Single publication rule - or defence of 'non-culpable republication'?

A Ministry of Justice consultation on defamation and the internet asks whether a single publication rule (SPR) should be introduced for online publications; whether, for this context at least, we should foreswear the Duke of Brunswick rule. Such a rule would set a limitation period running from the point of first publication (uploading), rather than from the date of each 'republication' (downloading) of a web page. The consultation paper offers three putatve reforms: straight shift to an SPR; shift to SPR with an extended limitation period (currently, 1 year); or an extension of the statutory version of the qualified privilege defence.

In responding to this consultation, we - Charlie Beckett of Polis, and Andrew Murray and Andrew Scott of the Department of Law at LSE - reject a move towards a single publication rule.

For sure we recognise the problems created for online archivist-publishers by the current multiple publication rule, as exemplified in the experiences of Times Newspapers before the domestic and international courts. However, we would be loathe to see the increased potential for injustice on the part of persons defamed that would be an unavoidable corollary of such a reform. Any reform would have to recognise that not all those who maintain online archives are as deserving of protection as Times Newspapers or other public-spirited media businesses, and that even angels sometimes sup with the devil.

Instead, we propose a new defence of 'non-culpable republication' (the epithet has already been described as "the most graceless phrase to be associated with the internet since user generated content", which we concede!).

Here is a flavour of our proposal. The defence would be available to an archivist-publisher after the elapse of one year from the point of initial publication. To avail of it, the publisher would be required to append a notice to the online article, indicating that a challenge to the accuracy of the piece had been made under the new defence.

The integrity of the archive as a representation of the historical record would be maintained, while any future reader would be left in no doubt that further investigation would be necessary before any imputation could properly be drawn from the article. The force of the alleged libel would therefore be mitigated. Moreover, the inclusion in the notice of a summary of the specific complaints brought - which we recommend - would often add to the discursive value of the original piece. It would remain open to the publisher to withdraw/amend the original piece if they took the view that there was indeed an inaccuracy that should be corrected. At the same time, the publisher would be free to choose not to append the notice, and thereby to assert the accuracy of the original piece. This would allow the publisher to deter attemtps to use the defence willy-nilly, but in such a case they would remain open to suit.

Bearing in mind the importance as we see it of the law supporting the emergence and practice of networked journalism, we also recommend that a variant of the new defence should be available to the author of online statements who loses control of same after uploading (eg where others tranpose statements made, without subsequently chedcking whether corrections/retractions have been issued).

Copies of the full response (circa 14 pages), are available here.

'You can be open or you can have government': Straw issues second FOIA veto

It has been announced that Jack Straw as Justice Secretary has issued a second veto certificate under section 53 of the Freedom of Information Act 2000. Such a certificate entails that a public authority need not comply with an order of the Information Commissioner requiring disclosure of information under the Act.

In this instance, an application had been made for the release of minutes of meetings of a Cabinet committee on devolution from 1997. The Cabinet Office confirmed that it held the information sought, but refused to disclose it under the section 35 exemption. That provision allows the withholding of information relating to, inter alia, the formulation or development of government policy. The Information Commissioner's Office concluded in June that the public interest in maintaining the exemption did not outweigh the public interest in disclosure, and so ordered the release of the minutes.

The Information Commissioner, Christopher Graham, has issued a statement in response to today's veto of this decision. In that, he indicates a concern that "the government may routinely use the veto whenever he orders the disclosure of the minutes of Cabinet proceedings, irrespective of the subject matter or the age of the information".

For his part, Jack Straw asserted that the decision had not been taken lightly (for the full decsions, see here). This was (somehow) an exceptional case where release of the information sought may impinge upon the convention of ministerial responsibility, and hence impact upon the effective operation of Cabinet government. It is difficult to put out of mind the finding of Lord Chief Justice Widgery (hardly a thorn in the side of the Establishment!!) as long ago as 1975 (hardly an era of unrestrained open government!!) that the narration of events that had taken place in Cabinet ten years previously could hardly by that time be said to risk undermining the duty of confidence owed by ministers to the Cabinet (Attorney General v Jonathan Cape [1976] QB 752 - the Crossman Diaries case). Straw does seek to address this issue, but he is not persuasive. He also seems to suggest that because there is plenty of information equivalent to that held in the minutes already in the public domain, this stands against the further disclosure now. This is a novel, counterintuitive and - if sustained - worrying development.

