ANALYSIS:Given the frequently outrageous behaviour of the British tabloids, it would be easy to forget that press freedom in the UK is coming increasingly under threat, writes MARK HENNESSY
FORMER FORMULA One boss Max Mosley, quite a successful barrister in his younger years, could have ended up as a judge. But inevitably he will be best remembered for his vigorous sexual appetites. Mosley won a libel action against the News of the Worldnewspaper after it alleged that he had taken part in Nazi-themed sadomasochistic orgies, but his reputation was left in tatters once his private sexual peccadilloes had been thrown open to public glare.
Sitting under a 500-year old portrait of Lord Robert Cecil in one of the citadels of the British legal system, Gray’s Inn, last Thursday night, he held on to his sense of humour, musing about the difference between spectacular depravity and ordinary depravity.
He had been accused by the Daily Mail– the paper that styles itself as the trenchant voice of Middle England – of the former. "Having checked, I think [spectacular depravity] is leaving the lights on," he said.
The audience, including judges, newspaper editors, lawyers, former newscaster Anna Ford and publicist Max Clifford – now managing the affairs of ex-England captain John Terry’s French former lover – laughed uproariously.
Behind the humour, though, lies a serious point. Mosley has reinvented himself as a privacy campaigner, arguing that neither his conduct nor that of the ex-England captain are matters of public concern. “I cannot exaggerate the effect that these invasions have on people. They destroy marriages, they destroy people, they destroy careers,” said Mosley, speaking on the basis of experience.
Furnished with such stories, he said, newspapers should be bound in law to tell the subject and go before a judge who would then have the right to decide whether the material should be published or not.
Terry got what has been termed a super-injunction – one that banned both reporting of his affair and the fact that the injunction had been granted in the first place but this was eventually overturned by a judge.
The battle over privacy has intensified since the incorporation of the European Convention on Human Rights into UK law – an “irreconcilable” conflict, said barrister Siobhan Grey.
“Deprive the press of the opportunity to extract the last drop of juice from a ripe exposure and you risk stifling the legitimate and free public debate which is essential to a healthy democracy,” she said.
Taking the floor, Clifford offered no pretensions: “Having broken more stories than anyone else in the room, can I say that 90 per cent of them could not be justified.”
In France, privacy is protected by law, leading to one newspaper having to pay out after it carried a photograph of a man waiting for a train to illustrate a piece about a transport story.
Even more bizarrely, one magazine “pixellated” (that is, digitally altered so as to make unrecognisable) the faces of everyone included in a photograph of a sun-kissed beach holiday scene, lest it provoke privacy claims from each and every person identifiable.
Though the Terry story could not happen in France and perhaps should not happen anywhere, the United Kingdom’s place on international press freedom lists relating to journalism that actually matters has dropped by 20 places in recent years.
The egregious conduct of the tabloids masks the important reality that stories of substance are not being published – and not just those in the UK, but those from anywhere around the world.
The UK has become the location of choice for the world’s wealthy and powerful to sue for defamation – so-called “libel tourism”, leaving foreign newspapers, including
one from Ukraine (with a 100-strong readership in the UK) and scientists in the dock.
So drastic has the situation in the UK become that some US states have already passed legislation refusing to allow the enforcement of British libel awards, while a Bill is before the US House of Representatives to do the same for the US as a whole.
Former director of public prosecutions Ken MacDonald, who has long campaigned for reforms, urged British justice secretary Jack Straw to bring in major changes quickly.
“Our law should not associate our country with the suppression of free comment or the stifling of information so that it dies out before it can pass around the world. We don’t really want to be discouraging journalists in Ukraine,” he said. Nor should the law allow major corporations so much freedom in the courts. Instead, the Australian model – where corporations are banned from taking libel cases – should be followed, MacDonald argued.
From the floor, one lawyer told about a local newspaper that was sued after it correctly reported that a company had defrauded the revenue department – only to win at the last moment in the House of Lords. Most local papers cannot stay in battle that long and quit earlier in the legal process.
Meanwhile, scientists are now in revolt and many more have become exceedingly wary about making criticisms of drugs and medical devices, among other things, out of fear that they will follow others in facing ruin in the courts.
The “super-injunction” sought by Terry and by golfer Tiger Woods before him is but one aspect of the current situation, though the legal sledgehammer’s moment may have already passed its high point.
Last October, London solicitors Carter-Ruck secured an injunction barring the Guardianfrom reporting a question in the House of Commons that probed an earlier super-injunction barring publication of a report into toxic oil dumping in West Africa.
The strategy backfired on Carter-Ruck and its client, Trafigura, after details leaked on Twitter and were read by far more people than would have read them had the lawyers stayed out of court. The heightening costs of libel, however, were illustrated by Guardianeditor Alan Rusbridger who spoke about a 2008 report the paper carried about Tesco which prompted legal action by the supermarket giant.
From the beginning, the Guardianadmitted an error and offered an apology and eventually ended up facing "tiny damages, but massive costs", he said. A follow-on series about tax avoidance by other major firms, however, cost £100,000 in legal costs before it could be run.
Mark Hennessy is London Editor