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    Thursday, 18 December 2008

    'Tis the season... to be clamouring for libel reform

    Much has been happening on the defamation/libel reform front in recent days...

    First, Elton John's case against the Guardian collapsed after a ruling on meaning by Mr Justice Tugendhat 'clarified' the approach to be adopted towards irony/satire (this is discussed in more depth elsewhere by the excellent Daithi).

    Secondly, Nicolas Sarkozy has been calling for reform of French defamation law, and speifically its decriminalisation.

    Thirdly, English PEN and Index on Censorship have launched an inquiry into the state of UK libel law (to some extent emulating that recently announced by the Commons Select Ctte chaired by John Whittingdale MP).

    Finally, the House of Commons (Westminster Hall) yesterday held a very interesting adjournment debate on the state of libel law at the behest of Denis McShane MP. Two focuses for attention were particularly noteworthy: the call for a small-claims court style determination of libel actions, and derision of the 'libel tourism' trade with reference to developments in the US Congress and New York state. Both of these are interesting from the LSE perspective. In the former regard, research into the ramifications of the Article 8 recognition of reputation rights that I am currently working on may highlight an unexpected jurisprudential basis (or at least added political impetus) for such a shift. In the latter respect, together with Polis, the Law Department is to host a stakeholders' policy workshop on just this theme in the New Year.

    Thursday, 11 December 2008

    A Sting in the Political Advertising Tale?

    More on a pet pre-occupation... many thanks to Russ Taylor of OfcomWatch and Oxford Uni for highlighting a very interesting development in Strasbourg today where a Norwegian ban on political advertising has been overturned by the court (TV VEST AS & ROGALAND PENSJONISTPARTI v. NORWAY). Its an analogous case to the recent ADI litigation in the UK that ended up unsuccessful in the House of Lords. I haven't had time to read the judgment in full, but it seems that the court was unimpressed by the argument that the ban was necessary to avoid subversion of the public sphere by wealthy interests. Rather they seem to have seen it - perspicaciously - as precluding voice opportunities for marginalised groups.

    Thursday, 13 November 2008

    Rays of light from the Dark Lord of Mordor: Dacre on privacy and more

    Paul Dacre, editor-in-chief of Associated Newspapers, has entered the fray on the judge-made law of privacy, criticising the 'inexorable' and 'insidious' imposition of new law on the British Press. Speaking at the Society of Editors conference, he warned that the new law was "allowing the corrupt and the crooked to sleep easily in their beds" while also undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market.

    Dacre had two key criticisms. First, the substantive contention that the law was based upon "amoral judgements". The amoral component was deemed to be the closeting of 'unconventional', perhaps depraved - certainly commercialised - sexual practices and/or of adulterous relationships behind the screen of personal privacy (protected by Article 8 ECHR). Dacre was concerned that the law appears to make no moral distinction "between marriage and those who would destroy it, between victim and victimiser, between right and wrong".

    There are two points at which these comments might bite. On one hand, the law has to determine when a privacy interest is invoked. Dacre might argue that a commercial relationship with a prostitute does not engage privacy interests, and/or that any confidences purportedly entered under the 'contract' should not be enforced. Currently, the law does not agree with this approach. On the other hand, the law leaves room for the exposure of errant behaviour in circumstances where the interest in privacy is outweighed by some public interest in the matter. Here adultery committed by John Doe may remain private, whereas adultery committed by John Prescott might not. There is scope for debate, of course, on the question of quite when this public interest arises. Dacre complained that in both areas, the law is developing in an undesirable manner: that it "seems to be ruling out any such thing as public standards of morality and decency, and the right of newspapers to report on digressions from those standards".

    Dacre's second criticism concerned the allocation of most media law cases to one judge: Mr Justice David Eady. He complained that "while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media enabling him to bring in a privacy law by the back door". Media law, he complains has in effect become 'Eady's law' when it should reflect "the collective wisdom of many different judges over the ages".

    There is a lot in this point, accepting that judgments at first instance will always be open to appeal to higher courts. When a large proportion of cases at first instance are decided by one and the same judge - whomever that might be - it becomes increasingly likely that any worldview, predilection or leaning on the part of that individual will influence the decisions made on arguments put. For Dacre, Judge Eady's perspective is marred by "an animus against the popular press and the right of people to freedom of expression". In the privacy and other media law contexts, there is plenty of room for 'political' decision-making where incommensurable social values come into conflict (1). This leaves open entirely the question of whether the actual raft of decisions that Judge Eady has delivered are correct or appropriate.

