06 July 2012

Who let the dogs out?

Hounded daily at a public inquiry into its ethics, this is not a good time to be a British newspaper. But, writes Amber Melville-Brown, the UK government is about to chuck the press a bone of comfort that could make an impact around the world

The British press is known as the bloodhound and watchdog of society, fulfilling a vital role in the country’s democracy by sniffing out and uncovering evil and alerting us to it.
But it has been misbehaving. Britain’s naughty newspapers are in the dog house that is Lord Justice Leveson’s Inquiry into press practices and ethics. It is the biggest media circus in London, but at the same time, the press appears to have been handed a bone in the form of a new defamation bill, touted as ‘a review of libel laws to protect freedom of expression’.
London is routinely described as the ‘libel capital of the world’ and the courts of England and Wales are regarded elsewhere as a weather vane of the balance between the competing rights of the public and the media.
Now potential changes to the media landscape affecting both those who wish to take advantage of the jurisdiction of England’s courts and those who fear and seek to avoid it are afoot.

Anti-free speech

The weight given to free speech differs across the world. For example, France heavily guards the right to privacy, while in the US, free speech is king. And England’s libel laws are seen to be so claimant-friendly, so anti-free speech, that New York and California implemented acts to prevent English judgments form being enforced in those states.
While free speech is essential, it cannot be entirely free. It must be monitored or regulated to protect the rights of others. But it is clear that existing regulation in the UK has not been good enough to control the media hound. While British broadcasters are formally regulated by Ofcom, British newspapers have been self-regulated by the Press Complaints Commission. Time and again, that body has been found wanting and the press told that it was ‘drinking in the last chance saloon’ of self-regulation. But the press has now had one too many and firmer regulation is required to prevent its wilder excesses.
What a new body will look like isn’t yet known, but rising from the charred remains of the toothless mediator is likely to be some sort of independent regulation, backed by statute, with incentives for buy-in and fines to encourage good, and discourage bad, press behaviour.
But just as the kicking of the press reaches fever pitch, the British government appears to be throwing the wounded dog a bone with a defamation bill gambolling through Parliament fairly quickly with cross-party support. The extent to which it is needed, though, is debatable. As a member of the public, I want to know that the media can either substantiate their stories, or show that they acted responsibly in researching public interest information and publishing it. Both scenarios are currently provided for in existing defences. Surely that does not make England’s laws overly claimant-friendly, as is the cry from Fleet Street?
It’s not surprising that the media argue it differently – they have the most to gain from changes to the law that provide more robust protection to publish the public interest exposes – or the ‘sexposes’ – in which the public is interested.
However, the bill is not as radical as the media may have liked. The three substantive defences of truth, honest opinion and public interest justification do little more than tinker at the edges.
But the bill does reverse the presumption for trial by jury, consigning the ‘12 good men (and women) and true’ to the ranks of the unemployed in an attempt to reduce costs.
And helpful moves to address modern communication techniques are included. With the advent of the internet, information anywhere is information everywhere, reclining provocatively for anyone to view on publicly accessible, online archives for ever. To persuade internet service providers not to seek the line of least resistance and remove online commentary without a second thought, new notice and take down procedures are provided in the bill. They draw a distinction between posters and bloggers who are prepared to stand up and be counted and those who hide behind the cloak of anonymity.

Exaggerated tourism

UK domestic details impact beyond Britain’s borders. Overseas-based global publishers have complained about being dragged thousands of miles into the Royal Courts on Justice to defend themselves against the claimant’s desire for vindication through the valued prize of a respected British libel judgment. The extent of libel tourism has been exaggerated. But nevertheless, the bill seeks to guard against, if not remedy, this perceived problem by requiring the court to be satisfied before accepting jurisdiction that England is clearly the most appropriate place in which to sue.
The British government welcomed overseas potentates to the Diamond Jubilee celebrations. It is spending money like water on the Olympics to encourage visitors to boost a stagnating economy. Ironic, then, that it ostentatiously creates a media law refusing entry to wealthy libel tourists in order to pander to a domestic British press, sections of which have been exposed for their own scant regard for the rule of law. Then again, perhaps having had its nose rubbed in its own filth publicly during months of the Leveson enquiry, the media hound is done with aggressive attacks on unsuspecting victims and is going to be a good dog. Put your hand out and trust it, go on…

Amber Melville-Brown is a partner and the head of media and reputation management at London-based international law firm Withers


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