Archive
Party funding, the media exemption and Murdoch
My article in The New Republic on how the party funding laws preserve the power of the press has just been published – I made similar points in my written evidence to the Committee on Standards in Public Life last year.
Negative campaigns on the web
Earlier this week, Mike Gapes MP presented a Ten Minute Rule Motion to the House of Commons, arguing (amongst other things) that websites making negative attacks on candidates in elections need greater regulation. You can read my comments on a post for the new UK Constitutional Law Group Blog (just launched this week).
Campbell, costs and privacy
The Naomi Campbell case is back in the news following a decision by the European Court of Human Rights that the costs regime for the privacy case violated Article 10 (protecting freedom of expression). The cost issue concerned conditional fee agreements (CFAs) in which lawyers claim a success fee if they win a case (sometimes the success fee doubles that lawyer’s bill). The losing party then has to pay those legal fees. While CFAs were introduced for a good purpose, to widen access to justice, it can have harsh effects on some defendants that face very hefty legal bills. In privacy and defamation cases, there is an additional problem that the legal bills may have a chilling effect on the press.
None of this is new and has been noted by a number of judicial decisions and a number of government reviews. What is striking about the latest Campbell case is that the UK government was defending a costs system which it has openly acknowledged to be seriously flawed in a series of consultations and reviews. At paragraph 182 of the decision, the government argued that there is no inconsistency in its position – they accepted there are problems with success fees, but that these problems do not amount to violation of Article 10 and are within the margin of appreciation. That said, the domestic consultations and reviews planted the seed for the Strasbourg Court’s conclusion. The Court relied heavily on the Jackson Review, the Ministry of Justice consultations and the Culture Media and Sport Committee report to find that the position on success fees taken in Campbell No.2 (the domestic decision on the costs) is no longer sustainable. The Court therefore found the costs regime violated Article 10.
The case is not just about the costs issue. The Mirror first argued that the initial finding of a breach of confidence/misuse of private information violated Article 10. The domestic court had found that the Mirror was entitled to publish the fact of her drug use, but not the additional information on the treatment she was receiving or photographs of her leaving the treatment centre. The gist of the newspaper’s argument was that publication of the photos and additional information should fall within the editor’s discretion to illustrate the story. Unsurprisingly, the Strasbourg Court rejected this argument. The Court emphasised that editorial discretion is not unlimited and that the state has a wide margin of appreciation in striking the balance between Articles 8 and 10. The Court then endorsed the reasons given by the House of Lords (see para [151]).
The Court said that parts of the House of Lords’ ruling reflected the approach taken by the European Court of Human Rights in Von Hannover. However, the Court did not go on to address or resolve any of the tensions between Campbell and Von Hannover (there are some differences in the formulations taken in the two cases as to what types of information are protected by Article 8).
Finally, Judge David Thor Bjorgvinsson dissented on this point, in particular arguing that the Court should not give a wide margin of appreciation in such cases, and that it should take a ‘strict scrutiny’ approach by making its own assessment of the balance between Articles 8 and 10. He would have found a violation of Article 10 on the liability issue as well as on costs.
The finding of a violation on the costs regime is an important development, but in practice it should lead to the faster implementation of reforms that were already in the pipeline.
Super-injunctions: artificial construct or legal term?
In March this year, Sir David Eady was reported to have told a conference at City University:
Super-injunctions are something of an artificial construct, blown up by the media recently. I’d never heard the term till it was mentioned till a few months ago.
The term is now used by the courts. The first appearance in a law report was in John Terry v Persons Unknown (2010):
Orders have from time to time been made prohibiting the disclosure of the fact that an order has been made and providing for sealing the whole court file. Some newspapers refer to these as ‘super injunctions’. I shall consider such orders below.
Then in AMM v HXW (October 2010) at para [49], Tugendat referred to an application for a “so-called super injunction” in another case. A couple of weeks later Tugenhat made another reference to “a so-called super-injunction” in Gray v UVW (October 2010). In November, in the Howard Donald case the Court of Appeal seemed to embrace the term more directly, with Maurice Kay LJ stating:
On 26 April 2010 Eady J granted an anonymised claimant an injunction restraining an anonymised defendant from doing specified but unpublishable things and further restraining the defendant and others from publishing the fact that the injunction had been sought and obtained. This type of relief has become known as a superinjunction.
