Art Troitsky’s only crimes are humour and irreverence

May 18th, 2011

This article was first published in the Independent

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Should we scrap superinjunctions?

May 9th, 2011

This piece first appeared in the Observer

Ahead of tomorrow’s crucial European judgment on privacy and prior notification, we recap Max Mosley and John Kampfner’s recent privacy debate. Are court gagging orders on newspaper exposés an abuse of privacy laws by the rich, or a safeguard against tabloid intrusion into family life?
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The worrying rise of the rich man’s weapon of justice

April 1st, 2011

In the week that super-injunctions broke new legal ground, John Kampfner attacks a growing threat to press freedom

This article was first published in The Independent

Just when you think you are over the worst, the forces of secrecy bite back. No sooner had the Government published a draft Defamation Bill, going some way to reversing many of the most hideous aspects of Britain’s libel laws, than the judiciary set a dangerous new precedent.

The recent decision by Mr Justice Tugendhat to grant anonymity to a claimant in a libel case is believed to be the first of its kind. The case, the details of which the media are not allowed to report, concerns a wealthy financier, a multimillion-pound family trust, and lurid allegations online.

I have no interest in the tangled web of people involved; nor, I suggest, do most readers. The trouble is that many legal disputes involve dark and often nefarious acts, which individuals might seek to prevent being exposed. Their interests, naturally, should be taken into account, but these should not override other considerations.

The only true justice is open justice, yet increasingly judges in the UK see the right to secrecy as paramount. Super-injunctions and other gagging orders are being handed out with alarming frequency. These forbid not just the revealing of information, but the revealing of the very injunction preventing the release of that information.

Currently one super-injunction prevents the media from calling someone a banker. I can, by law, say no more than that. Super-injunctions have been used by footballers “playing away” with team-mates’ girlfriends, and by companies who believe their reputations could be damaged by newspapers having the temerity to expose their polluting practices. The most outrageous such case involved the oil trading firm Trafigura. In 2009, Carter Ruck, the solicitors’ firm, warned that a newspaper would be in contempt of court if it published a parliamentary question about the company dumping toxic waste in Ivory Coast. This led to a frenetic meeting in the House of Commons which my organisation, Index on Censorship, convened with MPs furious at the attempt to ride roughshod over the longstanding right to parliamentary privilege.

The conclusion drawn then applies equally now: the rich and powerful will do whatever it takes, aided by certain legal firms, to chill legitimate journalistic and public inquiry. Soon we may see public figures taking out super-injunctions or other requests for privacy to prevent the disclosing of their financial affairs. We would not just be denied the right to know about the detail; we wouldn’t know that the cases even exist.

When we asked the Ministryof Justice how many super-injunctions were in place, we were astonished to be told that they had no idea. They apparently hadnever counted them. In one respect that was understandable. It is not easy to count something that,officially, does not exist.

Unofficial estimates put the number of super-injunctions issued over the last 18 months at around 20. Most of them relate to sex and most of them relate to footballers. Some of these gags fail, most famously in the case of John Terry, who was relieved of the England captaincy as a result of newspaper allegations about an extramarital affair.

A special committee, chaired by the Master of the Rolls, Lord Neuberger, has been looking at the use of super-injunctions. Its findings, due to be published just before Easter, are awaited with interest.

Super-injunctions and other anonymity devices are doing incalculable damage not just to free expression but to the credibility of the legal system.

There are perfectly sound reasons for conventional injunctions to be served – safeguarding evidence deemed unreliable and protecting individuals from blackmail are just two. Perhaps in one or two of the most extreme cases, such as where a vulnerable adult or a child might be imperilled through secondary identification, a super-injunction could be justified. But not otherwise.

There is an important broader debate to be had about privacy. Currently, courts are applying article 8 of the European Convention on Human Rights, which guarantees privacy, with greater determination than they are applying to article 10, which enshrines the right to free expression.

