Over the last four years issues of media law and regulation have moved from being the concern of a few specialists and academics into the mainstream of public debate. They have moved from the media and law pages of the broadsheets to the front pages of the tabloids. The key events are well known.
First, there was the libel case against Simon Singh by the British Chiropractors Association which led, on 18 May 2009, to the establishment of the Libel Reform campaign. This led directly to Lord Lester’s 2010 private members bill and, ultimately, to the Defamation Bill presently before Parliament.
Then there was the “super-injunction spring” of 2011 – a dozen privacy injunctions restricting tabloid publication of stories with no public interest led to a sustained media campaign to break them – partly inspired by social media – and a report from committee chaired by the Master of the Rolls [pdf].
Finally, on 6 July 2011, after the revelation that News of the World journalists had hacked the mobile telephone of the murdered schoolgirl Miller Dowler, the Prime Minister announced the establishment of the Leveson Inquiry into “the culture, practices, and ethics of the press” which reported in November 2012.
This is the context in which we are now considering the future of libel, privacy and freedom of expression online. Curiously, as many commentators have pointed out, much of the focus of the past three years has not been on the future at all and very little has been said about libel, privacy and expression online. The Defamation Bill and Leveson Report are largely concerned with the issues of the past.
The Bill tinkers with the common law of defamation but does not attempt to provide any new general analytical framework to deal with legal responsibility for damaging publications. It says very little about online publication. It says nothing explicit at all about the need to balance the competing rights to expression on the one hand and reputation and privacy on the other. In the modern case law reputation and privacy are seen increasingly as aspect of the rights under Article 8 of the European Convention on Human Rights, as aspects of what might be called the right to dignity.
By its terms of reference, the Leveson Inquiry was only into the “press”. Although some of the evidence did address online issues, the regulation of social media was, as Judith Townend described it, “the elephant in the room” which was not directly addressed.
The Internet and the Media
It is worth reminding ourselves how much has changed in the world of information gathering and dissemination and how quickly. The internet has been with us for barely a quarter of a century. Its real beginnings were in 1993 with the launch of the “Mosaic” browser. Since then the internet has transformed the nature of information gathering and dissemination beyond all recognition. Google, we sometimes forget, only began in 1998 – at that time Messrs Page and Brin thought they could produce a searchable copy of the entire internet on a single PC. It now indexes some of the order of 50 billion web pages with 1.4 million searches a minute.
Twitter started in July 2006 and now has over 500 million active users. Facebook launched in February 2004 and now has over 1 billion active users. At the height of the US presidential election there were a record 327,000 tweets a minute being sent. Every week Twitter users send 1.2 billion tweets and 22.4 billion likes and comments are put onto Facebook. This is not to mention the 14 million blog posts a week or the 6 million videos uploaded to You Tube.
And social media and internet communication will not remain static. There is a good chance that in a decade Twitter and Facebook will have gone the way of Ceefax or Napster.
The impact of all this on the traditional media has been profound. For a detailed analysis I would commend John Lanchester’s important article on the future of the press, “Let us Pay” (discussed here on the Inforrm blog). In short, in the United States the “Craigslist” site has taken away the crucial revenue stream from classified ads and, almost single handedly, destroyed the economic base of many US newspapers as a result.
In contrast in the United Kingdom, the national (as opposed to the local) press has fared rather better – despite the impact of the internet substantial profits were made in the last financial year by News Group (£103.6 million) and Associated Newspapers (£34 million). Express Newspapers broke even. As usual, the broadsheets did less well the perennially unprofitable Times Newspapers, which owns the Times and Sunday Times, reduced pre-tax losses to £11.6 million from £45 million the previous year. The worst results were from the Guardian and the Observer which lost £44.2 million in the last financial year.
So the mainstream media, even the print media in some form, is going to be with us for some time. Any legal and regulatory framework which is proposed needs to take them into account as well as the “new media” of the internet. But it also needs, crucially, to look at the way in which information is dealt with on social media.
The Law of Defamation and Licensing the Presses
To look at the future we need first to understand why we are where we are in the present. It is often said by libel reform campaigners that the law of defamation is not “fit for purpose”. There are, without doubt, many respects in which the present law does not, properly reflect the balance between expression and dignity. The law, as it now stands, is marked by its historic origins. A classic account of this can be found in V V Veeder’s classic article “The History of the Law of Defamation”.
The law of defamation developed, over more than four centuries to protect reputation. It was a tort which developed and refined in the age of printing and at a time when the relative importance of reputation and expression was understood very differently from the way we understand it today.
The modern law has its origins in the Star Chamber. This was also the body which was responsible for the licensing of printers. The Star Chamber was abolished in 1641 but press licensing was put into statutory form by the Licensing of the Press Act 1662 and continued until Parliament refused to renew it in 1695. It is an oft repeated refrain of the opponents of press regulation that any statutory framework for regulation would represent a return to the dark days of “press licensing” of the seventeenth century.
The common law “speech crimes” established by the Star Chamber – blasphemous libel, obscene libel, seditious libel and defamatory libel - remained of great importance for several hundred years after its abolition. Although they had fallen in disuse in modern times, they were not finally abolished until 2008 (in the case of blasphemous libel) and 2010 (for the other three).
The regulation of the presses was also a matter considered by the seventeenth century Judges. In the 1670s, the Judges of England met at the command of Charles II to “give their opinion” as to “what was to be done in Point of the Regulation of the Press” – an early precedent for the task entrusted to Lord Justice Leveson (although “press” in this sense meant all kinds of printing).
On that occasion, the judges appear to have been little concerned with the importance of freedom of expression or the balancing of rights. As reported by Chief Justice Scroggs, the judges were of the view that
“to print or publish any News-Books or Pamphlets whatsoever is illegal; that it is a manifest intent to the breach of the peace and they may be proceeding against by law for an illegal thing” (R v Carr (1680) 3 State Trials 57, 63)
This was, at least a clear view. No complex “balancing” was required. The view did not even depend on the material in the “news book or pamphlet” being defamatory. Sir William Scroggs continued
“Suppose now that this thing is not scandalous, what then? If there had been no reflection in this book at all, yet it is illicit and the author ought to be convicted for it. And that is for a public notice to all people, especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever, without authority” (ibid, 64).
What was the reason for this blanket prohibition on publication without authority? In contrast to Lord Justice Leveson’s long and careful inquiry, this was a matter on which the Judges of England in the 1670s felt able to draw clear factual conclusions without further investigation:
“The reason is plain. So fond are men in these days that when they will deny their children a penny for bread, they will lay it out for a pamphlet. And it did so swarm and the temptations were so great that no man could keep two pence in his pocket because of the news. But still they never repented of laying out their money, till they found there was nothing against the Government. This is not worth a farthing, there is nothing of treason in it, we will not give a farthing for it” (ibid, 64)
Despite indications that much time is, nowadays, wasted “surfing the net”, this is unlikely to be a view which would find favour with any modern judge. We now believe it to be in the public interest for men – and women – to want to read “news books” and “pamphlets” containing material “against the Government”. That is part of a healthy democracy. The difficulties of “regulation of the press” nevertheless remain. These will be considered in Part 2.
An earlier version of this paper was given at the JUSTICE event, “Life and Law Online: Defamation, freedom of expression and the web” on 2o November 2012