In the judgment, the term “super-injunction” is used in several places, eg: “… the next question is whether it should retain its superinjunction and anonymity elements” and “Superinjunctions attract understandable controversy. Sometimes it is the product of more heat than light.”
The point is that the term “super-injunction” is no longer qualified as being “so-called” or as a term used by the newspapers. Instead, the Court of Appeal is itself using the term itself to describe this type of relief. So it seesm to have gone from being an “artificial construct” used by the press to a legal term used by the court.
Woolas, false statements and free speech
Comments on the electoral offence at the heart of the Phil Woolas case can be found here.
My is point is not about application of the law in the Woolas case or to suggest that there is an unlimited freedom to make false statements, instead it is just to highlight the rationale and some of the consequences of the existing electoral offence.
One point that I do not address is the approach to freedom of expression taken in that case. In particular, the court suggested that statements made dishonestly are excluded from the protection of Article 10. Thomas LJ stated:
“Nothing in the Convention may be interpreted as implying for any … person any right to engage in any activity or perform any act aimed at the destruction of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
It is one thing to say that expression rights are outweighed when the speaker makes a knowingly false statement of fact, but it is another to say that it is excluded from Article 10 (and can therefore be subject to disproportionate penalties). The difficulty with the court’s reasoning is that it suggests a statement which impinges on a person’s reputation is aimed at the destruction of that right and should therefore be excluded. This could be true of many different types of statement – for example, a publication containing private information may have the effect of destroying a person’s privacy, but that does not mean Article 10 has no application. Instead, it should mean that the Article 10 right may be outweighed.
This is not the only case where the application of Article 10 has been limited. In the Jon Gaunt case last summer, the court found that Ofcom’s decision did not interfere with expression rights – in otherwords that Article 10 was not engaged. Really such exclusions of the Article are best kept to the rare extreme cases. My preference is for the court to find that Article 10 is engaged and then consider the necessity of the restriction. That has been the case in most of the defamation cases that have gone to the European Court of Human Rights. This makes very little difference to the outcome of the case, but is an important point on the court’s methodology.
Murdoch, BSkyB and the public interest test
See my article, on the News Corp bid for BSkyB, on the Australian website On Line Opinion here.
The Freedom of Information Act – more regrets
Tony Blair’s description of the Freedom of Information Act as a ‘mistake’ received much media coverage, and is now followed by Jonathan Powell in his book, The New Machiavelli. On pages 197-198, Blair’s former Chief of Staff makes several arguments criticising the legislation.
The first is that publishing internal advice will make civil servants more cautious when issuing advice. He also gives examples from other jurisdictions, where civil servants will not write down anything sensitive for fear that it will be released. There is something to this, but this should be addressed not by exempting all advice to ministers, but by striking a balance – as is currently the practice under the Act (looking at the importance of the issue, when the decision was made, etc). Of course, disclosure does erode the tradition of ministerial responsibility, but surely that was an accepted part of greater transparency.
The second is concerned with the costs of the FoI Act and the extra staff needed to deal with the requests. Yes, of course it costs more than not having an FoI Act, but I do not agree that this is simply ‘wasteful’ bureaucracy.
Powell’s third criticism is that the Information Commissioner has mixed roles: he is responsible for promoting transparency and also has an adjudicatory function deciding when information should be released. Powell argues that this means the Commissioner will normally favour ‘extending the boundaries’ of what should be released when hearing cases. Not sure this is fair. The Information Commissioner also has responsibility for protecting privacy and personal data, so it should not be assumed that his brief will always make him pro-disclosure. A mixture of policy and adjudicatory roles can also be found in other regulatory bodies. For example, Ofcom has a role in drawing up broadcasting standards while also acting as adjudicator. In any event, those unhappy with a decision from the Information Commissioner can always appeal to the Tribunal – that body does not have a policy role and has on many occasions taken a more pro-disclosure stance than the Commissioner.
