For a media lawyer who has been battling “fake news” for his entire career – as well as robustly defending good investigatory journalism – there is a rich irony that the Culture Media and Sport Committee of the House of Commons is belatedly to take an interest in fake news and is engaging in a public consultation.
The irony comes from the fact that parliament has been so in the thrall of Fleet St that the tsunami of fake news for which it is responsible has been largely ignored – was the case with the disgraceful branding of the Brexit judges as “Enemies of the People”, and the failure of Lynn Truss to come to their defence.
With the deadline for submissions having passed at the beginning of March we are hopefully now about to see what that august body has to say. I am not sure if anyone has yet defined “fake news”. The CMS Committee has not yet defined it – perhaps it will in its forthcoming report. I am going to treat it as “news” which is published with a view to furthering the interests of the publisher and accordingly the veracity of which is unimportant; rather than it being published because it is true and will inform the consumers of the news item about what is really happening in their world.
Fleet Street – the country’s primary vendor of Fake News
The commercial media (by which I mean primarily Fleet Street) feels safe to point the finger at a new species of “fake news” which has not been generated by them. It serves their interests well because they can try to draw a distinction between fake news generated by an as yet not fully identified cabal of enemies of society, which could be presented as a good reason to stay loyal to the behemoths of Fleet Street such as the News UK and Associated Newspaper’s titles despite their atrocious ethical record.
The inconvenient truth for our political class, one of whose responsibilities is surely to take effective steps to make sure that we are not mislead by those who wield immense power through the mass media, is that they have turned the blindness of eyes to the fake news which has been defiantly dished out from Fleet Street in particular for very many years. This is as true about political issues as it is about any other, with the result that Fleet Street can distort the political process as it wishes; which is why politicians appease them so assiduously with honourable exceptions such as Tom Watson who does so at some personal cost.
Were we ushered out of Europe by the same powers that ensure the press still escapes proper regulation?
There is growing evidence that our exit from Europe was the product of the net of effect of various forms of “fake news”, which was generated by a host newspaper owners/editors/titles which were politically in favour of Brexit. The Sun published its “Queen Backs Brexit” headline while at the same time spending a six figure sum on a poster campaign to ensure the “right” outcome in the referendum so far as that title and its proprietor and editor was concerned.
The Express and Mail titles were similarly propagandising determinedly for us to leave the EU and the press was denying any obligations to observe “balance” in their news reporting – surely a moral obligation when stakes are that high. As they must also surely realise, any news that lacks balance also ultimately lacks veracity; a reality recognised by the Ofcom Code and BBC Producer Guidelines which require both fairness and balance. That is one of the primary reasons why if you really want to know what is going on you should rely on the BBC, ITV and Sky news.
The responsibility for the prevalence of Fake News lies with the timid government
Even experienced media professionals probably do not know the extent to which Government and even the judiciary has facilitated the propagation of “fake news” by Fleet Street over the entire period of my professional life; well over 25 years. They have done so in two primary respects. The first is an extraordinary and fundamental change to the law of defamation, which has resulted in a situation where there is no remedy for much false and defamatory material published on matters of public interest; which is by means of what is laughably described as a “public interest defence”.
The second is by the simultaneously dogged and timid refusal by successive elected governments to impose both their will, the will of parliament, and the will of the electorate on Fleet Street to ensure that it is regulated by a genuinely independent body rather than the four press-dominated bodies that have regulated to date; the failure of which has permitted titles like the Sun to publish fake headlines such as “Queen Backs Brexit”, and a number of other major Fleet Street titles to mislead the public in an equally serious way.
The House of Lords loses the plot
The first seismic change in the law of defamation as it applies to the media occurred in 1999 in the case of Reynolds v Times Newspapers. Although its significance in terms of the impact on the quality of news enjoyed by the general public was enormous, for reasons of the most blatant self interest, it went virtually unreported in Fleet Street. This is because the press maintained then, as it does now, the fiction that it operates underneath the hob-nailed jack boot of the UK law of libel; which I know because I have legalled newsprint, broadcast footage, books etc. for twenty-five years. This includes several years before the “Reynolds defence” was created by the House of Lords, when I had no difficulty in ensuring that public interest stories for which there was a credible basis were published/broadcast.
The change of the law that created the Reynolds defence was bought about by the House of Lords in a case brought against the Times by the then President of Ireland, Albert Reynolds, over allegations that he had been complicit in the covering up of sexual abuse on the part of Roman Catholic Priests. This case was a culmination of years of lobbying by the big media groups, and in particular News International, to import into the UK law of defamation the same pre-eminence given to free speech by the United States, based on the first amendment of its constitution. The outcome of the decision made by their Lordships in that case was a new defence for “public interest” journalism, which came to be known as the “Reynolds Defence”.
This new judicially-created defence meant that a publisher was free to publish false and defamatory material about matters of public interest, and if that publisher could persuade the court that a degree of journalistic diligence had been engaged prior to publication then the commercial publisher needed neither correct the story nor compensate the injured party for an errant story that had been published for profit.
At the same time as it created a defence which ensured that misleading and factually inaccurate news would remain permanently on the record the House of Lords also asserted that there was “no public interest in misinformation”; aka fake news. This statement was made at the very moment when their Lordships was enacting a defence which had at its basis that there was a public interest in not only the publication of misinformation (“fake news”), but in the publisher being under no obligation to correct it. This grotesque and absurd intellectual dishonesty was at the core of the Reynolds defence.
A practical illustration of the way the Reynolds defence abrogated human rights law
It is difficult to comprehend the full impact of this extraordinary change in the law without a practical example. It is one thing to be told that nearly twenty years ago the House of Lords robbed British citizens of the right to go to a court and secure a declaration that false and defamatory allegations against them published by the mass media were untrue; thereby robbing them of the right created by Article 8 of the European Convention on Human Rights to privacy and reputation.
