IBC Legal’s 20th Anniversary Defamation & Privacy Conference

• the future of press regulation in the wake of Leveson and the phone hacking scandal
• the Defamation bill; strengths, weaknesses and what to expect
• CPD accredited

Speakers:

• Ian Hislop, Editor, Private Eye
• Max Mosley, Former President, FIA
• Lord Hunt of Wirral, Partner and Chairman, Financial Services Division, DAC Beachcroft LLP Solicitors

Chairman

• Andrew Caldecott QC, Head of Chambers, One Brick Court

Industry and Supporting Bodies

• Michael Harris, Index on Censorship
• Michelle Stanistreet, General Secretary, NUJ 
• Michael McManus, Director of Policy and Transition, PCC
• Sarah Jones, General Counsel, BBC 

QCs

• Hugh Tomlinson QC, Matrix Chambers
• Heather Rogers QC, Doughty Street Chambers
• Antony White QC, Matrix Chambers

Experts From Practice

• Susan Aslan, Partner, Aslan Charles Kousetta LLP
• Mark Lewis, Partner, Taylor Hampton Solicitors

Dates: 22 April 2013

Venue: Grange Tower Bridge Hotel, London, 45 Prescott Street, London, E1 8GP, United Kingdom

Book here, quoting VIP Code FKW82358MJEB for a 10% discount

Image: courtesy of @yiyinglu*

Lord Justice Leveson’s enormous task is to examine the culture, practices and ethics of the media, with a special emphasis on the “press”.

This is because it was serious concerns about the behaviour of UK national newspapers that instigated the national Inquiry into media relationships with the public, the police and politicians.

A second part, if takes place, will more specifically look at “unlawful or improper conduct within News International, other newspaper organisations and… other organisations within the media, and by those responsible for holding personal data”.

Given the Inquiry’s remit, the media core participants are national newspaper groups and only a small amount of oral evidence has been taken in regards to online-only media: blogs, global websites, search engines and social media services (eg. representatives from Google and Facebook, Camilla Wright of PopBitch, and the legal blogger David Allen Green).

Understandably, during 26 weeks of sittings in courtroom 73 of the Royal Courts of Justice, Lord Justice Leveson has focused on the issues that led to the Inquiry and concentrated on national newspaper brands. He now has to make recommendations “for a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government, while encouraging the highest ethical and professional standards”.

It is at this point that one might consider the giant tweeting/Facebooking/Googling elephant in the regulatory / legal room, albeit outside the Inquiry’s official remit.  While Lord Justice Leveson’s recommendations will attempt to deal with the abuses of power that led to the Inquiry, what about the other digital media sphere that becomes ever more powerful (but with less clearly identifiable agents of power)? The one where circulations aren’t declining and business models collapsing …

It is not simply a question of regulation, it is also one of protection, for citizens using this media in an uncertain legal and regulatory landscape.

How will online media be controlled in future?

“Although current problems with some sections of the press are serious, it is no good setting up in the 21st century a system which solves only the problems of the 20th” Max Mosley, written submission to the Leveson Inquiry, July 2012 [PDF]

For the ordinary person it is social media rather than the “press” which is likely to have a more immediate and direct impact on his or her own daily life (for usage stats see: Pew 2012; Ofcom 2012) – at best, online interaction is positive experience garnering new social and professional connections, at worst, it leads to mucky disputes and harmful publications.

Instantaneous publications can cause chaos in both work and social spheres. In some cases, an online communication can lead to criminal convictions or expensive civil litigation.

Legal risks

There are numerous legal risks for Twitter users tweeting from and to the UK, as Luke Scanlon has laid out in this excellent summary on Out-Law.com (one of the best online legal resources around).

But are existing laws and regulatory models really suitable for dealing with the troublesome and damaging communication of 2012, which might include racist content, defamatory allegations, prejudicial statements about a court case, privacy infringements, data protection and copyright breaches (etc.)?

In a comment piece for the Guardian about the ‘Twitter joke’ case, Professor Ian Cram found that “judges and lawyers expend much intellectual energy on shoehorning new practices and behaviours into existing legal categories” and identified a challenge, to “show why tweets, blogs and other conversational forms of electronic speech should lie beyond the reaches of traditional criminal offences”.

