27 Aug 2011 | Uncategorized
It will probably surprise many people — I wish I could say it surprised me — to know that the Press Complaints Commission still thinks it has a future. If recent weeks have taught us anything about the PCC, you might think, it is that the so-called regulator has failed to uphold press standards and a new approach is needed. The prime minister thinks so, Labour thinks so, the public thinks so and the Leveson inquiry has been asked to devise that new approach. The PCC is doomed, and you would struggle, these days, to find a supporter who did not have a strong interest in the status quo.
But go to the PCC website and you will find something like defiance. We do a great job helping people with complaints, they say. A lot of the criticism we endure is unfair. Hacking was a matter for the law and not for us. Yes, there is a need for reform, even fundamental reform, but in the end you must come back to something like the PCC or democracy will be endangered.
This is misleading and smacks of self-delusion. The PCC’s failures did not begin with hacking; hacking is just the last and heaviest straw. The PCC, when it had its chance, gave the News of the World a clean bill of health on hacking although the same evidence led MPs on the media select committee to conclude that the paper was gravely at fault and senior executives were displaying ‘collective amnesia’. The PCC also criticised the Guardian, which broke the key hacking story in 2009. The MPs and the Guardian have been proved right and the PCC wrong.
Why was the PCC wrong? Because it is a complaints agency and doesn’t know what to do when a big problem comes along. In the McCann case it did nothing while for a year newspapers indulged in an orgy of libels — they have since admitted to publishing hundreds of false articles, possibly more than a thousand, grossly misleading millions and millions of readers. Like hacking, this was apparently not the PCC’s business.
Nor is the failure of accountability in the tabloid press the PCC’s problem. Again and again we see these large libel payouts, the latest to Chris Jefferies, the retired Bristol teacher so disgracefully treated in the tabloids. Has the PCC ever followed up such cases to see why lessons are not learned? Have they ever asked about internal systems and accountability in these papers? Have they asked about discipline? There is no sign of it.
Such matters are too big for the PCC. Its concern is the micro — individual complaints, and (largely) only those which are made by the people personally affected. This has nothing obvious to do with standards, though the argument was often made that by chasing up such complaints the PCC would effect a general raising of standards in the press. It has been nearly 20 years since the PCC began work and we are entitled to ask: has there been a general raising of standards? No.
The complaints work is worthwhile and something like it will be needed in the future. Few people dispute that. It does not follow that to meet our present needs all we have to do is improve the complaints agency. Though the PCC seems to be the very last to recognize this, we need radical change. We need a regulator.
As for the need to balance regulation with freedom of expression, that is a challenge the Leveson Inquiry will address and which it is perfectly capable of addressing successfully. It will have many options before it, and you can read some ideas here. To suggest that the only way to achieve a balance is to stick with a structure that has failed is nonsense. Far from being chained to the PCC we are about to discard it, and very few people who care about press freedom and press standards will be sorry to see it go.
This post is cross-posted with Hacked Off
Brian Cathcart is professor of journalism at Kingston University London. He tweets at @BrianCathcart
5 Aug 2011 | Uncategorized
The Daily Mail’s new review of editorial controls and procedures is one of several now under way as the British press prepares to face the probing of Lord Leveson’s inquiry into phone hacking and related matters. Every newspaper will need to show the inquiry that it has responded to the public crisis of confidence in press standards.
There is little detail on what the Mail proposes, and there is no hint of a historical investigation into newsgathering methods at the Mail, though we can be sure that the Mail has already put a great deal of work into preparing for Leveson’s scrutiny. (It knows, for example, that it will have to explain its extensive use of private investigator Steve Whittamore, as revealed in the Information Commissioner’s report What Price Privacy Now? [pdf])
So what can a review of editorial controls and procedures do that might affect the Mail’s standards and impress the inquiry? Here are three suggestions.
First, it could examine standards of attribution. When somebody is quoted in the Daily Mail, what measures has the paper taken to ensure that the quotation is accurate and fair? Has the interview been recorded and the recording preserved? If not why not, and is there a good written note instead? If the quote is second-hand, has its authenticity been checked? If a quotation is used in a story without specific attribution, is there a good reason? Has it been satisfactorily explained to the reader why the speaker could not be identified in such a way that he or she might ultimately be traced? Does the relevant news editor know the speaker’s identity?