Finally, Powell argues that while the Act was designed for use by citizens to access information held by government, it has largely been used by journalists to harass rather than illuminate. There is something in this criticism. The FoI Act can be used to get hold of an isolated piece of information or statistic, and then run a story of the ‘you couldn’t make it up’ variety without any background context or explanation.
One issue is with requests that are purely for entertainment and say little about the workings of government. The complaint is not new. In 2007, critics complained that people were using the Freedom of Information Act to find out how much the Foreign Office spent on Ferrero Roche chocolates or how many people were reported to have had sex with sheep in Wales. Requesting trivial information is not a good use of public funds, but how common is this really? In any event, the public authority do not have to reply to vexatious requests.
More common are stories on public spending. A couple of days ago the Express, using a FoI request, reported that the Forestry Commission spent £8,000 on contractors watering plants at its HQ. Similarly, other stories report the amount that is spent by the NHS on consultants. These statistics are not contained as part of a broader investigation by the newspaper, the sum spent is the story. The story does not provide much additional information, like why the authority thought it was a good idea to use the resources in this way or what proportion of the authority’s budget was spent on plants or consultants. Instead the story is just giving you the bottom-line sum. Few people are going to approve of a public authority spending money on something that does not appear to be part of its core remit. As a result, the FoI Act can provide a fairly quick and cheap route to stirring up public outrage.
Does this mean the FoI Act was a mistake? Absolutely not. While you may not like the way the information is being used, that is not a reason to deprive the people of the information. Of course, we may want the media to behave more responsibly in its analysis, but I don’t think that can be enforced by keeping people ignorant. There are also many important stories that are published due to the FoI Act – so maybe the other stories are the price we pay.
I also do not agree with the line of argument that the FoI was for individuals to use and not journalists. The critics say the FoI is used to boost newspaper profits. In other words, the cost of administering the FoI is a kind of subsidy to the media, as the public authority carries out (and pays for) research that is then used by the media. The response to the criticism is that there are already some controls on the costs of requests. The cost is also less than the sums spent by the government on its own press relations operations, which feed positive stories to the media. It is also no surprise that the media use the Act more (and the experience overseas would have told the government that before the Act was passed). Most people do not carry out their own investigations into the workings of government and, instead, rely on the mass media as the source of information. The use of FoI is necessary to the media in performing its central functions in holding government to account.
The Freedom of Information Act has some uses and consequences that are good and others that are bad. No system can be absolute and some guards must be in place to protect privacy, for example. But I don’t think this is a reason to conclude the Act was a mistake.
Jurors, Google and the risk of prejudice
Writing in the Guardian, Afua Hirsch discusses the dangers of jurors searching online for details about a trial. In particular, she worries that detail a defendant posts on Facebook could taint a juror’s view and potentially prejudice a trial. Jurors can encounter this information not just by searching for it. In high-profile cases, the mainstream media often digs up and publishes old social network posts made by a suspect. While judges give directions to a jury not to look for information, Hirsch concludes ‘warnings from judges are just not cutting it.’
On this point, I think Hirsch is right. Earlier this year, the Ministry of Justice published the results of a study, Are Juries Fair? The report, based on a survey of 62 cases and 668 jurors, found that in high-profile cases 12% of jurors looked online for information about their case. 26% of jurors in high-profile cases said they saw information about their case online (even though they had not searched for it). This is just one study based on a sample of cases and you may wonder whether the respondents in the survey were completely frank about their searching habits.
While jurors are told to ignore information obtained outside the court room, it is not clear how effective those warnings are. Even if a juror tries to follow this instruction, I find it hard to believe a juror can simply put aside information acquired on a person’s past or character. All this, however, stands in contrast to the faith in the jury so frequently expressed by the judiciary. The trouble is, the problem does not come with an obvious solution, save for a hope that clearer and more specific warnings by judges will be effective.
Can newspapers take part in referendum campaigns
Yes – but only up to a point. The reason is that newspapers appear to be subject to the expenditure limits in referendum campaigns. Any person or body spending over £10,000 in a referendum has to register as a permitted participant with the Electoral Commission. Permitted participants are then subject to a spending limit of £500,000 (the official campaign and political parties can spend more than that).