While the High Court unanimously allowed the appeal in Chambers v DPP ([2012] EWHC 2157 (QB)), Cram is cautious about the ruling:

“Our high court is declaring alongside [Judge Frank] Easterbrook that there is no law of cyberspace; there is no law of the horse. Its disinclination to evaluate the appropriateness of legal concepts and criminal offences developed in the pre-Twitter era is disappointing, even if largely to be expected.”

Similarly, Jacob Rowbottom has raised concerns  in the Cambridge Law Journal and argues that the principles of European free speech jurisprudence “do not give sufficient protection to casual conversations and ‘everyday’ expression”.

Regulatory systems

What about the existing regulatory systems? The short answer is that they are numerous and messy. As Lara Fielden sets out in a recent report for the Reuters Institute for the Study of Journalism, there are numerous regulators dealing with different types of content in an incoherent fashion. In her view, there is a “conflict between converging media content and static standards regulation”.

“… such regulatory incoherence risks undermining public trust across the broadcast, print, video on demand, and online media platforms, and public confidence in the sources of information on which citizens depend in order to make informed, democratic choices…”

The legal and ethical practice around online media is fast-moving but little has been recommended in terms of its management and protection for users and consumers. There has been some noisy discussion around “trolls” (news reports wrongly conflated entirely different legal cases with the provisions of the Defamation Bill; as set out by Francis Davey here; Padraig Reidy here).

Max Mosley, whose primary legal opponent was a national newspaper, has made some very broad-ranging recommendations for the regulation of the online sphere, in a submission to the Leveson Inquiry. He proposes a Tribunal for regulating the press, but adds that “…[E]ventually, the Tribunal should cover all activity on the internet in the UK…”

While he prioritises a tribunal for the press [PDF], before one for the internet (press regulation can be reformed quickly, but the internet would require “complex legislation”), he suggests that eventually: “as part of the UK internet statute, the Tribunal’s remit would be extended to cover the internet in the UK. This would include a power to suspend an individual’s access to the internet in addition to the Tribunal’s other relevant powers …” (He also has ambitions for EU-wide law and international conventions, but UK statute is his starting point) [p 8].

In his opinion, “…it must be able to deal promptly with internet problems right down to local level – for example bullying among schoolchildren on Facebook” [p 13]:

“There is a tendency to see the internet as ungovernable, a medium outside the law. This is nonsense. In time the rule of law will apply to the internet as it does elsewhere. National laws followed by international conventions are bound to come.

“Our new regulator must be able to offer remedies as and when they become available (as some already are). Although current problems with some sections of the press are serious, it is no good setting up in the 21st century a system which solves only the problems of the 20th. Our regulator must have the ability to deal with the internet, right down to micro level. This will increasingly be where the problems lie.” [p 13.]

It’s an ambitious remit for a national tribunal and Mosley’s proposals, if taken forward, would be likely to invoke criticism in various quarters; a vigorous consultation beyond the Inquiry would be needed to address these concerns.

Lord Justice Leveson has a big enough task thinking about news media, in particular the newspapers and their websites. These difficult questions around social media regulation and the “law of cyberspace” are more likely to fall to the next major review of the media, whenever that may be.

* This illustration is published with the kind permission of Yiying Lu, the designer of Twitter’s famous ‘fail whale‘. In fact, the original piece, Lifting A Dreamer, featured an elephant.

UCL and Bindmans co-host an annual debate on a topic concerning the Press, and this year saw the fourth such debate in the series. With all that has gone one in the preceding twelve months, this debate was incredibly ‘on-topic’ and was unsurprisingly incredibly packed with attendees from such large law firms, news organisations, and others involved in the Press.

The speakers for the debate were:

• The Rt Hon Tessa Jowell, MP for Dulwich and West Norwood;
• Martin Moore of the Media Standards Trust;
• Max Mosley; and
• Gill Phillips, Director of Editorial Legal Services for the Guardian.