    So how far does all this matter? For Dacre, hugely. He sees the obvious and direct correlation between content and sales figures, and warns at length that if stories cannot be told about the misdeeds of "the crooks, the liars, the cheats, the rich and the corrupt sheltering behind a law of privacy" then the Press cannot be a sustainable commercial enterprise. In short, we need the Press and the Press needs to be free to tell these stories. He cites eminent judges in support of this view. It is a powerful warning.

    There has been plenty of (valuable and other) commentary, complaint and (attempted) rebuttal (1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13).

    There is obviously the risk that Dacre's comments will be rejected on the simplistic 'you would say that wouldn't you' basis. He is open to the critique that he simply doesn't like what the law prescribes. Perhaps unfortunately, Dacre's speech came close to personalising the issue with its direct references to the purported failings of Judge David Eady. He described the judge as "arrogant", and as possessing a "dessicated" and "highly relativist" moral sense. On this, Dacre implicitly gets his defence in first. He would contend that the personalised story is much more appealing than the "ponderous, prolix and achingly dull". Who wouldn't agree - and on this ground, for this post, apologies!

    This is an important speech. It raises questions over (a) the allocation of cases in the High Court, and (b) the appropriateness of asking judges alone to determine how the framework within which journalists operate should be fashioned. The irony of course, is that after decades of warding off legislative oversight, newspaper executives seem now to be making a plea for Parliamentary intervention.

    The speech also touched briefly on freedom of information, open justice, data protection restrictions on journalists' investigations, and conditional fee arrangements (CFAs) and their impact on newspapers' willingness to fight actions and perhaps to publish (here he cited a recent case lost by the Mail on Sunday in which Associated’s costs bill was £520,000 costs in a case that awarded damages of just £5,000 in a dispute over a simple matter of fact - Dacre also indicated that the ministry of Justice is set to unveil proposals to reform CFAs, including capping lawyers’ fees).

    Friday, 7 November 2008

    Referee or Cheerleader?: Newspaper Society calls for suspension of local websites PVT

    The Newspaper Society (NS) has called for the BBC Trust to suspend its public value test of the BBC's plans to develop its locally-oriented websites that might compete with local/regional newspapers (and there online offerings). Indeed, in a development of its campaign against the proposals, the NS is pursuing the matters through its solicitors.

    The complaint has a number of components. These include, first, that Ofcom's market impact assessment may be based upon inadequate market definition; secondly, that the conduct of the review process has been flawed, and finally that Sir Michael Lyons, the Chair of the BBC Trust, has predecided the issue - that he is acting more as cheerleader for than scrutineer of the BBC proposals. This follows recent comments made by Lyons to the effect that much of the country was poorly served by the regional press (leaving the way clear for a valuable new service from the BBC).

    Roy Greenslade has been active in commenting on the BBC's plans and the attendant dispute, and his posts provide valuable background and comment (1,2,3,4). Jeremy Hunt MP offered some thoughts on this theme when speaking at a Polis session recently at the LSE (comment; transcript).

    Avoiding Offence: Caroline Thomson on Brand-Ross at the LSE

    Caroline Thomson, the Chief Operating Officer of the BBC, spoke at the LSE this week in the wake of the Brand-Ross debacle. Evidently, Ross and Brand were doing what they do, egging each other on in a manner familiar to all (former) school-boys (and -girls? - sorry, can't vouch for this as I attended a single-sex Grammar) before stepping across some line in the sand of propriety. Thomson accepted that this had happened, and that the editorial regime had proved inadequate.

    On another level, the whole saga speaks to the question of what is the proper ambit of public service broadcasting. Indeed, it was pushed into the spotlight by sections of the Press keen to propagate their own answers to that question. Such matters continue to command the attention of Ofcom and of the DCMS. I'm with Peter Fincham when he warns that the BBC must maintain a role in the entertainment sphere, not least because it is through such 'diverting' programming and associated commentary that we gain and review most poignantly a collective understanding of who we are. Worthy pronouncments on this or that social issue or moral question rarely make the visceral connection easily achieved through the ministrations of Mr Hanky the Christmas Poo and others. Quite whether the BBC need pay its leading entertainers the reputed millions, however, is an open (moral, political and - in the light of the economic travails of the broadcasting sector - commercial) question. The same question might reasonably be asked of the remuneration received by the 100 BBC executives paid more than the Prime Minister (BBC Question Time last evening), accepting that the time served on the PM's pauper salary of £190k per annum then grants access to Gringotts vault (1,2,3).

