Are judicial gagging orders - or as they should be called: Shagging Orders - a natural development of our privacy laws or are they merely a pay as you go way of stopping the press reporting on footballers (and others - such as golfers) who play away as they go?
In the latest round of the footballer known only as 'JIH' whatever that may stand for or not and his away games with YY from his partner XX as exposed by ZZ - he was today successful in convincing the Court of Appeal that it should uphold his appeal against a decision by High Court judge Mr Justice Tugendhat that his anonymity could be revealed. So is it right that those busy sportspeople should get to keep the press from publishing details of their away games?
Riding the wave of recent judicial moves to pull together and uphold some kind of privacy law, JIH and others have been successful in persuading some of their lordships that no matter what they have been up to (as Max Mosley went to lengths to demonstrate) they deserve to have whatever private life they choose. This is supported by the underlying human right to privacy which derives from the European Convention on Human Rights (Article 8) as given effect to in the UK via the Human Rights Act. The interesting thing with the law is that it creates a right of privacy vis a vis the state and not necessarily News Group Newspapers or other media outlets. In fact to engage privacy protection one has to go to court and persuade a judge as a public body/servant that they have a duty under the law to ensure that people's right to privacy is upheld/protected. So without access to or the funds to pocket a well versed privacy lawyer to bang on the court door, there is no automatic right to guard against privacy intrusion.
The media has its PCC Code or Ofcom broadcast codes to prescribe what the respective parts of the media should be doing in relation to privacy but these get balanced against the self-proclaimed job of the press - particularly tabloids - to expose philandering footballers (and others). Similarly in terms of law, the European Convention also provides for the right to free speech that offers some press freedoms, albeit not absolute ones.
So this brings us to the question at issue - to what extent should protecting footballers private lives be an automatic right they qualify for and the courts should uphold when pitched against the public's right to know and the press' right to report on their morally questionable antics?
Armed with the right lawyers at the right price our shagging sportsmen are managing to buy their way out of trouble but as long as the rules of the game - in the case of the law - those of privacy - remain dependent on which judge or judges are sitting in which court and interpreting their human rights laws on any given day - this latest round in the JIH case may prove less decisive in the long term. We have yet to address the rights of JIH's ZZ to her freedom of expression - why should she not be able to talk about her life and JIH's involvement with it?
The jury's still out (not that one has them in privacy cases) but if one did they probably would be and there are very likely more John Terry's or Colin Montgomeries out there to test they sytem and challenge the desirability and effectiveness of the super injunction.
The time has come to work with the media to define its role rather than seek tougher measures to control its excesses.
We are told that journalism is in crisis and our tabloids are running amok. That responsible journalism is being replaced by sensationalistic headlines and reporting. People, notably celebrities, increasingly claim that their privacy is being invaded. The number of successful defamation actions brought against the press is on the up, with the defence of qualified privilege all but having been abolished. Successive Attorney Generals have found it necessary to issue repeated cautions to the press when it comes to contempt. The public are buying less papers, yet people are demanding more news. So what has gone wrong and whose fault is it?
Well to some the answer is clear. Several politicians and judges suggest there should be stricter editorial and other controls over the media. Tabloid editors are irresponsible, look at that former Mirror editor Morgan chappy (earning millions on american TV) and those ‘fake’ torture pictures, or the Sun and its various campaigns against ‘hoodies’ or gypsies. However the fact and truth of the matter is far from clear and that is where the problem lies. The shameless use of an inquiry to smokescreen what was a state-led assault on the media harbours serious implications for the democratic process and freedom of expression. Did we ever find out beyond reasonable doubt that the photographs that Morgan allowed to be published in the Mirror were fake or staged? The issue they exposed was very real and the year after they were published and the story exposed, several soldiers were court martialed for the crimes the pictures and story had exposed.
