Let battle commence over privacy

This article was originally published in the Independent

John Terry’s is only the latest attempt to suppress free speech for financial reasons argues John Kampfner

This was the week that the legal establishment bit back. For three months since Index on Censorship published its Libel Reform campaign in coalition with like-minded organisations, we’ve had pretty much an open field.

The evidence we have brought to bear has been compelling. Libel tourism – in which dodgy foreign oligarchs and sheikhs use our indulgent courts to sue NGOs, authors and scientists – has been such a blight on Britain’s reputation that the US Congress is pushing through legislation seeking to protect American citizens from our courts. What greater humiliation could our closest ally inflict on our judicial system?

The Justice Secretary, Jack Straw has expressed his determination to introduce significant changes in coming weeks and months. The two areas most ripe for change are likely to be stronger direction to judges not to take on cases of libel tourism, or at least to set the bar far higher for a plaintiff to argue that, even though they do not live in the UK, their reputation here has been irrevocably damaged. The other is costs. The idea of no-win, or conditional fee agreements, was designed to increase access to justice for the impecunious. In a classic case of unintended consequences, it has instead allowed the rich and powerful to string along defamation writs, in the full knowledge that small organisations do not have the strength or the cash flow to sustain a defence. This has led to a plethora of people settling out of court, even where their case is watertight.

It was, therefore, a matter of time before the backlash would begin. It has taken three forms: large and avaricious legal companies increasingly alarmed that key sources of revenue might be endangered; senior lawyers and judges who, whatever their personal positions, do not like to be put on the spot by upstarts from the third sector, and individuals who have done well out of the existing system.

Max Mosley’s interview on BBC Radio 4’s Today programme this week was, I admit, compelling listening. The Formula One racing boss, who won £60,000 in damages from the News of the World after it alleged he had been involved in a “Nazi orgy”, said individuals should have a “right to notification” before any allegations are printed about them, “so that if you wish you can go to a judge and if you can convince the judge he’d stop publication”.

Mosley’s case brought together the adjacent issues of libel, privacy and injunctions. The broader issue is enshrined in Article 8 of the Human Rights Act. Most advocates of constitutional modernisation and civil liberties were delighted with the incorporation of the European convention into UK law a decade ago.

Yet again a well-intentioned measure has been traduced in the practice. The act has enabled a considerable shift in the balance between the right to know and the right to privacy – that privacy being accorded predominantly to the rich and powerful.

The right of all individuals to a private life that is entirely private is compelling. What has happened, however, is that changes have taken place through arbitrary interpretations from a small number of judges. What is the definition of a private life? Is there any link between activities in the home and in the workplace? These are all important questions, but the debate has not been held.

Hence, in a characteristically British way, law has been made on the hoof. The sudden thirst for privacy has breathed new life into the injunction and the pernicious super-injunction. There may be the odd case for not only preventing publication but also preventing reporting of such a ban, such as when it might endanger life or cause serious damage to children.

Instead the injunction has become a catch-all device simply to stop the media from reporting facts that might embarrass companies or individuals. John Terry, who was yesterday stripped of his captaincy of the English football team after revelations of an affair with the ex-girl friend of a team mate, is only the latest and most ill-advised attempt to suppress free expression for reasons of purely individual reputation and commercial interest.

The least reported but most bizarre intervention of the week came from Lord Hoffman, a recently retired law lord of impeccable liberal credentials. In a lecture striking for its defensiveness and its Little Englander appeals, Hoffman took umbrage at a report last year by the UN Human Rights Committee that attacked English libel law as chilling free speech not just in the UK but around the world.

Hoffman suggested that Rachel Ehrenfeld, whose case shed light on libel tourism, had been in league with US neoconservatives. He dismissed the legislation that has been passed by a number of US states and is going through Congress as seeking to enshrine American legal hegemony. He saw no particular problem with the state of English libel law and insisted that the right for anyone to be able to use any country’s courts to sue for defamation should not be challenged.

Meanwhile, two academics, Professor Alastair Mullis of the University of East Anglia and Dr Andrew Scott of the London School of Economics, have, to the evident pleasure of Britain’s more avaricious law firms, published a document styled as a “rejoinder to the clamour for the reform of defamation”. They argue that while they are not averse to the idea of a review, critiques such as ours have been too broad and the proposed reforms are too sweeping and indiscriminate.

The battle has now been joined. The forces of reaction, those who are hostile to the very idea of a First Amendment defending free speech, have entered the fray. They are lobbying hard senior figures in the Labour and Conservative parties.

The issue of libel reform, the questioning not of the principle but the application of privacy law and super-injunctions, is not about journalistic self-interest or the right of tabloids to pry. These measures have chilled NGOs from reporting torture carried out in dictatorships; they have stopped authors in their tracks from unearthing inconvenient truths; they have prevented scientists from conducting robust research. It is no wonder that so many vested interests are resistant to change.

