Max Mosely just lost his plea to the European Court of Human Rights – it rejected his bid to force publications to warn people before publishing sensitive and personal material about them. That means it is still not a legal requirement for a journalist to give prior warning of a story.
I kind of feel sorry for Mosely. It was crap of News of the World to reveal he liked spending time with so many ladies of the night. In whose interest was this story released? In ‘the prurient interest of the public’, to paraphrase Zac Goldsmith’s po-faced argument. (I bet he sneaks a read of Hello at the hairdresser’s, if only to catch a glimpse of himself.)
At the moment, it’s good practice to warn people before a story breaks: to check the story is correct, to give them a chance to defend themselves. But there are stories where you might not want to do this.
Making it a legal requirement to warn people, which is what Mosely wanted, is just bad law. Mosely said it would just be for ‘sex scandal’ stories like his. Who would decide what this would be? Where would the line be drawn? A judge would have to decide where the line is. While I empathise with Mosely’s position, this would mean putting everything in the hands of a judge, and it is by no means 100-per-cent certain that a judge would always side with a journalist.
The judiciary is historically separated from Parliament – England’s Civil War created the tripartite structure of Parliament, the courts, and the monarch. And the judiciary is wholly independent of both. But to place decisions like these solely in the hands of the courts is to tip the balance of the tripartite structure.
What began with gagging orders has become a full-blown argument about the constitutional division of the country. Lord Neuberger in a parliamentary inquiry said that: “It is of course wonderful for you [journalists] if an MP stands up in Parliament” and breaks an injunction.
He continues: “But you do need to think … if it’s a good idea for our law makers to flout a court order just because they don’t like it.”
Parliament has Article 9 of the Bill of Rights, which says that the proceedings of Parliament cannot be questioned by the courts.
Yet the judiciary is famously anti-parliament, as one judge said: “I deplore the use of parliamentary privilege.”
The Trafigura affair is an example where the judiciary has supported a case against wider public interest. Trafigura’s lawyers Carter-Ruck applied for a super-injunction in Britain in 2009 in order to suppress media coverage of a report examining the harmful effects of dumping waste in the Ivory Coast, and the legal proceedings following it. Mainly aimed at the Guardian, a judge in Britain granted it. The Guardian analyses the injunction’s wording here. It makes chilling reading. Carter-Ruck even thought it would cover UK Parliamentary questions, but MPs drew the line there.
There are cases where you absolutely wouldn’t want to give prior warning. A hypothetical example would be an NGO in a foreign country. Perhaps this NGO had evidence of government corruption. If it had to give prior warning before releasing the story, there could be grave consequences for its staff.
Another example would be a small media organisation that couldn’t afford to go to court. If they had to hold a story in order to give prior warning, lawyers representing the wealthy would be able to string cases along for as much as possible, knowing the other side could never afford the fight. The story would get squashed. How could that be in the public interest? A small organisation would always be thinking twice about publishing a story.
How about making a prior-warning law only applicable to tabloid newspapers? After all, it was the News of the World that reported on Mosley’s private life. But this is not a good law either. Again, how to distinguish between publications? Who would decide? It would have to be a judge. And it would become a repeat of well-worn arguments for high-culture versus low-culture.
When so-called serious papers are often in the slime pits of journalism themselves, the line is blurred. For example, the Telegraph did a con-trick when it secretly recorded Vince Cable, in what he thought was a private conversation with two young fans. The Telegraph was rapped on the knuckles by the Press Complaints Commission for it. The Telegraph could have informed Cable before the story broke, even out of good manners, but the story would have been squashed. So, this can’t be an argument about what constitutes a proper story, or proper journalism, because many would consider the Telegraph a supposedly ‘proper’ paper. The Telegraph should have simply known better. But how could a judge make that call? And if the courts had to, the story would soon be old news while it was debated.
Perhaps the root cause is the extreme competitiveness of the UK newspaper market. Yes the News of the World and the Telegraph shouldn’t have printed these stories, but they want to make money. Stories sell newspapers. If you want to change things, change the system. The outing of people who’ve taken out injunctions by the blogosphere is an example of the changing times. The sheer volume of tweets completely thwarted UK law, and the law is powerless to counter it.
I’ve mentioned on this blog before that I’m sceptical about the liberatory potential news media assigns to Twitter and social media. See also here and here and here.
Posted 9 months ago with 0 notes