Archive for January, 2010

Privacy and persons unknown

January 31, 2010 Leave a comment

The decision to discharge an injunction on reporting details of John Terry’s private life has been greeted by some as a victory for free speech. The decision, however, does not mark a sea-change in the approach of the courts to privacy laws.

Terry’s lawyers sought to impose the injunction on ‘persons unknown’ – as he argued he did not know who was going to publish the story, but wanted to stop any newspaper from doing so. The problem is that this meant that no other party was in court to oppose the injunction, and that it rested on what Terry’s lawyers told the court. The judge, Mr Justice Tugendhat was critical of the fact that the relevant media organisations had not been notified (and therefore not present in court) – and found that Terry’s lawyers should have known who was likely to publish the article.

The judge was also critical of the quality of the evidence before the court. Given that there was no opposing party in court, it was particularly important that Terry’s lawyers give full and frank evidence, highlighting any weaknesses in the arguments for an injunction. Tugendhat did not think the evidence presented,which had been collected by non-lawyers, fulfilled this standard. On the evidence given, he did not think Terry was likely to prove that there was a real threat of sensitive details being published. In any event, he could not rule out the success of a public interest defence (again, he had not heard evidence from an opposing side, so it was harder to form a conclusion on this issue).

Finally, he thought that the claim was really about protecting reputation (particularly a commercial reputation) rather than the right to privacy. As a result, the rule in Bonnard v Perryman applied (which makes it harder to get an interim injunction in defamation cases).

It is certainly welcome to see the courts closely scrutinising claims for an injunction against persons unknown. But it does not mark a change in the substance of the law of privacy, and many of these factors will not arise where there is an opposing party to challenge an injunction in court.

Categories: Media

Rusbridger on the digital media

January 26, 2010 Leave a comment

Yesterday Alan Rusbridger gave the Hugh Cudlipp lecture, looking at the impact of the digital media on journalism.

One recurring theme in the lecture was the contrast between a paywall business model (which requires payment before content can be accessed on the web), and a model where newspapers give content away for free on their websites. Rusbridger suggested that a paywall model comes at the expense of influence – charging for content online reduces your audience and cuts you off from the networked world. By contrast, those newspapers that give content away are more likely to secure a global audience and be commented on in the blogosphere.

While the industry is in crisis in terms of finance – in terms of reach, audience and influence, the Guardian is (according to Rusbridger) growing and in December 2009 its journalism:

was read by 37 million people around the world – very roughly a third in the UK, a third in North America and a third in the rest of the world.

This goes to show how some established newspapers are getting bigger and bigger audiences. The trend might benefit those titles at the very top, but this is surely not the case for some other newspapers – like those local newspapers that are struggling to survive. The problem is that to prosper in the way Rusbridger describes, you need to produce content that can be given away (and attract regular attention), which itself requires investment.

The question is whether the sources of revenue for the free-on-the-web media can support a sufficiently diverse range of media organisations. For all the talk of democratisation, this could lead to a new media concentration in which only a very small handful of sites enjoy global attention. This may be a ‘beacon of hope’ for the Guardian, but I’m not sure that applies to the rest of the media.

The lecture, I think, is spot on in relation to the relationship between a newspaper and the content produced by its readers:

We feel as if we are edging towards a new world in which we bring important things to the table – editing; reporting; areas of expertise; access; a title, or brand, that people trust; ethical professional standards and an extremely large community of readers. The members of that community could not hope to aspire to anything like that audience or reach on their own; they bring us a rich diversity, specialist expertise and on the ground reporting that we couldn’t possibly hope to achieve without including them in what we do.

The two are complementary – among all the user generated content, there is still the role for the mass media to bring the material to a wide audience.

Categories: Media Tags: , ,

A silver lining in Murdoch’s cloud?

January 21, 2010 Leave a comment

The Court of Appeal has upheld a ruling that BSkyB must sell off some of its shares in ITV (to reduce its holding to below 7.5%). The decision is mostly concerned with competition law – but the judgement also considers the public interest test for media mergers.

In the event of a media company merging, the public interest test allows the regulators to consider a range of issues, such as the impact on editorial freedom or the plurality of views in the media. The provisions aim to provide a (limited)safeguard against media concentration over and above the competition laws.

When BSkyB acquired its 17.9% stake in ITV, the regulators looked at the public interest considerations (the first time they had done so under the current legislation). In particular they had to consider the impact of the deal on the need for a ‘sufficient plurality of persons with control of the media enterprises’ – and it was the interpretation of this provision which caused some difficulty.

The question was whether you could consider the degree of BSkyB’s control over ITV when assessing the sufficiency of the plural control. BSkyB argued that as its control was only 17.9%, the effects on plurality were limited (they argued they could not do much to change the direction of ITV). The Competition Commission accepted the line of argument in late 2007.