John Kampfner is chief executive of Index on Censorship

Striking a balance on privacy

Eric Barendt asks if a privacy statute would help the courts weigh freedom of speech and privacy

I am starting from the fundamental point that in both libel and privacy cases the law has to balance two important human rights; on the one hand, freedom of speech and of the press, and on the other hand personality rights to reputation or to privacy. The European Court now treats reputation as an aspect of the right to respect for private life guaranteed by article 8 of the convention on human rights, so in libel, as in privacy cases, the courts here must balance two rights of equal value and weight under the convention. Neither right is absolute or entitled to automatic priority over the other. The press and other media — Carlyle’s Fourth Estate — are just as powerful as government, so it is right for the Strasbourg Court and our courts to protect the individual against their incursions on individual privacy as they do against infringements by government.

In Jameel v Wall Street Journal Lord Hoffmann suggested: “Until very recently the law of defamation was weighted in favour of claimants and the law of privacy weighted against them…” But the House of Lords in the Naomi Campbell case had attempted to redress the balance in favour of privacy, and in Reynolds it had redressed it in favour of greater press freedom to publish stories of genuine public interest. Does English law strike the balance correctly in libel and privacy cases? My view is that it does not do this well in libel law, but does in privacy cases. One point is that in libel cases the free speech and free press arguments are usually stronger than they are in privacy cases, first because defamatory allegations concern the claimant’s public standing in the community and secondly because they often, if not always, raise matters of genuine public interest.

Libel law
In view of the concern about impact of libel law on not just the media, but on academics and science commentators who are increasingly subject to libel actions, I think the time is ripe for fresh consideration of this area of law — both the substantive and procedural law. I would myself emphasise three points in the recent report by Pen and Index on Censorship, Free speech is not for sale:

1. Putting the burden on the claimant to show falsity, perhaps even to show negligence. If we require personal injurires claimants to prove that the defendant drove carelessly or to show medical negligence, would it be wrong to require a libel claimant to show irresponsible journalism, at least if damages are claimed?

2. There is no reason why companies should be entited to the protection of the libel laws, which should be concerned to protect the dignity and reputation of individuals. The capacity of corporations to bring libel actions should be curtailed. That is what has been done in the Australian Defamation Law 2005, which precludes such actions by companies with more than 10 employees, unless they can show malice, as in malicious falsehood actions. I understand from Australian defamation lawyers, that the reform, initially controversial is now widely accepted, and has given the media more freedom to report on business and financial affairs This change would save us from future McLibel cases.

3. It should be much easier and cheaper to resolve defamation actions through mediation and an emphasis on remedies other than an award of damages. A simple admission by the press that it got things wrong, and/or a declaration of falsity is what most claimants want.

Privacy
I welcome the stronger protection given by the courts in the last few years to privacy and against the misuse of personal information. Privacy is a fundamental human right, which everyone, including politicians, is entitled to assert, sometimes to stop a publication seeing the light of day. I do not think we have a right to know about the private life, sexuality, or sex life, of politicians and public figures unless there is some indication that this affects the discharge of their public duties: we are all entitled to say to the media, Mind Your Own Business. The public would not have been better off if, to take just two examples, it had known that David Lloyd George was conducting an affair with his secretary from 1916, or that John F Kennedy, both as candidate and President, had a series of such relationships. If the law allows the media carte blanche in this area, we run the risk of hounding out some people from public life and deterring others from entering it.

1. The courts here generally get matters right when they balance freedom of speech and privacy but I do favour a privacy statute for two main reasons: First, though it might make little difference to the law in practice, there is some value in parliament declaring in effect that privacy is a fundamental value.

2. The law could usefully set out the terms of a free speech defence to privacy actions, by providing in a non-exhaustive list the circumstances in which the press and other media could argue that publication was in the public interest. The public interest provision in the PCC Code shows how this could be done — for example, it makes it clear that it is a defence if publication reveals crime or prevents the public from being misled.

So passing a privacy statute might actually work on occasion to the advantage of the press as well as providing clarification of the general state of the law. But the truth is that government and parliament are terrified of the press, so it is improbable that whatever political party forms the next government, we will see the introduction of privacy legislation.

Eric Barendt is the Goodman Professor of Media Law at University College London. This is an edited extract of a speech he delivered last night at Gray’s Inn.

Gagging the Press

British courts represent a serious threat to freedom of expression, our libel laws suppress free speech around the world, argues Ken MacDonald

Prominent amongst those things that we believe define us is our ability to exercise our vocal chords. This right is something we instinctively feel should only be limited in the most exceptional circumstances. And we are right to take this view.

