Monday, July 19, 2010

Sex, death, brass bands and libel by photograph

Lest I be accused of being a little holier than thou in my attitude to The Sun in the post below, let me assure you I know just how easily a photograph can ruin your day as a journalist.

Let me share with you the story of one such disaster, which, sadly, I had a hand in.

This is back in the days when I was a jobbing hack on the Daily Post and it was my turn to 'do the calls.'

This was the round of phone calls made several times a day to the emergency services to see if there were any crimes, deaths, disasters or other human misery happening for us to report on. It was also in the days when such calls were made to human beings - usually a duty inspector in the police control room, or a desk sergeant at individual police stations. Since then these humans, who one could have a conversation with, have been replaced by pre-recorded 'voicebanks', which are a journalistic dead-end and should only ever be used as a starting point for a story by any reporter worth their salt.

Anyway, I digress, back to the sex and death. You see the virtue of talking to a human is that they do love a bit of gossip and so it was that morning when I made the call and was informed of a sudden death in a nearby market town, woman in custody as a result. Slowly, but surely, the story emerged.

It would seem the local brass band was a hotbed of illicit passion. She was 30, he was in his 60s, and after band practice they would adjourn to the local marshes in his roomy estate car where they would consummate their affair. Both were married.

The police were holding her as they believed she'd hit him in a lovers' tiff, causing a fatal heart attack. She said he had died during or shortly after they had made love. She had shagged him to death.

So, I set out hotfoot to the market town with a photographer, and crucially got to the bandmaster before word had spread of just how this bandsman had died. The family were letting people know of his death, but were, understandably, not sharing the grisly detail.

Most important, we got a photo of the band. Dead man, back row centre, and the bandmaster never queried it, but we got him to name every single band member, and there she was, in the front row - the, quite literally, femme fatale.

So, were were very happy with ourselves, we had the story, the picture, the whole shebang and off to Liverpool it all went to be printed the next day in the Daily Post.

The next day, when I opened the paper, it was one of those moments as a reporter and you will all have them, when you close the paper, wanting what you see not to be true.

Because, on the front row far right there was a bloke in a wheelchair, and there was no-one sitting or standing behind him, what a designer would call 'dead space' a blank wall. So the man in the wheelchair was cropped off to neaten the pic. However, when the caption, which has already been written, reads: "Mrs X, fourth from the right," the crop means that the identification moves along to the right. So instead of accusing the femme fatale of shagging to death a fellow bandsman, we accused the 16-year-old schoolgirl sitting next to her.

So, I have some sympathy with the Sun messing up the picture in the story about Maj Gallimore. It is easily done.

But if you do do it, then get it sorted quickly, which is precisely what the Daily Post did.

Firstly, we didn't wait for a complaint. Eric Langton, who was on the DP newsdesk - one of the best news editors I've ever worked with, a real newsman, totally unflappable and a pleasure to work for - went straight round to the girl's family with a letter of apology from the paper.

Her dad, you will understand, was not a happy man. Let's face it, his daughter is 16 - she's not on drugs, she's not pregnant, not a tattooed death metal fan. She plays in a brass band for heaven's sake, she is every dad's vision of perfection, and here you have the Daily Post suggesting she kills elderly bandsmen with sex.

But, in typically civilised British fashion, he was polite with Eric and said that what action they took depended on how she reacted, she was at school and hadn't seen the paper yet.

She arrived home, took one look at the Post.....and burst out laughing. She didn't think anyone in the town would really think it was her, and didn't think it would be taken seriously. So, they didn't sue us. Nor did they want a correction, which they felt would just draw more attention to the story.

A close call, but a lesson that being straight with people and admitting your error, no matter how stupid it may make you look, can get you off the hook.

Oh, and the femme fatale? She was acquitted at trial.

Thursday, July 15, 2010

Texting jurors and the Contempt of Court Act

So, you're on your final hours of jury duty. You've heard the closing arguments, the judge has summed up and now along with your fellow jurors you're seated in the jury room beginning your deliberations.

Then the judge pops his head round the door and points to a box in the middle of the table.

"Erm, ladies and gentlemen of the jury, in that box there's lots of information about this case which I've ruled inadmissible, or it's been kept out because of legal restrictions. Just don't look in it ok? Thanks a lot."

You look at one another, one of you whispers that surely a peek wouldn't hurt, another says you might get into trouble with the judge if you look. The judge's head appears round the door again and he says: "Oh, if you do look and keep schtum about it, there's nothing we can do, we can't even ask you if you looked after you've reached a verdict."

