LIBEL LAW Sky's the limit as Scientology wins 2nd UK battle

UPDATE: See also Going Clear: the film Scientologists don’t want you to see.

2013 LIBEL REFORMS UNDONE BY NOT APPLYING IN NORTHERN IRELAND?

IN A NUTSHELL: The Church of Scientology has successfully used libel law, reformed in England, Scotland and Wales but not Northern Ireland, to intimidate Sky, who opted to abandon a broadcast of a film critical of the 'church' rather than face expensive legal proceedings. They don't have the technical ability to separate the signal to ensure the film wouldn't be broadcast in Northern Ireland, so the 2013 libel reforms, designed to stop 'libel tourism' and abuses of super-injunctions by the likes of Trafigura, seem to have been rendered null.Another good example of why we need to look beyond the formal regulators to laws as well.

Notes after reading TV ‘exposure’ of Scientology halted by UK libel law split.

In its goal of preventing a broadcast of Going Clear in the UK, the church has an unlikely ally in Northern Ireland’s libel laws. The 2013 Defamation Act set out a new defence for public-interest journalism on the British mainland: that the plaintiff has to show “serious harm” has been done to it. 

LEVESON, LAW Operation Elevden collapses, public interest defence wins

OPERATION ELEVDEN COLLAPSES - IS THIS THE ULTIMATE FAILURE OF LEVESON?
This is quite complex if you've not being following the fallout from the Leveson Commission. Aside from the recommendation for a new regulator with a Royal Charter status (and the vague threat of statutory regulation if this failed), which has essentially failed (IPSO doesn't really match up), Leveson was also tasked with investigating the relationships between press and politicians, plus press and police (and public bodies more widely).

In an explosive statement made to the Leveson inquiry in the middle of the police investigation, Sue Akers, the deputy assistant commissioner of the Metropolitan police, gave details of the operation, claiming her officers had uncovered a “network of corrupted officials” and a “culture of illegal payments”

Operation Elevden was the (Met) Police response to this, a £20m investigation with 20 journalists charged. The press was quite uniformly condemnatory of this, likening it to McCarthyism and seeing it at least partially as organisations (the Met and CPS, Crown Prosecution Service) whose reputations were damaged by Leveson, playing politics with criminal prosecutions.

Elevden now lies in tatters after a none too impressed senior judge threw out most of the cases, forcing the CPS to withdraw several prosecutions.

KEY POINT: GOVERNMENT HAVE PLENTY OF STATUTORY POWERS OVER PRESS!!!

Crown Prosection Service as regulator: journalists' public interest defence

I'm writing in Sept 2012 when its widely assumed PM Cameron will afford the press yet another extension to 'drinking in the last chance saloon' (David Mellor's famous phrase from the time of Calcutt's Report). However, a review by the CPS establishes its credentials as a regulator of last resort above and beyond the PCC or any successor body. Details of a review of criteria for prosecuting journalists have just been published, which, amongst other things, begin to set out a firmer legal definition of the public interest defense that many of the PCC's code of conduct clauses had as an asterisked exception, or get-out; it also clarifies issues around privacy:

CPS publishes advice on prosecuting journalists over illicit newsgathering

Changes following five-month consultation on draft guidelines include closer scrutiny for so-called 'fishing expeditions'

• Josh Halliday
• guardian.co.uk, Thursday 13 September 2012 14.31 BST

Director of public prosecutions Keir Starmer. Photograph: Linda Nylind for the Guardian