Is everyone entitled to privacy, come what may? Should exceptions be made for public figures whose private actions contradict their public pronouncements, or for public figures who seek commercial gain from one kind of private life, only to lead a different one behind the scenes? Is everyone in public life fair game? These are all valid questions, but even the most stringent interpretation of the right to privacy surely does not require the legal process to be conducted in secret.

For years the English courts indulged the wealthy around the world to come to London to sue charities, scientists, doctors and others for libel. The law was skewed against openness, accountability and legitimate investigation. Thanks in large part to our work on the Libel Reform Campaign, the Government was persuaded to rebalance the law. Just as responsible campaigners do not seek to abolish libel or create a free-for-all for scurrilous and malicious accusations, so they do not deny the fundamental right to privacy. That has to be balanced, however, against the needs of a society to an open justice system. Super-injunctions are but the latest tool to chill free speech.

John Kampfner is chief executive of Index on Censorship twitter@johnkampfner

The cases

1. A leading sportsman won a gagging order after learning that ‘The Sun’ was planning to publish a story that he had been cheating on his partner with two other women. Lord Neuberger said the sportsman’s private life could be “unlawfully exposed”.

2. A married television broadcaster won a court order in 2008 to prevent public discussion of an affair which he believed had led to the birth of a child. The injunction remains although he has received confirmation that he is not the father.

3. A married public figure won a gagging order to hush up his infidelity after claiming it would be “very distressing” for his family . A judge agreed it would breach his human rights after hearing that the woman was demanding substantial sums of “hush money”.

4. A married football manager gained an injunction banning a cuckolded husband from revealing details of his alleged affair with the man’s wife. The manager argued for privacy because he was trying to rebuild his life.

5. A high-profile television presenter secured an injunction stopping his ex-wife writing about their relationship and claims that they had resumed a sexual affair after he remarried. Neither the star nor his ex-wife can be identified.

6. A high-earning footballer won an injunction preventing the reporting of claims of a “sexual liaison, encounter or relationship” with an international female sports star. The injunction banned publication of “private or personal photographs” on mobile phones.

7. A prominent footballer playing in England won an injunction preventing coverage of an alleged blackmail attempt over sex with three women at a hotel, supposedly recorded on a mobile phone.

8. A world famous sportsman – who was not, on this occasion, a Premier League footballer – and who is married, obtained a gagging order preventing the publication of any suggestions

John Kampfner: When tyrants want tear gas, the UK has always been happy to oblige

February 21st, 2011

The revoking of arms licences to Libya and Bahrain won’t last. British firms will be back, argues John Kampfner

This piece first appeared on Comment is Free, Guardian.co.uk.

When Robin Cook tried to tighten rules on British arms sales to dodgy regimes in 1997 he was told by Tony Blair’s team to grow up. Planned changes to criteria for weapons exports were so watered down that they made no inroads into the trade. Cook’s professed “ethical dimension” to foreign policy was stillborn.

Downing Street had been heavily lobbied, but it needed no convincing. This is one area where the boardroom and the unions are in harmony, and one that does not change whatever the government. Britain is a market leader in fighter jets, electric batons, sub-machine guns and teargas. Why add to the jobless total for the sake of morals? If we don’t sell the kit someone else will.

The announcement, therefore, of a revoking of licences to Bahrain and Libya should be taken with a pinch of salt; I predict that British firms will be back at it as soon as the coast is clear.

The coalition government’s commendable, but limited improvements in civil liberties at home have not been replicated in foreign policy, which is brazenly mercantilist. Go forth and flog Britain’s wares is the message. The notorious Export Credits Guarantee Department, responsible for some of the most economically foolhardy and unethical business deals of the past 20 years, has been boosted. From arms sales to Saudi Arabia and Indonesia, to oil and gas pipelines in central Asia, to mega-dams in sub-Saharan Africa, the ECGD has backed projects that have been implicated in corruption, environmental destruction and human rights abuses.