This about sums up the attitude of the courts to the internet and jurors. They are warned not to look, not to conduct their own Google-investigations. But unless a juror is reported for bringing in material by another juror, there's no way the courts can 'detect' such practices. Indeed the Contempt of Court Act 1981 forbids anyone, even a Royal Commission on Justice, from even asking jurors how they reached their verdicts - eg, did you reach it as a result of evidence, or did Wikipedia give you a helping hand?

This week we have seen the latest use by a juror of technology. A teenage juror texted another on the same trial to give a running commentary on evidence, as reported here in The Guardian's new Law section.

The recipient of the text reported the matter, both were discharged, and the texter was given a suspended sentence, showing how seriously the courts take these matters.

This is something I've been pointing out for some time now. While the print media in particular, broadcasters too though they generally do less court reporting, are all under dire warnings of the dangers of contempt, very little is known of what jurors do when they sit at home in the warm glow of their laptop.

An indication of just what is available was shown in the 2004 trial of David Bieber, who stood trial and was later convicted of the murder of PC Ian Broadhurst, and the attempted murder of two other officers.

I was teaching in Newcastle, where the trial took place, and seeing the police presence outside the court, Googled 'David Bieber.'

Now, before the results, I should mention that the reporters in court were told not to mention anything about Bieber's background, previous offences. His photgraph was banned too as 'identity was at issues' - ie he was claiming he didn't shoot the officers, a mysterious Mr X had done so - I know, this goes some way to explaining his conviction.

Top of the Google results was a site called America's Most Wanted which helpfully informed a viewer that Bieber, aka Nathan Wayne Coleman, was on the run for a suspected murder in Florida. It also carried his police mugshot.

If I were a trial judge I would be far more concerned about the Googling or texting juror than the court reporter sitting on the Press bench.

There's an interesting paper by Prof Michael Bromby of Glasgow Caledonian University.

The last government announced that it would conduct research into juries and how they reached their verdicts. It is to be hoped the present government continues this research. It might come to the conclusion that the Contempt of Court Act, enacted almost 30 years ago - long before the internet, Twitter, Facebook and blogs - is long overdue some revision.

Tuesday, June 08, 2010

Tasker's legacy lives on

Two police officers accused of misconduct in public office - they are alleged to have tried to avoid paying speeding fines - tried today to have their addresses withheld in court.

This has been tried many times in the past by defendants for all manner of reasons.

Most ask the court to place an order under S11 of the Contempt of Court Act 1981 - a banning order - preventing the publication of this detail.

One judge who resisted these orders and whose judgement is frequently cited by reporters in court fighting such orders, is the late, great, Sir Tasker Watkins.

When he sat in judgement on a request to place a S11 on a defendant's address in Rv Evesham Justices, ex p McDonagh [1988] QB 553, he said that S11 'was not enacted for the comfort and feelings of defendants.'

It is there to assist in the administration of justice, not as a shield behind which a defendant can hide. We have open courts and that means a defendant's name and address are given in open court.

Tasker is a hero of mine and literally a hero as well. When most of us were of an age to be barely starting our career, he was an officer commanding troops on the D-Day landings. He led bayonet charges through field raked by enemy gunfire, singlehandedly took on enemy machine gun posts and was awarded the Victoria Cross for actions which changed the course of a batte in which 10,000 enemy were killed and 50,000 captured.

Most would say he had done his bit then, but he came back to forge a career in the law which saw him become Deputy Lord Chief Justice and a stout defender of press freedom to openly report the courts.

Today's judgement shows that while Tasker may have passed away in 2007, the principles he maintained of open justice, still hold true.

And to cap it all, as if that's not reason enough to tip your hat to him, he was Welsh.

My thanks to Twitter followers @Ovidus and @davidelstone for pointing me in the direction of today''s case.

Friday, May 28, 2010

And what's not in Lord Lester's Bill

As far as I can see this Bill does not provide the radical change to the laws of libel that many have been calling for - but I'm not wholly sure that any Bill can.

The Bill does not, in my opinion, really address the fundamental problem that many have with the libel laws as they operate at the moment and that is the issue of costs of defending an action.

The Condional Fee Arrangement has made it easier than ever to sue for libel, but defending an action is just as expensive and the prospect of being awarded costs from an unsuccessful claimant, sadly small.

This issue was addressed by Lord Justice Jackson in his report earlier this year. Jack Straw introduced welcome moves to cap costs, but they were kicked into the long grass in the House of Lords over concerns they would limit access to justice by those of limited means.

