When I read Anthony Lester’s bill back in May, my first thought was that this is a bill for journalists. A bill for the media.
This was something he explicitly rebutted back in August when he spoke to Ian Burrell for the Independent.
“This is not a Bill for the media, I want to emphasise that. It’s a Bill for those who are consumers of the media: the citizens, the people.”
I think that’s just not right – but in any event, we won’t now be getting Lord Lester’s bill.
Whatever the contents of the government later in the spring, it’s to be hoped that it proposes reforms that better balance the interests of the broader public and the media.
A balance that’s been absent from the media’s debate and lobbying over the past six months.
Some things aren’t in dispute.
Responsible free speech is fundamental to a free society.
- Are too costly
- Are too unpredictable in their course
- Take too long to resolve
- Are too likely to result in damages out of all proportion to the damage caused by the libel
- Make life too easy for those who would bully journalism and those interested in serious debate
Few people would also doubt we need laws that:
- Are up to date, which acknowledge the wired globally networked media ecology.
- Defend honest, responsible journalism on matters of public interest
Honest, well-sourced, fair-minded journalism which is salient and in the public interest clearly shouldn’t be inhibited – or “chilled” as the legal jargon has it.
The problem we have though is that not all journalism is honest, well-sourced, fair-minded or in the public interest.
We journalists – particularly in gatherings like this or when we’re delivering disingenuously serious-minded, ironic, hypocritical keynote speeches at Editors’ Conferences – deceive ourselves about why we’re loathed by the very public in whose interest we profess to report.
We tell ourselves it’s because we’re independent, bloody minded, won’t be bamboozled, stand up to pressure and tell it how it is.
But surely we know it’s none of those things.
It’s because too many of us make up too much, too often. And then when we’re found out, writhe every which way rather than put it right.
There was an editorial in the Observer back in 1999 – it was about tabloids, entrapment and the public interest – but its thrust is just as important in this debate.
The leader argued that the freedom of the press is indivisible:
“the freedoms of the tabloid press are those of the broadsheet press. The Sun, which strongly supported The Observer over Drapergate, does what it has to do, as we do. A free press, warts and all, is an indispensable component of democracy. If we saw some warts last week, don’t forget that wider truth.”
A free press, warts and all.
I really don’t believe many in our various audiences would agree with that.
But it’s the problem anyone has trying to reform the libel laws.
The laws we need to protect and support the best in journalism also legitimise the worst.
For every journalist who’s frustrated in an honest investigation, there are dozens who’ve lost touch with the idea that their trade is about honestly checked facts.
Dozens who, in the ‘churnalism’ universe that Nick Davies describes in Flat Earth News, regurgitate unchecked copy and recycle unchecked cuttings.
There’s an irony, if not hypocrisy, that we can nod sagely at how commercial pressures are sending newspaper standards to the dogs; that we can tut at how awful it all is … and then demand the law is changed to lower the truth test.
For every bully whose lawyers use fear of the law to stifle revelations about them, there are thousands of ‘ordinary people’ who see their reputations trashed by lies, half truths and gossip recycled as ‘news’.
And with next to no recourse.
I’ve heard the figure used that 90% of libel cases in England and Wales are won by claimants.
Incredibly, this is presented as a reason to change the law.
It doesn’t seem to cross our minds that it might – might – just be a condemnation of the standards of journalism in this country.
But it’s also a very misleading figure.
We know that many people – ordinary people – who get to the point of considering a libel action, abandon the idea long before they get anywhere near a court and a jury.
Most have neither the money, expertise or energy even to go to a lawyer.
The true scale of mendacity remains unmeasured.
When we talk about the “chilling” effect of the law on journalism, do we consider how our audiences might think about that phrase.
That the one thing the Express and Star group journalists could have done with when they were committing 106 libels against the McCanns was a bit of “chilling”?
Or that the journalists who had Colin Stagg banged to rights in the Rachel Nickell case, Tom Stephens in the Ipswich murders; or Chris Jeffries in the Yeates murder … couldn’t they have done with a bit more “chill”.
The 80 odd percent of the British population who don’t trust journalists to tell the truth are more likely to believe that journalism is too free to publish lies, gossip and rumour as truths.
Not that it requires to be more unconstrained in the name of free speech.
1. I don’t believe the government bill will reverse the burden of proof – nor should it.
Whatever deterrent such a move would be to libel bullies, it would also be a charter for reputational muggings.
Why should a vindictive journalist on no more than nodding terms with honest verification and fair-mindedness be able to mug someone with unchecked copy, just because they happened to stray into the public eye?
And then say it’s down to the victim to prove the lie?
2. It would be wrong to require the person libeled to show real, measurable damage – journalists need to get it into their heads that publishing a lie is a wrong in and of itself.
We should care that too many in our audiences think journalists are the kind of people who say what they hell they want, shrug and walk away.
3. I think we already have the basis of a defence of honest journalism – through the Nicholls and Hoffman criteria in the Reynolds Defence as applied in the Wall Street Journal/Jameel case and in the Mclagan case.
That’s to say a defence of honest, careful and responsible journalism done in the public interest.
4. Fair play on the multiple publication rule
It’s true that in the internet age, this 150 year old rule is an invitation to gold diggers.
But again, from the innocent victim’s point of view, the web also means that once a person had been libeled, he or she stays libeled, more or less for ever.
5. The key to reform is the simplification and acceleration of resolution.
The problems we and audiences have with libel is the prospect – threat – of a lengthy court case, in front of a jury. And the shadow it casts over honest journalism and public discourse.
What’s clearly needed is a new way of resolving cases. So a new body, a new regime, perhaps operating with a defined scale of damages, the power to limit time and therefore costs and the power to impose a statutory corrective regime.
This would have the added benefit of getting rid of the absurd PCC and Editors’ Code – introducing instead proper independent arbitration.
In broad terms, then, the libel laws we have don’t work – not for the media, not for free public debate, not for those thousands out there, a tiny minority of whom are evil corporations or rich and famous, who are the victims of slapdash or vindictive journalism.
If we are going to change the law to protect free speech, it cannot – in my view – be an unqualified protection. By all means, let’s increase the protection for responsible publication, publication that is honest.
But let’s understand that hand in hand with that has to go measures to ensure remedy is swift, prominent, permanent and inexpensive and doesn’t appear to endorse the practices that make journalists so untrusted.
This is a text of a talk given at the Inforrm/Media Standards Trust Event at Gray’s Inn on 11 January 2011.
Leave a Reply