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the Soil Association warning of potential liability under libel law if an objection to a planning application was not withdrawn.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).

Brand on celebrity; Dispatches on phone-hacking

There have been a couple of interesting items on tv in recent days re media law issues. First, Jeremy Paxman - clearly a fan - conducted an interview with Russell Brand which highlighted issues such as the 'compliance culture', privacy and celebrity.

Secondly, last night's Dispatches on Channel 4 saw Peter Oborne analyse the phone hacking scandal and probe the issue of quite what Andy Coulson knew (this will be available on 4OD shortly).

Understanding Rooney: privacy and prior publicity

The recent spate of publications regarding the private life of Wayne Rooney is difficult to understand. It has been suggested that he had some notice of what was to come but nevertheless did not seek interim relief to prevent publication. In a detailed post coupled with an interesting follow-up, the editors of the Inforrm blog express some surprise as the stories appear to involve a clear misuse of private information and there does not appear to be any substantial public interest. The brouhaha about brand development and maintenance is just that.

The Inforrm editors also quote suggestions made elsewhere online to the effect that the identity of the duty judge - Judge Tugendhat as opposed to Judge Eady - may have influenced the choice not to proceed, and that the legal pendulum may be swinging back so as to permit kiss-and tells. Like them, I don't think either of these arguments is particularly tenable. Having recently had occasion to read through all the decided privacy cases from the last decade or so, I haven't detected any particularly obvious divergence between the views that tend to be expressed by those two judges.

Much of what has been published in this instance, and on a number of other occasions of late is certainly prima facie actionable. So what is going on. For me there are three explanations: (a) the media have something else on Rooney and he has accepted this spate of stories in exchange for non-publication of something worse (hmmm, 0.0001% likely, and what could that be?); (b) the media are publishing in the full expectation that he will not subsequently sue (this might explain the seeming 'in for a penny, in for a pound' mentality that has now seen the tabloid pages carry Rooney's mug for five consecutive days, but it doesn't explain why he didn't seek an injunction), or (c) there is more to the argument regarding prior publicity that the 'public interest' alone.

Focusing on (c), remembering that every privacy application will involve 'an intense focus on the facts of the case', and relying on Tugendhat J in Terry (a decision questioned by some) here is an attempt at explanation. Prior publicity is relevant to the claim for misuse of private information in a number of places:

• first, at the first stage of analysis when the judge is determining whether a privacy interest is engaged at all;
• second, when determining whether there is a publication interest argument to be weighed against privacy in the balancing exercise, but also
• thirdly, in determining how strong the privacy interest in play actually is.

If the privacy interest can be shown to be weak, then it is at risk of being outweighed by even a minimal countervailing freedom of expression argument. As the PCC Code notes, there is a public interest in freedom of expression itself (although one might add that such a public interest will usually be outweighed by any significant privacy component). [One is reminded here of the decision of the Irish Supreme Court in the sources case Keena, in which what the judges considered to be the very minimal expression interest held by the journalists was nonetheless sufficient to outweigh the nugatory interest of the Tribunal claimant in receiving the information sought - hardly a great day for freedom of the press as it was supposed to be by some]

Hence, prior publicity can be important not just for the support it might offer to a public interest argument (eg correction of specific misrepresentation or exposure of hypocrisy), but also in providing evidence as to the valuation placed on the information by the particular claimant. If past revelations suggest that the claimant generally plays fast and loose with such matters, it becomes difficult to contend that such information has now become somehow especially private in character. Other explanations for interim applications - for example, protection of commercial value - become more tenable. This was the view of Tugendhat J in Terry [2010] EWHC 119 (QB) (at [127]), and of Lord Phillips MR in Douglas v Hello! Ltd [2005] EWCA Civ 595 (at [107]). The latter explained that:

to the extent that an individual authorises photographs taken on a private occasion to be made public, the potential for distress at the publication of other, unauthorised, photographs, taken on the same occasion, will be reduced.

It is also a view set out in the second cumulative supplement to Tugendhat and Christie (at 150):

if a claimant has sold stories about one or more aspects of his or her private life to the media or otherwise courted publicity about that private life, this will surely be a relevant circumstance to be taken into account in the proportionality assessment… voluntary exposure to prior publicity of a similar nature might evince a lack of concern for disclosure of intimate personal facts, thus reducing the weight to be accorded to the claimant’s rights. It might also diminish the likely damage.

Contrast those cases in which claimants have taken steps to defend their intimate details and therefore might expect the courts to be more ready to assist them (See, for example, the efforts made by the (representative) claimants in McKennitt v Ash [2005] EWHC 3003 (QB), and Murray v Big Pictures (UK) Ltd [2007] EWHC 1908 (Ch)).

I confess that I haven't followed the past public musings of Wayne Rooney esq, but the notion that he has just told his wife 'to get over it, as its no big deal' suggests that this argument may have been floatable here. Either that, or he likes to have sex wearing a Chelsea shirt (see (a) above).