But this is all tinkering at the edges of the problem. I travel round the country talking to journalists and editors on regional papers and frankly the moves to reduce costs are not enough for them.

One North West editor told me that 90% of the libel threats he was getting were emanating from a few firms doing CFA business. They had absolutley no intention of taking their claims to the High Court, but were relying on the fact that the papers don't have the budget to go there either and so they get a small-ish settlement to end the case.

Of course some brave souls soldier on into court, despite limited resources and the action soaks up their finances and their time - Simon Singh for example.

But he is the exception to the rule, most simply don't have the stomach, or rather the cash, for the fight. Many regional papers abandoned libel insurance long ago because of the high premiums. Also when you get into a fight the insurer often urges early settlement to avoid hefty court costs.

So you can strengthen the old defences, strike out actions, create a public interest defence - but many publishers won't go that far. Ands that is the really insidious thing about libel. Not the way the courts necessarily operate, but the environment it creates outside the court, where an aggressive litigant can stifle legitimate debate by constant threats of libel action.

Solutions have been suggested, such as making the burden on the claimant greater. However, it would be very difficult, for instance, to reverse the burden of proof in a libel action, requiring a claimant to prove they did not commit the defamatory behaviour alleged. We do not require that of those accused in criminal trials, and so such a move would probably not bear a challenge in Europe.

But what if there were an alternative way of resolving disputes? A forum that the courts themselves would say: No, you must try there first before you come to law?

Well, what about the PCC? Before you dismiss it, I'm not saying that in its present state it could do the job. If you were a lawyer advising a libelled claimant what would you say: Go for the High Court and big buck for both of us, or go to the PCC where the best you'll get is an apology and you don't need my expertise to do it?

If we really are going to get radical reform of the libel laws in this country then I see it being tied to a regulatory system that is far more pro-active than the PCC, and one which has ultimate penalties that are more serious than a requirement to print an adjudication.

Of course, the idea of a PCC with teeth is not a new one and it has been batted away by the PCC and the industry as being unworkable and that it will inevitably drag those expensive , time-consuming lawyers into the process. That argument might hold water if there were not a great big elephant in the room called Ofcom - which can and does levy fines and does not seem to take inordinately long to give broadcasters a caning. Of course, we'll have to see if it survives not the Coalition Government is in power.

But as newspapers increasingly move their content online and onto video, the line that differentiates them from broadcasters is being blurred and I'm not sure the argument against them having a regulator similar to Ofcom is as valid as it used to be. Of course, I know, the existence of Ofcom has not stopped broadcasters from being sued for libel. But if you put in a regulatory system of first resort, you might have a chance of heading off libel threats.

This will require some action from the PCC. They are very good at publishing customer satisfaction surveys for those who use their service and are happy with the outcome, but what they need to do now is look at why people do not use them, and instead go to law.

Thursday, May 27, 2010

Defamation Amendment Bill 2010 - Analysis

This is a swift analysis of the Bill published today, introduced by Lib-Dem peer Lord Lester as a Private Member's Bill.

As I mentioned earlier, this first thing that struck me was Section 1 which establishes a statutory defence of publication in the public interest, and it seems to be based on the Reynolds defence.

Prior to this, the defence was one at Common Law, developed by judges and stemming from the case of Reynolds v Times Newspapers. The difficulty with Reynolds for publishers is that it is a defence where there is almost an acceptance that you have to fight in court to get it. Unlike the other privilege defences, which often head a case off before it has even got to court. There are so many hurdles to Reynolds that it if you as a publisher want to claim it, you have to accept that your journalistic practices are going to be scrutinised in court in order to establish whether you get Reynolds or not.

This Bill in Clause 1a and 1b establishes a defence if the matters were published in the public interest and the defendant acted responsibly in doing so. However, it then goes on to define reponsible publication and use some, but not all, of the language of the 10-steps of the Reynolds defence described by Lord Nicholls in that case.

When the Ministry of Justice working party on libel reform reported on this it stopped short of recommending the codification of Reynolds. Instead some of its members, notably those representing NGOs, writers and the scientific community, recommended that consideration be given to a new public interest defence where publication dealt directly with politics, science, commerce, sport healthcare, the environment, public administration or was a form of artistic impression and that any relevant professional codes and standards had been followed by the publisher.

I'm not especially advocating the working party plan, but it's interesting that Lord Lester's Bill goes for a Reynolds model rather than a new defence.

