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Archive for the ‘Media’ Category

Party funding, the media exemption and Murdoch

July 25, 2011 Leave a comment

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.

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Categories: Media, Party funding

Negative campaigns on the web

April 7, 2011 Leave a comment

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).

Categories: Election, Media

Campbell, costs and privacy

January 21, 2011 Leave a comment

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.

Categories: Media

Super-injunctions: artificial construct or legal term?

December 13, 2010 Leave a comment

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.

Categories: Media

Woolas, false statements and free speech

December 9, 2010 Leave a comment

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:

Dishonest statements are aimed at the destruction of the rights of the public to free elections (Article 3 of the First Protocol) and the right of each candidate to his reputation (Article 8(1)). Article 10 does not protect a right to publish statements which the publisher knows to be false; similarly Article 17 which provides:

“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.”

The right of freedom of expression does not extend to the publishing, before or during an election for the purpose of affecting the return of any candidate at an election, of a statement that is made dishonestly, that is to say when the publisher knows that statement to be false or does not believe it to be true. It matters not whether such a statement relates to the political position of a candidate or to the personal character or conduct of a candidate when the publisher or maker makes that statement dishonestly. The right to freedom of expression under Article 10 does not extend to a right to be dishonest and tell lies, but s.106 is more limited in its scope as it refers to false statements made in relation to a candidate’s personal character or conduct.

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.

Categories: Media

Murdoch, BSkyB and the public interest test

November 8, 2010 Leave a comment

See my article, on the News Corp bid for BSkyB, on the Australian website On Line Opinion here.

Categories: Media

The Freedom of Information Act – more regrets

October 25, 2010 Leave a comment

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.