    A transcript of Thomson's speech at the Polis event and an interesting trailing comment from Charlie Beckett can be found on the Polis site.

    Wednesday, 5 November 2008

    There's no business like...: tv, broadcasters and competition

    There is a fair amount in the Press today on two stories re the business side of media law. First, BSkyB and Virgin have reached a rapprochement following their dispute over payment for and carriage of each others channels (1,2). Last week, another arm of this multi-pronged dispute reached a conclusion when the Competition Appeal Tribunal (CAT) ruled that any plurality concerns arising from the Sky-ITV share acquisition would in any event have been resolved by the remedy of requiring Sky to reduce its shareholding to 7.5%. In September, the CAT reached its conclusions on the central questions in that case. So that's that then - well no, Sky is said still to be considering a further appeal (1).

    Secondly, the BBC has come in for further criticism - from 'competitors' giving evidence to the Commons inquiry - on account of the impact of its commercial practices (1). The BBC Trust was also criticised. Plans for BBC locally-oriented websites are currently subject to a public value test being conducted by the BBC Trust.

    Tuesday, 4 November 2008

    Outgoing DPP on religious hatred law

    Ken MacDonald - the outgoing Director of Public Prosecutions - has offered some interesting reflections on the Racial and Religious Hatred Act 2006 in an interview with Joshua Rozenberg. Paraphrasing, he seems to consider it little more than window dressing.

    Thursday, 30 October 2008

    You spin me right round? new proposals on openness in family courts

    It seems that new proposals are soon to be announced with regard to increasing openness in the family courts (1). This has been an issue for debate for some years, with the Government shelving previous plans to increase transparency following a consultation in 2007. Last week, Sir Mark Potter (President of the Family Division of the High Court) signalled his support for greater openness in a very interesting interview with The Times.

    Picture source.

    Friday, 3 October 2008

    'What did we tell ya'?: journalism based on FoI requests

    The Campaign for Freedom of Information has published a report summarising the use by journalists of the FoI regime across 2006 and 2007. Specifically, it offers a precis of each story in which FoI requests - made by journalists themselves or by third parties - played a role.

    The CFOI hopes to highlight the enormous range of information being released under the FoI regime, and hence the substantial contribution that it makes to public accountability of government. It has previously published an equivalent report covering 2005.

    [Logo drawn from]

    Wednesday, 24 September 2008

    Respect for Contempt?: keeping speech free and trials fair

    Following the failure of the jury to reach verdicts on some of the charges in the airlines liquid bomb plot there has been much media comment on the rights and wrongs of the outcome. This is interesting because, of course, the prosecution is still considering whether to pursue the case before a reconstituted jury. Thus, for the time being the matter remains 'active' for the purposes of the Contempt of Court Act 1981, and hence putatively sub judice.

    In light of the media publicity, and the seemingly sanguine response of the Attorney General's Department, there has been an exchange of views between leading lawyers and the current Attorney General - Baroness Scotland - in the letters pages of The Times. Alun Jones QC asked "has the law of contempt ceased to apply to the media?... The times have gone when the Attorney-General enforced the law of contempt effectively. If she does not do so, what is the point of it?".

    In response, Baroness Scotland explained that "the law on contempt involves a delicate balance between two vital public interests — on the one hand freedom of speech and of expression, and on the other hand the right of an accused person to a fair trial. Not every public comment about a particular case, however outspoken, will seriously interfere with the rights of the accused... Journalists and commentators should be in no doubt that I will continue to enforce the law on contempt fairly and robustly".

    The upshot for journalists and editors is that the law and practice engenders something of a grey area in which the legality of stories - or perhaps the susceptibility to prosecution - is indeterminate.

    From our perspective, its a timely re-emergence of a long-standing debate. Next month, the LSE Law Department - together with the BBC College of Journalism and Polis - is to host a public panel debate on the theme. The evening's discussion will be chaired by Maxine Mawhinney of BBC News 24, who was herself embroiled in the problems created for journalists by the current law during the breaking of the Suffolk Strangler story. Broadly speaking, Joshua Rozenburg (Legal Affairs editor at the Telegraph) and Mark Haslam (partner at BCL Burton Copeland who represented Steve Wright in the Suffolk murders case) will speak in favour of media caution, while Jonathan Kotler (US Attorney, and Professor at the USC Annenburg School of Journalism) and Nick Davies (Guardian, and author of Flat Earth News) will question the utility of the current regulatory regime.