Yesterday, Jenny Watson told the House of Commons Select Committee on Political and Constitutional Reform that newspapers would have to register with the Commission ‘if they wished to express a view editorially on whether the voting system should be changed’ (quotation taken from the Guardian report).
This is different from what happens in elections, where newspapers are exempt from spending limits. This creates a problem as the media then has a privileged position in which it can use as much of its resources as it wishes on infuencing the election – but everyone else is subject to a spending limit. As I have written before, that exemption needs to be rethought in the light of internet communications (which are not exempt from election spending limits). However, there is no similar provision exempting the media from the spending limits in a referedum.
So at least in the referendum campaign the privileged position of the media is curtailed. There will still be difficulties in applying it. For example, how do you decide the value of a newspaper editorial in favour of AV? Another problem is that newspaper influence can come about through the slant in a story or the presentation of details, rather than outright advocacy. If this falls outside the definition of regulated material, then it may do little to curb the newspapers. There is also the question of the response of the press – will this be challenged in the courts on free speech grounds?
Offensive and insulting speech on the radio
As predicted, the High Court rejected Jon Gaunt’s claim that Ofcom’s finding against TalkSport violated his right to freedom of expression. The decision has attracted some criticism, for example Roy Greenslade makes the point that no one was forced to listen to the broadcast and that the audience who heard it ‘made a choice and should live with it.’
While audience expectations are relevant, I don’t think it is quite that simple. If the issue were resolved by asking if the audience chose to listen, that would take us to a broader question of whether we should have stricter standards on radio at all (as no one is ever compelled to listen to the radio). This, however, was not the issue for the court. No challenge was made to the broadcasting standards. Instead the claim was against the application of those standards to TalkSport. The question for the court was whether Ofcom’s finding of a breach of its Code (the provisions on offensive content) ‘fulfilled a pressing social need and constituted a proportionate interference with the claimant’s freedom of expression.’
In rejecting Gaunt’s argument, the court stated that:
freedom of expression may not however extend to gratuitous offensive insult or abuse, nor, we think, to repeated abusive shouting which serves to express no real content.
The court then found that the radio show host’s description of a councillor as a ‘Nazi’ and an ‘ignorant pig’ ‘was gratuitous, having no factual content or justification.’ It then concluded that Ofcom’s finding:
constituted no material interference with the claimant’s freedom of expression at all. An inhibition from broadcasting shouted abuse which expresses no content does not inhibit, and should not deter, heated and even offensive dialogue which retains a degree of relevant content.
The conclusions in the judgement are stated briefly. The conclusion that there was ‘no material interference’ seems odd – surely the question is whether the interference with the right is necessary under Article 10(2) of the Convention (rather than denying any interference at all). I am also surprised by the general statement that freedom of expression does not extend to gratuitous offensive insult or abuse. A finding in Ofcom’s favour needn’t rest on such a sweeping statement. Surely, the context of the expression is relevant – that is, it took place on the mass media, where speakers do have additional responsibilities and where expression rights tend to be justified by the interests of the audience. For that reason, controls on some mass media speakers may be permitted, even though such controls would not be imposed on people generally (ie individuals are not under a general duty not to cause offense). The court could have limited their finding to statements made by a broadcaster in that context, rather than making the general statement.
Another important issue in the case was that Ofcom’s finding was against the radio station TalkSport (who accepted the ruling) and not against the presenter Jon Gaunt (who brought the claim). This raises the question of whether Gaunt had standing to bring a claim under the Human Rights Act (this was simply accepted in the judgement and not discussed further). This also goes to the question of proportionality – what had Gaunt suffered? No fine or other sanction was imposed, it was just a finding that the radio station was in breach – something of a slap on the wrists (and on the station’s wrists rather than Gaunt’s). So in relation to this particular issue, the question of whether there was interference with the claimant’s rights (and on the nature of that interference) is relevant. Many of the classic free speech cases are by contrast concerned with criminal law sanctions (or defamation/privacy in civil law), in which the speaker has far more to lose.
While my feelings about the case are not so strong, I did have some concerns that a finding in Gaunt’s favour might lead to the courts being used to chip away at the media regulations. That said, the issue is likely to go to appeal, so I doubt we have heard the last.
Democracy Distorted 