The second thing of note is that in the the second clause of the Bill the defence of fair comment is renamed as honest opinion. This is a more accurate title for the defence, and has been described thus by judges in such cases as Branson v Bower [2002] QB737. It's worth noting that the Bill in describing how a defence of honest opinion is established says at 3(6)c it does not matter whether the facts that led to the opinion are included in the publication or not. So, if you had this defence, you would not need to publish: This is what I think and this is why I think it.

Clause 4, eminently sensibly changes the name of the defence of Justication to Truth.

A defendant would have to show words to be true, or capable of a less serious meaning, according to the Bill. Note that the Bill does not reverse the burden of proof as regards truth. The onus is still on the defendant to show the truth of what they have published if that is their defence.

The defences of absolute privilege and qualified privilege in the Bill look broadly similar to the existing defences, as do the schedules defining what they cover.

Clause 9 of the Bill is interesting in the defence it provides for broadcasters and websites where they are not the authors or editors of the defamatory material. A claimant is required to give notice of the words complained of; why they are defamatory; what is untrue and why they are harmful. The defendant the has a notice period of 14 days from receipt to remove the offending material.

Clause 10 would appear to answer the concerns of those publishing on the internet by stating that as long as what you publish is by the same person and has materially the same content, then the date it was first made available to the public is the first date of publication.

Clause 11 makes an important change in requiring corporate bodies who want to sue for libel to show substantial financial loss.

Clause 12 continues that theme in requiring the court to strike out an action for defamation unless the claimant shows substantial harm of the likelihood of substantial harm to their reputation.

That's a brief summing up of the points of interest from a quick reading today. I'm sure others will find more to chew on in the days and weeks to come.

What happens now depends on whether the coalition government uses Lord Lester's Bill as a template for reform and gives it parliamentary time, or whether they want to introduce their own Bill, as promised in the Queen's Speech.

Lord Lester's Libel Bill in full

Here's the Bill on libel reform introduced by Lord Lester. Via @martinjemoore of the Media Standards Trust

Will blog soon, but one quick point, it's opening section effectively codifies the Reynolds defence.

Tuesday, May 25, 2010

Libel reform in the Queen's Speech

Proposals to reform libel laws were included in today's Queen's Speech revealing the Coalition Government's legislative plans.

The Freedom (Great Repeal) Bill will, among other things, reform libel laws to protect freedom of speech.

Of course, the detail of the Bill is all-important, but the commitment to legislate is to be welcomed.

It promises to be an interesting Bill for journalists in another way in that it also includes a strengthening of the Freedom of Information Act. This, if it happens, is also to be welcomed, because FoIA, useful as it has proved, has too many exemptions allowing public bodies to avoid disclosing information.

Monday, May 24, 2010

Lord Lester's libel reform bill

Lord Lester is introducing a Private Member's Bill on libel reform to the House of Lords this Thursday.

He was interwiewed on Radio 4's Today programme this morning about the bill and you can listen to the it again here.

The Bill, he said, would 'assist' the government in looking at reform of the libel laws. He said it would include measures requiring claimants and corporate claimants to show actual damage - something they are not required to do at the moment, damage is 'presumed.'

He said the Bill would also require libel trials to be heard by a judge alone. It would also examine libel defences such as privilege. He pointed out that the last reform of the law was in 1996, with the Defamation Act of that year. This was, he said, before the spread of the internet, web hosts, bloggers and so on, all of whom are affected by libel laws.

Lord Lester has been active in this area for some time and has been planning his defamation reform bill last year, as reported in The Times.

It will be interesting to see the details of his Bill this week. All the major parties gave commitments to libel reform in their manifestoes. The Lib Dems' was the most specific. It will also be interesting then to see what reception Lord Lester's bill gets from Government, because to have any hope of proceeding the Government will have to agree to giving it time in Parliament.

Friday, May 21, 2010

Why the coalition is wrong on rape

Rather to the surprise of a few the coalition agreement published this week by the Conservatives and Lib Dems included plans to reinstate anonymity for defendants in rape cases - reported in The Guardian here.

I say reinstatement, because it has been tried before and the experience was not a happy one. Anonymity was granted to defendants in rape case by the Sexual Offences (Amendment) Act 1976, which also granted anonymity to victims in any offence which included the word rape - rape, incitement, attempted, aiding and abetting etc.

Interesting to see whether this anonymity applies only to rape or to the whole raft of sexual offences on the statute books now - grooming, voyeurism, trafficking etc.

Anonymity for defendants was brought to an end by the Criminal Justice Act 1988 for many of the reasons cited by those opposing this latest move. Namely that many sex offenders are repeat offenders and that seeing a defendant charged encourages other victims to come forward.

