime may have been bad, but the sequel was worse.
So far as News International executives are concerned, they must not be allowed to escape appropriate public scrutiny. In admitting, by implication at least, that Clive Goodman and Glenn Mulcaire were not the only News of the World employees engaged in illegally accessing people’s voicemails, they formally put to rest the “single rogue reporter” defence they sustained from 2007 until this January. But they must now be forced to explain themselves properly, not just in a brief, slick corporate statement, but one by one in an inquiry witness box, under cross-examination from leading barristers.
How, for example, do they now justify the company’s oft-repeated claim that, back in 2006-7, it thoroughly investigated the affair, that it deployed a top firm of white-collar fraud experts on the task, that it interrogated its own reporters and sifted through thousands of emails, and that the failure of these Herculean efforts proved its innocence?
Colin Myler, the paper’s editor, told the Press Complaints Commission in 2007 and the House of Commons Select Committee on the media in 2009 that he personally had led the investigation. Les Hinton, now the CEO of the Wall Street Journal, twice assured MPs that this investigation had been thorough. Tom Crone, head of legal affairs at News Group Newspapers, and Stuart Kuttner, former managing editor of the News of the World, helped to make the same case.
It doesn’t end there. James Murdoch, now deputy chief operating officer of News Corporation, approved a secret £700,000 payout to Gordon Taylor which prevented the public from learning important information about hacking, and Rebekah Brooks, the chief executive of News International who refused to testify before MPs, should also account for her role. Are all these people really fit to hold senior positions in a leading public company? We should find out.
And in the background now is Andy Coulson, former editor of the paper and former media adviser to David Cameron. He told MPs he knew nothing of phone hacking, and repeated the assertion under oath in a court of law. It is now acknowledged that his ignorance was not limited to what his royal editor was up to. So just how extensive was it?
We need an inquiry. Indeed if we don’t have one, if we let it lie on the strength of a few million in compensation, we are accepting that there is no kind of trouble that Rupert Murdoch and his company can’t buy their way out of.
READ ALL OF BRIAN CATHCART’S BRILLIANT ANALYSIS OF THE PHONEHACKING SCANDAL HERE
Brian Cathcart teaches journalism at Kingston University. He tweets at @BrianCathcart
01 Apr 11 | News and features
In the week that super-injunctions broke new legal ground, John Kampfner attacks a growing threat to press freedom
This article was first published in The Independent
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
23 Mar 11 | Uncategorized
The next evolutionary stage of the court injunction has arrived: they now come “hyper” sized apparently.
John Hemming MP has introduced us to the idea — a week after using his parliamentary privilege to reveal the existence of a super injunction involving banker Fred Goodwin. You can read the (long-winded) transcript of the adjournment debate on the Bill of Rights at Westminster Hall in full here.
“I will come to what I call hyper-injunctions. One of the freedom of speech issues is that media organisations are generally commercial organisations, and there gets to be a point at which it is not worth their while trying to challenge the system and to get information out.
“With that, we return to the article nine issue [Bill of Rights] because our freedom of speech in the House is obviously on behalf of the citizens. We need to know of grievances so that we can raise them and talk about them publicly, so that the citizens of the UK can know.
“If it costs £20,000 or £30,000 in legal fees to write an article, in most circumstances a media organisation will just give up. The freedom of speech is basically sold down the river, because of the costs of the legal processes.”
Hemming described a case concerning the risk of toxic material in paint for drinking water tanks, in which a “hyper injunction” banned an individual from talking to an MP:
“There is a lot of stuff in that. It goes beyond a super-injunction; it is what I would call a hyper-injunction. It is an injunction in a case where someone is not even allowed to refer to the existence of these proceedings. There is the desire not to have the matter mentioned to Members of Parliament. There is also the interesting reference where it says ‘with the exception of lawyers or legal advisors instructed for the purpose.'”
He continued:
“Parliament is here to protect citizens of the UK, not MPs. The individual who was trussed up by that secret hyper-injunction needs protecting. We all need protecting from water that people are being told to drink without being warned that there are potentially toxins in it. That causes me great concern. This is about protecting people, not about using money and wealth to get legal processes to gag people. There is a way round these issues, but it requires Parliament to stand up for the people and for people’s right to communicate with Members of Parliament.”
Subsequently, Henry Fox discussed the legal issues at play on the Inforrm blog, looking at “the ability of MPs to disclose confidential information in Parliament and the ability of the media to report on these disclosures in order to evade liability for contempt of court”.
“The media controversy that surrounds injunctions is likely to continue and it is thus possible to foresee ‘media-friendly’ MPs attempting to circumvent the secrecy of injunctions on a more regular basis. It may well be that Parliament will have to reconsider some of the measures it considered in 1999 to avoid any interference with the administration of justice.”
As reported on this blog last week, Gill Phillips, the Guardian’s legal editorial director, recently flagged up the main developments in the field. But for any real progress in the super injunction debate, as David Heath concluded in the Westminster Hall debate, “we must wait and see what the Master of Rolls has to say on the subject when he-or, rather, his committee-reports.” Publication is expected around Easter.
