Its time for change - libel, contempt, privacy + more posting from the Beak
OK so its been a while but that's because the Beak has actually been too busy working to blog - sigh. Yes but even the demigod of IP Blogger Lawrence Lessig had to wind down his blog the other year because of too much life and work going on - though he's probably even more important and got even more important work on than the Beak...anyway for those of you out there who do tune in the Beak is back and from end January (and maybe before) there will be daily postings and added resources on this site.
For anyone reading- feedback would be appreciated - I can chuck on lots of links and digest what's happening out there in the media legal world but I can also offer my own flavour of informed commentary on what it all means - so if you want more comment and less links let me know!
SO what's the media law scene in 2011?
Well it has come to pass that what so many of our top media lawyers and pundits like the Beak have been saying for years - the laws that have been hobbling along and been patched together on a case by case basis have finally been recognised as found wanting.
Contempt of court laws were framed at a time before society had embraced moblie phones and more than 4 news channels and are certainly not equipped to deal with 24/7 news and global internet access from all manner of outlets, not least your phone. So we have seen the press on a feeding frenzy over the tragic and troubling Yeates murder case - first it was the landlord and now - it is alleged - a Dutch national who according to press reports today seemed to fully understand the remand proceedings he was involved in. Some papers and broadcasters didn't immediately identify who this person was while others had him on the front page. Sky's Martin Brunt poses the spot-on question - given who's behind bars now, what of the landlord who had been placed squarely (but as it transpired unfairly) in the frame for the crime? In recent years we have seen successive Attorney Generals throw their gavel out the pram over the media's 'excesses' or as may otherwise be interpreted, desire to get to the truth. We had radio presenters censured for inviting listenters to text or call in to decide if the Soham murderer Huntley was guilty - before he was actually convicted..though the majority of those who participated in that misconceived survey did get the answer right. We then moved on to speculation over whether premiership footballers had indeed raped some unsuspecting girl at a top London hotel - case dropped for lack of evidence (though there was plenty of newspaper coverage for several days). While the (state sponsored) lawyers have got upset at the media the most worrying failings of contempt laws have been their ability to unduly gag the press. When one has a political machine in power that seeks to manipulate laws which they complain are out of date and being abused by the media to their own ends through using them to suppress legitimate comment, then that - in the Beak's view - is far more serious. We have witnessed cases where contempt laws and official secrets law were used to intimidate the press by seeking to rely on a provision that mere receipt of information that could contravene a law was of itself a crime and we have seen the rise (and hopefully soon fall) of that tenuous legal device - aka the 'super injunction'. So all in all - why do contempt laws need an overhaul - not - as many would argue - because we have a power-crazed, overly commercial, sensationalist and blood-thirsty press - BUT because our press and the public need to be protected from the power-crazed and keen to suppress politicians and because the public, society and technology and communication have moved on such that we need laws that are less patronising and more prescriptive of what the reality of the situation is and acutally protect the core principles and procedures that contempt laws were originally designed to protect. It is time for change but that should not be one-sided change. We need to protect the political process and the media from themselves and each other to preserve a forum in which justice has the space and time to be done and is given the respect to operate.
To libel law and here we have seen a mixed bag of some people getting a seemingly unfair kicking in the press while at the same time also seen a disproportionate level of punishment over 'media excesses' - or cases where the media has not given sufficient right of reply or been 'sensitive' enough to the people whose reputation they were diminishing. To be fair, in several cases the press have pushed it and taken the proverbial to get the headline but there have been plenty others where one has to ask whether a desription of a person's actions (in football employment related decisions) is really worthy of such a heavy penalty. We have also seen the much maligned but until recently still tolerated libel tourism and associated forum shopping. We had Saudi businesspersons sue US concerns in the English courts - no problem. Meanwhile we allowed others to tesitfy via video link from exile to pursue an action against the press in the UK - why video link - so they wouldn't get arrested in deported if they came to town...how does that work? - well they came a cropper when they visited a less ridiculous country than the UK. Anyway the cases to rant about are too many - just do need to drop in the name Sheridan and then move on though - but the good news is that our coalition PM, the DC and his chums are now committed to libel law reform and it is no longer a topic for conjecture but as a term is actually something that is - we are led to believe - happening.
As for privacy law - where to start...as predicted not just by the Beak but more compellingly by several senior judiciary, if the UK didn't sort out its privacy law then there would end up being a hap-hazard law that lurched from case to case creating judge made (iatrogenic - been looking for an excuse to use this word for ages) law. This is exactly what happened and we saw a raft of ridculous patchwork judgments courtesy of Naomi Campbell, Douglas Zeta Jones, the English Royal Family and several other 'celebrities' through to the bondage clad scenes depicting the alleged activities of a Max Mosley. So the debate ended with our most senior judges having to decide that drug taking models deserved to be left alone as did high profile motor racing sport bosses with interesting ancestors, even where they did have addictions or engaged in sessions with miss whiplashes and denied it. THANKFULLY the European Court of Human Rights has ended the CFA party that celebrities and their lawyers were abusing but there is still much tidying up needs to be done before the UK courts and legal system's management of privacy is in any just and intelligible shape.
So there we have a few pointers for the months ahead and the Beak will be analysing and commenting on the progress of these issues but also wider world and legal events...we're not done on lying about WMD yet and there is still a need to revisit areas such as access to family courts and the use and credibility of expert witnesses. Among all that there will certainly be some footballers or other sports 'personalities' and lower alphabet list 'celebrities' who will provide further tests for the law and excuse to comment over the coming months. And that's just the UK...so watch this space and do contribute.