The only other such veto was issued earlier this year in the case of Lamb (1,2,3,4). In that instance, the veto power was exercised following a ruling of the Information Tribunal that confirmed the view of the Commissioner. On this occasion, Straw has acted in advance even of the pending hearing due before the Tribunal in January 2010. It is an insidious power. In general, its use emphasises the ultimate subordination of the freedom of information regime to political imperatives. On this occasion, it also highlights a seeming indifference to due process. It controls the executive arm of government (in some measure), but manifestly not the Executive.

Momentum for libel reform? or electoral politics?

Following on from the English PEN / Index on Censorship report on libel reform (and see also the critique offered by science lobby group Sense About Science), Jack Straw (the Justice Secretary) indicated last weekend that he is minded to proceed with "wholesale reform of England’s libel laws".

Meanwhile Lord Lester of Herne Hill, the Lib Dem peer and eminent human rights lawyer, has promised a libel reform bill to introduce significant changes in the spring.

The airwaves have carried a fair amount on this theme in recent days. Sense About Science outlined the problems as they see them on the Today programme last week (see here - for now - at 0737). Interestingly, this was followed on the same programme by an interview with Dominic Grieve, the Conservative Party Shadow Justice Secretary (see here at 0848). He was more sceptical of the need for libel reform, offering a lonely voice on the importance of remembering the harms to privacy and reputation wrought by (some) newspapers. Lord Lester offered a (not particularly compelling because overly time-limited) introduction to his line of thinking on the PM programme latter that day (see here). The issues were also aired on the Media Show earlier last month (see here).

Potted Shakespeare version of Flat Earth News

Nick Davies, author of Flat Earth News, gave the NUJ Benn Journalism Lecture in Bristol last Thursday and offered a summary of the argument of his book. He covers the structural tendency towards inaccuracy, a critique of the PCC (and libel law), privacy, various tapping/hacking and data protection scandals, and more...

If you want a quick insight, you can listen here. [hat tip - Greenslade]

two plus two = ?: evidence to the phone hacking inquiries

The PCC chair, Baroness Buscombe, has made a statement drawing attention to a discrepancy of evidence in the various phone hacking inquiries relating to activities of journalists at the News of the World. The statement notes that the purported police source of the figure of there being 'thousands' of victims of such hacking, had in fact been wrongly quoted. In fact, the source has sought to 'clarify' with/through the PCC, there were only a 'handful' of possible victims.

Baroness Buscombe proceeded to note that an allegation based on the higher figure had been made to the House of Commons Media Select Committee in the course of its inquiry, and that should the Committee have been misled this would of course be an extremely serious matter. This smacks of playground politics. The impugned allegation was made in evidence by Alan Rusbridger and Nick Davies of the Guardian, who have recently been so critical of...... the PCC.

Update:
This story has moved on during the day. Solicitor-advocate Mark Lewis of Stripes Solicitors in Manchester has inferred that Baroness Buscombe's comments related to the evidence that he proffered to the Committee, and has called for the PCC chair to resign in a letter sent to the PCC and the Select Committee chair, John Whittingdale MP. It is a withering attack. A Guardian spokesperson has commented:

"it is surprising that the PCC should have publicly questioned the evidence a solicitor gave to MPs without even doing him the courtesy of contacting him to seek his version of events",

while the PCC has issued a mea non culpa.

Anathema to democracy? the PCC on super-injunctions and more

In what has been described as a disappointing speech, Baroness Peta Buscombe - the newish Chair of the PCC - has railed against the deployment of so-called 'super-injunctions', describing them as 'anathema to democracy' and asking 'how did it ever come to this'? (1, 2) It is an easy target, but this broad-brush critique seems to overlook two important things. First, that sometimes such injunctions are necessary to protect against the infringement of competing rights. It is the over-free, insufficiently discriminate use of super-injunctions that is the problem not their availability per se. Secondly, she overlooks the fact that it was Parliamentary intervention in the form of the Human Rights Act that has provided the weight behind arguments to persuade the courts of the need for restrictions on speech in some cases.

A transcript of the speech is available on the PCC website.

