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?