Scrolling down Bloomsbury Professional’s ‘recently published’ list shows a 2012 output of weighty manuals on unsexy subjects such as corporate insolvency, VAT Acts, land registration and tax tables. Little wonder then that this independent publisher, which took over Tottel in 2009, will have been keen to get its hands on something it could market as a contemporary panorama of the dramatic goings on in the media law landscape. Hence the cover photo of a ‘Papparazi’ and publicity trumpeting it as “extremely topical”.
No one can blame publishers for trying to cash in, but “Privacy and Libel Law: The Clash with Press Freedom” does not really do what it says on the tin. So, if you were looking for an up–to-the-minute analysis of how the hacking scandal, the Leveson Inquiry or defamation reform are likely to affect the balance of power between the law and the press in this country, you had better look elsewhere.
Whilst the book does touch on key events and issues (Chapter 6 summarises now somewhat historic elements of the hacking scandal and regulatory reform appears in Chapter 12) these sections tend to read as though they were hastily added in as the deadline axe hovered. As a result the book does not flow logically from topic to topic but tends to jump around bewilderingly, one minute charting Goodman and Mulcaire’s prosecution, the next analysing the remedies available to defamation claimants.
Furthermore, whilst efforts seem to have been made to try to keep the book up to date before it went to press in January, parts of it seem to be in a time warp. For example, whilst Chapter 4 lists out the common law “Reynolds” criteria and details the 1999 case, there is no real mention of statutory change (which has been in prospect since 2010) until the final chapter.
However, all this is not to say that the book is not worth its £19.99 cover price, as your twenty quid will buy you 30 years of knowledge from an eminent and highly successful practitioner – at 66p per year that’s a definite recession bargain. Readers who persist through the 142 pages will gain a comparative overview of US/ UK attitudes to freedom of expression, an understanding of what the Americans have been up to legislatively, a pithy summary of UK privacy methodology, a précis of the main proposals for press regulation and an idea of how brand and reputation is protected on the Continent. However, whilst the breadth is of itself impressive, the result is that, as Winston Churchill once complained to his chef, this pudding lacks a theme. On the other hand, there is plenty to chew on.
The book’s strength lies in the comparative sections, essentially covering the US, France and Italy. Stateside, the first three chapters examine how the fundamental US/UK differences in attitude towards freedom of speech came about – principally with the bell tolling for reputational rights in 1964 when the case of New York Times v Sullivan (an index stalwart for practitioners) decided that, where allegations concern official conduct, a public official cannot bring a defamation claim unless able to show ‘actual malice’: the defamation law equivalent of the Mid-Atlantic Ridge.
Tweed points to this tectonic shift in the burden of proof as forming ‘the basis of the clash’. This is more evidence that the ‘clash’ around which this book pivots is not that between the law and press freedom but between the US and UK approaches to freedom of expression, latterly driven by the Ehrenfeld lobby and New York’s resulting 2009 Libel Terrorism Protection Act, eventually leading to legislation on a federal level in the form of the SPEECH Act 2010 preventing the enforcement of foreign libel judgments in any US court, a step described as ‘..probably unprecedented in terms of the interference by one country with another’s internal affairs’.
We also learn about interesting new ‘anti-claimant’ legislation in California aiming to stamp out litigation brought to intimidate individuals from speaking out on public issues (a type of claim snappily referred to in the Sunshine State as Strategic Lawsuits Against Public Participation, or ‘SLAPPs’). These ‘anti-SLAPP’ measures now mean that in Californian cases involving public interest, free speech or petition rights (i.e. just about anything) the Defendant can file a strike-out motion, freezing disclosure unless and until the claimant can prove s/he is likely to win. The result is a sore head for claimants who therefore now have to prove their case by establishing actual malice at a very early stage. If they cannot and the strike- out succeeds, mandatory costs will await.
The irony inherent in this kind of legislation – which effectively silences the aggrieved in a country wedded to free speech – is not lost on the author. No doubt with some prescience, Tweed warns of the potential implications of this disrespect for international comity which he considers serious enough to call into question the ‘special relationship’ and potentially backfire if other countries decide to meet legislative imperialism by refusing to co-operate with US anti-terror laws.
If not quite yet paraded in orange boiler suits, the book leaves us in no doubt that would-be libel and privacy litigants in the US find themselves in a remedy-less legal vacuum forced to seek extra-territorial redress. The transatlantic travails of celebrities including Justin Timberlake, Britney Spears, Cameron Diaz, Jennifer Lopez and the Jolie-Pitts are listed over 8 pages among others who have crossed the ocean in search of a remedy (as well as one who notoriously asserted his right not to cross it). This section gives the distinct impression that there has been a mass emigration of US litigants to London in a bid to protect their ‘brand’ – but sits oddly with the author’s subsequent confirmation that “the number of Americans bringing libel proceedings is extremely limited” with just three such cases in 2009-2010. If that is the case, one can’t help wondering “Why the glittery nomenclature?” if not (perhaps at the publisher’s instigation) to vaunt an enviable celebrity client list or to spice up a lacklustre, repetitive and disorganised narrative.
The passages in Chapter 10, “An international Perspective”, about attitudes to privacy in France and Italy are among the most entertaining, especially where they concern the out-of-control antics of the media magnate with a penchant for under-age girls that is Silvio Berlusconi – unforgettably described by the author as having “assisted numerous courts and tribunals with their investigations”. At least the book has been libel read.
Stylistic shortcomings aside, if you want dinner party guests to think you have spent the last quarter of a century in an international law library, snap this up now. After all, whilst it might not be Fifty Shades of Grey, it’s got to be sexier than tax tables.
Athalie Matthews is a media law associate at Bindmans LLP and the Inforrm Reviews editor.