Inadvertent harakiri?: PCC report on allegations of hacking and tapping

The Press Complaints Commission (PCC) has published its report into the allegations published in the Guardian in July regarding purported instances of criminal newsgathering methods at the News of the World beyond those that saw Clive Goodman and Glen Mulcaire convicted. The inquiry undertaken by the PCC focused specifically on two issues only:

- whether there was evidence that the PCC had been misled when conducting its earlier inquiry

- whether there was any evidence that malpractices were ongoing at the NoW.

The PCC found no new evidence speaking to either point. Moreover, it asserted that the sources relied on by the Guardian were anonymous and untestable.

The response of the commentariat has been swift. Alan Rusbridger, editor of the Guardian, interviewed on the Today programme on Radio 4 denounced the PCC [on the link this is listed at 0850, although it was in fact aired earlier]. He indicated that while he was an ardent supporter of self-regulation, the PCC was not properly performing this function. He commented:

"this report is worse than pointless, its actually rather dangerous for the Press... if you have a self-regulation system that is finding nothing out, and has no teeth, and all the work is being done by external people [lawyers, the police and MPs] its dangerous for self-regulation... I believe in self-regulation, but this is not a regulator at work. The PCC does very valuable work in mediation but regulators have the power to do investigations, they have the power to ask people in... [Q: if you cannot aske the PCC to do this job, who should do it?] well, that's why its so dangerous. The regulator behaving this uselessly I suspect that MPs will start to say that this is not regulation I hope the governance review [currently being undertaken by the PCC] takes this onboard. The PCC has to be better funded so that it has some investigatory mechanism, and so that it doesn't write reports as weak and as lightweight as this... the Press is in a very weak position today because its own regulator, its self-regulation, has proved so weak."

Rusbridger also offered an extended editorial in the newspaper. The report and inquiry have been criticised by lawyers as "contradictory and self-serving", by MPs on the Culture Committee as a "whitewash", and by the Guardian as "complacent" (1). Nick Davies, the author of the earlier Guardian articles, has set out in a detailed critique, the "more important questions" with which the PCC has failed to engage.

So what will be the upshot for self-regulation? Is it too much to hope that if the King is dying, we may find ourselves with a new, more fit successor?

Give it back!: Lords debate proposed rules on criminal memoirs

On Thursday, the House of Lords concluded its report stage debates on the Coroners and Justice Bill (a-v; hansard transcript). This comprises a smorgasbord of reform, with many measures affecting the media in more or less significant ways. Much attention was focused on the Government's plan to allow the recovery of monies made by convicted criminals through the media exploitation of their stories.

The proposal, which the Government accepts will apply in only a very small number of instances, was criticised as 'gesture politics', and its compliance with Convention rights questioned. Ultimately, the amendment was defeated on a vote, and the measure remains part of the Bill.

Also during the report stage on the Bill, Baroness Miller (col1302 et seq) moved a further amendment that would have limited the power of the police to retain photographs taken of unarrested or uncharged protestors, photographers and others in public places. The measure would have applied to both police Forward Intelligences Teams (FIT) and other evidence gathering exercises. The amendment was withdrawn.


[Photo 1 seemed appropriate, but is in fact the cover photo for a recent novel; Photo 2 - (c) Marc Vallee]

Commons debate on super-injunctions

The House of Commons held an adjournment debate on the matter of libel law and super-injunctions on 21 October. It was introduced by Liberal Democrat MP Evan Harris. A transcript and film can be accessed here.

The earlier debate to which some MPs refer was focused on 'libel tourism' and took place in December.

Anatomised injunction: Guardian publishes Trafigura order with notes

The Guardian has published the order which was at the heart of the recent 'super-injunction' story, along with notes explaining various of its components. It also has a range of pages dedicated to offering its take on the matter.

The Lord Chief Justice, Lord Judge, has also commented on the use of super-injunctions, noting that their use should be sparing, but that there is a continuing justification for them in some circumstances. This is obviously correct. Despite the wails of band-wagonners, sometimes disclosure of the fact that an interim hearing has occurred and that an injunction has been imposed would allow observers to put two and two together so as to guess at the nature of the injuncted information. Disclosure of the fact of the injunction would defeat the purpose for which it had been imposed. That's not to say the courts should perpetuate their use willy-nilly.

