24 Feb 10 | Comment, Uncategorized
In a major report, MPs’ have urged the government address the “mismatch in resources between wealthy corporations and impecunious defendants”, to find ways of limiting the cost of libel actions and to end the “embarrassment” of libel tourism. The select committee also made a series of recommendations on improving the self-regulation of the Press, increasing the number of lay members on the Press Complaints Commission and giving the regulator powers to fine or suspend publications.
But how do experts see the proposals?
Emily Bell is director of digital content for Guardian News and Media
I’ve mixed feelings about the report, on one level its fantastic, it is a vindication of the Guardian’s investigation into the phone hacking, and it also makes some sensible suggestions on libel. As a web editor I have concerns because the report is rooted in old media, in newspapers. The committee’s web comments proposals underestimate how onerous and expensive a moderation operation is to run. The proposals could damage an already fragile economic model. How would the committee define a publication? Would bloggers be forced to moderate comments on their site, will this affect networks like Facebook.
The real problem is that the sands seem to constantly shift beneath us as individual members of the judiciary set legal precedent. At least the committee’s proposal for a one-year time limit would remove the dangers of the newspapers archives counting as continuous publication.
Alan Rusbridger is Editor of the Guardian
I would have been happier if the committee had gone the Australian route and barred larger corporations for suing for libel except where deliberate malice could be shown. But, failing that, I think it would certainly be an improvement for the burden of proof to be reversed, and for a capping of costs.
Camilla Wright is founder and Editor of Popbitch
The report seems to be making all the right noises to fall into step with current fashion without any making any real attempt to guide how any effective change might happen. The call to overhaul libel laws, particularly in relation to costs and libel tourism obviously reached a tipping point some time ago, so the House of Commons is really just playing catch up, although the suggestion that journalists’ burden of proof might not be so onerous in cases of corporate defamation is very interesting.
In respect to privacy issues – such a hugely important area of law since the rich and famous started using Article 8 to keep media noses out of any parts of their lives they didn’t want – there’s nothing substantive coming out of this report except the point very firmly made that parliament wants nothing to do with legislating to sort out the current freedom of expression vs right to privacy bunfight.
Where the report makes some very hardline recommendations is on forcing newspapers to take responsibility for user-generated material – most specifically comments. It smashes apart the convention that this responsibility only really kicks in when the newspaper has been made aware of a complaint and instead puts the onus on the newspaper to make sure that comments contain nothing “offensive”. Well, one person’s offensive is another person’s joke or discussion point, so for me this would sound the death knell for online comments. While your first thought might be “Who would miss them?”, by taking away such a simple mechanism for readers to debate and interact with the newspapers we might weaken the attempt to improve levels of trust between the public and media.
Lord Lester QC is a human rights lawyer and Liberal Democrat peer
I welcome the report in seeking to strike a fair balance between free speech reputation and personal privacy. I will introduce a private members bill to give effect to some of the committee’s recommendations.
Charmian Gooch is a founder and director of Global Witness
The tone and direction of this report is broadly welcome, and some of the specific recommendations are good. However it will be a challenge to make sure that the Government can follow up on the many recommended consultations. We face threats on a regular basis and so had hoped for more concrete recommendations to protect campaigning organisations working on public interest issues. The decision not to recommend mandatory pre-notification is welcome, however we are concerned that the ‘public interest’ test is not clearly defined and may enable corrupt dictators to obstruct our exposés into their dirty dealings. The sort of responsible, fact-based campaigning we do is under threat, and this report does not do enough to redress that. Without further concrete reform, some of the world’s most egregious individuals will still be able to exploit the justice system to launder their reputations and defend their continuing corrupt activity.