The chair of the debate was Hugh Tomlinson QC of Matrix Chambers., with introductions made by Professor Dame Hazel Genn DBE, Dean of Laws at UCL, and Tamsin Allen, partner at Bindmans LLP.

Tomlinson started by setting a few ground rules for the discussion and two key questions: is it time for a privacy law, and is it time for statutory regulation of the Press? With the Leveson Inquiry in full flow and being broadcast, people are incredibly aware of the power of the Press, more so than during the time of the Calcutt Commission which advised the creation of a Press Complaints Commission.

The first speaker up was Tessa Jowell, who said she was basing her talk on her time at DCMS. For her, this is a key moment in time for a change. Her view was that we should not get stuck in past events, and that this period was something bigger than just between politicians and the media. It was the shock of the NewsCorp dealings with the police to get the public concerned with this issue: the public are more discerning than they are given credit for and the knowledge of the relationship between politicians and the media is well known.

She followed this with the point that nobody was that interested in the revelations about public figures; the public expect it as part of a celebrity’s media relationship. However, despite the revelations, a free Press is a must. The alternative is a lot worse, so there must be a better way to get a good settlement and a good balance.

Jowell said that she has no sense of political scores being settled by the hearings [AF note: though this may need to be re-evaluated in light of the Dacre/Grant spat]. The Press should be free, but needs a better understanding of what is acceptable as a method of getting a story. The Press should also be free of those with discernible vested interests, including those of the editors (especially their pact of mutual protection). There is a clear need for duality and balance; when the Press works along those lines it does its job best. The CMS committee is doing an excellent job of redrawing that balance.

Technology is allowing people to self-inform, and it is moving quickly. In Jowell’s opinion, the Leveson Inquiry is solving yesterday’s problems. There still needs to be concern about the ability of everyone to access justice relating to the Press, not just the rich. Serving in public life should be upheld as a good thing, but there is a risk that the quality of people coming forward will degrade due to the press risk. As DCMS Secretary, Jowell believed that media literacy was something to be promoted, especially the notion of words and timing. Instead, she feels that regulation is only the starting point; we need to look to an engaged and assertive public demanding the freedom of an intelligent Press.

Martin Moore followed up; he agreed with Jowell in that privacy as an issue is far bigger than the Press. Moore made reference to a Mark Zuckerberg interview where he stated that the age of privacy is over, and he would have made all information public from the start. He pointed out that the practical boundaries of private life have changed, the restraints have almost disappeared, publication is easy – especially with Facebook. He pointed to the suicide of Tyler Clementi -  the publication of videos and the consequences show that the practical restraints have gone, but we need something to replace them. People generally believe that there should be some privacy protection; people should respect the line between the public and the private. If there are no formal constraints, some agencies will use any means to get the story.

However, Moore pointed to the increased use of legal constraints to fill the gap of the now-defunct practical restraints, but this causes further tensions about where the line lies. That this legal protection exists is sensible, but the real question is how to protect the journalist’s right to intrude in the public interest.

This public interest defence barely exists in the protection legislation that is used often, using the case against the Guardian journalist to reveal her source as a good example of this. He set out some themes that form a public interest defence in codes created for organisations:

(i)           preventing the dissemination of misleading information;

(ii)          disclosing decision making for the public interest;

(iii)         for health and/or safety;

(iv)         to prevent corruption; or

(v)          for the prevention of crime.

However, the one that never gets included is to test allegations of hypocrisy. A right of intrusion would better define the line between public and private. Good journalists will have the confidence to act, bad journalists will think twice.

Gill Phillips followed Moore. Her talk was based upon the Press’ perspective. The state of a democracy is shown by the health of its press. She doesn’t believe that statutory regulation is the answer, but there needs to be a new way of regulating. However, in that search for a new way, we must keep our perspective. Phone hacking is not a failure of regulation, but rather an instance of criminality at a paper and a failure of the police to investigate. Since printing has started, there have been state attempts to control the Press [AF note: a legal history lesson is always welcome].