While I agree with those arguments, my concern is for the wider principle of open justice. Once you allow special pleading, ie, that a defendants life will be ruined by the mere accusation of the offence, then you set a dangerous precedent. if we accept that certain crimes are particularlay damaging to a defendant by their very nature, the you open the door to many other defendants trying a similar argument.

An accountant accused of fraud might argue that an accusation of fraud was specially ruinous; a teacher accused of hitting a pupil would say such a charge would be career-ending. Once you accept the argument that certain offences are especially damaging then you accept a principle which threatens open justice.

News organisations are already withdrawing from the courts, once a staple source of news. Putting another obstacle in the way of open reporting of the courts is a mistake.

Wednesday, May 12, 2010

Just a thought on the new government

OK, put yourself in Peter Mandelson's shoes. Do you stand idly by while the Tories and Lib Dems get all cosy as they negotiate Labour out of government? Or do you....interfere.

No, you set a hare running that there's a possibility of a deal with Labour, raising the hopes of grassroots Lib Dems round the country that they are not going into a coalition with the Tories, thus taking the blame and the fury for the cuts they will impose. You also raise the hopes of the many people who voted Lib Dem to keep the Tories out, only to face the prospect of putting them in.

Now, Mandelson, knows these talks will fail, he knows the mood of the party and he knows the mind of very senior colleagues who will not allow a deal with Lib Dems to go unchallenged. It is doomed to failure. The negotiating team went in clinging to things, such as ID cards, that the Lib Dems could not live with. The talks were doomed and intended to be so.

But you've done two things. You've raised the hopes of Lib Dem rank and file, making them realise the horror of what they're getting into. You've also made the Lib Dem leadership look like flip-flopping, duplicitous opportunists, auctioning off power to the highest bidder.

Now, all the above might be fevered fantasy on the eve of a Tory Government.

Or else it might be an act of Machiavellian political maneuvering worthy of.....Peter Mandelson.

And lest we forget. In 1997 Labour won 418 seats - 418 - now that was a majority, that was a mandate to govern. The Tories were utterly destroyed and left with just 165 seats.

Labour now have 258 seats, easily enough to come back at the next election and take power from what they have ensured is a very shaky coalition.

Oh and the Labour Party website servers went down last night, such were the numbers logging on to join the party. At the same time the Tory and Lib Dem recruitment pages were running just fine. Maybe they've got better servers.....maybe.

Sunday, May 09, 2010

Who would be an MP?

Pity the poor MP.

He or she has pounded the streets of their constituency for a month and been involved in an election that has been a real battle. Then on election night there is the euphoria of winning the seat and going to Westminster as duly elected Member of Parliament. Thrilling stuff.

But it doesn't take long for your feet to get planted very firmly back on the ground by your beloved electors.

Take a look at the blog of David Jones, MP for Clwyd West, where he thanks the electors for returning him. And it was a good win. Notwithstanding the national mood now, with a slender 133 majority when he won the seat from Gareth Thomas (Lab) in 2005, it was number 2 on Labour's list of seats they wanted to win from the Tories.

Well, he increased his majority to a much more comfortable 6,419, a very decent result by any standards.

But look at the messages of congratulation, and especially one from 'Hugh' who says that Mr Jones's victory was helped 'in no small part' by his efforts on behalf of Colwyn Bay Pier - sod the economy, schools, hospitals, the war in Afghanistan, it's aging Victoriana we really care about. What's more, inquired Hugh, was there anything to report on this from the Steering Group.

I know that Mr Jones will take the matter as seriously as a conscientious constituency MP would, but you'd have to have a heart of stone not to forgive him a roll of the eyes and a muttered: "Give me a break."

David and I are politically poles apart, but I think he's a sharp MP. The problem with record gains for the Tories is that in that group of newbies you'll have a few chinless wonders who you wouldn't want running a whelk stall - no offence, Labour had its fair share of lobby fodder in 1997.

If they do form a government the Tories need to make the most of those in their number who have the intellect to make a go of it. I'd keep an eye on Mr Jones in the coming months.

Tuesday, April 27, 2010

So farewell, Google Ads

I've dropped the Google Adsense link from the side of the blog.

No great hardship, I wasn't going to retire early at the rate things were accruing.

The final straw came when one of my final-year students Josh Halliday screengrabbed and tweeted my blog, with a no-win, no-fee defamation lawyer at the top of the ads.

They've been on there for some time, betraying the fact that Google Adsense has no sense of context, or irony for that matter.

There was also the small issue of a competitor consultancy pitching up on the blog too.Not good business.