At the weekend, the UK arms industry descended on Abu Dhabi for Idex, the region’s most important weapons fare. A tenth of all the global exhibitors are from Britain. Gerald Howarth, the minister leading the delegation, declared that “we have ambitious plans”.

The most unequivocal message since the election was made by Peter Luff, the defence equipment minister, who told a defence show in June: “There will be a very, very, very heavy ministerial commitment to arms sales. There is a sense that in the past we were rather embarrassed about exporting defence products. There is no such embarrassment in this government.”

Indeed there is not. The regimes currently using brute force to put down pro-democracy protests are all longstanding partners of the UK. As the Campaign Against the Arms Trade notes on Bahrain: in 2010, equipment approved for export included teargas and crowd control ammunition, equipment for the use of aircraft cannons, assault rifles, shotguns, sniper rifles and submachine guns. No requests for licences were refused.

Algeria, Egypt and Saudia Arabia have provided rich pickings for UK arms exporters. Of all the bilateral arrangements of recent years, perhaps the most despicable is the one with Libya. Colonel Gaddafi morphed from terrorist sympathiser to friend of the west, which then turned a blind eye to his internal repression. Libya is regarded as a priority partner, with the UK boasting the largest pavilion at the Libya’s arms fair.

CAAT figures show that in the third quarter of 2010, equipment approved for export to Libya included wall-and-door breaching projectile launchers, crowd control ammunition, small arms ammunition and teargas/irritant ammunition. No requests for licences were refused.

Earlier this month, the trade minister, Lord Green, announced that ministers will be “held accountable” if companies fail to secure deals and foreign investors favour Britain’s economic rivals. Beside him was business secretary, Vince Cable.

In opposition the Lib Dems were vocal about arms sales. In government they have grown silent. In January 2009, Nick Clegg wrote on these pages that Britain should stop supplying Israel following its bombardment of Gaza. He made a broader point: the UK should not supply weapons to countries involved in external aggression or internal repression. I have heard nothing significant from Clegg on the issue since he became deputy prime minister.

He may believe that if he spoke out, he might suffer a similar fate to Cook. There is too much riding on an industry that abets authoritarian regimes, while providing rich profits for UK firms and jobs. In the current economic climate, who would stand in their way?

Keeping it quiet

January 20th, 2011

Tony Blair’s appearance at the Iraq inquiry is a test of the competing principles of free expression and confidentiality. John Kampfner asks who should decide what the public hears?

Tony Blair would not appreciate being likened to Julian Assange. The feeling would, I am sure, be entirely mutual. Yet there is a link of sorts between these two figures, so controversial in their very different ways. It revolves around the notion of confidentiality.

The lead-up to the former prime minister’s second appearance before the Iraq enquiry has been dominated by the issue of private correspondence. The refusal by the cabinet secretary, Sir Gus O’Donnell, to accede to the request of the committee chairman, Sir John Chilcot, to release the full musings of Blair and ex-president George Bush is based around a question similar to the one relating to the industrial dumping of US State Department documents. When are the musings of individual officials or politicians public documents and when are they private?

In both cases the competing principles of free expression and confidence stumble on each other, head to head. Assange and his allies argue their case mainly around public interest. The world, he insists, should know all the dirty deeds of dastardly diplomats. A more convincing argument in his favour might be that no serious organisation could remotely hope to keep a single email secret if circulated to 2.5m people, as was apparently the case with the US diplomatic service.

As for the Blair/Bush love-in, the case for secrecy is undermined by Blair’s own decision to publish some of the discussions in his memoirs. Furthermore, written memos between world leaders could surely not qualify as “private”. Telephone calls, presumably yes, but not the written word.

As the Daily Telegraph commented in a leader article this week:

The public deserves to get the fullest possible account of why this country went to war on the basis of what turned out to be misleading intelligence. For many, this remains the rawest of issues; if we are ever to put it behind us, the inquiry must be seen to be as thorough and open as possible. Reaching sensible conclusions almost eight years after the invasion began will be difficult enough without the inquiry being fettered in this way.

