Getting Lord Justice Leveson’s name right

Posted on January 17, 2012 by

“Don’t start me on the subject of misrepresented titles or names.  I suffer that to this day, but there it is.”

That was Lord Justice Leveson on 20 December 2011, as noted in this year’s Inforrm media law quiz, won by Benjamin Pell.

It’s rather a bugbear to Lord Justice Leveson, who said in his opening remarks to the Inquiry:

“Although flattered that various politicians and members of the press have elevated me to the rank of peerage, I am not Lord Leveson: my judicial rank is that of a Lord Justice of Appeal.”

Legal titles can be a complete headache to get right (and it doesn’t help when members of the judiciary are actually called ‘Judge’) but for the record and legal pedantry’s sake, it’s not Lord Leveson even if Google thinks it is.

Many publications have been getting it wrong, including the Guardian, which noted back in November 2011:

“Not for the first time, the judge who is leading an inquiry into phone hacking was referred to as Lord Leveson. As noted in this column on 29 and 30 September, Brian Leveson sits on the court of appeal and has the title lord justice, but is not a peer …”

 

 

 

But can Leveson really expect the papers to get it right when his own Inquiry site has mis-captioned him! (Hover over his pic here & you’ll see!)

[My weekly round up for Inforrm can be found at this link. I do hope all the legal names are all proper and correct!]

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New event: Justice Wide Open – legal knowledge in the digital era

Posted on January 16, 2012 by

For some time, I’ve been longing to set up an event around the theme of digital open justice. So I’m very excited to announce that the Centre for Law, Justice and Journalism will be hosting ‘Justice Wide Open’ on Wednesday 29 February 2012 at City University London from 9am-2pm. It’s free to attend but registration is required.

Geoffrey Robertson QC will open the event with a talk on ‘Alphabet Soup and the judicial retreat from open justice’. Three sessions will cover the history and context of the flow of legal knowledge; legal reporting and the media; and an academic perspective on open justice.

Speakers include: Hugh Tomlinson QC, Matrix Chambers; Dr David Goldberg, information rights academic and activist; Emily Allbon, law librarian, City Law School; Heather Brooke, journalist and activist; Mike Dodd, editor of PA Media Lawyer; Adam Wagner, barrister, One Crown Office Row and editor of the UK Human Rights Blog; William Perrin, founder, Talk About Local and member of the Crime and Justice Sector Panel on Transparency; Professor Ian Cram, Professor of Comparative Constitutional Law, University of Leeds; Dr Lawrence McNamara, Reader in Law and ESRC/AHRC Research Fellow, University of Reading.

Other participants will include practitioners and academics from journalism and law and there will be plenty of time for discussion during the sessions. The final session will allow us to consider the way forward for digital open justice, with view to setting out some general recommendations to the Ministry of Justice and other relevant bodies or committees.

Lawyers will be able to claim three [SRA] CPD points (I’ll have to find some star stickers or merits for the journalists and academics). And the CLJJ will be providing plenty of tea, coffee and lunch. Places are limited so you will need to register here.

For those in another country, or unable to attend, reports from the event will be available on the CLJJ blog. A set of papers will be published following the event, which will be distributed to academics, lawyers, journalists and members of government and the judiciary.

Hope to see you on the 29th February!

Pic: Ben Zvan on Flickr.

Posted in academic research, blogging, courts, data, digital open justice, events, freedom of information | Tagged , , | Leave a comment

Scandal! Tabloid editor wasn’t thinking about selling newspapers

Posted on January 9, 2012 by

As a former rather than incumbent editor of the Sun, Kelvin MacKenzie obviously felt he could afford to take quite a cavalier approach to his Leveson evidence (perhaps playing to what he said is his “punchy”, “sort of anti-establishment” character).

His written evidence [PDF] contained 17 exclamation marks at one point; and declared that he “didn’t take into account public interest (whatever that is)”. In his oral evidence on Monday morning [PDF], he called the former chair of the Press Complaints Commission, “Baroness somebody-or-other”.