Anyway, Mr Halliday has suggested Addiply as an alternative, so I'll check that out and see if they can have me putting my feet up at 50, which is sooner than I care to contemplate.

Paxman gets Paxoed by the man from Plaid

Lovely clip from Newsnight.

Slightly sneering reference from Paxman to Eurfyl ap Gwilym's 'august' position as deputy chairman of the Principality to start off.

What follows is a beautiful example, as an interviewee, of how to deal with the aggressive interview.

Know your stuff, stay calm, and get your digs in when you can.

Eurfyl to Paxo: "Do your homework."

Paxo (truculent): "I have done my homework." (sound of shuffling papers as he finds that, actually, Eurfyl is right)

Eurfyl is obviously Wales's very own Vince Cable.

Post Script. If traffic to this blog since I posted the above is anything to go by, Mr ap Gwilym is an electoral smart bomb that Plaid could do to drop a little more often between now and election day.

With all three of the main parties today accused by the Institute of Fiscal Studies of being too vague in where they will make cuts after the election, an economist who knows what he is talking about would seem to be just what they need.

Monday, April 19, 2010

Jack Straw's Soapbox Blog

Take a look at the blog by one of Jack's self-described 'bag carriers' as Mr Straw tours the country with his soapbox speaking to, and taking questions from, the public.

In the interests of political impartiality (not that a blogger needs to be) if the other parties can point me in the direction of something as entertaining, I'll link to it too.

Thursday, April 15, 2010

Tories and Lib Dems commit to libel reform too

Both the Conservatives and Lib Dems have included libel reform as a manifesto commitment.

Conservatives: "We will review and reform libel laws to protect freedom of speech, reduce costs and discourage libel tourism."

Lib Dems say they will: "Protect free speech, investigative journalism and academic peer-reviewed publishing through reform of the English and Welsh libel laws - including by requiring corporations to show damage and prove malice or recklessness, and by providing a robust responsible journalism defence."

So it's a commitment by all three main parties, with the Lib Dems being the most specific. Who will deliver though?

Monday, April 12, 2010

Labour's libel reform commitment

Labour has included libel reform in its manifesto.

"To encourage freedom of speech and access to information, we will bring forward new legislation on libel to protect the right of defendants to speak freely. "

Tuesday, April 06, 2010

Election law

Well, they're off, so here's a brief rundown of the legal problems that can arise when reporting elections.

Firstly, libel, it's always with us, but elections are that special time when candidates lay into each other with abandon and occasionally say something defamatory. Remember it is no defence to say you are simply reporting what someone else said (but see below). Anyone who repeats a libel is potentially liable for it and a defamed candidate may decide to sue the relatively wealthy media outlet that has repeated the libel rather than the relatively poor opponent who originated it. Beware accusations of racism, fascism and plain old lying.

However, if you are reporting remarks made at a public meeting, or press conference, then you have a defence of qualified privilege, so long as you are reporting fairly, accurately, on a matter of public interest and without malice. Don't get overly worked up about malice - the malice of the speaker does not 'infect' your report of their speech and has never yet destroyed a defence of qualified privilege mounted by a media organisation.

False statement about election candidates. Section 106 of the Representation of the People Act 1983 makes it a criminal offence "to make or publish a false statement of fact about the personal character or conduct of an election candidate, if the purpose of publishing the false statement is to affect how many votes he/she will get."

The false statement must be statement of fact, not opinion. It is a defence to show at the time of publication you had reasonable grounds for believing the statement to be true. A journalist who published false claims that a candidate was homosexual was fined £250 in 1997. Note that it is no longer defamatory to say that someone is gay (unless it implies they are dishonest by concealing their true sexuality) but it would contravene this law. The reason being that if the voters included those whose religious beliefs cause them to hold anti-gay views, then such a statement could affect turnout for the candidate.

The 1983 Act also makes it an offence to publish a false claim that a candidate has withdrawn from the election if you know the claim is false and it is being made to promote the election of another candidate.

Impartiality of broadcasters. The Ofcom code and BBC Editorial Guidelines have detailed guidance on achieving impartiality. Several radio stations have been fined by Ofcom after presenters declared political allegiance on air.

Exit polls. Section 66A of the 1983 Act makes it an offence to publish the results of an exit poll before polling has finished. The reason being if the exit poll reveals a runaway winner it may discourage people from voting an thwart the democratic process. It is also an offence to publish a prediction of an election result if it is based on such a poll.

Election counts. Admission to the count is the responsibility of the returning officer. There is no national media policy, so best make contact early to make sure of arrangements for the night.