    We are preparing a set of background papers in support of this and a second event. These cover the current law in England and Wales, equivalent regulation in comparable jurisdictions, the state of the social-scientific evidence on the impact of media publicity on the fairness of trials, and an options paper. We're looking into how best to make this material more widely available.

    Tuesday, 16 September 2008

    Libel-tourism: impending collapse of another operation?

    There was a very interesting opinion piece published on the NY Times site on Sunday reflecting on the libel-tourism phenomenon which sees US-based celebrities and others sue in UK/Irish courts for purported defamation only 'incidentally' perpetrated here. The Independent had a piece on the phenomemon last month.

    The gander has been gotten up in the US, and was reflected in the UN Human Rights Committee statement published a few weeks ago. Following the Rachel Ehrenfeld case, the NY State legislature was looking to introduce a blocking statute. It seems that there is now a federal bill as well that may be passed before the end of next month.

    Friday, 12 September 2008

    Contested territory: Ofcom and BBC Trust elaborate on regulatory boundaries

    Ofcom has published an addition to its March 2007 memorandum of understanding with the BBC Trust as to which regulator will review which supposed content code infractions (1). The position has been that the Trust deals with all matters relating accuracy or impartiality, while Ofcom reviews allegations of inclusion of offensive and harmful material.

    The new 'addition' is intended to cover situations in which a single programme gives rise to an issue both of offence and/or harm, and accuracy. This clarifies that Ofcom will enjoy jurisdiction where three conditions are satisfied, even if the allegation involves accuracy. Otherwise matters remain the sole preserve of the Trust. These conditions are:
    - It is not an issue arising from News/news headlines or Current Affairs content as defined in the Memorandum of Understanding; and
    - It arises from deceptive or misleading content; and
    - It arises from (a) an explicit on-air invitation to the audience to participate in a vote or competition and harm or offence to members of the public is, or is likely to be, caused or (b) an on-air invitation to the audience/members of the public to act in a manner likely to result in material harm and/or offence (for example, actions likely to result in detrimental life changing consequences such as injury to health or financial well being).

    Unwitting exclusions: Rowntree study on poverty reporting in the media

    The Joseph Rowntree Foundation has published a study into the reporting of 'poverty' across media in the UK. Its an interesting read, and makes points that will be familiar to those of a 'Chomskyite' perspective (ie that the mainstream media systematically under-reports some matters of importance to society) - see medialens for elaboration on this viewpoint.

    The relatively unsurprising key findings of the study include:
    - Coverage of poverty is peripheral in mainstream UK media. The causes of poverty and the consequences of poverty were rarely explored.
    - Non-news broadcasts rarely mentioned poverty, although they often featured those experiencing deprivation. Coverage tended to focus on extreme cases, highlighting the inherent ‘failings’ of undeserving people. Some documentaries explored the inequities of poverty and complex circumstances of those experiencing it, but reached limited audiences.
    - In news media, poverty in the developing world received as much coverage as poverty in the UK, but was reported differently. Depictions of extreme poverty outside the UK correspond with and may influence how the public perceive and define poverty.
    - The campaigning sector contributes to keeping UK poverty in the news and is valued by media professionals as a source of comment and a means to access people experiencing poverty. Campaigners recognise that they could be more proactive in generating and promoting coverage of under-reported aspects of poverty.
    - Audiences tend to interpret representations of poverty and its causes in accordance with their beliefs and understandings. A key limitation of media coverage is the tendency to marginalise accounts which confront negative public attitudes.
    - The researchers conclude that if media coverage could challenge misperceptions of poverty in the UK, it could prove an effective means of generating public support for anti-poverty initiatives.

    There are also a couple of lovely quotes from focus group participants and others - for example:

    "Journalists don’t slam the door in the face of the poor. They just don’t go knocking. It's not just the journalistic process: poor people don’t make their voices heard so their stories don’t get reported." (Editor, regional newspaper)

    "I read the News of the World but I don’t believe a single word that is in it. Not even the times of the TV programmes." (White female, urban Scotland).

    Thursday, 17 January 2008

    Pass the Alka-seltzer...

    MediaPaL has been suffering from a prolonged - but fortunately merely metaphorical - holiday hangover, for which apologies are many. That said, the cranial mists are clearing and we will be back firing on all cylinders shortly. In the meantime, I'll be adding brief notes on and links to the most important recent media law/policy developments over the next few days.