The Competition Appeal Tribunal in 2008 took a different view and found the regulators should assess the plurality of persons controlling media enterprises on the assumption that BSkyB had total control of ITV (not taking into account the actual degree of control). This approach may seem a bit false, but it provided a stronger restriction on mergers. By assuming a greater level of control, the Competition Appeal Tribunal took a precautionary approach to protect what it called the ‘fragility’ of media plurality (as ‘once lost, it may be very difficult or indeed impossible to restore.’) It also provided a safeguard against future increases in BSkyB’s control over ITV (even if BSkyB’s degree of control over ITV is not thought to be a problem now, that could change in the future).

The Court of Appeal found the earlier approach of the Competition Commission to be correct (and allowed BSkyB’s appeal on this point). Much of the Court of Appeal’s decision on this matter was focused on reconciling two different provisions of the Enterprises Act and seems fairly technical. But it does concern an important issue. While much of the press will portray the ruling as standing up to Murdoch, this part of the decision rules in Murdoch’s favour and potentially weakens the public interest test.

The Court of Appeal added that if its interpretation of the public interest test:

does not allow for sufficient protection of the sensitive interest of media plurality, it should not be difficult to amend the legislation accordingly, now that possible difficulties in applying the current legislation have been identified.

So the ball is in Parliament’s court. Will any politicians be willing to take this up?

Categories: Media Tags: ,

Labour’s funding shortage – a concern for democracy?

January 19, 2010 Leave a comment

The Labour Party is likely to be outspent by the Conservatives in the coming election, according to David Blunkett. The Guardian reports:

The Conservatives are understood to be on course to have a campaign chest of £18m – the maximum amount allowed in the election period starting 1 January – whereas Labour has about £8m secured so far, mainly from unions.

On one point of law – the limits on spending in support of the party (set at about £18 million) apply in the 12 months before the general election. So these controls apply to election expenditures that have already been made. By contrast, the limits on spending in support of a candidate take effect nearer the election.

If the reports are correct, should Labour’s shortage of funds be a concern? Does Blunkett have cause to complain? In the New Statesman blog George Eaton argues that the disparity makes an ‘unarguable case for state funding.’ – I think there is a case for state funding, but I don’t agree that it is unarguable or that it is made out by these figures alone.

There is a point about the competitiveness of elections. Parties need similar resources to keep each other on their toes and fully debate the claims being made. If one party can radically outspend another, then debate may become one-sided. You could make a similar point on Obama outspending McCain, and whether that campaign was really balanced – but few here cried foul then.  The Liberal Democrats could also argue that it is not fair that they are outspent and that they don’t have a chance to compete.

Not every party is entitled to the same level of funds. So the question is whether the source of the funds and differences in spending power are fair. This explains why fewer people were critical of Obama – the reliance on small donors was seen to make the spending power fairer. Several points can be made about Labour’s lack of funds.

First, Labour’s complaint is not simply that it lacks funds, but that the Conservative Party has an unfair advantage because it relies on Ashcroft, etc. The level of funding needn’t be directly linked to the level of support for a party, but may rest on whether a party can command the support of enough wealthy individuals to bankroll the campaign. This might call for controls on the sources of funding (eg a cap on donations), rather than automatically leading to state funding.

According to The Guardian, Labour  hopes to respond by building up

an extensive network of people willing to give between £10,000 and £20,000. Prominent business people as well as entertainers such as Eddie Izzard and Jo Brand attended the first meeting last week.

This is hardly people-power or grassroots activism. It calls on another set of wealthy individuals to donate sums that most people cannot afford. Other political parties could argue that this is still not fair – as Labour would get its resources advantage from the support of businessmen and celebrities.

If all you need is a limited number of wealthy supporters to fund a party, then you might ask why Labour is struggling for money. A party does not need to do well in the polls to be rich.

One view is that the scandals, such as cash for peerages, have discouraged some individual donors who want to avoid the publicity. This would, in theory at least, apply to every political party so doesn’t explain the differences in funds (although you might argue Labour has been most closely scrutinised in this respect).

A second possibility is that the lack of funding is indirectly related to poor performance in the polls. If Labour is expected to lose the election, then people have less incentive to make very large donations (as there is less in it for a donor to be connected to a party that has just been voted out of office).

A third possibility is that the support for the parties has split along more traditional economic lines – that the Conservatives have more support from wealthier individuals (who can make large donations), whereas Labour’s support comes from those on lower/middle incomes. This argument would probably appeal to those advocating a ‘core vote’ strategy for Labour. 

All of this is highly speculative and no doubt there are many counterexamples. But it goes to show how the trends in funding are open to interpretation and that it is not clear what conclusion can be drawn from the differences in funds.

Voting on constitutional reform

January 15, 2010 Leave a comment

Power 2010 have opened voting on various constitutional reforms, to decide which should make it onto their ‘power pledge’ campaign. At the time of writing, proportional representation has the most support. There are a few on the list which could promote political equality and control the influence of wealth in politics – such as a cap on political donations, transparent lobbying and an end to ‘revolving door’ politics.

Good to give these issues a wider airing, but in many of the cases, the difficulty lies in the detail rather than support for the broad principle. Take the cap on political donations (which I support in principle). Many people will agree that it is desirable to stop multi-millionaires bankrolling a party. The Sir Hayden Phillips Review accepted the arguments for a donation limit. But then other questions quickly follow: at what level should the limit be set; should it apply to unions and companies; should public funds be made available to compensate for any loss of funds? It is questions like these that have stopped change so far.

