Asking Turkeys to vote for Xmas?, or Reflecting on the abuse of parliamentary privilege

The Guardian has reported the comments made yesterday in the House of Commons by a Liberal Democrat MP (col 1069) that appear to circumvent a supposed 'super-injunction' concerning Fred Goodwin (formerly of the Royal Bank of Scotland). The suggestion is that the injunction in question precludes the identification of Mr Goodwin as a 'banker', and as such, that it is entirely facile.

The details published suggest that Mr Goodwin may have been the beneficiary of one of the recent 'DFT orders' (labelled in line with their use by Mrs Justice Sharp in DFT v TFD [2010] EWHC 2335 (QB)), and not in fact a super-injunction per se. Such orders are designed to preclude 'jigsaw' identification of individuals whose privacy the courts have seen fit to protect.

John Hemming, the MP in question, has called for a debate in Parliament on the issue of super-injunctions, over-looking the fact that just such a debate was held in Westminster Hall within the last eighteen months. He also failed to acknowledge - as Afua Hirsch notes in her Guardian piece - that an inquiry instigated by Lord Neuberger - the Master of the Rolls - into the award of interim injunctions in publication cases is currently ongoing. The phrasing of his question to the Minister - "will the government have a debate or a statement on freedom of speech and whether there's one rule for the rich like Fred Goodwin and one rule for the poor?" - suggests that he may have been put up to the job by some friends in the media who have pushed this line hard. Or perhaps his concerns merely mirror those of the newspapers who regularly decry legal restrictions imposed upon them to protect the private information of individuals.

MPs can circumvent injunctions by relying on parliamentary privilege to avoid any legal repercussions. The Guardian - and others (1,2,3,4) - can no doubt pray in aid the right to report proceedings in Parliament. All very principled, but nonetheless it stinks. The MP's comments imply that judges of the High Court are somehow failing properly to value open justice and freedom of expression in their balancing of such factors against privacy concerns, and this even after the attention given to the risks in public debate. Even the barest reading of recent judgments on these points - for summaries, see Inforrm generally and most recently this piece by Charlotte Harris - would demonstrate quite how deeply considered such competing interests and values are.

As it is, such comments stand as a craven insult to public-spirited - and in many cases quite brilliant - professional judges meted out by ill-informed show-ponies.  Notably, the minister responding to Hemming's question - Sir George Young MP - commented that "the matter that he has just raised... seems to impinge on the responsibility of the courts and any Minister would be cautious about commenting on that". Such abuse of parliamentary privilege must be addressed by Parliamentary authorities (someone pass the Erskine May). Otherwise, their honourables should be debating the extent of their own freedoms alongside the use of anonymising injunctions.

'Ordinary person' vs 'the Press': the unmentioned 'other' problem with libel law

Roy Greenslade has linked to a blogpost outlining one libel claimant's experience of newspaper journalism, journalists, defendant lawyers, and the legal process: A True Story Of Daily Mail Lies by Juliet Shaw. Salutary reading for those engaged in policy development on libel reform... and only the tip of an iceberg.

PCC publishes updated version of the Editors' Codebook

The Editors' Code of Practice Committee has published revised guidance regarding the Code against which the Press Complaints Commission benckmarks complaints. The Codebook is authored by the Secretary to the Committee, Ian Beales, and collates the guidance to be drawn from adjudicated cases and wider experience. A precis of the revisions made to the Codebook is provided on page 4 of the new version.

Ignoring domestic abuse?: SLAPPs in the UK

An interesting piece in yesterday's Guardian focused on a letter sent recently by Carter Ruck to the Soil Association warning of potential liability under libel law if an objection to a planning application was not withdrawn. The piece quoted David Banisar of Article XIX who characterised the letter as a 'strategic lawsuit against public participation' (SLAPP).

SLAPPs were first discussed by two American professors (of law and sociology respectively), George Pring and Penelope Canan, in a series of academic papers and then a ground-breaking book. They focused on attempts by wealthy interests to prevent others from communicating with emanations of the government (relying specifically on the right to petition government for redress of grievances subclause of the First Amendment to the US Constitution). The position in the UK was surveyed by Fiona Donson (now of University College Cork) in her 2000 book Legal Intimdation.

