When in 1991 I qualified I into a well-known claimant media practice I was fortunate enough to find on my desk on the first day that I arrived a file containing a libel action being brought against London Weekend Television (by whom my new firm had just been instructed).
LWT was being sued by a corrupt local politician who was using his Freemasonry connections to nobble planning committees and secure planning permission on land which otherwise would not have any chance of being granted planning permission, and by that means dishonestly making very large sums of money.
Shortly after I took the file over, the ill-drafted defence that I inherited was struck out, and the prospects of defending the action looked bleak, our predecessor lawyers having recommended a very substantial offer of damages to this corrupt individual. We appealed against the strike-out application, which gave me a period of nearly a year to work on what was then called the “justification” defence (now called “truth”) and make it good, during which time I worked as much as an investigative reporter as a lawyer.
Armed with the fruit of my research we applied to amend, on the eve of the first day of trial, with several pages of a new justification defence – a hearing which was vigorously contested. All our amendments were, however, granted in full, and a few weeks later the claimant served a unilateral notice of discontinuance. I was told that LWT had never been in a libel action where their costs had been reimbursed, and so had to create a new accounting process to permit this. I went on to build a defendant practice on that success.
So it was that, despite starting my career at a leading claimant firm, I have been fortunate enough to have had a rich mix of claimant and defendant work; and in particular it has been my privilege to protect high-quality investigative journalism. I hope that this allows me to consider media law issues with the benefit of seeing the perspective of both sides. There was then, as there is now, an almost complete divide between claimant and defendant lawyers, especially when it comes to Fleet Street. I believe that it is, however, a relatively new phenomenon that what we used to call defendant lawyers have now taken to calling themselves Free Speech Lawyers (“FSL”). Having seen a website for American attorneys claiming that moral high ground, I suspect it is one of those phenomena which has invaded us from the other side of the Atlantic.
What is free speech?
It begs the question then, what is a FSL? To answer this, we must decide what is the true nature of free speech. The only place where I can think of to look to answer that question is Article 10 of the European Convention on Human Rights, which reads as follows: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …” (emphasis added). The second part of the article states that with this right comes responsibilities.
There are three features of this precious human right which are often overlooked, especially by FSLs. Strikingly the first part of the right of free speech is the right of the individual to receive information. The second is that the right requires that “information” should be freely imparted, information being “facts provided or learned about something or someone”. I take that to mean that “information” that is in fact false is not information at all and therefore falls outside the Article 10 right. The third is that the right should be exercised responsibly.
These key features of the Article 10 right are recognised in both the IPSO and the NUS Codes, both of which stress the need for care to be taken not to disseminate false “information”, and where that happens for the falsity to be corrected. They recognise therefore that dissemination untruths have no place in genuine free speech; and that those who have been misled have the right to receive information in the form of a correction of the false information that they have received.
Is the free-speech right fairly distributed?
Although there has been some mitigation of this with the advent of social media, when it comes to exercising the right of free speech there remains an immense inequality between the behemoths of Fleet Street and even the highest-profile individuals and corporates (such as charities, NGOs, and companies trading for profit). As George Orwell sagely observed in his wonderful Animal Farm, so far as the ruling pigs are concerned, “some are more equal than others”. For the free-speech pigs, read behemoths like Associated Newspapers and News UK.
The reason that we need both effective press regulation and the protection of reputation and privacy is precisely because without them those money- and hubris-driven behemoths of Fleet Street will mislead us according to their editorial whim, and further rob non-porcine individuals and entities even of such free-speech audibility as they would otherwise have by telling lies about them.
What do FSLs do pre-publication?
What is it that the self-styled FSLs of our country do to justify claiming the moral high ground – which not only do they ascribe to themselves but inevitably do to those whose interests they serve? An ex-journalist at a leading Sunday tabloid told me of his high-profile in-house lawyer and that this individual had facilitated the publication of more false stories than anyone else he knew. Do FSLs at newspaper groups which have been found guilty of serial criminality and human rights breaches, regard it as part of their sacred calling to turn a blind eye to, facilitate, deny and/or cover up this wrongdoing?
But the role of FSLs prior to publication is not the primary subject of this article. It is their role post-publication, along with the roles of individuals like newspaper apologists such as managing editors, “ombudsmen”, and entities such as IPSO, that I want to expose to the harsh light of reality. They are the ones who “chill” free speech by trying to prevent those who have been misled learning the truth – a right which Article 10 ranks no lower than the right to disseminate information.
Who are the real FSLs post-publication?
One of the jobs of FSLs whose titles are part of the IPSO regime clearly regard their altar-service to the false god of free speech (a counterfeit of the true one) as including the prevention of those who have been misled by their titles from learning of that fact. They do this by trying to ensure that the corrections are a fraction of the size and prominence of the offending article. For example, every time IPSO refuses to order the correction of front pages via the front page it drives a coach and horses through Article 10 by denying the free-speech right of the millions of non-purchasers of the paper who have been misled by the front page to receive the corrective information in the only place where they will see it. It therefore proves the claim on its website to “help maintain freedom of expression” to be entirely false, and consequently a flagrant breach of its own Code against misleading or inaccurate material.