Opening Justice: new guidance on reporting restrictions

The Judicial Studies Board has published new guidelines on the imposition of reporting restrictions by the criminal courts. The guidelines are an attempt to reconcile the principle of open justice with the imperative of securing the fair administration of justice. They were written in large part by barrister Guy Vassall-Adams of Doughty Street Chambers in collaboration with the Lord Chief Justice, Lord Judge, and representatives of the Society of Editors, the Newspaper Society, Times Newspapers Ltd, Trinity Mirror plc, the Press Association and Reuters.

The new guidelines are very welcome. Media companies had been increasingly concerned that judges were often imposing unwarranted restrictions on their freedom to report court proceedings in ignorance of the limits of the powers available to them. It will be interesting to see how far the new guidelines stem the flow of legal challenges to restrictions imposed.

The truth will out, and how...

Opinion will be divided on the extent of the loss to the listening public caused by the untimely death of Stephen Gately (all condolences to his friends and family of course), but comments in a few newspapers have highlighted a fairly typical tabloid ploy:

... Accordingly, Gately didn't come out of his own free will. In 1999, the Sun approached him with a story sold to them by a former Boyzone security guard, alleging the singer was gay. After two weeks of talks between the tabloid, Boyzone's management, their record label and PR, the Sun ran with a different exclusive: "Boyzone Stephen: I'm gay and in love". "Three weeks ago, Boyzone's Stephen Gately asked the Sun to help him come out," claimed the paper's editorial, imaginatively. [Alexis Petridis in the Guardian]

Report on privacy and the public interest

The Oxford University based Reuters Institute for the Study of Journalism has published a report written by Stephen Whittle and Glenda Cooper on the theme on Privacy, Probity and the Public Interest.

Its an interesting enough read, and its key findings offer a useful precis of the state of the debate at present. Ultimately, the authors recommend that media investigations should be proportionate to what is being investigated and clearly targeted. They conclude that journalists should hold or deploy:
- a clear sense of what the public interest justification might be
- some justifying evidence to take an investigation
forward so that it is not a ‘fishing expedition’
- the minimum amount of deception
- very clear rules about when secret recording takes place
- a clear set of authorisations from within the editorial line management
chain;
- a robust rationale for what is eventually put into the public domain
and how.

BBC research on taste and standards

The BBC has published the report of research conducted over the last year into public attitudes to morality, values and behaviour in UK broadcasting. One strand of the underpinning work was undertaken by Prof. Sonia Livingstone of the LSE Media Department.

The report detailed sixteen key findings, including the following:
- standards of morality, values and behaviour in the media in particular are
not a top-of-mind issue for the majority of the public.
- the BBC overall performs well in the audience's perceptions of standards
of morality, values and behaviour, compared; the audience also has higher expectations of the BBC.
- in general terms, the public do not want increased censorship or
regulation
- a significant proportion of the audience have various
concerns about standards of morality, values and behaviour in the media
as a whole, including newspapers, magazines, broadcasting and online
content.
- there is little public consensus or agreement about what constitutes
offence
- context in which potentially offensive content is placed is of
paramount importance to audiences
- sexual content on television and radio was a matter of relatively low
concern for audiences.

Inevitably, press coverage of the publication of the report focused on specific issues, including swearing and the 'Sachsgate' angle (1,2, 3)
* Commentoon sourced at: Women's eNews

Nick 'Harry Potter' Davies triumphs over the dark arts

The Guardian yesterday broke a tremendous follow-up to the Operation Motorman and Goodman hacking and blagging scandals with the disclosure of previously unseen data arising from one of the earlier investigations. There is much comment on the Guardian webpages (1,2, 3), and elsewhere. Cravenly (?), at the time of writing neither TimesOnline, nor the Sun was carrying the story (at least on their first pages). SkyNews did have it. Does this say anything about the relative interest in 'proper' news of the three Murdoch platforms?

This year's black?: celebrities, the paparazzi and the fashion for harassment orders

Earlier this month, lawyers acting for Amy Winehouse confirmed that she has been awarded a court order to prevent the paparazzi from following and photographing her. She is not the first celebrity to take this route in recent months. Both Sienna Miller and Lily Allen have likewise received the protection of the courts. This development amounts to the opening of a new legal front in the battle between the media and public figures keen to preserve their privacy. At a time when press standards and regulatory structures are subject to Parliamentary scrutiny, it begs the question of where the Press Complaints Commission has been in all of this.

