Gill Phillips is director of editorial legal services for Guardian News & Media Limited (publisher of The Guardian and The Observer and guardian.co.uk) … She was recently in Australia and agreed to answer some gently probing questions from the Gazette of Law and Journalism over breakfast
GLJ: The first question is what are you doing in Australia?
GP: Basically I am here to try and arrange some external lawyers to do the pre-publication lawyering for The Guardian’s new website here in Australia.
GLJ: Do you have an in-house person at the moment?
GP: No. In the UK we have an in-house team that deals with most of the pre-publication legalling and we have a small team of freelance / self employed night lawyers that we can call on.
Australia doesn’t seem to be a culture of freelancers who can come in and do that sort of thing.
When we set up the US site we didn’t really have to worry too much about it legally because the First Amendment makes it much safer – we have an external lawyer there – but we needed a bit more of closer scrutiny here in Australia. Sydney, if not the libel capital of the world, competes with London for that title. And I gather that Victoria is the suppression orders capital of the world, so it seemed sensible.
Also, I realised that there are some quite serious differnces in the law – for example whereas in the UK, recording things [as opposed to intercepting] is all quite lawful – there’s all sorts of laws in Australia eg – the Surveillance Devices Act 2007 which make that unlawful
In the UK you can’t intercept but you don’t need to ask consent to record. Likewise with privacy, everyone says there is no law of privacy in Australia but there are quite a lot of laws which are about private matters / intrusion –
So there are quite some significant practical differences and once you start realising that, you realise it would be very dangerous for us to try to legal it from the UK, as well as more than a bit patronising.
GLJ: Why has The Guardian launched an Australian edition when everyone really just loved reading The Guardian from the UK?
GP: The idea of this is that you get Australian news from a Guardian perspective, with that particular Guardian liberal with a small “l” quality that we do so well.
There seemed to be a gap in the market for that and I think in addition to that The Guardian American site has gone well.
We have this vision as an organisation, of openness and a wide community and so it makes sense really.
The old model of foreign correspondents was one person in one place who told you what their view of whatever was going on. This is the sort of opposite of that.
It’s about having a group of people who are trying to reflect much more the perspective from the place.
GLJ: How did you become a media lawyer working with journalists at The Guardian?
GP: I suppose I was fortunate enough to qualify back in the dark ages when there was no such thing as media law. I started off in the City as a litigation lawyer and I really didn’t enjoy doing banking litigation.
I saw an ad one day for a litigation lawyer at the BBC and I thought “Oh God, that sounds so much more interesting” and the BBC had just, I think, settled a big Panorama libel case [Maggie’s Militant Tendency] which had thrown up issues about how programmes were legalled and and they realised that libel litigation was a problem.
They had people doing pre-publication work so they wanted a litigator. I went in as a litigator not as a media lawyer, but you pick these things up.
GLJ: Prior to this, were there specialists in media law?
GP: Quite a lot of the newspapers were just setting up in-house departments, but by no means all of them.
There was a sort of transition taking place, but back in those days in terms of media law we were dealing with libel, a bit of contempt, a bit of copyright … privacy was a word we didn’t know how to spell.
Data protection hadn’t hit us, even though the Data Protection Act was 1984, but nobody thought it had anything to do with journalists, and indeed we didn’t think that for quite a long time.
Privacy started creeping in, breach of confidence injunctions started having that sort of transfer over to privacy. But there wasn’t a lot of “media law” in the way we have now.
GLJ: If you were to compare free speech in Britain and Australia, what would you say are the major differences from what you’ve observed?
GP: Superficially, my first take was that both jurisdictions were quite similar and that there weren’t any major differences.
Actually, as i have said at the moment that there isn’t a specific privacy law over here and that’s a big difference.
In the John Terry case Michael Tugendhat identifies four categories where there’s a potential for an overlap between privacy and defamation.
GLJ: Reputational harm …
GP: That’s right. I get the impression there’s a lot of libel litigation here and that some of it may well be covering areas that are really about private information, so the only way you can really litigate over it is to push it into a defamation context.
GLJ: I think that’s what people are worried about, that if they do introduce a model of privacy that was recommended by the Law Reform Commission, which recommended this great raft of remedies – everything from injunctions, account of profits, damages, apologies …
The injunction aspect would, in a back door way, introduce injunctions for what really amounts to defamation.