These simple if often tedious steps are marks of conscientious news reporting in the modern, accountable world. They make news credible and they make reporters virtuous. There is no reason why a well-resourced newspaper like the Mail could not establish and enforce clear rules along these lines, and such rules would undoubtedly impress the Leveson inquiry.
Second, the review could look at lines of command. When a reporter files a story, how much responsibility does the editor on the desk take for its content? Is there systematic fact-checking? If not, is the reporter questioned about the content to ensure it is accurate and fair? Where appropriate, is the reporter challenged about the methods used to gain the information, to ensure they conform with relevant codes of practice? And is it always clear to all parties which news editor is taking the appropriate responsibility?
Again, many journalists will find this tiresome and onerous, but they owe it to their readers and to the people they are writing about to make every reasonable effort to get things right, and to have measures and pressures in place to check. A culture of ‘don’t ask; don’t tell‘ is likely to flow from the absence of such checks, and inevitably leads to low standards.
Third, there is accountability. When something goes wrong, is there a satisfactory process to establish (for example, relying on the structures and rules above) how it went wrong and where the fault lay? Is there a clear understanding of who is responsible for what, right up through the system? And if there is, are there appropriate disciplinary procedures and are they used?
All very bureaucratic, no doubt, but again journalists — and particularly, it has to be said, journalists on the Daily Mail — need to remember that these are standards their paper demands of people in every other walk of life, from social workers, teachers and nurses to politicians, bankers and the people who run the railways and airlines.
Yes, journalism is usually done in a hurry and yes, it can be untidy and unpopular and it will sometimes get things wrong, but those are reasons to do everything possible to get things right. They are not reasons to opt out of a culture of responsibility that the most of the rest of society already accepts.
Brian Cathcart teaches journalism at Kingston University and is a founder of Hacked Off. He tweets at @BrianCathcart.
2 Jan 2014 | European Union, News, Politics and Society
The law of libel, privacy and national “insult” laws vary across the European Union. In a number of member states, criminal sanctions are still in place and public interest defences are inadequate, curtailing freedom of expression.
The European Union has limited competencies in this area, except in the field of data protection, where it is devising new regulations. Due to the impact on freedom of expression and the functioning of the internal market, the European Commisssion High Level Group on Media Freedom and Pluralism recommended that libel laws be harmonised across the European Union. It remains the case that the European Court of Human Rights is instrumental in defending freedom of expression where the laws of member states fail to do so. Far too often, archaic national laws have been left unreformed and therefore contain provisions that have the potential to chill freedom of expression.
Nearly all EU member states still have not repealed criminal sanctions for defamation – with only Croatia,[1] Cyprus, Ireland, Romania and the UK[2] having done so. The parliamentary assembly of the Council of Europe called on states to repeal criminal sanctions for libel in 2007, as did both the Organization for Security and Co-operation in Europe (OSCE) and UN special rapporteurs on freedom of expression.[3] Criminal defamation laws chill free speech by making it possible for journalists to face jail or a criminal record (which will have a direct impact on their future careers), in connection with their work. Many EU member states have tougher sanctions for criminal libel against politicians than ordinary citizens, even though the European Court of Human Rights ruled in Lingens v. Austria (1986) that:
“The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual.”
Of particular concern is the fact that insult laws remain in place in many EU member states and are enforced – particularly in Poland, Spain, and Greece – even though convictions are regularly overturned by the European Court of Human Rights. Insult to national symbols is also criminalised in Austria, Germany and Poland. Austria has the EU’s strictest laws in this regard, with the penal code criminalising the disparagement of the state and its symbols[4] if malicious insult is perceived by a broad section of the republic. This section of the code also covers the flag and the federal anthem of the state. In November 2013, Spain’s parliament passed draft legislation permitting fines of up to €30,000 for “insulting” the country’s flag. The Council of Europe’s Commissioner for Human Rights, Nils Muiznieks, criticised the proposals stating they were of “serious concern”.