For many people, the spectacle of the massed horde of photographers jostling on street corners waiting to descend on some willowy blonde – the ‘media scrum’ - has become the leitmotif of media malpractice. It is the snarling mask of the metaphorical ‘feral beast’ lambasted pointedly by Tony Blair during his last speech as Prime Minister. Type the name of any female celebrity in the search box on YouTube and you’ll likely be faced with scenes of truly oppressive, ‘stalkerazzi’ behaviour. Matters have been exacerbated by the ubiquity of high-specification digital cameras that allow all-comers to join the fray. Keira Knightly has complained, repeatedly and bitterly, that the paparazzi exercise “a very predatory force”. Kate Middleton’s experiences surrounding her twenty-fifth birthday resulted in a select committee investigation.

Courts too have expressed a visceral distaste for the manner in which media organisations sometimes acquire their content. In Von Hannover v Germany, for example, the European Court of Human Rights lamented that “photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion… or even of persecution”. It may have been this perception that prompted the court to deliver what some see as an over-generous ruling to Princess Caroline.

The court orders obtained by Winehouse, Miller and Allen are based upon the Protection from Harassment Act 1997, legislation ostensibly introduced to counteract ‘stranger stalking’. The Act criminalises engagement in a ‘course of conduct that amounts to harassment’. It also allows victims to sue for damages and other remedies in the hope of preventing recurrence. Thus, it sits alongside the emerging privacy law that has been used to great effect by Max Mosley, Naomi Campbell and others. Where the tort of misuse of private information is focused on harms caused by publication, however, this use of the anti-harassment act is concerned more with the distress caused by more physical intrusions.

It was always expected that the very general terms of the harassment law might be used against the more outrageous elements of the press pack. Princess Diana was said to have welcomed the prospect before her untimely, and in this sense ironic, death. The Act has been used to deter violent spouses, jilted lovers, and animal rights protestors, but – strangely - never the paparazzi. Until now.

This begs the obvious question of ‘why not’. One explanation is that the alternative regulatory solution offered by the PCC has been largely effective. Since the late 1990s, the Commission has adjudicated on around fifty complaints based on Clause 4 of the Editors’ Code of Practice that deals with harassment. It has also helped resolve a further eighty similar complaints. It enjoins newspaper and magazine editors not to use material acquired by staff or freelancers in circumstances where the subject has been harassed. Further, the PCC has instituted a pre-emptive system of ‘desist notices’, which it issues to editors at the request of press-embattled individuals in the hope that they will ‘call off the dogs’. The PCC is rightly proud of these aspects of its performance, and cites its commendable successes in protecting personalities such as Natasha Kaplinsky.

One criticism of the PCC’s role, however, is that it can’t secure damages (although its Director maintains that ex gratia payments are often made in resolution of complaints). Another more chastening critique is that desist notices don’t always work. Sienna Miller’s experiences in 2008 are instructive. After a warning was circulated to editors by the PCC, the actress was still moved to sue when the Daily Star published photographs depicting her in a distressed state: the result of a paparazzi hounding. Moreover, the harassment she faced didn’t stop and she was forced back to court to deploy the 1997 Act. Both cases were settled.

To its credit, the PCC has recognised and sought to explain its limitations. It agrees that its capacity is limited, but explains this by reference to the fact that much of the content acquired by photographers is sold to overseas publishers over which it has no influence. It wouldn’t accept that sometimes British newspapers and magazines may simply choose to ignore its requests.

Now that it has been proved a reality, the risk of actions based upon the 1997 Act will exercise a constraining influence on photographers and newspaper editors. Its use in fact may prove to be limited to occasions on which either no publication has yet occurred and the prospective publishers are unknown, or where the publishers are based overseas. There is no reason in law, however, why a harassment action should not - assuming the requirements of the Act are satisfied – also be brought in other circumstances. Indeed, should those suffering from harassment have limited faith in the ability of the PCC to curtail harassment or deliver an adequate remedy, then the statute-based legal route could become the preferred one. In the main, though, we might expect that privacy laws and regulators, like houses, will lean on one another.