Caution becomes the standard

I've already said that if you drew a line for the amount of freedom of expression granted in the UK over time, the line would now be dipping. At present there are at least 10 areas of law which pull down this line, making the areas journalists should write and talk about smaller and smaller. Journalists are losing the contest.


Libel
English libel is the harshest in Europe. US courts will no longer look at the decision of English libel courts as they are so far out of step with the defence of freedom of speech. The libel laws can be used preemptivly. Recently a banker appointed a leading libel lawyers before any allegedly libellous material was published in order to defend his good name. Also, it can and has been used by rogues to cower the press: Robert Maxwell was a past master at this.

Copyright
This growing law curtails the right to quote extensively from other sources as information is treated more and more like property. The arguments about copyright rage on. One side says that copyright encloses the creative commons, depressing the creativity of us al. The other side says it wants a return on the content it was generated or paid to be generated.

State secrets
The UK state is one of the most secretive in a democracy. Actions taken by the executive are bound up in the red tape secrecy. The FoI Act has had only a marginal impact on this tradition. As Peter Gillman, the veteran investigative reporter, ex-Insight on the Sunday Times, says: “The jury is still out on whether the FoI will bring a significant change in the culture of secrecy affecting British government. So far we have seen the FoI's effect mostly in the battle to secure historical documents, with a mix of victories and setbacks. I suspect that government figures are now altering their practices so as to avoid embarrassing FoI disclosures in future, rather than responding to a climate of greater openness. The traditions of secrecy are so far engrained in Whitehall practices that it will take more than the FoI to reverse them.”

Confidentiality
The country has had a confidentiality law since the 1840s and it is used to silence potential publication.

Court reporting
Local and regional papers have to battle every day to fully report courts and often find the balance is weighed against them by judges. And one third of the High Court – the family division – deliberates behind closed doors just as did the old Star Chamber. There is some discussion about opening up the family courts. But as soon as it is raised government ministers have pointed to the concerns of child charities and voluntary groups about the privacy of children. It seems more than likely to us that any opening up the family court would be trumped or severally restricted by the growing concern about privacy.

Race
It is an offence to make or publish statements which are likely to create racial hatred.

Religion
It is now an offence to make statements intended to create religious hatred.

Under aged offenders
It is an offence to publish the identities of under-aged accused and offenders.

Alleged rape victim
It is an offence to publish the identities of those making accusations of rape, even if the accusations are proven false.

Privacy
There is a growing law of privacy in this country, triggered by the same Human Rights Act which formally stated the freedom of expression. As a High Court judge has recently said: “There is a balance between, on the one hand, freedom of expression and the interest of the public to receive information, and, on the other, the legitimate expectations of citizens to have their privacy protected. The shift is towards privacy.”

Good intentions
Some of these restrictions may have been passed with the best of intentions. For example, racial hatred needs to be fought. But the intentions of legislators are unimportant; it is the affect it has which matters. We see a steady erosion of the area where journalists can work. Journalists and publishers take these increasing restrictions seriously. Indeed, we see an increasing mood of caution in UK media. Caution is the watchword in many publications with a steady drip drip of damages and legal fees coming out of the budgets of publications, forcing some into bankruptcy and restricting the budgets of others.

But what of Private Eye you ask? Is this not the type of courageous journalism you are proposing. Yes it is. And the Eye proves our case. Perhaps as much a third of the turnover of this small, underfunded ,under staffed fortnightly goes on legal fees. And where does the Eye get many of its stories from? From journalists on larger-circulation and better-funded and -staffed publications who cannot get the story into their own publication because of this mood of caution among editors.

Get your retaliation in first!

Get your retaliation in first!

“Get your retaliation in first” was an old saying of Welsh Rugby Union coaches. Edward Cahill of Barclays Capital has taken this to heart. He has appointed no less than the lawyers Mischon de Reya as his libel lawyers to make sure the press do not libel him.

Cahill was one of the architects of the “sub-prime” debt scheme which seems to be unravelling and giving bankers headaches. His lawyers will probably be doing the rounds of the business press reminding them of the full rigours of the English and Welsh libel laws.

This pre-emptive shot across the bows of the press is not unusual. It happens more than we think. Years ago, investigating a rogue called John Foulston and his Atlantic Leasing Company I experienced the same. I would interview Foulston about once every six months and he would often open up with “Good to see you Richard. You do remember that we defend the good reputation of Atlantic Leasing with the full rigour of the English libel laws. Now what's your questions?”

I can call Foulston a rogue because he is now dead. And his company, when taken over by a larger one, sucked all of the cash out of it and imploded. Foulston by then, as I recall, was long gone, sold out with a pretty package.

Not that Cahill is a rogue. Not that he was sacked. And not that Foulston's Atlantic Leasing has anything to do with the other companies of that name now trading. I am happy to make those things clear.

The word “sacked” is always a dodgy one. People are seldom sacked, especially from high profile jobs. They leave to spend more time with their family. Or are moved to special projects. I once said a senior director of IBM UK was sacked for under performing. He did not sue, but later told me he had consulted his lawyers and could have. Indeed he could. But luckily for my publishers and me he did not.

Cahill is taking a more active strategy than the IBM UK director. Pity that he feels he has to use the libel laws in this way, it amounts to pre-publication pressure. But his reputation is at stake and reputation is at the heart of libel.