There is a wide variance in the application of civil defamation laws across the EU – with significant differences in defences, costs and damages. Excessive costs and damages in civil defamation and privacy actions is known to chill free expression, as authors fear ruinous litigation, as recognised by the European Court of Human Rights in MGM vs UK.[5] In 2008, Oxford University found huge variants in the costs of defamation actions across the EU, from around €600 (constituting both claimants’ and defendants’ costs) in Cyprus and Bulgaria to in excess of €1,000,000 in Ireland and the UK. Defences for defendants vary widely too: truth as a defence is commonplace across the EU but a stand-alone public interest defence is more limited.
Italy and Germany’s codes provide for responsible journalism defences instead of using a general public interest defence. In contrast, the UK recently introduced a public interest defence that covers journalists, as well as all organisations or individuals that undertake public interest publications, including academics, NGOs, consumer protection groups and bloggers. The burden of proof is primarily on the claimant in many European jurisdictions including Germany, Italy and France, whereas in the UK and Ireland, the burden is more significantly on the defendant, who is required to prove they have not libelled the claimant.
Privacy
Article 8 of the European Convention on Human Rights protects the right to a private life throughout the European Union. [6] The right to freedom of expression and the right to a private right are often complementary rights, in particular in the online sphere. Privacy law is, on the whole, left to EU member states to decide. In a number of EU member states, the right to privacy can restrict the right to freedom of expression because there are limited protections for those who breach the right to privacy for reasons of public interest.
The media’s willingness to report and comment on aspects of people’s private lives, in particular where there is a legitimate public interest, has raised questions over the boundaries of what is public and what is private. In many EU member states, the media’s right to freedom of expression has been overly compromised by the lack of a serious public interest defence in privacy law. This is most clearly illustrated by the fact that some European Union member states offer protection for the private lives of politicians and the powerful, even when publication is in the public interest, in particular in France, Italy and Germany. In Italy, former Prime Minister Silvio Berlusconi used the country’s privacy laws to successfully sue the publisher of Italian magazine Oggi for breach of privacy after the magazine published photographs of the premier at parties where escort girls were allegedly in attendance. Publisher Pino Belleri received a suspended five-month sentence and a €10,000 fine. The set of photographs proved that the premier had used Italian state aircraft for his own private purposes, in breach of the law. Even though there was a clear public interest, the Italian Public Prosecutor’s Office brought charges. In Slovakia, courts also have a narrow interpretation of the public interest defence with regard to privacy. In February 2012, a District Court in Bratislava prohibited the distribution or publication of a book alleging corrupt links between Slovak politicians and the Penta financial group. One of the partners at Penta filed for a preliminary injunction to ban the publication for breach of privacy. It took three months for the decision to be overruled by a higher court and for the book to be published.
The European Court of Human Rights rejected former Federation Internationale de l’Automobile president Max Mosley’s attempt to force newspapers to give prior notification in instances where they may breach an individual’s right to a private life, noting that the requirement for prior notification would likely chill political and public interest matters. Yet prior notification and/or consent is currently a requirement in three EU member states: Latvia, Lithuania and Poland.
Other countries have clear public interest defences. The Swedish Personal Data Act (PDA), or personuppgiftslagen (PUL), was enacted in 1998 and provides strong protections for freedom of expression by stating that in cases where there is a conflict between personal data privacy and freedom of the press or freedom of expression, the latter will prevail. The Supreme Court of Sweden backed this principle in 2001 in a case where a website was sued for breach of privacy after it highlighted criticisms of Swedish bank officials.
When it comes to data retention, the European Union demonstrates clear competency. As noted in Index’s policy paper “Is the EU heading in the right direction on digital freedom?“, published in June 2013, the EU is currently debating data protection reforms that would strengthen existing privacy principles set out in 1995, as well as harmonise individual member states’ laws. The proposed EU General Data Protection Regulation, currently being debated by the European Parliament, aims to give users greater control of their personal data and hold companies more accountable when they access data. But the “right to be forgotten” clause of the proposed regulation has been the subject of controversy as it would allow internet users to remove content posted to social networks in the past. This limited right is not expected to require search engines to stop linking to articles, nor would it require news outlets to remove articles users found offensive from their sites. The Center for Democracy and Technology referred to the impact of these proposals as placing “unreasonable burdens” that could chill expression by leading to fewer online platforms for unrestricted speech. These concerns, among others, should be taken into consideration at the EU level. In the data protection debate, freedom of expression should not be compromised to enact stricter privacy policies.
