Damned if you do... the travails of source protection

A story I had missed in the Observer a couple of weekends ago highlights well the quandary facing journalists / authors who wish to protect their sources. Its another Irish case, and involves the refusal of the author of a book on the widespread abuse of drugs in Irish society to disclose the identity of interviewees ranging through nuns, pilots, lawyers, business people, to - importantly - a Government Minister.

The author in question, Justine Delaney Wilson, insists that she had recorded various of the interviews on which the book was based including that with the Minister. On legal advice, however, she destroyed the tapes. This is standard practice to avoid the risks of forced documentary disclosure under legal discovery powers, as it allows the journalist to retain such information only in their head.

With heads pushed resoundingly into the sand, many and various luminaries - including the Justice Minister - have condemned Delaney Wilson and challenged the authenticity of her work. Her inability to produce the evidence is treated as confirmation that it never existed, and is taken to undermine her account. This stance is almost laughable for its complacency and obvious discrepancy with lived experience.

Although it looks like she will not face legal sanction, the percussive criticism she has endured has - ironically - served to focus attention on the question of her credibility as a journalist. Her experience highlights the dilemma faced by journalists who aspire to the ethical route of protecting confidences. Either they must elect to suffer personal punishment (legal or otherwise), or risk damage to individual informants, journalists' relations with sources generally, and social understanding of important issues.

Or maybe she's just a self-promoting charlatan...

Nought but her Chanel No 5?: Kidman sues for harm to commercial interests

The MediaGuardian carried an interesting story on Friday focused on a suit brought by Nicole Kidman against the Daily Telegraph. The newspaper reported that a Jo Malone perfume, and not that advertised for Chanel by Kidman, is in fact the actress' favourite. The piece had also suggested that Chanel was unhappy at the apparent undermining of its brand.

Its an interesting case because, while Kidman is clearly interested in defending her future access to lucrative contracts, a jury would be asked whether the - presumably false - suggestion that Kidman prefers the second perfume can be considered defamatory (her lawyers considered that it was 'grossly' so). It might reasonably be asked in what way the suggestion lowers the estimation of her in the minds of right-thinking members of the community. Might she ask the jury to infer from the newspaper piece some supposed slur on her honesty? Is this just a warning shot, or are we in for a second Kidman courtroom moment following her recent testimony in an Australian libel action brought by a paparazzo? Doth she protect so much in order to avoid liability for breach of contractual obligations?

Alteratively, it might be possible to envisage an action in passing-off for false association with the second product... (?) This approach would clearly - and preferably - bring us unquestionably into commercial territory (although there is no link between the newspaper and the other provider). Not that defamation actions can't also protect business / commercial reputations...

Why Can't the British Media Report the EU Accurately?

In a discussion at the LSE this evening, Anthony Gooch (of the European Commission), Charles Grant, Derek Scott (of Open Europe), and John Kampfner (of the New Statesman) waxed entertainingly on this perennial debate. Of particular note for the purposes of this blog, was a divergence of opinion between two of the protagonists on the question of Press regulation.

Grant was concerned at the unwillingness of the PCC to insist on corrections of factual misinformation plied on European matters in newspapers. He had earlier highlighted seven lies fabricated by Euro-sceptic newspapers. Its not difficult to understand the Commission's reticence. By adjudicating on complaints over accuracy in politically-charged reporting and commentary (where one man's 'fact' is another's 'interpretation', and yet another's 'kernal of truth' amidst the bunkum), it would be exposing itself to critical retaliation one way or the other.

That said, of course, an insistence on accuracy comprises Clause 1 of the Editors' Code, and the PCC regularly applauds its own supposed capacity to secure the printing of corrections with 'due prominence' (its an aside, but - somewhat tendentiously - the PCC measures this by reference to the page on which corrections are published rather than column inches devoted). Perhaps fortuitously, the obligation to act is obviated by the absence of any directly affected party. The PCC refuses to respond to 'third party complaints' (108 such complaints were 'not investigated' on this basis between April and September of this year), and the European Commission refuses to act as a putative affected party.

In keeping with his position, however, Kampfner considered the very idea of greater regulation of the Press to be 'dangerous and counter-productive'. He suggested that the Government would like nothing better than to increase constraints on the media. In support of his point, he cited the restrictiveness of Official Secrets legislation - on which the New Statesman is currenly fighting a case - notwithstanding the very great distance between requiring correction of erroneous material and mandated secrecy.

On the substance of the debate, Kampfner made the most convincing points. He emphasised his view that the lived experience of everyday people - based on foreign holidays, better food, the rise of Chelsea FC on the back of foreign imports, and Ryanair - would likely contribute much more to any emergent sense of the European demos than newspaper contribution to often contrived 'debate'. He also stated a profound preference for the 'feral beasts' decried by Tony Blair over any connivance to ignore corruption and to fail to challenge those exercising power (using the supposed strawman of US journalistic capitulation to authority) .

Copyright: term of protection and fair use

Victor Keegan offered a - somewhat slanted - discussion of the appropriate term of copyright protection in the Guardian yesterday, highlighting the tension between corporate protection of value and wider social creativity sides of the argument. Its a nice read.

Also - loosely - related to copyright (but more particularly related to my new-found ability to embed YouTube clips), is this entertaining video on tampering with digital imagery

Publicity is the very soul of justice: John Battle (ITN) at the LSE

Earlier this week, John Battle - Head of Compliance at ITN - spoke at the LSE on the theme of the courts, the media and open justice in 21st Century Britain. He has been vocal on this theme elsewhere in recent months. In an engaging discussion, he highlighted the impact of the 2005 Protocol on publicity and the criminal justice system on the reporting of the courts in England and Wales, and asserted that the change was perhaps the most significant in this area in his lifetime. It is hard to disagree; the Protocol has allowed broadcasters to publish evidence footage, and newspapers to publish stills, that formerly would have been simply unavailable. The upshot is that the general public is more immediately and poignantly informed of the matters presented to the courts.

Examples of the sorts of materials available under the protocol can be seen in the following YouTube videos which aggregate material from the news and current affairs coverage of the Jean Charles de Menezes. Evidently, its a far cry from the old-style journalist-outside-court retelling of legal events, and as a result the news reporting of court proceedings has risen significantly...

Battle's presentation deliberately left a number of important questions hanging: what motivated the DPP in opening mass-mediated access to the courts in this way? why have defence teams been so content to permit such access to go ahead? what objection now can there be to sensible, measured court coverage? why has the Ministry of Justice not moved more quickly on the question of broadcast coverage of trials after the recent pilot recordings of Court of Appeal proceedings (it is mooted that proceedings of the new Supreme Court will be televised)? what now is the role for the general law of contempt of court arising from media publication?

Strasbourg activism sees reputation identified as privacy right

The Strasbourg court has delivered two judgments in the last month or so focused on national defamation laws, and in particular on the question as to whether there exists a 'right to reputation' protected under Article 8 ECHR. On both occasions, in Lindon v France and Pfeifer v Austria, the court concluded that reputation is so protected.

For some, this is a welcome conclusion for the rebalancing that it implies must be undertaken as between freedom of expression and reputation in cases such as Reynolds or Jameel. For others, it is based upon a basic misunderstanding of the origins and purpose of Article 8. I'm hoping to speak more to this dichotomy in the next weeks. Meanwhile, Jonathan Coad of Swan Turton has comment pieces on both cases (1,2).

The Future of Broadcasting: public service in a digital age

Last Wednesday, Ed Richards of Ofcom spoke at LSE on the above topic - there's useful summary of the discussion and context on Charlie Beckett's blog.