Illegal printing has in the past resulted in hanging or disembowelling. However, this control works both ways, with the Press involved in a back-scratching relation with the political elite. History tells us that the instinct of those in power is to control the Press strongly, but this is coupled with the knowledge that regulation distorts access to the truth. Phillips suggested that a form of ‘PCC max’ is required, as self-regulation was never full self-enforcing, but also pointed out that questions exist over blogging, as they operate on the edge of reporting. There will always be those who engage in luminal activities, and more top down regulation will not help, so it is not needed. What needs to be remembered is that this moment in time is part of a wider battle over access to information.

Max Mosley’s opening point was that we don’t want a controlled press, but neither do we want a press-controlled government. People who aren’t British citizens can control the actions of the British government [AF note: his mention of Tony Blair’s visit to Australia makes it clear who this is a reference to], and while the PCC has not failed to make the rules, it has not enforced those rules and cannot do so. He asked how we can enforce them without state control, and his suggestion was to separate the rule-making arm from the enforcement art, which should be completely independent. At this point Phillips interjected, saying that the creation of the free press has been a long fought battle, but admits that some changes do need to be made. Mosley said that there is a clear need to define the public interest in statute. Any such statute must contain some presumptions as to what the public interest is, but it is important that these presumptions can be rebutted. He also requested that any such statute allows the prevention of publication if it is required.

Following the speeches, there was time for some questions:

The first question looked at the Press and incivility; as women are being objectified and disabled people attacked for claiming benefits, what did the panel think of this?

Mosley pointed to the evidence given by Moy at the Leveson Inquiry which showed that this is a problem that is coming to the fore, including collusion with government departments over stories to help foster an attitude towards policies. Jowell furthered this by remarking that some papers focus more on the sales they make to certain groups more than the dissemination of information. However, she made the very important point that we can rely on drafting regulating principles well, to safeguard every reader from offence – we should rely on people being offended on behalf of others and to refuse to buy the paper.

Mosley set out a plan for a free tribunal that would give access to anyone feeling aggrieved by the Press, with a hearing being allowed on one of four grounds: defamation, accuracy, offence, and misleading information. Phillips also said that offence is a matter of internal culture, and the appropriate use of words. Complaints are also learning opportunities for the Press, working out when they go too far. It is the only way the Press learns, such as describing victims in a derogatory way, i.e. acknowledging that a murder victim is a prostitute when such a description is not required.

A second question noted that this is just a part of a wider debate, and asked what the panel thought about whether a press commissioner should be a privacy commissioner. Another question asks why no-one seems to have done anything about the police passing information to the press.

Jowell agreed that the police passing information is an accepted fact, that it helps to supplement the income. As the cases are dealt with by the relevant authority, the government didn’t look at the problem systemically. However, it is important to remember that most police don’t do this, that they feel ashamed and wish to reassert the professionalism of the police. Mosley did however ask why the Home Secretary has never required the Commissioner for Police to investigate. He also referred to Hugh Grant’s statements in evidence that a call to the police would lead the journalists to arrive before they do. Phillips agreed with this, as the journalists knew that Harry Redknapp was to be arrested; the question is how.

Tomlinson then brought the question back to one of a privacy commissioner. Moore said that that the idea sounds sensible but looking at the ICO, the commitment and practicalities regarding resources would need to be met and safeguarded to make it work. Mosley returned to his idea of a free tribunal to adjudicate matters.

Following on from this, a question was asked about who should sit on such a tribunal to ensure that it is a fair deal for both the press and public.

Mosley’s response was barristers or solicitors could the tribunal ‘judges’, but as with the PCC as it stands, it should be funded by the Press. He noted that this is cheaper than the overall cost of litigation. Jowell liked the idea of a tribunal and the presumptions for public interest in a statute, but also suggested that members of the public be used for the tribunal as well. Jowell said that any system would require proportionality and access to representation for those who want it.

A fifth question noted that the definition of public interest is a key issue but asked how it could be defined. Following that, should people in the public eye be held to a higher standard? A sixth question asked how the public interest matter sits with the need to sell papers, and a seventh question asked how privacy on the Internet can be protected. Can we draw a line?