Friday, April 02, 2010

Libel law giveth and it taketh away

By now I'm sure those of you with half an interest in libel law will have heard news of Simon Singh's successful appeal in the action brought against him by the British Chiropractic Association. A very good summation of the hearing and what might happen next can be read in The Times report of the case.

To sum up, very briefly, Simon Singh, a science writer whose publications include the excellent Fermat's Last Theorem, wrote an opinion piece in The Guardian in 2008 in which he alleged the BCA promoted 'bogus treatments' for childhood conditions like asthma, colic and earache.

The BCA sued him for libel and in an earlier hearing in the High Court, Mr Justice Eady said that Singh's article had contained assertions of fact and so he could not use the defence of 'fair comment' which normally protects statements of opinion.

Singh might have given up then as his legal bills were already soaring, but he fought on to appeal that point, that he should be allowed to use fair comment as a defence. And that is what he won yesterday, the Court of Appeal said he ought to be allowed to use fair comment as a defence.

The judgement is interesting for a number of reasons, but I particularly liked phrases such as: "This litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic." And that in suing Singh personally and rejecting an offer of an article in reply from the Guardian "The unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics."

The full judgement is beautifully crafted and has been put up on Scribd by as part of their coverage of the case.

Heartening thought the judgement is, it's taken two years and £200,000 to get this far and it's only half way. The ball is in the BCA's court. It can go back to trial, with Singh allowed to use fair comment, it can appeal to the Supreme Court or it can drop the case. As the appeal court judges said, this is no way to pursue scientific debate.

The problem is that Simon Singh is the tip of the iceberg. He is the brave writer prepared to devote the time and cash to the battle. But for every Simon Singh there are hundreds of publishers who drop articles apologise and pay out of court simply to avoid the ruinous expense of a libel action.

Justice Secretary Jack Straw, to his credit, has begun to do something about this and had introduced reforms into Parliament that would cut 'success fees' for no-win, no-fee lawyers. This is the system where a lawyer who takes on a case on a conditional fee - no-win, no-fee - can be awarded 'uplift' - a success fee if they win the case. This means, dependent on how much uplift the court awards, they might double the fees they charge.

Now the order introduced by Straw has been voted down by a committee of MPs. Straw is hopeful it might be revived when it comes to the Commons.

Somewhat strangely, one of the MPs who opposed the order was Chris Mullin, a former journalist of great repute. He said he felt lawyers would not take on tough cases any more.

This is a much more important issue for the regional press. I travel a lot talking to regional editors and they tell me that as much as 90% of the libel threats they get are coming from CFA lawyers and that in the vast majority of cases they settle rather than face the crippling costs of an action.

Straw's reform would have cut the fees that CFA lawyers could expect to get. This would make fighting an action more realistic as it would drive down costs.

For the regional press the issue of the potential cost of a libel action remains the most pressing concern and until that is addressed the chilling effect of libel will suppress freedom of expression.

Wednesday, March 24, 2010

Libel reform and the working group report

By now you may have had a chance to read the report of the working group on libel, and read some of the coverage of it and the response from Jack Straw.

There was a mass lobby of Parliament yesterday on this subject, and the minister, as well as opposition spokesmen attended.

There are a number of changes in the offing, some achievable by tinkering with regulations and therefore reasonably speedy, others requiring legislation and therefore the commitment of an incoming government, be it Labour, Tory or some combination involving the Lib Dems.

There will be those who say the changes proposed by the working party do not go far enough. The working party, being a broad cross-section of those representing media, NGOs, academia, claimant and defendants, was always going to reflect a multiplicity of opinions.

However, read the proposed changes being put forward and look at them in the context of a reduced costs regime as proposed by Jack Straw.

What you will get if the changes as proposed are all put into effect is, and this is a very broad brush description:

1. Less likelihood of being sued for libel due to changes to the multiple publication rule and restrictions on libel tourism.

2. If you are sued, a better chance of defending yourself if you are publishing in the public interest.

3. If you are sued and you lose, it will be less ruinously expensive due to the curtailment of the 'uplift' success fees charged by no-win, no-fee lawyers. The cuts in success fees will also, I would imagine, take some lawyers out of this market, again cutting the likelihood of getting sued.

So, a step in the right direction, a rebalancing of burdens. Not everything that those campaigning for reform might have wanted, but more then their opponents might have wanted to give.

What matters now is how much of this is put into effect, pre, and post-election.

Tuesday, March 23, 2010

Libel working group report published

The Ministry of Justice has published the report of the working group on libel, you can download it here

Libel working group report

The report of the Ministry of Justice working group on libel is due to be published this morning. Should be up on the MoJ website within the hour.

