In this week’s Anthony Sampson lecture 2011, the editor of the Guardian, Alan Rusbridger, went well beyond his title, ‘The long, slow road to libel reform’, and tried to show how defamation, privacy outrage, the scandal of phone hacking, and weak self-regulation are all connected.
Can all these discussions all take place in isolation from each other? Can you really discuss libel and privacy without also asking whether self-regulation actually works? Can you pull at the tangled issues of libel without considering how you define the public interest in privacy cases? How, MPs reasonably ask, can we as an industry argue that self-regulation works when it evidently failed quite spectacularly over phone hacking?
His speech, at City University London, drew on a previous lecture given at the same location 14 years ago. In that talk, the James Cameron lecture 1997, he talked about the relationship between privacy and libel, in anticipation of Article 8. To his surprise – he was “hardly the first person in the world to make the link” – he rather annoyed his peers.
It seemed to me quite likely that it might have significant consequences, and that editors might not like very much judges introducing a “backdoor” privacy law. So I asked whether something be said for going through the front door – i.e. go to the politicians and propose a bargain – no steps towards privacy unless they were accompanied by a complete reform of laws to do with libel and freedom of information. So that, in my innocence, was one of the things I touched on in my little lecture. Little did I know that it was considered very poor form to voice such thoughts aloud. I thought I was just giving a lecture at City. How wrong could you be? I had unwittingly breached some fundamental “no surrender” protocol for editors speaking in public.
But now, he said on Tuesday evening, “quite a lot has changed”.
Re-reading the Cameron lecture I don’t think you could say the ideas raised then were so totally mad. Article 8 of the HRA has developed in a way which has led some influential figures in the press now to argue that it would, indeed, be better to have parliament set the rules on privacy than let unelected judges make it up as they go along. Indeed, last month no less a figure than the prime minister weighed in on the issue, declaring himself “a little uneasy” at the judges and hinting that parliament may have to declare its position. So it looks as if some sort of consensus may now be developing that it mightn’t be a bad idea, after all, to trust parliament to discuss this.
There’s no need to report his 2011 speech in detail, readers can find it in full here (indeed, the text went online before Rusbridger had even finished delivering it) but some of his comments on privacy are worth extracting.
As Inforrm has tried to point out in a number of recent posts, there is a distinction between injunctions whose existence cannot be reported (super injunctions) and anonymous privacy injunctions. In supporting this position, Rusbridger referenced an article by lawyer Mark Thomson, published on this site:
But let’s not muddle them with anonymised judgments or privacy injunctions, where we can report the cases, but not who’s involved. One media specialist lawyer says there were 11 “ordinary” injunctions between January and March, two of which were brought against newspapers and at least four of which involved attempted blackmail. In the first three weeks of April there were six more privacy injunctions, two involving the media.
While Rusbridger was very concerned by the recent anonymisation of the parties in a libel case (ZAM v CFW), he was more reluctant to criticise the contra mundum order in OPQ v BJM and CJM.
… on the known facts – it’s difficult to say that the judge’s decision on the privacy issue was completely irrational. If it was a case of blackmail; if the information was about the private activities of consenting adults; if there was clear evidence that someone might come to mental or physical harm through publication which of us could be certain that we would – even as editors, never mind judges – approve of publication, or publish the identities of the parties?
ETK and News Group Newspapers “involved another really difficult balancing act” he commented. The cases illustrated, he said, the “complexity of the issues affecting free speech”.
This was far from the hysteria displayed by other national newspapers; the former MP Dr Evan Harris commented on Twitter, during the event:
Has Guardian newspaper ever set out some of Alan’s wise caveats in its coverage of super injunction frenzy?
But Rusbridger’s calmness did not mean he was not worried about privacy law more generally. Although the Guardian has not been sued under privacy law, he pointed out
There have been general injunctions, which bind us, like anyone else. There have been actions over confidence. And I stand ready to be outraged at the first time someone sues us over an invasion of privacy. But, as I say, it hasn’t yet happened.
He asked numerous questions about privacy and the public interest, pointing out that the media’s treatment of important stories wasn’t always consistent:
… indeed, it’s worth asking: where was the front page outrage when a judge ordered the blatant tax-avoiding strategies of a major bank to be taken off the web? What about Trafigura’s attempt to gag parliament? It made it to p 21 of the Times and p14 of the Telegraph. We sometimes send confusing signals about what we really care about.
He also flagged up Inforrm committee member Hugh Tomlinson QC’s future options for a privacy law, calling it “telling” that Tomlinson didn’t even mention self-regulation. Rusbridger, unlike Tomlinson, is not convinced by the idea of statutory regulation:
We, rightly in my view, recoil from any kind of statutory oversight. But – and here is where the history of phone-hacking impacts us all — can we plausibly argue that we, alone and with our self-regulator, should decide on these issues?
It seemed the Guardian editor felt more sure about his own interpretation of the public interest:
One thing I’m sure of: it’s not enough to assert our arguments as if they were self-evidently right and to use our privileged platforms to drive home one-sided advocacy. That’s not how these issues will be resolved. We have to engage with the wider arguments.
What unites these issues? We’re back to the three slippery words again – “the public interest.” If we can truly show that what we do, and believe in — is genuinely in the public interest, we’ll be on strong ground, as always throughout the history of our battles for free speech.
On this more confident ground, Rusbridger ended his talk with a little ‘show and tell’, including the political register of William Cobbett; a hobby of his is “to collect reminders of that British struggle – a universal struggle, of course, but one that began here.”
“I keep these books in my office as a reminder of the power of journalism – how, when properly deployed, it can be the most amazing challenger of power and agent of change. Think, 200 years on from Cobbett, to the disruptive power of WikiLeaks.”