Role of the Attorney General: altered incentives regarding contempt allegations?

One of the long-standing problems regarding the law of contempt (quite apart from the rights and wrongs of its substance), has been the perception that the Attorney General (and Government more generally) is often politically loathe to upset the red-top newspapers by bringing any action. The result is that the apparently stringent British law is rendered a somewhat different beast by under/non-application (on which see this from the New York Times).

In this regard, something that slipped under my radar in the last week may have an important bearing. In its Green paper on the Governance of Britain, Brown's new government has promised to review the role of the Attorney General. Concerns arise because the Attorney General acts both as a Government Minister (chief legal adviser), and as the guardian of
the public interest in a number of different areas (including the bringing of contempt proceedings). It is easy to see how any incumbent may confuse or conflate the public interest with that of the government of the day. A consultation is promised soon, and the Government has also stated its intention to take seriously the views of the Commons Committee on Constitutional Affairs that has been undertaking its own review.

Journalists behaving badly

On the day after Sir Christopher Meyer emphasised that journalistic lapses are inevitable, there is much in the newspapers on press and media types behaving badly. First off, the BBC has had to apologise to the Queen on account of its misrepresentation of an episode during the Queen's recent tour of the US (1,2). While shooting the Queen in formal garb, the photographer Annie Leibovitz suggested that she removed her crown for a 'less dressy' picture. A trailer for a BBC documentary on the Queen's year was cut in such a way as to imply that the Queen had then stormed out of the shoot. This didn't happen, but the Queen's face - stilled on the Guardian website - nonetheless tells a story in itself. No sign yet of an equivalent apology from the Guardian for its description of the episode as "a very royal flounce".

Next up, a US female television journalist - who was caught on video wearing a swimsuit at the home of a man whose wife disappeared two months ago, a story she had been assigned to cover - has described the episode as a 'horrible mistake' (1). She maintains that she had been taking her children out for a swim when she got a call from the man's sister, and chose to kill two birds with one stone (the latter being the hope of becoming friendly with the family in order to get to the bottom of the story). She insists that it was wrong for competiting stations to insinuate some form of relationship. She doesn't seem to concern herself, however, over the implicit intention to engage in emotional manipulation of her subjects.

Finally, a paparazzi photographer has been convicted of assaulting Heather Mills Macartney by grabbing her shoulder in order to twist her around for a better shot. I confess that when I first read this story I dismissed it as a fantasy on the part of Ms Mills, given that her own father is alleged to have described her as being a stranger to the truth. Clearly, I was wrong. The Guardian informs us that the defendant possessed 132 prior convictions for dishonesty - so Mills was trumped and thumped ...

Race to the top explains irritating restrictions on internet tv

There is an interesting note in the Guardian today explaining the vexatious fact that tv on demand downloads are generally only accessible using specified software tools. It seems its all down to the relative strength of the DRM systems associated with each, and the insistence by content rights holders that material is protected as well as possible.

MPs conclusion: PCC comfortable on the veranda of an accommodating hostelry

The House of Commons Select Committee on Culture, Media and Sport has published the report on its inquiry into self-regulation of the Press. Among the conclusions in its summary were, first, that "to dispense with the current form of self-regulation and to rely exclusively on the law would afford less protection rather than more", and that "any move towards a statutory regulator for the press would represent a very dangerous interference with the freedom of the press". While the former notion seems obvious, the underpinning of the latter escapes me.

The report did note, however, that "if the industry is not prepared to act unless a breach of the law is already shown to have occurred, then the whole justification for self-regulation is seriously undermined". In short, editors should pull their fingers out.

The Committee hasn't closed the book on the issue. It promised that the area "raises serious and complex issues which may merit abroader investigation than we have been able to undertake here... particularly in the light of the recent speech by Tony Blair about the behaviour of the press and the regulatory framework for the industry... [the subject] deserves careful examination in the future".

More on this anon...

'Bless us all!': Save Kids' TV launch online video

The campaigning group Save Kids' TV has launched a viral campaign online depicting our bleak collective future if proper funding is not restored for children's programming following the restrictions on junk food advertising. To date, the video has had 17 views (with another version having 12), but its worth a look even if just for the laughs...

'Its all back on'!: the renewal of hostility between press and palace (sic)

Some time ago I commented on the withdrawal of a complaint to the Press Complaints Commission by Kate Middleton against the Daily Mirror, and how this had let the regulator out of a difficult predicament. Well, according to the Guardian, Ms Middleton is still facing regular pursuit by the paparazzi to the point were she has made formal complaints to the police.

Interesting excerpts from the article include quotations from the photographers involved - "we are sorry Kate we are having to do this, the newspapers are all pressing us for photographs"; "we are not doing so [stopping] because we know you aren't going to do anything" - and more importantly, the idea that the PCC has been deploying its behind-the-scenes entreaties to warn off editors. Clearly these injunctions are falling on deaf ears, which somewhat gives the lie to the PCC's regular claims over the effectiveness of this persuasive capacity. Oh, and there's also a repeat of recent reports that Kate and William are an item once again... who said the broadsheets haven't gone tabloid!