There were many questionable statements made and among them, the claim that editors aren’t thinking about selling newspapers…

Lord Justice Leveson asked him “...if you had a photograph which you felt extremely strongly would sell newspapers, that you would publish it?“

MacKenzie replied: … “you don’t think like that when you’re an editor. You don’t say ‘would sell newspapers’. What you think is it would improve your newspaper, yes, or that the readers might like it, yes, but the selling — the idea of the day-to-day thought process of selling more newspapers does not happen in that manner.”

With a pinch of tabloid memoir salt, let’s turn to Piers Morgan, who remembered MacKenzie’s priorities rather differently in this tale, recounting an encounter with Rupert Murdoch:

[Murdoch]: “Look, it’s not my job to edit the papers, Piers, but one thing I can tell you is that stiffs don’t sell papers. They sell American magazines. The National Enquirer sold out twice with Elvis’s corpse, but not papers. Ring your mate Kelvin and ask him about Grace Kelly then call me back.”

I rang Kelvin MacKenzie and he chuckled. “Bloody Grace Kelly. Ha! Trouble is, he was right. I thought the photos of her lying in state would sell buckets of papers but the bloody sale fell off a cliff. And he’d warned me not to do it, so when he saw the figures he went mad. I’d ring him back and say you’ve had a rather dramatic rethink and decided not to splash on Ronnie Kray’s rotting body if I were you.”

Pic: Mark Hillary on Flickr.

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Inforrm blog: Law and Media Round Up – 9 January 2012

Posted on January 9, 2012 by

Pop over to the Inforrm blog for my first round up of 2012.

The legal vacation is not over until Wednesday but there is still plenty to report. Over the winter break Inforrm offered you a review of 2011 and the media law quiz of the year. Entries to the latter will be accepted until 13 January.

The police has provided some of the week’s most noteworthy media law stories. Rebekah Brooks’ former PA was arrested and questioned on suspicion of attempting to pervert the course of justice, as part of the Metropolitan Police’s Operation Weeting.

Elizabeth Filkin’s new report on police relationships with journalists [PDF link] has been praised by the Guardian but labelled “patronising, bordering on offensive” by the Telegraph’s crime correspondent, Mark Hughes. The report makes seven key recommendations to the Metropolitan Police Service to improve communication, transparency and ethical practice. Her comments and suggestions on alcohol consumption and flirting grabbed headlines, but the report covers far wider ground.

Posted in blogging, defamation, media ethics, media law, media law mop-up, media law resources, police, social media | Tagged , , , | Leave a comment

‘Contempt of a cosmic order’: legal risk of the Daily Mail’s 1997 “Murderers” front page

Posted on January 5, 2012 by

This morning, the Daily Mail was unusually willing to name check its rival titles, including the Independent, the Times, the Guardian and the Financial Times, for applauding the paper’s bold 1997 ‘Murderers’ headline (below left), which accused five men of killing Stephen Lawrence.

In a video and article for the Daily Mail, editor-in-chief Paul Dacre has described some of the legal considerations he and his in-house lawyer made before publishing that dramatic statement about Stephen Lawrence’s alleged killers in 1997.

It was about 8 o’clock. I reached for a layout pad. This was in the days before on-screen make-up and I literally wrote down with a thick pencil the words “Murderers” and underneath it the sub-deck: “The Mail accuses these men of killing. If we are wrong, let them sue us“.

I showed it to the senior sub-editors. There was a kind of nervous laughter but then contempt of court is drilled into every newspaper executive’s thinking. And this was contempt of a cosmic order.

They obviously thought I was mad. Someone muttered libel and I remember snapping – “The bastards haven’t got any reputation to lose”.

It was now that Eddie Young, the Mail’s lawyer and one of the shrewdest men I’ve ever met, became involved. To his eternal credit, he was unfazed by the headline.