Andrew Scott is a senior lecturer in law at the London School of Economics
On privacy and libel, the report is quite the curate’s egg. On the down-side, the committee has bought a pup on the ‘libel tourism’ issue. The only context in which libel tourism is a concern is where it overlaps with the chilling effect wrought by abusive actions brought to silence relatively weak defendants. For such defendants, the key problem is a combination of sheer cost and personal hassle. It is surprising that the committee should seek to validate the lobbying success of American mass-media organisations which, under the guise of concern for impecunious defendants, have moved to insulate themselves at home from liability for damage to individual reputations caused by publications made abroad. The better route is to focus attention on libel costs and procedures in the hope of reducing the burdens faced by all parties, to contemplate changes to rules on internet archives and corporate standing, and to introduce the right for defendants to counter-sue where libel is misused to silence them. In many of these respects, the committee’s reflections are eminently sensible.
On the up-side, the report offers a robust defence of media freedom against the seductive logic that underpins the privacy-based insistence on prior-notification. While Max Mosley can be forgiven for not seeing beyond the end of his own nose, the rest of us must properly take into account the deleterious impact that his siren calls could have on public knowledge of important matters. Nonetheless, the committee is right to call for responsibility at the pre-publication stage, and heavy culpability for error if and when things go inexcusably wrong.
24 Feb 10 | Uncategorized
Aside from exposing the sins of News International, today’s MPs report boosts our campaign for libel reform, writes Jo Glanville
This article was first published in the Independent.
At the press conference launching the select committee’s report on press standards, privacy and libel, all that anyone wanted to talk about was the News of the World and phone hacking. The committee blasted News International and its witnesses for their “collective amnesia” in providing evidence to the inquiry and lamented the “substantial damage to the newspaper industry as a whole” of the phone hacking fiasco. Less attention was given to the inquiry’s call for libel reform – yet its recommendations are perhaps the most significant element of the report and an unequivocal support for press freedom.
Over the past 18 months, there has been an unprecedented groundswell for reform, as scientists, academics, NGOs, the media and pressure groups have lobbied for action. The committee’s recommendations echo many of those proposed by Index on Censorship and English PEN in a report published last November – tackling libel tourism, making it harder for corporations to sue, developing a public interest defence, reducing costs, a one-year limitation on internet publication. There has rarely been such a convergence of engagement by pressure groups and politicians on an issue. “There’s an opportunity for a thoroughgoing reform of our libel law,” said Paul Farrelly MP, an influential member of the committee.
When Jack Straw gave evidence to the committee last year, he appeared untroubled by the problem of libel tourism. Yet the phenomenon (where foreign claimants bring their libel actions to English courts) made a deep impression on the committee. A number of states in the US have introduced legislation to protect their citizens from being sued in our courts: “We believe it is more than an embarrassment to our system that legislators in the US should feel the need to take retaliatory steps to protect freedom of speech,” says the select committee report, recommending that the Government discuss the situation with its US counterparts.
So will it go anywhere? Some of the issues are already under review, others are being examined by the Ministry of Justice’s working group on libel. There’s little time left before the election and little indication that a Conservative government will be as supportive of reform. But we may never have another opportunity like this for freeing the press, publishers and academics from the tyranny of the UK’s singular chilling libel laws – and will have a greater impact for press freedom than the current flurry of interest in the sins of News International.
Jo Glanville is editor of Index on Censorship and a member of the Ministry of Justice working party on libel reform
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
06 Feb 10 | Comment, News and features
This article was originally published in the Independent
John Terry’s is only the latest attempt to suppress free speech for financial reasons argues John Kampfner
This was the week that the legal establishment bit back. For three months since Index on Censorship published its Libel Reform campaign in coalition with like-minded organisations, we’ve had pretty much an open field.
The evidence we have brought to bear has been compelling. Libel tourism – in which dodgy foreign oligarchs and sheikhs use our indulgent courts to sue NGOs, authors and scientists – has been such a blight on Britain’s reputation that the US Congress is pushing through legislation seeking to protect American citizens from our courts. What greater humiliation could our closest ally inflict on our judicial system?