In the spirit, we are sure, of free expression, a furious Chilcot decided to publish his exchange of letters with O’Donnell. The committee chairman suggests, in quintessential mandarin style, that he would be “disappointed” if Blair proved less forthcoming in his evidence than in his book.

Otherwise, the Telegraph concludes, “it will appear that Mr Blair is happy to breach the confidentiality of office for a lucrative book deal, but not to inform the British public of the process that led him to send our troops to war”.

John Kampfner is the chief executive of Index on Censorship

WikiLeaks turned the tables on governments, but the power relationship has not changed

January 17th, 2011

This article was first published in Media Guardian

The information genie cannot be put back into the bottle, however hard authorities try. But the authorities continue to exploit the internet as a means of control

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Our campaign isn’t a “big media” proxy

January 7th, 2011

This article was first published in Press Gazette

Who could possibly improve on the assessment of Justice Minister Lord McNally?

England’s libel laws are, he said, “not fit for purpose”.

McNally’s determination to drive through a bill in a crowded legislative market place marks an important step for the libel reform campaign. He made his comments at the celebration in early December of the first anniversary of the campaign, convened by Index on Censorship, English PEN and Sense About Science, and supported by many other organisations and publications, including Press Gazette.

The campaign had an immediate rallying point: the case of Simon Singh, who was being sued by the British Chiropractic Association. Singh’s battle was a perfect storm: a popular and charismatic writer being unjustly maligned for his honestly held views on a controversial alternative medical treatment.

One of the criticisms of the campaign made by those with vested interests in the status quo is that the problems with the law are concoctions drawn up by journalists and editors seeking a free pass to write what they want without fear of sanction.

The critics — based around law firms keen to maintain their profit margins – are not just wrong in the facts. They are wrong also, knowingly wrong, in suggesting time and again that our campaign is a proxy for “big media”.

We are not. The UK’s main newspapers are quite capable are looking after themselves. More fundamentally, free expression is an individual and societal right, not an industry right.

Libel has affected bloggers, scientists, doctors and charities that are unable to find the cash to fight off legal firms who deliberately string things along in order to drain the defendant of energy and time.

Less damaging than the cases that go to court are the cases that do not — people who time and again apologise and retract purely out of duress.

Inevitably there is a convergence between our aims and those of media groups.

As the industry lurches uncertainly forward on ever-dwindling resources, as investigative journalism diminishes, so democracy suffers.

If the job of the media is not to hold truth to power, then what is it for?

Our increasingly squeezed local newspapers are unlikely to be able to afford to go to the High Court, leaving editors unwilling to publish stories on local politicians and bigwigs for fear of a lengthy, expensive action.

The Reynolds Defence, held up as a boon for journalists, is realistically only applicable to papers with large newsrooms and legal departments. As one local editor pointed out at a libel reform meeting, some hard-up papers’ “legal departments” consist of an old copy of McNae’s.

As more of our work is conducted and published online, we are stuck with laws that fail to understand modern communication.

The current idea of “publication” means that every time someone clicks on a page, that page is freshly “published”.

In practice, this means the idea of a statute of limitation is out the window. Long forgotten copy can suddenly become subject of vexatious litigation.

These are just two of the issues that Index and the libel reform campaign seeks to address. We are hopeful that the draft bill promised this spring will favour a free press.

We are under no illusions, though, that the forces of resistance, the defenders of the rich and powerful, will use the pre-legislative scrutiny period to lobby hard to weaken the legislation beyond recognition.

For sure, 2010 was a great year for our cause, but 2011 will be absolutely crucial.

It’s vital the press embraces this opportunity to make our courts fairer, cheaper and firmly in favour of free expression.

John Kampfner is the chief executive of Index on Censorship

Index on Censorship responds to Julian Assange allegations

November 18th, 2010

A Swedish prosecutor today requested that Julian Assange, founder of the Wikileaks whistleblower website, be detained for interrogation concerning a re-opened sexual assault investigation. The application could lead to an international arrest warrant.
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