While the campaign groups Index On Censorship Pen, Sense about Science, continue their campaign to Americanise UK media law, it is interesting to compare media standards and conduct in both countries.
More Views from the States
We recently posted a piece on views of US Journalists On UK journalism and one of the key rules was not paying for stories. There is an interesting blog from US journalist By Jack Shafer entitled “Why not pay sources ? My objections are practical, not ethical”.He comments :
“The strongest case against paying sources can be found in Britain, where the tabloids routinely pay for information. British critics complain that payments tend to generate idiotic and sensationalistic stories about celebrities or reckless pieces about politicians and other public figures. In his book Ethics for Journalists, Richard Keeble notes that paying sources may lead to a monopoly on the news by the rich. By virtue of their wealth, the rich can inject whatever “news” they want into the press or, by depositing money in the right hands, suppress it.”
The Washington Post also has commented on Journalism standards in the UK General Election. It ran an article “In UK election race, newspapers play politics”. The article is only available if you register online. It reported;
“Unlike the United States, where many print reporters aspire to a measure of objectivity and media bias is seen as corrupting, many of Britain’s most-read papers take sides – and aren’t afraid to flaunt it. “British papers are much more partisan than American ones,” said John Lloyd, a contributing editor to the Financial Times. “For the tabloids it’s very common (and) in the case of the other papers, you can see a bias to the left in The Guardian, and a bias to the right in The Times (of London) and The Daily Telegraph.”
That political slant was in full view Friday, as the papers reviewed the performance of Britain’s top three election candidates in their second live televised debate.”
In similar fashion the New York Times commented on the UK media coverage of the second election debate in an article “Post-Debate Spin in British Newspapers”. It mainly focused on Murdoch media outlets in the UK, the Sun the Times and Sky. It introduced the article with the following words;
“British newspapers are known for many things, but the impulse to hide their political views under a bushel of subtlety is not among them. For Americans taught that newspapers are supposed to be impartial in their news pages, a headline like “The Cam Back Kid,” which adorned the front page of The Sun on Friday — hailing the Conservative leader David Cameron’s “victory” in the tabloid’s own poll of viewers of Thursday’s televised debate — might seem to err on the side of editorializing.”
Views from the UK
As we have posted before The Master of the Rolls recently gave a talk to Eton College on “On the balance between privacy and freedom of expression” . It was an interesting albeit brief discussion about the media, open justice, privacy and freedom of Expression. The then Lord Justice Neuberger was one the Court of Appeal judges in the seminal 2005 privacy decision in Douglas v Hello! which established that in privacy claims damages were an inadequate remedy and that an interim injunction was the prime remedy for a claim in privacy (Hello! was refused permission to appeal to the Lords on the privacy part of the claim.)
In his talk to the pupils of Eton College, Lord Neuberger referred to American standards in journalism. He relied on the classic example of public interest journalism in the Washington Post reports on the Watergate scandal. He said:
“The cover-up, and the involvement of senior government and other officials, only came to light because of the work of two Washington Post reporters: Carl Bernstein and Bob Woodward. Their journalistic investigations, and the newspaper’s ability to publish the results provide a paradigm example of the benefits and importance of an untrammelled, inquisitive, and thriving press striving to bring hidden truth to light, and the essential part it plays in insuring that a society is and remains free and open. Such reporting ensures that those in authority are held to account and the rule of law does not become something to which those in power simply paid lip service.”
Ed Pilkington is the New York correspondent for the Guardian. He was former national and foreign editor of the Guardian. Two of his recent articles cover the murdochisation of the US media and the battle between the Wall Street Journal and the New York Times. As we reported earlier, these two newspapers are among the top three leading national newspapers in the US, with the third newspaper being the Washington Post.