The same can be said for other proposals being put to a vote – it is one thing to support a written constitution in principle, another matter to decide what it should say.

Back on political donations, there is now a regular flow of stories in the press about the parties’ sources of funding, from companies and individuals.  With the Times reporting that ‘Andrew Lansley, the Shadow Health Secretary, received £21,000 in November from Caroline Nash, wife of John Nash, the chairman of Care UK’ (which receives healthcare contracts).

Yet this takes place against the background of a broader resources war in the coming election, stretching beyond political parties. Earlier this week allegations were made that government communications are being used for political purposes. On top of this are the resources flowing into the various think-tanks and independent organisations, which may act as a testing ground for political ideas and policies. The fundraising and spending of the political parties raise important issues, but will just be one part of the overall cost of campaigning in this election.

Responsible communication in the Canadian courts

January 14, 2010 1 comment

English libel laws have been described as an ‘international embarassment’ and the campaign for libel reform has stepped up in recent months. I’m largely sympathetic with the critics – but it is interesting to note that a part of English libel law got some international approval (from the Canadian Supreme Court) just before Christmas (in a way that strengthened freedom of expression).

In the cases Grant v Torstar and Quan v Cusson, the Canadian Supreme Court adopted its own version of Reynolds privilege (which allows publishers to rely on a defence where the publication was on a matter in the public interest and where the journalist/author acted responsibly).  This defence can be relied on when the publisher cannot prove the truth of the statement. The Canadian Supreme Court specifically rejected the American public figure defence and New Zealand approach (which avoids the standard of responsible journalism).

Like the English defence, the Canadian defence will be open not just to the established media, but also the online media and bloggers. To reflect this, the Canadian defence is called ‘responsible communication’ rather than ‘responsible journalism.’ Chief Justice McLachlin emphasised the point in Grant at paragraph 97:

A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media.

This is an important point. Given that much of the online media does not have access to the resources or legal departments of the mainstream media, it is vital that their speech rights are not chilled or easily silenced with the mere threat of a libel writ.

The problem is that to benefit from the public interest defence, the defendant has to act responsibly in publishing the story. Both the English and Canadian courts have a list of factors that indicate what responsible communication/journalism requires – taking steps to verify the story, contacting the subject of the article and including the subject’s comment. Most bloggers are unlikely to contact someone for comment before publishing a story and may not have the contacts or sources necessary to verify the story.  So while anyone can rely on the public interest defence, the established media are most likely to fulfil its requirements. In any event, it is not easy for the established media to make out the defence, so I’m not sure what hope there is for everyone else.

This is why Chief Justice McLachlin’s comments above are of interest, as she suggests that the courts may develop the requirements of responsible journalism in future to fit with the online media. So maybe this will lead to the development of guidelines for responsible bloggers? Can’t see this happening here in the near future, but would be interesting to see what those guidelines look like.

Funding parties through intermediaries

January 10, 2010 Leave a comment

The Sunday Times published a story today about Zac Goldsmith and others making donations to the Conservative Party via an intermediary company. The Conservative Party recorded the donations with the  Electoral Commission, but named the company, not Goldsmith, as the donor.

The story highlights the potential for intermediary organisations to undermine the controls on political donations. The issue in the Sunday Times story concerned the transparency rules, which require the disclosure of the source of all donations over £7,500.  By naming only an intermediary organisation, the true source of the donation (ie the person who gave the money to the company) was not disclosed. The story does not allege any wrongdoing on Goldsmith’s part, and the Conservatives explain the failure to report the source as an administrative error. If there was no bad intention, it still maybe suggests that the use of intermediaries makes arrangements more complex and thereby prone to errors in the record keeping.

The law requires the disclosure of the true source of a donation where the intermediary organisation acts as an agent for someone else. The Sunday Times report suggests that this is not in dispute and that the Conservatives accept that they should have recorded the donation as from Goldsmith.

However, in other circumstances, an agency agreement is not always easy to establish. There are also ways for organisations to act as a front without an agency agreement. The previous controversies – such as those concerning David Abrahams, the Midlands Industrial Council and 5th Avenue Partners – show that the regulations leave room to give money using other organisations or people without falling foul of the law.

Creative uses of intermediaries would also be a likely problem if a cap on political donations is introduced – with people getting round the donation limits  by using companies or other organisations to give extra funds. The difficult question is how to solve these problems? Ban all donations except those from individuals? That would be harsh on all those organisations that want to give money and do not act as a front. An alternative is a system of regulation that requires organisations to disclose their donors (as is now required for unincorporated associations) or even cap the amounts that people can give to organisations that donate to a political party – but this extends the regulation of political funding to a wider range of political actors and increases the complexity of the law.

The use of intermediaries, and the limits of the law in controlling these methods, has been a recurring problem since the introduction of the controls on political donations and seems unlikely to go away.