The Crown Prosecution Service has published its final guidelines on the prosecution of journalists over illicit newsgathering methods, with so-called "fishing expeditions" to face closer scrutiny.
Keir Starmer, the director of public prosecutions, said on Thursday that the guidance underlines the need for prosecutors to consider public interest factors before deciding whether to bring criminal charges against journalists.
"The purpose of the guidelines is to strike the right balance between the important public interest in a free press and the need to prosecute serious wrongdoing," said Starmer.
Changes following a five-month consultation on the draft guidelines include fresh guidance on prosecutions in cases involving fishing expeditions, and examples of stories that could be described as raising important matters of public debate.
The guidance advises prosecutors to consider what information was available to a journalist at the start of their investigation into the target of a story. This means that fishing expeditions – where the journalist does not have prima facie evidence of wrongdoing before using illicit newsgathering methods – will face closer scrutiny by prosecutors when deciding whether to launch criminal proceedings.
Another section gives examples for the first time about what prosecutors should consider "important matters of public debate". The guidance says that serious impropriety, significant unethical conduct and significant incompetence should all fall under this category.
The revised guidelines contain more detail about invasions of privacy by journalists. Prosecutors are advised to examine the particular impact of the invasion of privacy – which could include voicemail interception or email hacking – on the victim.
"When considering invasions of privacy, regard must be given to the level of seriousness of the invasion, whether on the facts there was a reasonable expectation of privacy, and whether the conduct in question was proportionate to the public interest claimed to have been served," the CPS guidelines state.
The guidelines come into force immediately and represent the first formal CPS policy involving the prosecution of journalists. They follow an unprecedented spate of arrests of journalists in Scotland Yard's investigation into alleged phone hacking, computer hacking, other breaches of privacy, and payments to police and public officials.
The CPS said it had examined ongoing prosecutions in this area – including the high-profile charges brought against former News International chief executive Rebekah Brooks and the former News of the World editor Andy Coulson – and decided they are in line with the formal guidance published on Thursday.
Prosecutors are advised to consider whether the public interest served by journalistic conduct outweighs the overall criminality before bringing criminal proceedings.
The acting chairman of the Press Complaints Commission, Lord Hunt, welcomed the guidance and said he hoped it would "generate a greater understanding and appreciation of the public interest, and also of the need to take it into account in editorial decision-making".

Leveson hasnt changed press: Greenslade + privacy cases

Roy Greenslade rather caustically points to the papping of 2 TV journalists as indicating that the red-top press has very swiftly forgotten about Leveson and returned to type, pointing to the printing of the naked Prince Harry pictures as another example of this.

I usually agree with RG, but I'm not completely sure on these examples, Marr/Murnahgan/Harry - what do you think? Have the press once more ignored the PCC code or is there a genuine public interest defence?

• Monday 10 September 2012

• Bah, humbug! There's no public interest in sneaky pictures of TV journalists

  I often quote Tom Stoppard's line about the "casual cruelty" of newspapers. Sometimes though, it is far from casual as Dermot Murnaghan and Andrew Marr will testify today.
  They have suffered the embarrassment of being pictured - in the Sunday Mirror and The People - kissing women who are not their wives. And the Daily Mail's website has followed up by publishing both sets of pictures too. (No, I'm not going to link to any of it).
  Why have the pair been papped? Here's the public interest defence. These men, by virtue of appearing on television, are role models. They are married. According to the editors' code of practice, the public interest is served by "preventing the public from being misled by an action or statement of an individual or organisation."
  So Murnaghan and Marr - both of them journalists, incidentally - are "guilty" of misleading the public. Case proved. As for the invasion of their privacy by snatching sneak pictures, that's fine too because the men were snapped while in a public place where all the world could see them.
  The public has a right to know and all that. Editors may say they do it more in sorrow than in anger. It's a dirty job, but someone has to do it. Bah, humbug!
  There are all sorts of questions to be asked about the nature of the tip-offs that led to the photographers stalking their prey. But I guess we can be sure it didn't involve phone hacking this time.
  But what's the point of my bellyaching about these gross invasions of privacy? The tabloids are reverting to type, so my complaints are not going to change anything.
  With the Prince Harry pictures and these two new examples, it is abundantly clear that the so-called Leveson effect is history. Celebrities are fair game again.
  Duck for cover, Hugh Grant. Watch out, Charlotte Church. Stay home, Steve Coogan. The paparazzi are back in play. The tabs are on your tails. And you can't all flee to Afghanistan.
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  Roy Greenslade

  14.55 BST

PCC guidelines on Public Interest

The public interest

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.

1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.

2. There is a public interest in freedom of expression itself.

3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time.

4. The PCC will consider the extent to which material is already in the public domain, or will become so.

5. In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.

Extracted from The Editor's Code.

Sky email hacking: Public Interest Defence

The following is an example of how you can combine Use of Examples (a case study of this instance of hacking), EAA + Use of Terminology (in analysing the pros/cons of the concept of 'public interest defence', and citing specific law which may overrule this: the Computer Misuse Act). Below you'll find differing lines from Sky, Guardian, Indie, Hacked Off and Reuters, plus a linked Roy Greenslade article on the wider concept.