GP: Injunctions for privacy are relatively easy to get in Britain. There are two defences – one of them is that it’s already been published somewhere and the other is that it’s in the public interest.
GLJ: And then you have the Human Rights component.
GP: Yes, so we’ve got Strasbourg sort of sitting over the top. I guess it’s really like a slow barge – it kind of swings very slowly one way and then you feel that it’s kind of out of kilter – and then it starts swinging very slowly back the other way. At the moment it feels back in favour of a bit more free speech.
GLJ: So the High Court in England is obliged to follow that?
GP: I think the High Court in England would say they are not obliged as opposed to taking account of the Convention becasue of the HRA, although that depends on how you view these things.
A couple of times the courts have said we don’t really need to worry about Strasbourg because Strasbourg just reflects what the English common law is and where the English common law is moving, so actually we don’t need to worry about whether it’s Strasbourg or not.
Having said that you don’t have a law of privacy, I then hear a lot of words that sound like privacy things to me.
So voyeurism, surveillance, listening devices, fear of adverse harm … Australia is going there, but hasn’t quite gotten to the stage of wanting to call it privacy.
GLJ: You were saying in Britain there’s no law restricting the recording by journalists of information.
GP: You’re not allowed to intercept, but in terms of recording, say me phoning you up, I can record that.
GLJ: Without advice?
GP: I don’t need to tell you. I think lawyers are supposed to ethically tell each other if they are recording the conversation, but the rest of us don’t.
Journalists can, quite legitimately, have a recording device tapped into their phone and record conversations.
Of course the other complication you have here, as with the United States, is the States, in addition to the Federal legislation, you have your State laws, which are all slightly different.
Another big difference is that we have the Reynolds defence – responsible journalism – which is now in the new Defamation Act as public interest journalism.
I gather that you have something that sounds similar in the uniform Defamation Act, but actually has been almost interpreted out by the courts to be not quite useless, although there’s a political speech defence.
Reynolds in the UK has created a culture which fits editorially. It means you tend to put things to people in advance, quite often a reasonable amount of time in advance.
I think that has made a difference to journalism and a difference to the number of libel cases, which has definitely been going down in the UK.
GLJ: What’s been happening in the post-Leveson environment? Can you tell us about the proposed Royal Charter and will it work?
GP: Well post-Leveson I think is at a stalemate in that there are now two charters, two Royal Charters – there’s a press charter and there’s a government charter and you can’t have two charters for the same thing.
That’s thrown it into a bit of turmoil, but the government via the Department of Culture, Media and Sport had a sort of a consultation period about the press charter and that’s now finished.
Leveson recommended this rather complicated statutory underpinning, independent self-regulation, so he managed to get every single word from across the spectrum into it.
GLJ: The Royal Charter was a political deal. Has that been sidelined by the Press Charter?
GP: That charter is sort of “in waiting” at the moment, so they are looking at the Press Charter.
If the Press Charter comes out of whatever this slightly un-transparent process is, with a go-ahead, then presumably the government Charter would just get put to one side.
If the Press Charter gets rejected following this process then presumably they’ll undertake the same process with the government Charter.
But the essence of the Charters is that they’re both looking at the first 23 or 24 of the Leveson recommendations and saying this is what we would do if … this is what an independent regulator would need to be.
There are some significant differences still, but a lot of them aren’t.
GLJ: What’s the main difference?
GP: I think the two main differences are the role of what is currently the Press BoF, which is the industry funding body.
The Press Board of Finance is the organisation that funds the Press Complaints Council and it has quite a lot of power.
One of the issues is what role that plays in a new body because there is an argument that says if it plays too high or involved a role, then it’s not independent.
GLJ: So this is money from the publishers going into a fund.
GP: This is going to be paid for by the publishers. There’s an issue around that, and there’s an issue around who owns the Code, the complaints, the standards code.
And I suppose there’s another big issue around arbitration.
One of the things Leveson suggested as a sort of access to justice resolution, plus reducing costs in libel cases, was setting up an arbitration scheme.
He said it should be set up, the industry says they may set it up and the government tells us they will set it up.
So the industry has concerns about who’s going to pay for it and whether it’s going to get flooded with complaints.
GLJ: So it’s minor grumbles about “I’m aggrieved, I’m upset …” Do you find that a lot of your time is being taken up by people being offended?
