Libel laws, the rise of the database state, global economic problems, and even the press itself: there was consensus among the panelists at today’s session on press freedom at the Convention on Modern Libertythat a crisis is developing. The question was what can be done about it.
The Guardian’s editor-in-chief, Alan Rusbridger, knows more than most about defending libel actions. The detail of libel law is a difficult subject, he said, mostly of interest to journalists. But the wider issues pose important social questions. What, for example, will a surveillance society mean for whistleblowers and journalists?
On the libel question, Rusbridger identified two key problems: libel tourism; and the cost of defending cases. He likened the libel industry to the investment banking business (before the bust). In the UK, the courts make it easy to sue, and the results make this an attractive prospect. But the costs need scrutiny: the expense for defendants in England and Wales is 140 times more than in Europe.
In Pakistan, Fatima Bhuttosaid, the real issue is not libel but what happens when things you care about cannot be legally discussed. The Pakistani press developed novel, and sometimes cheeky, ways of exposing censorship under Muhammad Zia-ul-Haq, she said. Space was left empty where the censor had insisted on cuts. When this became illegal, the space was filled with pictures of donkeys and farm animals.
Now, Bhutto warned, that vigilance is slipping. And the recent Prevention of Electronic Crimes Act has given the authorities such sweeping powers of control and surveillance that one wonders if self-censorship is not as great a problem as direct intervention by the government. The powers in the act are being put to use against those engaged in “character assassination”, and crimes including spoofing and owning a fake email account are punishable with prison sentences. “This is as scary as it sounds”, Bhutto concluded.
The threat to press freedom also comes from the press itself, Andrew Gilligan admitted. Many people see the press as, in some ways, an abuser of human rights, and calls to defend it are not always shared by the public.
The press needs to start getting angry and vocal about press persecution, and should be looking for ways around the repression of the state – perhaps through encryption (although a speaker from the floor pointed out there is a law against this now). Journalism relies on sources and whistleblowers, and without some protections, people will not come forward, Gilligan said.
Nick Cohen of the Observer argued that the English judiciary cannot be trusted to protect the press. There is a lack of instinct for liberty in the courts, and that is not something that can be taught in law school.
He listed several examples of people being sued in the English courts for alleged defamation that had not been perpetrated in this jurisdiction. It ought to be a matter of shame, Cohen said, that people around the word are having our laws imposed on them.
So, what of solutions? Admitting that she was going beyond her brief, the chair waded into the debate. Joanne Cash, barrister and Conservative candidate, outlined her proposals to strengthen the position of the press, and responded to an audience question that, yes, she was lobbying senior Tory MPs to get these changes onto the policy agenda.
Cash made four key suggestions: that there should be a defence, like the Sullivan defence in the US, allowing the press to write about public figures; that the Reyolds defence should be widened, because it is being too narrowly interpreted in the courts today; that the artificial extension of the period a litigant can sue for content on a website (a year from when the last date is available on the site) should be limited; and that there should be increased protection for sources.
With a good chance that the Conservatives will be in power after the next election, the press will no doubt be watching this space.
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