He reinforced my feeling that the five had very little reputation to defend as is required in a libel case. Some had records and came from notorious criminal families with long histories of appalling violence.

Yes, if it went to court, the Mail would have to establish that the men murdered Stephen Lawrence, but since it would be a civil case, we would only have to prove that it was probable that they had done so, which we were confident could be done.

I, Eddie and my deputy retired to my room to rehearse the arguments. The mood, surprisingly, was very calm. Clearly, there were many powerful reasons against the headline. But there wasn’t one over-riding reason NOT to do it.

Dacre then describes the mixed legal and media reaction:

… the proverbial hit the fan. The whole media went into meltdown. TV carried our front pages but with the suspects’ pictures pixelated.

The Telegraph declared I should be jailed and carried a cartoon of me flicking ink at the Old Bailey’s scales of justice. For days, the story dominated the TV and radio news shows and even made international headlines.

The former Master of the Rolls, Lord Donaldson, pronounced his surprise and horror at the front page and accused me of contempt of court.

But other distinguished lawyers supported us, as did Doreen Lawrence who said the front page was “wonderful”. Her local MP, Peter Bottomley, and Frances Lawrence, the widow of murdered headmaster Philip Lawrence, also weighed in on our side.

But perhaps the thing that thrilled me most was the intervention of a hero of mine, Britain’s greatest judge, Lord Denning, who congratulated the Mail on “a marvellous piece of journalism”, adding “it was a brave and courageous thing for the Mail to do”.

That week we published, for the first time, the devastating pictures and dialogue from a secretly filmed police video of the suspects which horrifically revealed their racism, violence and use of knives. These had never been published before because of legal restraints.

Three days later, the Prime Minister, John Major, backed the Mail. And on March 6th the fax machine in the room outside my office came to life with a letter from the Attorney General saying he had decided, after Lord Donaldson’s intervention, that there were no contempt of court implications for the Mail.

Fifteen years later, the Mail’s front page announcing the conviction of Gary Dobson and David Norris (above right) for Lawrence’s murder repeats the 1997 one-word headline, adding “now what about the other three…”?

Posted in contempt of court, courts, defamation, journalism, media law, newspapers | Tagged , , , | 2 Comments

The role of the “public mood”

Posted on January 3, 2012 by

In my research I keep bumping up against the confusingly thorny – if woolly – issue of the “public interest”, a concept at the heart of media debates, the Leveson Inquiry and recent privacy and libel cases. There is surprisingly little empirical research to draw upon, but I would commend this report by Morrison and Svennevig from 2002* to anyone interested in interpreting and defining the public interest: ‘The Public Interest, the Media and Privacy [PDF]‘.

Today’s encounter with the public interest came about in this Forbes post by Tim Worstall. He argues that the (wrongly) alleged deletion of the Milly Dowler voicemails by News of the World was “the crux of the allegations that led to the newspaper being closed down”.

It’s generally agreed that all of the other allegations of hacking (actually, not hacking, but the listening to of voice mail messages by using the default PIN) could have been weathered but that it was this one that drove the public mood over the edge.

How does he know? And was it “public mood” that did for NOTW?

Newspapers and their editors play a very significant role in defining the “public mood” that might justify or encourage the publication of certain information, and in turn influence commercial or political reactions.

As Daniel Bennett and I argue in a forthcoming book chapter about the newsworthiness of phone hacking, the Dowler voicemail revelations marked a tipping point in reportage of the scandal. The Times’ editor James Harding told the Society of Editors conference last November: “[Phone hacking] didn’t capture the imagination or the indignation in the way which it did after Milly Dowler.”

While we know (and are frequently reminded) that judges don’t necessarily deem what is in the public interest to be synonymous with what the public finds interesting, the concept of the “public mood” is relevant to the “public interest” defence or test.