Huge story breaking 1st week of April 2012: Sky has admitted to using email hacking for at least two stories it ran ... but claims there is a public interest defence. Sky trumpeted about 'obtaining' emails from the faked-death John Darwin in 2008; his wife pocketed a fortune from life insurance and they went to Panama to live it up (then rather foolishly posed for pictures with an estate agent).
Here's how The Guardian broke the story. An excerpt:

Making only a minimal effort to hide the basis of the story, Tubb's report said Sky News had "discovered an email" from John to Anne dated 31 May 2007, in which he says changes to visa regulations meant he could no longer stay in Panama, where he was hiding on a tourist visa. The report cited evidence from several emails between the couple, including a "final email" from Anne that was not, "as suggested in court", evidence of a "massive row" between them, an email that Tubb said had been "handed to the police by Sky News".
The story displayed a picture of "John and Anne Darwin's masterplan", showing a detailed diagram that had apparently been produced by Darwin, and claimed to have obtained detailed financial accounts prepared by Darwin. In another story, published in November 2009, Tubb quoted directly from an email written by John Darwin to his wife in 2007, explaining that their property in Panama had been valued at $1m and adding: "You're a filthy rich gringo". But a link to copies of the couple's emails is now dead.
The broadcaster also published a voicemail message on its website, dated 19 May 2007, in which Anne Darwin is clearly heard leaving a message for her husband. The voicemail, part of an interactive graphic, ends with her saying "I'll try and catch you tomorrow. Love you," which the broadcaster said showed "she was doing as much of the running as he was".
Sky News said this was not obtained by phone hacking and a spokesman said: "All of the material obtained by Sky News was via the Darwins' computer-based email accounts. As we have said previously, Cleveland Police were made aware of the source of the material when Sky News shared it with them. We stand by our editorial decisions, which were justified in the public interest."

Sky News responded today by accusing the paper of double standards; here's an excerpt:

Some of the most important stories have involved breaking the rules in some way. For example, the Daily Telegraph's exposé of the MPs' expenses scandal was very clearly in the public interest, but only happened because the newspaper took the decision to pay for stolen data. They have been widely applauded - deservedly - for doing so.

Indeed, if it was looking for further examples, the Guardian could have found them much closer to home. Its respected investigative reporter David Leigh has admitted hacking a phone in pursuit of a story. The Guardian's sister paper, the Observer, was found on more than 100 occasions to have commissioned information from a notorious private investigator, who was convicted in 2006 of illegally obtaining private data. In each case, a public interest justification has been claimed.

The story has lead headlines for days now. The Indie was one of several to flag up a key point of law which potentially undermines Sky's line that there was a public interest defence:

Although no one has been arrested for the computer hacking, there is no public interest defence in the Computer Misuse Act. The development follows the revelation that The Times, another part of the Murdoch news operation, was found to have hacked into the emails of the blogger Nightjack, who the paper outed as the serving police officer Richard Horton.

 The Hacked Off campaign group rejected Sky's defence:

“Hacked Off today renews its calls for a public interest defence in law after Sky News confessed to hacking into emails, claiming it did so ‘in the public interest’.
“Yet because there is no public interest defence in law for the Computer Misuse Act, Sky has to rely on the discretion of the prosecution services not to prosecute.
“This is unsatisfactory. If Sky News believes there is a clear public interest to hack into emails then it should have a clear and consistent legal defence for its actions.
“Journalists would feel confident to speak openly about the methods they use to discover stories in the public interest if they knew there was a proper defence for their actions in law.
“Hacked Off hopes that the Leveson Inquiry will recommend the introduction of a formal public interest defence in law for the protection of journalism.”

If you want an ostensibly neutral (I don't think such a thing exists) news source, here's how news agency Reuters reported the story.

Final word from me on this: NewsCorp has been guilty of flagrant abuse, and intrusions into the privacy of 1000s, but don't dismiss Sky's line of argument just because the source is arguably tainted; consider the merits of the argument, not just the source. Read more on the public interest defence in this book extract from the Roy Greenslade column.