Messenger shot: teacher-journalist suspended for undercover filming

Some months ago, I commented on the case of Angela Mason who faced a hearing before a committee of the General Teaching Council charged with unacceptable professional conduct. She had admitted taking surreptitious footage in several schools for a Channel Five documentary. Ms Mason has now learned her fate: a one year suspension from teaching (1,2,3,4).

Mason was to some extent 'hoist by her own petard' as the committee had access to all of the footage shot (para 12). The committee considered that her defence based on the public interest in receiving information on matters of public concern was insufficiently strong to outweigh the purported dereliction of her duty towards the welfare of the children (para 45). It considered that her motivation in entering the classroom - being that of a journalist and not primarily that of a teacher - was relevant to the matter (para 34). She had breached the trust of her employers, colleagues and pupils.

The Committee also found that Ms Mason had not deliberately or wilfully encouraged the poor behaviour (para 22). Nevertheless, it considered that deficiencies in her teaching and classroom management give a false impression of the realities of behaviour in schools (para 40). This is at once the rejection and rejuvenation of an entrapment argument, and seems (not so) subtly intended to gainsay the strength of the contention conveyed in the programme that disruptive behaviour impacts seriously on learning opportunities. That said, the Committee did not seek to deny the fact of disruptive behaviour or that the teacher's lot is a demanding one. The committee allowed that Mason had not deliberately provoked or allowed bad behaviour, but criticised her for failing to adopt best-practice techniques for controlling pupils.

Channel Five contended that the committee had given insufficient weight to the wider public interest issues. Certainly, while it sought briefly to distinguish the broadly analogous case of Leeds Council & ors v Channel 4 Television Corp [2005] EWHC 3522 (Fam) in which a public interest defence was successfully deployed, it concluded that the question being asked of it was different to that faced by the court. In the committee's view, a public interest defence could only be successful in this context 'exceptionally' (para 30). Ms Mason's view, echoed on discussion boards: "the GTC has done nothing to help pupils or parents by sanctioning me in this way".

'The ban on junk food advertising - a charade?' and other questions

Much news on the advertising front...

First, the consumer group Which? has published a study which illustrates its view that the ban on the advertising of foods high in fat, salt and sugar in spots around children's programming will be ineffective (1). The study, based on a survey of ITV1 shows between 28 May and 10 June, found that none of the top 20 shows and only seven of the top 50 shows watched by children would be free of adverts for chocolate, cola, burgers and pizza.

This is because Ofcom rejected a 9pm watershed for junk-food ads, but decided instead to bar them from programmes with a high proportion of child viewers. Kids favourite shows have proved to be those also popular with adults in the early evening prime-time family-viewing slots. This fact was not unknown to Ofcom. It has estimated that the chosen option will cut the number of junk-food ads viewed by children by 41% at a cost to broadcasters of £39m. The more effective 9pm watershed approach would likely cost £263m. The Which? research suggests that the 41% figure is a serious over-estimate.

Coincidentally - at least according to its Chief Marketing Officer - Pizza Hut has adopted a new marketing policy which will see significantly less advertising on television and a greater emphasis on brand promotion and online marketing. Also reading the zeitgeist, former government minister Chris Smith - who has become the new Chairman of the Advertising Standards Authority - has indicated that the ASA is to invigorate its attitude towards online advertising (1). The vast majority of internet-related complaints fall outside the regulator's competence as they involve editorial website claims. The ASA remit only covers paid-for advertising on the internet. Nonetheless, the public perceive websites to be part-and-parcel of the advertisers' toolkit. Smith is likely to press for the agreement of some industry standard, perhaps similar to the existing codes for broadcast and non-broadcast advertisements overseen by the ASA.

Elsewhere in the advertising domain, Fergie - the female singer with the Black Eyed Peas, and solo artist - has become the first pop star to agree to include explicit product placement in her songs. She's signed a $4m deal with a skimpy, teen-oriented clothing line. Its not a million miles away from what happens now in music, cinema (obviously!), tv, books, and even Presidential statements (announcing Donald Rumsfeld's resignation, George W Bush said "it's tough in a time of war, when people see carnage on their Dell television screens". Dell's chairman is a major donor), but I'd have thought that the move was destined to make her seriously uncool. But they're smart those marketing guys. They are also planning to give away clothing makeovers at Fergie's concerts to keep the tweenies hooked.

Meanwhile, Michael Grade - the executive Chairman of ITV plc - has called for additional advertising time in its peak viewing hours in order to fund investment in regional programming (1). Ofcom currently limits ITV to a maximum average of 8 minutes of advertising in peak time (with an individual maximum of 12 minutes per hour). This contrasts with the 9 minute average allowed to digital channels.

Grade also proposed the streamlining of the ITV regional franchise system on the basis that the 15 ITV regions are a legacy of the technological capacities at the time of introduction of commercial television and make little sense on cultural grounds. Of course, ITV plc now holds 11 of the 15 regional licences (bar two in Scotland, and one each in NI and the Channel Islands) alongside a healthy stake in the morning tv franchise GMTV, and so a consolidation of programming would make perfect sense for it.

Finally, to rehearse an old complaint (1,2,3), Friends of the Earth have launched a campaign on climate change which involves the airing of an advertisement in cinemas, not on television or radio due to the questionable ban on political advertising on such platforms (1).