The Justice Secretary, Jack Straw has expressed his determination to introduce significant changes in coming weeks and months. The two areas most ripe for change are likely to be stronger direction to judges not to take on cases of libel tourism, or at least to set the bar far higher for a plaintiff to argue that, even though they do not live in the UK, their reputation here has been irrevocably damaged. The other is costs. The idea of no-win, or conditional fee agreements, was designed to increase access to justice for the impecunious. In a classic case of unintended consequences, it has instead allowed the rich and powerful to string along defamation writs, in the full knowledge that small organisations do not have the strength or the cash flow to sustain a defence. This has led to a plethora of people settling out of court, even where their case is watertight.
It was, therefore, a matter of time before the backlash would begin. It has taken three forms: large and avaricious legal companies increasingly alarmed that key sources of revenue might be endangered; senior lawyers and judges who, whatever their personal positions, do not like to be put on the spot by upstarts from the third sector, and individuals who have done well out of the existing system.
Max Mosley’s interview on BBC Radio 4’s Today programme this week was, I admit, compelling listening. The Formula One racing boss, who won £60,000 in damages from the News of the World after it alleged he had been involved in a “Nazi orgy”, said individuals should have a “right to notification” before any allegations are printed about them, “so that if you wish you can go to a judge and if you can convince the judge he’d stop publication”.
Mosley’s case brought together the adjacent issues of libel, privacy and injunctions. The broader issue is enshrined in Article 8 of the Human Rights Act. Most advocates of constitutional modernisation and civil liberties were delighted with the incorporation of the European convention into UK law a decade ago.
Yet again a well-intentioned measure has been traduced in the practice. The act has enabled a considerable shift in the balance between the right to know and the right to privacy – that privacy being accorded predominantly to the rich and powerful.
The right of all individuals to a private life that is entirely private is compelling. What has happened, however, is that changes have taken place through arbitrary interpretations from a small number of judges. What is the definition of a private life? Is there any link between activities in the home and in the workplace? These are all important questions, but the debate has not been held.
Hence, in a characteristically British way, law has been made on the hoof. The sudden thirst for privacy has breathed new life into the injunction and the pernicious super-injunction. There may be the odd case for not only preventing publication but also preventing reporting of such a ban, such as when it might endanger life or cause serious damage to children.
Instead the injunction has become a catch-all device simply to stop the media from reporting facts that might embarrass companies or individuals. John Terry, who was yesterday stripped of his captaincy of the English football team after revelations of an affair with the ex-girl friend of a team mate, is only the latest and most ill-advised attempt to suppress free expression for reasons of purely individual reputation and commercial interest.
The least reported but most bizarre intervention of the week came from Lord Hoffman, a recently retired law lord of impeccable liberal credentials. In a lecture striking for its defensiveness and its Little Englander appeals, Hoffman took umbrage at a report last year by the UN Human Rights Committee that attacked English libel law as chilling free speech not just in the UK but around the world.
Hoffman suggested that Rachel Ehrenfeld, whose case shed light on libel tourism, had been in league with US neoconservatives. He dismissed the legislation that has been passed by a number of US states and is going through Congress as seeking to enshrine American legal hegemony. He saw no particular problem with the state of English libel law and insisted that the right for anyone to be able to use any country’s courts to sue for defamation should not be challenged.
Meanwhile, two academics, Professor Alastair Mullis of the University of East Anglia and Dr Andrew Scott of the London School of Economics, have, to the evident pleasure of Britain’s more avaricious law firms, published a document styled as a “rejoinder to the clamour for the reform of defamation”. They argue that while they are not averse to the idea of a review, critiques such as ours have been too broad and the proposed reforms are too sweeping and indiscriminate.
The battle has now been joined. The forces of reaction, those who are hostile to the very idea of a First Amendment defending free speech, have entered the fray. They are lobbying hard senior figures in the Labour and Conservative parties.
The issue of libel reform, the questioning not of the principle but the application of privacy law and super-injunctions, is not about journalistic self-interest or the right of tabloids to pry. These measures have chilled NGOs from reporting torture carried out in dictatorships; they have stopped authors in their tracks from unearthing inconvenient truths; they have prevented scientists from conducting robust research. It is no wonder that so many vested interests are resistant to change.
John Kampfner is chief executive of Index on Censorship