But I think we need to acknowledge that the freedom to speak frankly and freely has been under threat in our country in recent years. Sometimes it seems that Home Secretaries have pretended to promise boundless security and the rest of us have suffered the consequences.

So this debate is not just about defamation and privacy laws and libel tourism. And it goes beyond superinjunctions and the less than attractive corporate bullying that we see of scientists and researchers.

It includes the broadening of criminal speech, so that even religions, belief systems, are granted the special protection of the law and you can commit a crime by describing them in a particular way.

And it’s about terrorism legislation. It’s about criminalising the possession of articles, often consisting of books freely available on the Internet, and foolish and unnecessary new offences of encouraging terrorism, as though incitement were no enough.

So where do we place English libel law in this battle ground? How does it face up to this shining principle, this right to speak freely, and to exchange views and ideas without the fear of the dock or the witness box? Which side is our libel law on?

Well, the Americans are pretty clear. Many of their state legislatures have enacted laws protecting US citizens from the chilling grasp of our current law, by making English libel awards unenforceable in US courts.

And now the US House of Representatives is considering a bill to protect all American citizens in the same way.

Of course the Americans have long given free speech far greater protection than we have. To their credit, many of us would say. But it’s not just the Americans.

The United Nations Human Rights Committee has said that our libel law was encouraging critical reporting on matters of serious public interest and adversely affecting the ability of scholars and journalists to publish their work.

Critically it said the internet meant that all this was having a depressing effect upon freedom of expression across the world.

Let me give some examples:

October 2007, Kiev Post story about allegedly corrupt land deals in that city. Obviously written in Ukrainian. Only 100 subscribers here. Yet Rinat Akhemetov was permitted to sue here.

January and February 2007. A Ukrainian Internet news sites published an article about the same man’s youth. A hundred or so subscribers here. Again he was allowed to sue here.
Now Ukraine is probably a country that could do with more, rather than less, free speech. To put it in moderate terms, it’s a shame our courts are being used to deliver the opposite.

And it’s not only foreigners who feel the chill wind of all this.

A UK hospital consultant speaking at a medical conference in North American criticised a new piece of medical equipment. A specialist Canadian website carried his comments. He’s now being sued, not in North America – where the claim would be thrown out with contempt – but here by the manufacturer.

And famously, Simon Singh, the well-known science writer. He wrote an article in the Guardian saying that the British Chiropractic Association ‘happily promotes bogus treatments’.

Since their treatments include the suggestion that spinal manipulation can cure migraine and eliminate ear infections, I’m tempted to express an opinion of my own. But I’d better not. The BCA are suing Singh. Personally.

Incidentally, I see he had an interlocutory appeal listed in the our of Appeal later this month. Interestingly, it is apparently to be heard by the Lord Chief Justice, the Master of the Rolls and Lord Justice Sedley.

Perhaps the court will say that our law should be nurturing the free exchange of ideas. It should be protecting research and science. It shouldn’t encourage corporate bullying. It should allow free and autonomous people to be thoroughly offensive to one another. And it certainly shouldn’t have any role in shielding chancers and charlatans.

Above all, our law should not associate our country with the suppression of free comment or the stifling of information so that it dies before it can pass around the world. We don’t really want to be discouraging journalists in the Ukraine.

None of this is to say we don’t need libel laws. Of course we do. Malicious and deliberate falsehoods should always be actionable. Gross distortions and inaccuracies must be susceptible to challenge. Powerless people need to able to protect their reputations in the face of powerful media onslaught.

But the law should be set up to interfere in the minimum way with free expression.

Jack Straw has set up an inquiry into our libel laws. It has a broad based membership. Let me make conclude with some modest suggestions.

Single publication rule

In an internet age, we need to get away from the idea that every publication is a separate offence. We should replace Duke of Brunswick rule, which is surely showing its age with a defence of the non-culpable republication.

Jurisdiction rule

This is particularly damaging and has led directly to some of the causes I described earlier. We should prefer the American rule.

A claimant should have to show that a defendant’s Internet publication is targeted directly at the state in which a case is subsequently brought.

In the US, the fact that a publication is merely available in the jurisdiction is not sufficient to found jurisdiction.

Denying corporations the right to sue

In Australia, bodies of over 10 people are prohibited from suing unless they can show malice or deliberate recklessness. Again, this would have prevented some of the cases I have described.

Corporations have a wealth of other means for counteracting inaccurate claims about them. Advertising, PR, access to the media etc. They really do not need to bring personal claims against scientists. Not if they want to retain any public respect.

Libel tribunal

A form of cheaper arbitration with the power to order appropriately prominent retractions and apologies. And a power to order suitably capped damages. Retraction and apology should be at the heart of any system of remedy.