In 2005, the (then) Information Commissioner, Richard Thomas suggested that public interest considerations in favour of disclosure might include “informing debate on key issues of the day“; “helping people understand and challenge decisions which affect them“; and “clarifying incomplete or misleading information” [See speech here].

It strikes me that these points are related to the “public mood”. While public mood is not always the same as the public interest, its influence should not be forgotten in the public interest discussion. What factors evidence it, in immediate form? As a start, we might look at:

  • Editors’ interpretation and presentation
  • Survey/polling results
  • Public opinion expressed through radio phone-ins / online discussion / newspaper letter pages / other public forums
  • Interest groups and politicians’ statements

In my view, the “public mood” plays as crucial role in media law and journalism as the “public interest” but is a complex and elastic concept subject to a multitude of influences and interpretations. Returning to Worstall’s piece, I would suggest it would be more accurate to say it was the media’s interpretation and presentation of the “public mood” that influenced the development of the scandal (especially in regards to the Guardian’s correction), rather than one “public mood”. [NB: I'm not sure how we would ever know whether it was the deletion detail that led to the tipping point, or whether the interception alone would have been as widely condemned.]

Thoughts around this welcomed, as I try and make sense of it all…

As a semi-related postscript, in my last post I flagged up things to look out for in 2012. I’d add this, which escaped my attention before Christmas: a green paper and draft bill will set out proposals for changes to parliamentary privilege. They are due to be published before the end of the Parliamentary session. Significantly (for this blog, and others interested in media law and public interest reporting) the Green Paper will discuss “whether there should be changes to the law on reporting of parliamentary proceedings in the media“.

The Government will not be proposing to constrain by legislation the ability of hon. Members to name in proceedings in Parliament individuals who are the subject of anonymity injunctions made by the courts. It will be for each House to consider whether to make changes to their internal procedures to address this issue.

Happy new year. Ideas, tips and suggestions to jt.townend@gmail.com please, or via @jtownend on Twitter.

*Hat-tip: Thanks to Martin Moore for alerting me to it at the end of last year.

Posted in academic research, comment, journalism, media ethics, media law, phone hacking, public interest | Tagged , , , , , | Leave a comment

What will 2012 bring for media law?

Posted on December 30, 2011 by

I’ve rounded up the year in media over on Inforrm, month by month. Its notable features included frenzied coverage of “super injunctions”, the development of the phone hacking scandal and the launch of the Leveson Inquiry. Defamation took a back seat, as privacy law grabbed British media attention.

But what will 2012 bring? Some items to pencil in the diary:

  • Lord Justice Leveson’s report – scheduled to be published in September 2012.
  • Joint committee on privacy and injunctions report.
  • House of Lords Communications committee report on investigative journalism.
  • The progress of the draft defamation bill.
  • Developments in the police investigations Weeting, Elveden and Tuleta.
  • Civil actions involving phone hacking claims against News International – a trial is due to begin in February 2012.

Read my full review here. Happy new year!

Posted in blogging, contempt of court, courts, defamation, media law, media law resources, super injunctions | 2 Comments

Law & Media round up & a few bonus links

Posted on December 19, 2011 by

Fleet Street is divided, with many bitter words being exchanged between journalists from rival titles, as the Guardian came under attack for the “unlikely” allegation that NoW had deleted messages from Milly Dowler’s phone giving her mother “false hope” that she was still alive. While the fact that NoW intercepted the voicemail messages while she was still thought missing has not been disputed, some journalists have claimed that the original story led to NoW’s closure. The Financial Times reported that the dispute “triggered the most destructive outbreak of press tribalism in living Fleet Street memory“.

Full media law round-up, with upcoming case listings, Parliamentary hearings and new public judgments at Inforrm.

