Notwithstanding a decade of almost continuous decline in the number of defamation Actions coming before the UK Courts, we have somewhat inexplicably seen a dramatic increase in the attention given by the press to an area of law that many people had dismissed as the preserve of the rich and famous. However, prompted by a smattering of claims initiated by a relatively small band of Hollywood celebrities, the press decided to embark on what could be regarded as one of the most disproportionate and unnecessary campaigns for law reform in recent memory.
The original focus had been what has come to be known as “Libel Tourism” or “Forum Shopping” by wealthy American stars and Russian oligarchs, who were perceived to be taking advantage of Britain’s more stringent libel laws in order to protect, not just their reputations, but, often just as importantly, their business empires.
Powerful media interests, perceiving a potentially serious threat to their own financial strength, lost no time in clamouring for an urgent change in the law to prevent what they regarded as an outrageous and inappropriate practice.
However, as what were often one-sided commentaries began to gain momentum, the clamour for reform was extended to encompass a further demand for wholesale changes in order to bring the UK legislation in line with the First Amendment and other rights prevailing in the United States.
The general public could be forgiven for thinking that our libel laws constitute an obvious and incontestable flaw in the UK legal system and as such have been bringing the whole country into contempt and turning the Courts into a laughing stock. The press of course have, and will likely always have, full control of the presentation of the arguments and, aided and abetted by their colleagues in the US, did not take too long to persuade the political establishment that reform was necessary. The last Labour Government set the ball rolling by setting up various Committees, to at least give the appearance that the situation was being addressed, with the politicians on both sides of the House conscious at all times of the need to ensure that the press were placated, particularly with a General Election in the offing.
Unfortunately for Labour, their actions were insufficient to prevent their total humiliation at the ballot box but, almost immediately on the formation of a new government, the Conservative/Lib Dem Coalition assumed Labour’s policy position and initiated a review of the libel laws. After taking office, Deputy Prime Minister Nick Clegg, in an apparent attempt to curry favour with the media establishment, began condemning our libel laws to anyone who would listen and proclaiming that they “make a mockery of British justice”. It appeared that the media and political establishments were ad idem on the need for reform of our libel laws.
Then to paraphrase Harold MacMillan, “events” occurred that were to undermine on the surface at least, the depth of that relationship when in the summer of 2011 the breadth and depth of the phone hacking scandal first emerged. Even those newspapers who had previously been robust and uncompromising in their criticism of not only the law of libel but also the increasingly debated rights to privacy and confidentiality, suddenly had to get off their campaigning horse and acknowledge what was rapidly becoming one of the greatest scandals of the 21st Century.
Right up until July, 2011, the mainstream press and their online counterparts had been concentrating on their sometimes hysterical condemnation of the superinjunctions and what they perceived to be a totally unacceptable threat to their right to freedom of expression.
Somewhat surprisingly, it was only when the phone hacking scandal touched upon the lives of ordinary people and victims of crime such as Milly Dowler, that the press realised that they had to proceed with considerable caution in their reporting of an issue that had touched the public conscience in a way that a sex scandal involving a professional footballer never could. However, what is perhaps just as surprising is that the Information Commissioner’s Reports into “Operation Motorman” published some five years earlier, detailing extensive breaches of personal privacy and confidentiality, barely received a mention in the press.
This somewhat questionable scenario serves to highlight both the power of the press and what could be regarded as a total disregard for the rights of the ordinary man on the street whose interests have been totally ignored during what has been one of the most high profile issues debated in modern times.
At this point, you may be forgiven for thinking that I am just as guilty of the same unbalanced approach of which I am criticising the press, but in this book I will be seeking to put all the facts on the table and will leave the reader to decide, in the same manner as any jury, on the evidence. I would however submit that in acting for both Claimants and Defendant publishers I have had the experience of understanding the sentiments on both sides, and operating from offices in London, Dublin and Belfast has given me the benefit of assessing the laws relating to privacy and defamation in three separate jurisdictions, with their subtle distinctions.
And by way of additional special pleading, I should also point out that the largest single group of Claimant clients for whom I act is made up of journalists, with the second largest group comprising of lawyers. I would suggest the fact that these two groups will be very familiar with media law and practice provides an indication that they know when a wrong has been committed and when they should be entitled to redress.
I should also point out that I have generally enjoyed a good relationship with individual editors, journalists and in-house lawyers, and indeed, it may come as some surprise that I regard several of the tabloid editors to be among some of the most honourable opponents I have come across in more than 30 years as a media lawyer.
And so who or what is behind the so called clash with press freedom? Although it was Britain who provided America with the basis for their defamation laws, or what is left of them, we have to cross the Atlantic in order to understand not only the current differences in the law, but also the basis for the recent clamour for reform.
This is an edited extract from Paul Tweed’s new book, Privacy and Libel Law: The Clash with Press Freedom, which is to be published by Bloomsbury in March 2011.