It must be difficult for those who are employed to be apologists for the same organisations and individuals who cynically blitzed the Article 8 rights of many thousands via phone hacking, blagging, bribing police officers, etc, to place their earnings/bonuses at risk by ever reminding those that employ them of what the true nature of free speech is. Those in private practice, however, have much less excuse.
Although I should no longer be, I am still astonished when counsel settle defences denying the defamatory nature of an article which is blindingly obviously defamatory; and solicitors (doubtless citing free-speech principles) sign statements of truth to such pleadings. I remember one hearing where Sir Michael Tugendhat, with his customary grace, declared being surprised at the assertion made via the paper’s lawyers that an article was not defamatory, saying that until he had read the defence it had not even occurred to him that the article was anything other than defamatory. A leading FSL QC was on his feet at the time, and later spent a pointless half hour trying to persuade a Court of Appeal judge that the same publication meant other than it plainly did – thereby making a second attempt to rob the readers of his client paper of their right to learn that the paper had misled them.
Another routine task for FSLs both at the Bar or in the solicitor profession is to promulgate defamatory meanings for publications which they blindingly obviously do not bear. The defamatory meaning they advance is one which is crafted around the facts which the newspaper thinks it can prove, rather than the true sting of the publication. Again, I have no idea how the barristers who produce such documents, and the solicitors who sign off on them, are able to do so with a clear conscience; or with any sense that they are truly serving the cause of free speech. This is an exercise in preventing those who have read the offending article, imbibed its sting and been misled, from learning the truth – thereby trashing their free-speech rights. In those circumstances there is no doubt who the FSLs are; it is those who are acting for the claimant.
So it is in an IPSO complaint where there is an argument over the prominence of the correction; it is the claimant’s lawyers who are the real FSLs because they are seeking to ensure that those who have been misled by a newspaper article are disabused of that false information, thereby securing their Article 10 rights. Since the paper has stepped outside its Article 10 right by publishing the false information, it has no free-speech right to defend.
My most recent encounter with an FSL acting for a broadsheet newspaper concerned an Islamophobic attack on a moderate Muslim community leader by whom I was instructed. The FSL sought to deny the readers of that paper their free-speech rights by insisting against the plain words of the article that it meant something other than what a judge subsequently emphatically found was the case, and as we had said it meant.
When that was brought to an abrupt end at a preliminary trial on meaning, the retreat position was to try to deny the claimant the Statement in Open Court which fulfilled the element of the Article 10 right which is less popular in Fleet Street; namely the entitlement of the general public to receive information – such as the information that this individual had been falsely accused by a national newspaper of severe wrongdoing and anti-social activity.
As any victim of falsities promulgated by one of the Goliaths of Fleet Street will tell you, one effective means of robbing an individual or organisation of their right to free speech is widely to disseminate damning lies about them. The real FSL is the solicitor and/or barrister acting for that individual, particularly (as was the situation in this most recent encounter with FSL) a community leader. In those circumstances not only has the leader’s free-speech right been undermined, but so has that of the community that they serve as its mouthpiece.
The ugly truth is that the real divide is between those who earn their living by doing the unquestioning bidding of powerful and now proven-to-be-corrupt organisations whose hubristic ambition is to say whatever they like without being accountable to anyone, and those that hold these entities to account when they offend against the real principles of free speech. It is the determination of entities such as News UK and Associated Newspapers to be accountable to nobody but themselves – evading the obligation of responsibility placed on them by Article 10 – which has created yet another hopelessly compromised regulator in the form of IPSO, whose glaring lack of independence is itself a dire threat to true free speech.
The seven deadly sins against free speech
Now that the anti-democratic (true) free-speech-hating powers of Fleet Street have bullied a weak Conservative into abandoning Leveson 2, contrary to the strong views of Sir Brian himself, if we want a press which truly serves the public interest rather than its own, then it is down to media lawyers to play their part to bring about change.
The only way they can do that is to take a principled stand against the routine abuse of free speech for which Fleet Street is responsible. This would be a good start:
- Never seek to delay the publication of a correction when it is clearly warranted.
- Never seek to ensure that a correction is less prominent than the original.
- Never settle or sign a defence which denies that an obviously defamatory publication is defamatory.
- Never try to defend a libel action by asserting a defamatory meaning that a publication plainly does not bear.
- Never stand in the way of the reading of a Statement in Open Court for a successful claimant.
- Never write articles making false claims about libel law to the effect that it is unduly antipathetic to free speech – which we all know it is not.
- Never comment in support of IPSO with claims that it has any legitimacy or independence – when we all know that it does not.
Not that any of them would instruct me in any event, but one of the reasons why I have never acted for a Fleet Street title is that if I did, I would frequently be required to commit at least one of these seven deadly sins against free speech, which as a true FSL (and devout Christian) I am not prepared to do. If all of we media lawyers refused to do any of these things, then what an extraordinary difference we would make – dragging almost overnight the British press from being the least trusted in the EU to being a world leader.