Moore said that transparency can have a chilling effect on poor behaviour, and that the public interest is also about what isn’t in it, as well as what is. Jowell went further, saying that the consequence of press campaigns can also intensely damaging, pointing to the Daily Mail’s campaign against the triple vaccine which has been found to be untrue. Jowell believed that the Internet would have been a strong force for good in that. Mosley said that just because something is popular doesn’t make it right. For him, the net is just another medium – removing the power of its mystery is key. On the matter of public interest, Phillips believed that there should be positive criteria for public interest, including public information and encouraging debate. There should be a stronger and clearer definition of privacy, and the public need to be educated about the dangers of the net.

Analysis

What was clear from this was that there was no real debate around the matter as such: all the panel agreed that change, and drastic change at that, was needed. All also agreed that the freedom of the Press is important, and that the revelations we have all become familiar with are the work of only a very small number of individuals. It was however very interesting to note that the PCC was very rarely mentioned, and it seems that the panel reflected the public mood that the PCC is now a defunct organisation.

However, there was very little to be said about what could be done to effect this change. Mosley’s idea of a free tribunal is an intriguing one, fairly similar to a plan devised by Chris Bryant MP, and incredibly similar to the organisation Early Resolution which started up last year. However, this doesn’t seem to help with the problems of self-regulation that we have seen arise from the Leveson Inquiry. It was merely agreed that it was a difficult task, as it requires both a controlled and a free Press to exist. These ideas seem mutually exclusive, and the panel acknowledged this. Perhaps the silence on this from the panel was out of respect for the ideas that will come from the Leveson Inquiry, or perhaps it was more out of recognition for what a difficult question it is to answer.

About the author: Adam is a barrister, and was called to the Bar by the Inner Temple in July 2011. He wishes to practise in media and public law, and blogs on these subjects at www.adamfellows.com. He is also the treasurer of Independent Academic Research Studies, a youth-led think tank with the aim to empower young people and encourage them to engage in the political process and justice, and has since embarked on an LLM (distance learning) in Information Rights Law and Practice with an elective in media law and privacy.

We’d been missing our normal PopBitch fix of late; it turned out the weekly email had been going to the spam folder. Had the injuncters got to Gmail too? Anyway, this week’s update is entitled: “Superinjunction revealed!” That, rather disappointingly, turns out to be the name of PopBitch’s racehorse. The celebrity gossip newsletter also commented, somewhat cynically:

Could it be true that the tabloids are not entirely unhappy with the latest wave of injunctions? We’re told that the red-tops are busy dusting off their weakest celeb kiss ‘n’ tells in the hope that the celebs in question take out a gagging order. It would make sense. An outraged “Another famous married man tries to silence us” piece is way more powerful at the moment than a story on the banal sexual shenanigans of some footballer you’ve probably never heard of.

Most bizarre story placing of the week should go to Metro, which deemed an article about TwitPic changing its copyright rules worthy of the front page slot… Twitter, or copyright small print, really isn’t that interesting.

And bad legal tip of the week goes to the Independent’s media diary:  ‘Mosley tipped for court victory’.

Now, on with the rest of the UK media law news from the last seven days…

Contempt of court

• Press Gazette>>Contempt proceedings granted against Sun and Mirror
• Media Guardian>>Better late than never – the attorney general finally does his job
• Media Guardian>>Joanna Yeates trial: contempt action approved by high court

Super injunctions (definitions and chronology here)