GP: At The Guardian we have a readers’ editor who deals with editorial complaints primarily, accuracy and those sorts of things.
A big area of problem these days is people searching for themselves on Google and finding an old article that mentions them, that they don’t like, or that they’ve moved on from.
That’s sort of got an overlap between editorial and legal, if it’s defamatory.
My department is there to do pre-publication advice and then pick up these complaints afterwards. We do dispute resolution nowadays.
GLJ: Do you run any litigation or do you have outside people doing that?
GP: Depends how big it is. We instruct the Bar directly quite a lot.
GLJ: Who do like briefing at the Bar?
GP: The great thing about the Bar is it’s horses for courses so you can just choose.
We’ve got a couple of cases at the moment that we’re doing directly with the Bar where we’re seeking a strike out. If we lose those then we would probably instruct some external solicitors.
GLJ: What’s happened to the Defamation Bill and will the new regulations make a real difference for media defendants?
GP: The Bill is now passed so it’s now an Act but we don’t know when it’s coming into force.
That is apparently predicated on the fact that there are some regulations needed for a couple of the sections.
So the Act is there, but what came out of the “Putnam hijack” attempt on the Bill over implementing the Leveson recommendations was a clause that says companies can’t sue unless they can show substantial financial harm.
It’s not quite the same as Australian law which says companies can’t sue, but that will be a big change.
So the Defamation Act is in place. Some of it is codification, some of it is definitely liberalising.
The single publication rule, so the limitation period of one year applies to online, will be brilliant. That will make a big difference.
Truth and fair comment – there are some nuances but it will be interesting to see.
I suppose getting rid of juries as a presumption – so the presumption will be no jury – you can get them in certain cases.
And then we’ve got this new Reynolds defence, which is all built around the public interest and takes away this sort of checklist of hurdles.
One of the things we do in the UK as a matter of course these days with regard to online material is if we’ve published an article and we find out later something has changed or someone was acquitted, we update articles, we put what we call a Loutchansky notice on.
There was a case called Loutchansky v The Times, which went to the House of Lords and then to Strasbourg.
For example, supposing you do a piece, you publish it and you think that it’s all right, you think you can either justify it, you’ve got a Reynolds because you’ve gone to everybody beforehand, but, three months down the line you discover that the investigation you were talking about comes to nothing and the person is not going to be charged.
What we would do in that situation, once we know that that’s the case, is we would add something to the article, so that you sort of Reynolds it going forward.
Most of the national newspapers now will be doing something along those lines.
GLJ: Is the main game now really privacy as opposed to defamation?
GP: I think the main game at the moment is that everybody has been slightly diverted by phone hacking. We’ve got a lot of phone hacking trials due to start and I think a lot of people’s attention is focussed on that.
GLJ: Does it mean you can’t do any more phone hacking stories until that’s all resolved?
GP: It’s quite tricky to do them because of the contempt issues. Most of the trials I think are due to start in September and you have to be quite sophisticated these days with online stuff. We don’t link back to online stories when there’s a current court case going on.
GLJ: Do you get take down orders?
GP: We do get take down orders. There’s a Law Commission consultation taking place about media archives.
Newspaper archives and contempt is a big issue at the moment – you’ve got quite a lot of material that sits in an archive, and if someone is being tried and if a juror was to search they might find stuff that they didn’t know about and wouldn’t know about in the trial.
The position the newspapers have always taken is that because you have to search for that, we’re not publishing it, it’s just sitting there.
GLJ: It’s like going down to the Town Hall library …
GP: Exactly. But in recent years the courts have got more worried by it, so we’re getting more orders wanting us to remove this material.
GLJ: Is there a prohibition on jurors doing these searches during a trial?
GP: There’s no statutory prohibition, which there is here I think, but they get told in the judge’s spiel to them that they shouldn’t.
You have to be precise as to what they can’t do. But the reality is that unless someone goes and deliberately searches for a specific name in a bit more detail, those sorts of prejudicial things aren’t going to be found and a juror isnt going to stumble upon them.
So we take the view that jurors should be properly directed not to search for things on the internet [as opposed to reading their emails]. I understand as a lawyer that having a fair trial has got to be one of the most important rights that people have, and nobody wants to muck up it up inadvertently.