It’s very easy to say the press or the wider media has got it wrong and is responsible for the moral degradation of our society but who ever said they were responsible for society or defined the scope of that which should be printed? What often gets left behind in debate about media content is the spectre of commercialisation. The modern media and press are businesses with shareholders, employees, turnover and profits. They happen to deliver news but it would be unfair and unrealistic to assume that they should put commercial considerations to one side when deciding what to print. So unless the press subscribe to a mutual moratorium over sensationalistic headlines we can safely assume these will continue to be used to sell papers. The problem is that the press is part of the democratic process but it is also part of the commercial world and a sector that contributes to the GDP of this country. It therefore has to respond to both societal and commercial pressure. In relation to the latter, convergence, competition and an online, on-demand, 24-7 media means that times are tough and the press needs to fight hard for its slice of the action and part of the profits.
In relation to the press as part of the democratic process and its duty to society, Guardian editor Alan Rusbridger has in the past referred to the “quiet understanding” that used to exist of what newspapers were for. That understanding has been lost in our modern, competitive, high-tech and accelerated living age. To the extent that the press can be seen as responsible for lowering the moral fabric of society with their headlines of death and destruction or sex and sensation, society is itself to blame for providing the stories that lie beneath these headlines.
So if we are going to reserve the right to criticise the press we first need to redefine its role. Dialogue, debate and proper scrutiny are what’s called for rather than tougher regulation or censorship. The rules and laws that are in place can be made to work, the confusion that arises concerns their application as much as anything else. Here too, it is a consistent approach that seems to be lacking and this is down to the fact that there is varied consensus as to what this should be. There needs to be a far greater level of engagement with the press and media over what it is there for and what it should deliver. A competitive and diverse media market has led to fragmentation whereby people mix and match their sources as they grab news on the go. The result is that for many, they will know more about which celebrity has had a boob job than what’s in the political parties’ manifestos for the forthcoming election. It would take the politician being the one with the boob job to guarantee that the manifesto makes the front page.
Not just media professionals, their advisers and academics but the public at large have a duty to engage in debate and inform themselves and the media about what they want from their press. Like any other business, editors are busy getting their product out the door and will continue to follow the supply and demand chain that is reflected in the current news agenda. If we want to alter that chain then we need to define our demands. Like any other business, it’s not fair to criticise the supplier when we haven’t specified what we want. The way ahead and to answer Alan Rusbridger’s call it to set up a centre and forum that will facilitate this debate and allow press, public, academics, lawyers, financiers and politicians to proactively place the press under scrutiny and come up with some answers to the issues of the day.
If we want the press to report something different then we need to make better news for them to report and that starts here and now.
Of course media ethics are in a mess but in no more of a mess than the ethics of the society about which the media reports.
Writing in the Guardian, Simon Jenkins sets the scene for the current debate about what many see as this terrible media beast that is corrupting our society.
While not condoning all the media's excesses, especially where there has been political or unduly commerical collusion (you know who you are), Mediabeak would argue that the media is no more running amok than the society it reports on and is as much the victim of the laws that are supposed to regulate it as its victims.
(1) There is a disconnect between what society wants to consume and its technological ability to consume it and what it wants its media to deliver.
(2) To be viable journalism has to be embedded in a business and as such is susceptible to commercial drivers.
(3) The commercial drivers are geared towards what consumers will read +/or pay for and not what might be ethically or journalistically justifiable content but is nowdays content that sells.
(4) It is hypocrytical of society to malign the media while at the same time wanting to consume the content it maligns.
(5) The laws - not least privacy and defamation - need to be revised from a regulatory and guiding principles perspective rather than a knee-jerk censory approach - problem is that an absence of legislative appetite to tackle this has resulted in random haphazard case-by-case law that ultimately serves no one - albeit that some dodgy 'celebrities' or sports bosses get big payouts for being caught in the act or commented on.
Its time for some proper dialogue to reach a sensible consensus on how to balance the opportunities and risks posed by mass communication consumption available to all and create some realistic rules that protect the public, guide the media but don't pander to those who rightfully get caught in the act of wrongdoing.
While phone tapping may be considered wrong and illegal - to the extent it exposes wrongdoing and illegality it is exposing an end that may be more illegal and morally more repugnant than the means of exposing it. So, tapping into and knowing what is happening in the personal life of a tv personality suffering from botox overexposure is wrong while using similar means to expose corruption amongst elected politicians in relation to public finances or misrepresentations as to the true need to go to war are, arguably, are more readily defensible and under current legislation not necesarily illegal.
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.