Even adding that the effect that this judgment had the collateral result that millions of individuals would be denied their Article 10 right to be informed that they had been misled by the media on whom they relied for accurate information to make key life choices. Still the reader is not going to comprehend the full folly of the House of Lords. What is necessary is to be confronted with how this judicial howler plays out in practice which will hopefully bring to life the full the impact of this errant change in the law.
The Guardian asserts that there was a public interest in making false allegations about a British Army Officer, the British Army, and the British Nation
Before recounting this account of the Guardian losing the plot over a story which it was loath to retract because of its political/editorial line on the subject matter, it is a paper which has uniquely stood for journalistic ethics by leading the exposure of illegal activity by some of its Fleet Street peers, and courageously stood up to News International and Associated Newspapers by opposing IPSO. It is generally a title with high ethical standards and so it is therefore unfortunate that it was a Guardian article and the Guardian’s errant response to learning that it had got it badly wrong that provides the ideal illustration of the insanity of the Reynolds defence and its statutory spawn.
At the time when the world was reeling in the face of the lurid footage of the vile abuse of Iraqi prisoners by the US military that a distinguished British Army officer, Colonel Campbell-James, was accused in an article published by the Guardian of being complicit in the abuse of prisoners at Abu Ghraib prison in Baghdad.
In fact, not only was Colonel Campbell-James not at Abu Ghraib prison at the time, he was not even in Iraq. However, when his solicitors wrote to The Guardian with the proof that the Guardian’s allegation was false the paper wrote back and claimed the Reynolds/responsible journalism defence on the basis that the story was one of “public interest”, that they had undertaken a degree of research, and that therefore they should not be obliged either to offer any compensation to Colonel Campbell-James, or to publish a correction.
Colonel Campbell-James was therefore obliged to sue for libel to secure his vindication. Here is a link to the resulting judgment which gives a fuller picture of just how much scope the Reynolds defence creates for journalistic hubris and dishonesty, a temptation which uncharacteristically the Guardian felt unable to resist in this case.
A grotesque allegation against an army officer, his regiment, the British army and the nation
Pausing for a minute to consider both the gravity and scope of the false claim made by the Guardian; not only was it a very serious allegation against Colonel Campbell-James himself, whose family had to go into hiding as a result; it was a serious allegation also against his regiment, the British Army, and the British nation. Applying our human rights law (the Human Rights Act 1998 importing the European Convention on Human Rights); Colonel Campbell-James Article 8 right to his reputation and family life was annihilated, and the Article 10 right of the Guardian’s readership to be receive information was abrogated because they had been misled on this hugely important issue by the paper.
However, as a result of the extraordinary change made by the House of Lords in the Reynolds defence the Guardian was in a position to claim (with no apparent sense of irony) that even though it was 100% wrong theirs was a public interest story which they should not have to take responsibility for; either to compensate the victim or inform its readers that they had been misled. The paper in effect claimed that its Article 10 right would be infringed if it was obliged to correct its mistake – despite its gravity and impact. What that also meant was that the cost of a false and defamatory story passed from a newspaper being run for profit with an immense turnover, to a British Army officer whose modest pay has to support both him and his family.
The Press and Journalist codes both required the Guardian to correct its error
The Guardian’s stance not only comprised a fundamental breach of the ECHR, it also flew in the face of both the (then) Press Complaints Commission Code, and the NUJ Code, both of which obliged it to correct his howling mistake. The Guardian proudly claims on its website to adhere to the Code. I am sure it would also claim to be a champion of human rights. Colonel Campbell-James’ lawyers however persisted in the face of the inhumane and hubristic stance of the paper, and eventually The Guardian caved in. Its conduct was however roundly condemned by the normally very moderately spoken Mr Justice Eady in his judgment:-
“Whatever might have been the true extent of the physical risks, which in the nature of things cannot be definitively established, the anxious apprehensions of the Claimant were real enough. This was plainly a case for an immediate and generous acknowledgment of error and for putting matters right, as far as was then in their power, as soon as possible. It could not have hurt The Guardian to acknowledge promptly, on the basis of uncontroversial facts, that the Claimant had nothing to do with the Abu Ghraib abuses and was not even in Iraq when they took place. For some reason, The Guardian felt unable to take those basic steps. It was not simply a matter of good journalistic practice; it was a matter of elementary human decency.”
The IPSO and NUJ Codes
However, the suggestion that this is any form of public interest defence, apart from being innately absurd, is contradicted by the provisions both of the then Press Complaints Commission Code (now Independent Press Standards Organisation Codes), and the NUJ Code – documents drafted by journalists for journalists. On the importance of inaccuracies by the media being corrected they are unanimous. Here are the relevant provisions:-
i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence…”
2. Strives to ensure that information disseminated is honestly conveyed, accurate and fair.
3. Does her/his utmost to correct harmful inaccuracies.”
Conclusion to Part 1
Such is willingness of the press to advance its interests via arguments which are contradictory and dishonest, it had no difficulty apparently in promoting an ethical Code which had as its headline provision a requirement that misleading material should be corrected, while at the same time insisting that the law should adopt a provision which was its polar opposite.
The vices of the Reynolds defence however go beyond it being a legal license to mislead the general public on important issues, and on to transferring the adverse consequences of defamatory errors from multi-billion corporations such as News International and Associated Newspapers on modestly-paid public servants such as soldiers and police officers. I will address some of its additional flaws in Part 2 of this blog.
Jonathan Coad is a consultant at Keystone Law. Follow him @jonathan_coad.