GLJ: The take down order is, to some extent a bit useless. There was one with a murder trial in NSW concerning a guy who was already in prison in Victoria for another murder. The judge here made take down orders to material in the Melbourne Age.
But during the trial I looked and there were still something like 16 pages of Google references to this fellow, including on Wikipedia and sites overseas. There’s just no way you can scrub the internet.
GP: No, you can’t scrub the internet.
It’s interesting because there’s been a lot of call to authority from judges on abuse process cases saying “juries can be robust, they listen to the directions, we trust them” – then on the other side you’ve got them saying “well, we don’t trust them” – and actually I think you just have to trust them.
America manages to survive with no contempt regimes to speak of at all.
GLJ: What is the most trying case you’ve had to contend with as a media lawyer?
GP: Not long after I joined The Guardian we had the Trafigura injunction
GLJ: That was the oil spillage in Africa?
GP: That was a complete suppression order so you weren’t allowed to refer to the fact that an order had even been obtained, you weren’t allowed to say whom it had been obtained against, let alone the contents of it.
It always struck me as an excessive order. It was a very frustrating process because as often happens with these suppression orders, the courts make them because they’re nervous and they think they’ll hold the status quo which is not necessarily what they should do – it’s not necessarily a legal test.
But they say we’ll give everybody five days to put their evidence in and that five days then stretches to 10 days because someone needs a bit more time and you find these things dragging on and in the meantime you’ve got this very, very wide ranging, very Draconian, very restrictive order that sits there and then Trafigura suddenly gets mentioned in parliament …
GLJ: And it unravels.
GP: And we can’t mention it and so then there’s a series of exchanges between us and the lawyers on the other side, and we say, “Come on, it’s now mentioned in parliament, you can’t say that we can’t report this when everybody else can. That’s ridiculous!”
GLJ: Was it an injunction or suppression order at large, not just against you?
GP: No, it was just against us. The way these injunction orders work is they are directed against you, the individual newspaper, but interim injunctions once served or notified to anyone else, bind them. I don’t think anyone else was served and if they were sensible they didn’t ask.
GLJ: Meanwhile it was all over the place, on Twitter.
GP: Yes, that’s right. The other brilliant challenge I’ve had since I’ve been at The Guardian, was the Wikileaks case which was just so wide ranging but also so rewarding.
Because we had newspapers in different jurisdictions, including The New York Times, the Spanish paper, the German paper and us, it meant that tactically, you could get stories out in one jurisdiction that you might have been worried about.
There were some stories that the Americans were very happy to do, they could run something first and we could follow on.
GLJ: So you would say, “according to The New York Times …”
GP: Yes. And you could do the same in Spain or Germany or in France. It was tactically very interesting, working out how you could make the best of that arrangement legally, so you could get stuff out that otherwise you would be worried about.
GLJ: Is Wikileaks journalism?
GP: Well, who am I to judge, I am a lawyer and what do lawyers know about anything?
It doesn’t seem to me that collecting data is a journalistic enterprise, but analysing it and producing stories off the back of it is.
And so is Julian Assange a journalist? Probably not in that sense.
GLJ: The Guardian broke the News of the World hacking story. What was the pressure like on you and your journalists during that process?
GP: Initially, it was a very tough time. I didn’t take a lot of the flack. We’ve got a PR department, we’ve got the editor and I’m just one of the processes in that sense.
But in those early days there were really robust statements coming out from News International denying it. No-one else came out and supported us, the PCC even exonerated News International.
So there was a terrible sense of isolation and constant pressure. Also you felt, that if we, as we did, slightly overstate one of the Millie Dowler stories, at every opportunity News International would throw that back in our face.
You have to give credit to Alan Rusbridger and Nick Davis for just keeping with it.
It would have been very easy to just say well, we started it and that’s enough, let’s withdraw from this, but they didn’t.
Whatever you say about these things, these acts were breaking the law and there was excess.
The consequences of it that are coming out now – going back to the Charters and Leveson – maybe a slight over-reaction, because these are breaches of the criminal law and the police should have sorted it out and dealt with it as they are now.
To try and impose a whole new system of regulation on the back of that – I never felt it was quite right.
GLJ: Gill, that was great. Thanks very much for doing the interview.
This interview was originally published in the Gazette of Law and Journalism, Australia’s leading online media and law publication.