On the back of the work of Canan and Pring, and as cited by David Banisar, many US states have introduced 'anti-SLAPP' legislation that affords the victims of SLAPPs the opportunity to counter-sue when attempts to chill such public participation occur. That introduced in California, which covers attempts to restrict both petition of government and free speech more generally, is most heavily used. Other jurisdictions have introduced similar legislation (see, for example, that in Quebec). Indeed, the libel tourism blocking statutes introduced of late in the US - at least in their more aggressive form - can be understood as just such measures.

In our initial paper examining the proposals for reform of libel law put forward by Index on Censorship and English PEN, Alastair Mullis and I suggested that rather than focus on substantive revision of the law one potentially valuable avenue for further consideration was the development of anti-SLAPP provisions in this jurisdiction (whether based on common law or by way of legislative intervention). Its fair to say that as co-authors we took, and I think still take, diverging views as to the potential workability and perhaps the desirability of the option.

One quandary for those devising anti-SLAPP legislation is the difficulty in distinguishing between bona fide actions brought to assert legal rights or defend interests and other actions that are designed to chill public participation. There are also concerns over access to justice for claimants. Understandably, media defendants tend to view such proposals as being likely to give rise to just more satellite litigation; claimant lawyers tend to consider talk of anti-SLAPP provisions as nonsensical. Nonetheless, it has been very surprising to me that this option has not been picked up by members of the libel reform campaign, especially given the repeated assertions that they are not about promoting the interests of the mainstream media. The garret-room blogger, the public-spirited scientist, and the impecunious local or specialist publisher are precisely the people who might have most to gain from the availability of anti-SLAPP options.

Reframing Libel: taking (all) rights seriously and where it leads

Last week at the Reframing Libel symposium at City University, Alastair Mullis and I offered a first airing of a paper we've been developing over recent weeks. A working paper version of this paper will be published shortly, and thereafter we hope to publish a more developed, academic version of the idea.

For the meantime, the executive summary of the working paper (reproduced below) gives a sense of our argument and proposals:

1. In preparing this paper, we have returned to first principles and re-evaluated fundamental aspects of libel law. We offer a fresh analysis of the purposes of the law which culminates in innovative proposals regarding its substance and its processes. Our thinking has been informed by, first, philosophical understandings of democracy and the public sphere and in particular the role of freedom of speech and of the media therein, and secondly, the social psychology of reputation.

2. The conclusions that we reach lead us to reject the overall approach taken in the Defamation Bill sponsored by Lord Lester. Though we agree with a number of his proposals and would support their adoption, we fear that overall the Bill will do little to reduce the existing complexity and expense of the law. Indeed, it may exacerbate both. Most fundamentally, we consider that the Bill addresses the problems of libel law through the prism of an over-weaned emphasis on freedom of expression, and therefore fails properly to triangulate the rights and interests of claimants, defendants and the wider public.

3. Ultimately, we recommend a coherent set of significant substantive and procedural reforms that if enacted would enhance access to justice, simplify processes and reduce costs for the vast majority of libel actions. In essence, our proposal involves the recommendation of a two-track libel regime.

4. The first track in this new regime would comprise a much-simplified process. This could be administered by the High Court, but the function might instead be allocated to the County Court, the Tribunals Service, or an appropriately designed (self-)regulator. The overwhelming majority of cases would be addressed by this route. Damages would only be available for psychological harms protected under Article 8 ECHR, but would be capped at £10,000. Vindication would be obtained by an appropriate – and mandated - discursive remedy (correction; apology; right of reply; declaration of falsity). The remedy in damages for intangible harm to reputation would be withdrawn. Special damages for provable loss would be unavailable in this track. Determination of the meaning of imputations would be much simplified by adopting the meaning(s) inferred by the claimant subject to a test of capability / reasonableness / significance. Truth and fair comment would remain as the primary defences, while in appropriate cases the defendant would also be able to rely on absolute, traditional or statutory qualified privilege. The rationale underpinning the Reynolds public interest defence in track one would disappear. The approaches to substantive questions suggested here would very significantly reduce the complexity and cost associated with particular cases. Hence, it would reduce the chilling effect of the law on publication, and markedly enhance access to justice for defendants and claimants.