And what about the other side. One of the reasons that public are not more exercises about these issues is probably because the press have long behaved so badly that no one cares if their expression is restricted. Richard Desmond’s newspapers’ vile attacks on the McCann’s are just one example.

But this public cynicism is very dangerous. It devalues something in all of us. And it creates a climate in which repression becomes too easy

So perhaps public confidence needs boosting.

Independent regulation of the press

This one that isn’t spoken about much. Perhaps it deserves an airing. The press may think the PCC works, but they are living in a dream world. Nobody else does

Actually, self-regulation doesn’t work in any sphere-and newspapers are the first to criticise other professions that control themselves in this way. Why? Because it has no credibility. The public doesn’t begin to trust it – and they’re right not to do so.

We have independent regulation of television through Ofcom. Does that inhibit BBC News for doing its job. Is ITV stymied by the regulators?

More acknowledgement by the press of their own failings would usefully go side by side with some of the reforms I have suggest.

Sir Ken MacDonald QC practises from Matrix Chambers and was director of public prosecutions, 2003-2008, he is also a trustee of Index on Censorship.

This is an edited extract of a speech he delivered last night at Gray’s Inn.

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John Terry’s attempt to gag a free press

A significant victory against the superinjunction but the fight for free speech goes on says John Kampfner

This article was originally published in the Mail on Sunday

John Terry may earn himself a place in history as the man who brought to an end one of the most sinister tactics used to stifle free speech in this country.

He didn’t, of course, mean to do it. He employed the showbusiness law firm Schillings, which specialises in ensuring that individuals and media are discouraged from publishing information that might inconvenience its clients.

His lawyers obtained a superinjunction ensuring that nothing, repeat nothing, could be mentioned about his affair – even the existence of the injunction itself.

The superinjunction is a mighty tool that would do many a dictatorship proud. It has become a catch-all device simply to stop the media reporting facts that might embarrass companies or individuals.

The most outrageous example came last October when Carter-Ruck, another law firm that feeds off curtailing free expression, sought to prevent a newspaper from reporting a question in Parliament about a superinjunction granted to the oil trading firm Trafigura, which was alleged to have dumped toxic waste in the Ivory Coast.

The Trafigura case amounted to a direct attack on centuries of constitutional history and the supremacy of Parliament. Such was the popular outcry from ordinary people outraged at the censorship that Carter-Ruck was forced to drop the injunction.

In the Terry case, common sense has also, belatedly, prevailed. Mr Justice Tugendhat’s decision may presage a change of direction by judges who in recent years have bent over backwards to accommodate the wishes of those seeking to gag the media.

Tugendhat seems to be beginning to understand the extent of public misgiving about the state of affairs.

The balance between the right to know and the right to privacy – both enshrined in the Human Rights Act – had previously  shifted hugely to the rich and powerful.

The seemingly inexorable march towards greater censorship in the UK reached its peak in 2009.

A combination of zealous law firms, sometimes cash-strapped news organisations and a public that is encouraged to think the worst of the media has created a situation where the right to know seems optional – unlike in America, where the First Amendment guarantees freedom of speech as an inalienable right.

The emerging privacy laws and the superinjunction were two of the more modern weapons of choice. The other one is more traditional – the law of libel.

My organisation, Index on Censorship, has been at the forefront of a campaign to change the laws of defamation.

British law (or rather English, as the Scottish system is a little better) has given us a pariah status. The US Congress is pushing through legislation protecting Americans from our courts, which have been allowing oligarchs, sheiks and others to sue people, often other foreigners, using England’s indulgent legal system.

This is known as ‘libel tourism’. For the lawyers it has been highly lucrative. The idea that our greatest ally needs to insulate itself from British judges and lawyers is excruciatingly embarrassing.

Politicians have finally begun to notice. Jack Straw, the Justice Secretary, has assured us that he intends to make significant changes even before the General Election.

This is not about the rights of journalists: We have countless examples of scientists, charities and individuals being sued, or threatened with being sued, for stating opinions or for bringing serious cases of abuse to light.

Invariably ordinary people have neither the stomach nor the cash to defend themselves against the predatory legal firm. Instead they choose to settle.

At least when people are sued, the public knows. The real outrage of superinjunctions is that nobody knows about them. Neither Government nor the courts apparently keep records and editors are not allowed to talk about them.

Estimates put the number currently in existence somewhere between 200 and 300.

It is a measure of the impact of the Trafigura fiasco on the public that much of the internet comment on John Terry revolves not around his peccadilloes but more about the misuse of the law.

This new ruling may suggest that courts may be more reluctant to issue such injunctions in future. But the broader assault on free speech is by no means over.

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