In the first article Wall Street Journal goes head-to-head with New York Times Pilkington reports on Murdoch’s acquisition of Dow Jones and the Wall Street Journal bearing fruit with the launch of launch of the Wall Street Journal’s new New York section. In the follow up article Wall Street Journal chief gets personal in battle with New York Times , he reports the comments of former London Times Editor Robert Thompson now Managing Editor of the Wall Street Journal as lambasting the journalism of the New York Times, :
“citing an average piece as one that began with a theme and then worked backwards to facts. “Themes should emerge after a thorough going-through of the facts, not the reverse, and readers can see through this sort of journalism which is why so many have lost faith in it.”He dubbed NYT journalism as “social activist journalism”, complaining it had done much harm. “If you want to be a social activist, join Amnesty International.”
Roy Greenslade blogged recently about “Political balance in the US Media” that although the US media may consider that it is more impartial politically that the UK press, impartiality is in any event a relativistic term. He comments that this impartiality eliminates from the US media op-ed pages those who dare to argue against capitalism, the conduct of the state of Israel or the invasion of Iraq.
“Even so, there is a phoney argument played out endlessly by commentators and the authors of scores of books about whether the US media is liberal or not. (Liberal is code for left, of course).
All that newspapers (and the network broadcasters) have achieved, while trying to appear fair, is in attracting scorn from the public they claim to serve. People perceive the bias they wish to perceive”
Nevertheless he cites a report from the Pew Research Center showing a historic low level of trust in the accuracy of the US news media.
“… the seminal 2005 privacy decision in Douglas v Hello! which established that in privacy claims damages were an inadequate remedy and that an interim injunction was the prime remedy for a claim in privacy”
This is overstating the position. It is arguable that the CA was either speaking obiter or was wrong on this point.
The Court indicated that the three CA judges at the interlocutory stage misapprehended the strength of the privacy claim and should have sustained the order. Fine. The issue shouldn’t have arisen.
The Court then jumped, on what was explicitly “an issue upon which [they] were not addressed” [251], to assert that damages “cannot fairly be regarded as an adequate remedy” [256]. The reasons given for this were that the Douglases had suffered ‘mental distress’ [256], and that damages could not represent any real deterrent to a newspaper or magazine, with a large circulation, contemplating the publication of photographs (which was considered more likely given the state of competition in the newspaper and magazine industry) [257].
These reasons are hardly compelling. Can damages not compensate for mental distress? Is the purpose of tort (or equity) to regulate the media? Is it right to describe interim orders as ‘remedies’ at all when they are made (or not) on the basis of untested paper evidence only, so that any privacy rights at issue are underdetermined, perhaps simulcrum (but the Art 10 impact will be definite)?
The primary justification for the contention that interim relief is the only effective remedy in privacy cases is that ‘once lost’, privacy and confidentiality are ‘gone forever’. This is contrasted with defamation where the perceived harm – reputational damage – can purportedly be restored through legal vindication. This immediate argument may be sustainable, but it risks eliding the deeper principle. The truth is that it is not unusual for non-monetary harms to be compensated by damages, and the comparison with the unusual tort of defamation does not provide an argument that demonstrates the inadequacy of the damages remedy in all privacy cases.
In many circumstances, the law is asked to provide compensation by way of general damages for irreversible, non-monetary losses suffered by claimants. Consider the hypothetical situation where a child throws a stone towards – and hits – another in the hope of demonstrating his ‘bravery’ to a watching audience. The harm to the injured party is caused as a by-product of the perpetrator’s primary purpose. No one would argue that monetary compensation for the loss of an eye can restore sight to the victim of such personal injury. Nevertheless, assuming they were awarded at a sufficiently high level, damages would be generally understood to be fair and just satisfaction, and hence an effective remedy. The claimant would of course prefer that the injury had never taken place. It is not clear why privacy harms should be treated differently to this or other forms of irreversible non-pecuniary loss.
If damages are currently an inadequate remedy, raise the quantum of damages, and/or introduce exemplary damages. Don’t pretend that the remedy is inadequate as a matter of principle.