5. The second track would be limited to the most serious and/or most damaging libels. Cases would proceed down this track only where special damages for provable loss are claimed, or where psychological harms protected under Article 8 are severe so that the track one procedure would be manifestly inappropriate to deal with the case. Track two cases would continue to be heard in the High Court. As in track one, the remedy in damages for intangible harm to reputation would be unavailable, and vindication would be obtained by a discursive remedy. Where proven by the claimant, special damages would be recoverable. Uncapped damages would be available for Article 8 psychological harm (although a de facto cap would remain by pegging to damages recoverable for physical injury). On account of the power of the court to award very substantial damages and the likelihood of significantly increased costs, the potential pre-publication chilling effect requires the availability of a Reynolds-style public interest defence in track two. Where the defendant relies on Reynolds, however, proper recognition of the underlying principles of freedom of expression and the importance of reputation require that the defendant provide either a right of reply or a notice of correction with due prominence. Truth and/or fair comment would remain available, and in appropriate cases the defendant would be able to rely on absolute, traditional and / or statutory qualified privilege.

6. We envisage that adoption of the above scheme would also provide significant incentives for complaints to be settled quickly between the parties without recourse to the formal legal regime. We recognise that the availability of track two may continue to facilitate the abusive threat of legal action, but suggest that claims to have suffered severe Article 8 harm or particular losses could be easily identified and quickly dismissed by the court if unsubstantiated. We also recognise that the releasing of media defendants in most cases from the risk of very significant legal costs and damages may encourage ‘game-playing’ by some organisations. In our view, the blunt constraint currently afforded by high costs are adequately substituted by obliged dedication of space to accommodate discursive remedies and the loss of credibility that would go along with such repeated emphasis on poor quality journalism. We do not shy from the fact that these remedies themselves involve interference with defendants’ Article 10 rights ‘not to speak’. We also note that discursive remedies afforded quickly are often the primary outcome that claimants seek.

Lord Justice Sedley on media slant and the right to reputation

Media Lawyer has reported a number of interesting comments made by Lord Justice Sedley yesterday at the Thomson-Reuters/Justice conference on human rights. He is reported as having noted recent moves by the courts "away from some of the rigidities and artifices of libel law". He also warned, however, that:

it is an important fact in Convention law and in human rights law that care must be taken not to confuse the noise that the media are able to make with public opinion... public opinion I sometimes think is in large part an echo chamber inhabited when one gets there by leader writers and public moralists and perhaps not many other people... there are interests which do not feature in the conventional account of public opinion - and the right to reputation is one of them - which do have to be watched and guarded.

The full transcript of the speech may be made available anon. In addition, Lord Lester was speaking at the event on human rights under the new government, while there was also a session on the right to reputation that was to be led by Heather Rogers QC and Padraig Reidy of Index on Censorship. I haven't yet come across any report on what was said in those sessions (presuming that Lord Justice Sedley's comments were made during his plenary).

Media Futures: keynotes from the Belfast Media Festival

Last week saw the inaugural Belfast Media Festival which was aimed at projecting forward on what might / could be the shape of the media sector in Northern Ireland in the coming digital years (the sector is already one of the major employers in the province).

The Festival included five keynote speakers:  Peter Johnston (Director BBC NI); John Linwood (Chief Technology Officer, BBC); Janice Hadlow (Director BBC2); Sir Bob Geldof, and Martin Davidson (BBC Commissioning Editor). Videos of these sessions are available here.

In particular, see the presentation by John Linwood which gives an interesting and concise overview of the possible future(s) of audio-visual (interactive) content delivery, and also then the remarkably incisive speech by Bob Geldof on the future of journalism (interesting and engaging from the start; riveting from about 20 mins).