  • Since the time of writing the round-up, the Independent has published a piece by Stephen Glover that responds to Nick Davies’ rebuttal of an earlier column. In a letter to the Independent Davies defends the Guardian’s original editorial decision, stating: “The police have updated the record. We have updated our story. It is simply misleading to take this development and to pretend that that means our story was not true”. Now Glover responds saying “[he is] sorry Mr Davies will not admit fault” and criticises what he calls a “barrage of self-justification”. Jon Slattery has the overview here.
  • Kim Jong-il has died and Fleet Street Blues looks at his unlikely past as a ” great teacher of journalists” at this link.
  • Finally, something looking very much like the defunct “Solicitors from Hell” has appeared online – in another form, at a different address (via John Flood’s blog).

I’ll be putting together Inforrm’s review of the year later this week. What were your media law highlights? Tweet me @jtownend, or leave a comment below. And there’s still time to add suggestions to the media law Twitter list, too.

Posted in blogging, media ethics, media law, media law mop-up, phone hacking | Tagged , , , , , | Leave a comment

Cross-post: Is unfamiliarity breeding contempt?

Posted on December 7, 2011 by

This post also appeared on the Media Standards Trust blog.

In March 2011, the Daily Mail and Sun were found guilty of contempt of court for publishing online photographs of a defendant posing with a gun at the start of a murder trial.

It was, the Attorney General, Dominic Grieve, outlined in a speech at City University London last week, “the first time” the High Court “had been asked to consider whether an online publication was a contempt of court”.

I find it astonishing it took over 12 years after the birth of Google for such a case to be brought.

There are likely to be far more breaches, either by mainstream media publications pushing legal boundaries or by thoughtless social media users, than cases brought.

It is this latter category that interests me: how is the public educated about contempt of court? After all, as I’ve argued on this blog before, we’re all publishers now.

Jurors receive special instruction, as they did in the murder trial described above, but information outside the courtroom is disseminated rather randomly.

It relies on mainstream media reporting the details of contempt of court cases. Thanks to national media interest in this recent case, more people now know not to upload a film of yourself dancing on the chairs in the court lobby.

I raised the point about lack of legal education on Twitter, and someone immediately replied:

“The same problem applies to any area of law and the wider public (eg, copyright). Ignorance of the law cannot be used as excuse!”

It’s a fair point that anyone can google for a definition of contempt, but I suspect many breaches – not necessarily publicised through prosecution – are committed by people who don’t know that they need to look up the law before writing a contemptuous update on Facebook or Twitter.

Blog and online news comment moderators are likely to have encountered widespread ignorance of contempt.  A recent survey conducted by YouGov for Nominet attempted to quiz the public on their online legal knowledge with questions addressing injunctions and active proceedings, but I’m not convinced we can deduce too much from its findings about ‘accidental outlaws’ as I’ve explained here. Further surveying in this area would be a useful exercise.

Various breaches of contempt of court online have been highlighted by the courts: in November contempt charges against a individual tweeting during the Vincent Tabak trial were dropped, while juror Joanne Fraill became the first person to be prosecuted for contempt of court for using the internet during a trial last June.

In regards to the latter case, Grieve said:

The case highlighted important principles and again that the internet does not provide some form of immunity from prosecution.

Grieve’s speech and the responses in the Q&A afterwards repeatedly emphasised that “bloggers are not immune from the law” and are as much subject to law of land as professional media publishers.

It would be helpful, then, for the Attorney General to consider how the public might be better informed about contempt. One Guardian commenter argues underneath David Banks’ excellent article about online contempt last month that the education system could make better provisions, for example.

You can read Grieve’s full speech here. The legal blogger Carl Gardner has provided an extremely useful annotated version here, indicating the Attorney General’s deviation from script.

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Inforrm Law and Media Round Up – 5 December 2011

Posted on December 5, 2011 by

My round up of the past week in media law for the Inforrm blog can be found at this link. Today’s top media law reads (since I compiled that) include: David Allen Green on the “story of what happens what an entire system fails”; Catherine Bennett on historian Niall Ferguson’s objections to an LRB review; and The Lawyer reporting Sweet & Maxwell’s stats on privacy injunctions (I’ll try and get hold of the original report).

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