More later.

Monday, February 08, 2010

Is old law bad law? Nick Clegg thinks so, but he's wrong.

Nick Clegg was on Radio 4 Woman's Hour this morning and first question in was what he thought of MPs accused of expenses offences possibly using parliamentary privilege as a defence.

His quick answer was that it was wrong to use a defence dating back to 1689 in this day and age.

And some might agree, how can archaic laws possibly apply in this modern age.

But hang on, there's a lot of law out there and just because it's old, doesn't make it bad per se.

For instance, habeas corpus, the law which allows us to take action against unlawful detention by the state, dates all the way back to 1215. I doubt somehow that Nick Clegg and the Lib Dems would rush to do away with habeas corpus simply because it's a bit long in the tooth - albeit that European arrest warrants have rather undermined it already.

Yes, there's a lot of arcane law on the statute books, but to say that something is wrong simply because it's old is rather a foolish argument.

One could equally say that old laws have stood the test of time and so encapsulate fundamental principles which have prevented the need for repeal over the centuries.

Nick Clegg might have justifiable objections to the use of parliamentary privilege, but let's hear something a bit better thought out that simply saying: It's an old law, it shouldn't be allowed. That just insults our intelligence.

Furthermore, he might not like the use of a defence of parliamentary privilege, but surely that's a matter for a jury to decide upon. I would have thought that a Liberal leader, of all people, would defend principles like the presumption of innocence and right to a fair trial, even of his political opponents. Unless of course, that chance to score a few points before an election means the temporary setting aside of such principles.

Friday, February 05, 2010

Former DPP says the PCC is 'farcical'

Sir Ken MacDonald, former Director of Public Prosecutions and now visiting professor of law at the LSE became the latest figure to attack the PCC last night.

He has advised lawyers and media organisations to withdraw from it.

This is the latest blow to the reputation of the PCC. In November, Alan Rusbridger, Guardian editor, resigned from its code committee after if failed to rule in favour of The Guardian over its phone hacking investigation.

Rusbridger said last night that the PCC's credibility was clinging by its fingertips.

Other voices have criticised the PCC recently. Roy Greenslade described it as an effective mediator of the regional press, but less effective at regulation.

The PCC has been a bit flat-footed in its response to serious criticisms like this, some might say arrogant. It needs to heed such voices.

A new Parliament will be elected this year, and one which will perhaps have more of an appetite for statutory regulation. Criticism like that of Sir Ken MacDonald should be regarded as fair warning.

Thursday, February 04, 2010

Working group members

Here's the membership of the working group on libel:

Sir Leszek Borysiewicz, chief executive of the Medical Research Council
Tracey Brown, managing director of Sense About Science
Desmond Browne QC, of chambers 5 Raymond Buildings
Rod Christie-Miller, partner and chief executive at law firm Schillings
Robin Esser, executive managing editor at the Daily Mail
Jo Glanville, editor of Index on Censorship
Jonathan Heawood, director English PEN
Tony Jaffa, head of the media team at law firm Foot Anstey
Sarah Jones, head of litigation and intellectual property at the BBC
Marcus Partington, chairman of the Media Lawyers Association and legal director of Mirror Group
Gill Phillips, director of editorial legal services at Guardian News and Media
Professor Gavin Phillipson, of Durham Law School
Mark Stephens, a partner with law firm Stephens Finers Innocent
Andrew Stephenson, a partner at law firm Carter-Ruck
Paul Tweed, senior Partner at Belfast-based law firm Johnsons
Sunday Times editor John Witherow
...and me.

The presence of Rod Christie-Miller might explain the 60 or so visits to this blog last week by someone at Schillings. Pity them having to wade through my Welsh column archive, they could have just called me.

Wednesday, January 06, 2010

Ministry of Justice working group on libel

Over the Christmas break I was invited to join the working group being set up by the Ministry of Justice to look at the law of libel.

It is an area of law that's creating a lot of 'heat' at the moment - issues such as 'libel tourism', conditional fee agreements and the burden on a defendant have all attracted a great deal of attention from the traditional media as well as bloggers and the Twitter community too.

The working group is to meet four times in January, February and March before reporting to Jack Straw with its recommendations.

As yet I don't know who the others members of the working group are, although when announced it was said to be made up of editors, lawyers and academics.

Incidentally I've also advised the MoJ on opening up the family courts and the plans to allow further media access.

I'll blog whatever I can, whenever I can. although I suspect the discussion may be confidential until the report to the Minister is made public. So watch this space.