This article was posted on Jan 2 2013 at indexoncensorship.org
[1] Article 208 of the Criminal Code.
[2] Article 168(2) of the Criminal Code.
[3] Article 248 of the Criminal Code prohibits ‘disparagement of the State and its symbols, ibid, International PEN.
[4] Index on Censorship, ‘UK government abolishes seditious libel and criminal defamation’ (13 July 2009)
[5] More recent jurisprudence includes: Lopes Gomes da Silva v Portugal (2000); Oberschlick v Austria (no 2) (1997) and Schwabe v Austria (1992) which all cover the limits for legitimate criticism of politicians.
[6] Privacy is also protected by the Charter of Fundamental Rights through Article 7 (‘Respect for private and family life’) and Article 8 (‘Protection of personal data’).
8 May 2013 | In the News
GLOBAL
The Bobs announce winners of online activism award
Jury members at The Bobs gave out honors to bloggers and online activists for their work promoting freedom of expression, human rights and the right to information. Internet users also voted for their own set of winners. (DW)
AUSTRALIA
Dreyfus says Brandis stands for hate speech
Attorney General Mark Dreyfus has accused the opposition of defending hate speech, not free speech, after his Coalition counterpart George Brandis’s charge that the government was waging war against freedom of expression. (The Australian)
Students ridiculed for Christian beliefs speak out in video
Public school students who’ve endured ridicule for their Christian beliefs created a newly released video, titled “The Thaw”, in which they ask, “Why can’t I pray in school? Why am I called names because I believe in marriage the way God designed it? Why can’t Tim Tebow praise God after making a touchdown without causing a national uproar?” (Christian Today Australia)
CANADA
“Cult of secrecy” pervades Canada’s Access to Information system, report says
Secrecy is at the heart of the annual Review of Free Expression in Canada released on Friday, May 3, by the organization Canadian Journalists for Free Expression (CJFE). Observing a “cult of secrecy” in Prime Minister Stephen Harper’s government, CJFE lamented the state of the country’s “dysfunctional” Access to Information Act, a sunshine law, and warned about a bill that could undermine the Canadian Broadcasting Corporation’s (CBC) journalistic independence. (Journalism in the Americas
RUSSIA
Is Russia’s social network chief really a free speech martyr?
The beautiful thing about a really good conspiracy theory is that it’s nearly impossible to disprove. And that’s especially true in Russia, where so much, so often, is so murky. (Washington Post)
Russia’s only independent pollster resists ‘foreign agent’ tag
Russia’s only independent pollster could be forced to register as a foreign agent under a law which President Vladimir Putin’s critics say is designed to tighten controls on groups that do not toe the official line. (Reuters
SUDAN
SJU Calls for Ending Censorship over Press
The Sudanese Journalists Union (SJU) affirmed its full support and firm adherence to the freedom of the press and strongly rejected imposition of any exceptional measures on the rights of newspapers and journalists. (Sudan Vision
THAILAND
Editorial: Free speech under attack
It is hardly unprecedented, but it has been a while since a forum on democracy unleashed such a great anti-democratic blowback. (Bangkok Post)
TUNISIA
Press Release: Tunisian government finally appoints Independent Broadcasting Authority
Reporters Without Borders hails President Moncef Marzouki’s long-overdue announcement on 3 May, World Press Freedom Day, of the composition of the nine-member Independent Broadcasting Authority (HAICA). Nouri Lejmi, a teacher at the Institute for Press and Information Sciences (IPSI), is to be its president. (Reporters Without Borders)
UNITED KINGDOM
Leveson: former Army officer advising the Queen on royal charter successfully sued a journalist for libel
The former Army officer advising the Queen on the royal charter on press regulation won a legal battle against an investigative journalist who raised questions about his activities in Cambodia in the Eighties. (The Telegraph)
UNITED STATES
Duluth City Council to Address Free Speech Lawsuit for Bentleyville in Special Session
The free speech lawsuit involving Duluth’s holiday light show Bentleyville is back in the spot light as City Councilors plan a special meeting to discuss the litigation. (Northlands News Center)
Anne Frank’s Diary in US schools censorship battle
Anti-censorship campaigners fight parent in Michigan over allegedly graphic passages in Diary of Young Girl (The Guardian)