• Inforrm>>Opinion: “Privacy, the Press, Press regulation and super-injunctions: more heat than light” – Chris Pounder
• Press Gazette>>Hunt: New regulation needed on privacy and Twitter
• Inforrm>>Opinion: “More lead in the media pencil…” – Amber Melville-Brown
• Out-Law.com>>Twitter user is in contempt of court if allegations published about celebrity super-injunctions are true, expert says
• Inforrm>>What now for contemptuous tweeting and media innuendo in the privacy injunction saga? – Judith Townend
• David Allen Green>> Thinking clearly about superinjunctions
• IPMediaLaw>>Tweet And Be Damned
• Macolm Coles>> Super injunction names: 6 national newspaper stories that flouted the injunction to reveal all
• Malcolm Coles>> Twitter and super injunctions: no one need pack their toothbrush
• FT.com: Twitter account challenges super-injunctions
• Beehive City>> Super-injunctions fail in 140 characters as newspapers take Twitter’s lead
• Natalie Peck>> Can superinjunctions survive the internet?
• David Banks>> Twitter-tattle about celebrity sex lives is little to celebrate
• Head of Legal>> Breaching so-called “superinjunctions” on Twitter
• Garrulous Law>> Superinjunctions
• Telegraph>> Twitter and super-injunctions: legal questions answered
• NYTimes>> Prominent Britons Use ‘Super Injunctions’ to Shush Scandals in Papers

Privacy

• Out-Law.com>>Privacy legislation may be needed, says culture minister
• Inforrm>>News: Guardian editor on the tangle of libel, privacy, phone hacking and self-regulation – Judith Townend
• Out-Law.com>>Facebook users’ personal information exposed by security flaw, say researchers
• Media Guardian>>Who will draw the line between freedom of speech and privacy? | Owen Bowcott
• Inforrm>>The legal questions on privacy as the internet evolves – what is private and what is public? – Leon Glenister

Mosley decision in Europe

• Index on Censorship>> Max Mosley: Sex, secrets and super-injunctions
• David Allen Green>> What the Mosley privacy decision really means
• Media Guardian>>Zac Goldsmith calls for privacy law
• Charlie Beckett>>The messy reality of law, privacy and media freedom
• Inforrm>>Case Law: Mosley v United Kingdom: pre-notification rejected by Strasbourg – Hugh Tomlinson QC
• Media Guardian>>European court of human rights judgment on Max Mosley: conclusion
• Media Guardian>>Mosley hasn’t finished with the News of the World yet…
• Media Guardian>>Max Mosley judgment in full
• HTFP>> Mosley’s defeat vital for regional press
• Richard Peppiatt>> Britain’s freedoms weren’t at risk in the Max Mosley case
• Law Think>> Mosley loses, but this does not mean it’s a victory for the press

Wikileaks

• Media Guardian>>WikiLeaks, get out of the gagging game | James Ball
• David Allen Green>> The £12m question: how WikiLeaks gags its own staff

Defamation

• Media Guardian>>Roman Abramovich libel case due in court next week
• Media Guardian>>Removing libel juries would be dangerous, warns newspaper industry
• Press Gazette>>Rusbridger: UK legal system punishes decent journalists
• Media Guardian>>Alan Rusbridger: The long, slow road to libel reform
• Legal Week>> The death of libel – is the Defamation Bill the beginning of the end for libel lawyers?

Press standards

• Press Gazette>>Lebedev: Act responsibly to prevent press crackdown
• Press Gazette>>Baby P report: social work journalism ‘one-dimensional’
• Out-Law.com>>Press Complaints Commission rules Telegraph’s ‘fishing expedition’ unacceptable
• MST>> Welcome PCC precedent unlikely to have wider impact
• Press Gazette>>Middletons in PCC complaint against four newspapers
• Journalism.co.uk>> Rusbridger: If we want a PCC that is effective we will all have to pay more
• New Statesman>> The Telegraph has been told off. Big deal . . .
• The Guardian>> Journalist who faked celebrity scoops stars in film about his life and lies

Data protection

• Out-Law.com>>ICO publishes new code of practice for personal data sharing

Press freedom

• Index on Censorship>> Testing academic freedom
• Press Gazette>>Call for end to secret police misconduct hearings

Readers of last week’s round up will be glad to know the Mirror story about Gabby Logan not having a super injunction is now correctly illustrated with a picture of her, and not a local election hopeful.

Finally, a little Royal hypocrisy for you at the Ministry of Truth.

You can find a full stream of aggregated media law news via @medialawUK on Twitter; and Meeja Law tweets go out via @meejalaw. Contact me via @jtownend or jt.townend [at] gmail.com. Relevant journalism and law events here: https://meejalaw.com/events/.