A lot of the social media updates that have been published in the past few months have concerned social media and employment law. We have all heard stories about employers enooping on Facebook and Twitter, but at times there are genuine concerns about how the outpourings of an individual on social media could affect their employer. In this update by Karen Fletcher, a partner at Shoosmiths, she provides a brief run down on how social media could result in disciplinary proceedings, and how any such proceedings should be undertaken. A good introduction for both employers and employees.
Category Archives: Media
UCL and Bindmans co-host an annual debate on a topic concerning the Press, and this year saw the fourth such debate in the series. With all that has gone one in the preceding twelve months, this debate was incredibly ‘on-topic’ and was unsurprisingly incredibly packed with attendees from such large law firms, news organisations, and others involved in the Press.
The speakers for the debate were:
- The Rt Hon Tessa Jowell, MP for Dulwich and West Norwood;
- Martin Moore of the Media Standards Trust;
- Max Mosley; and
- Gil Phillips, Director of Editorial Legal Services for the Guardian.
Tomlinson started by setting a few ground rules for the discussion and two key questions: is it time for a privacy law, and is it time for statutory regulation of the Press? With the Leveson Inquiry in full flow and being broadcast, people are incredibly aware of the power of the Press, more so than during the time of the Calcutt Commission which advised the creation of a Press Complaints Commission.
The first speaker up was Tessa Jowell, who said she was basing her talk on her time at DCMS. For her, this is a key moment in time for a change. Her view was that we should not get stuck in past events, and that this period was something bigger than just between politicians and the media. It was the shock of the NewsCorp dealings with the police to get the public concerned with this issue; the public are more discerning than they are given credit for, the knowledge of the relationship between politicians and the media is well known.
She followed this with the point that nobody was that interested in the revelations about public figures, the public expect it as part of a celebrity’s media relationship. However, despite the revelations, a free Press is a must. The alternative is a lot worse, so there must be a better way to get a good settlement, a good balance.
Jowell said that she has no sense of political scores being settled by the hearings [AF note: though this may need to be re-evaluated in light of the Dacre/Grant spat]. The Press should be free, but needs a better understanding of what is acceptable as a method of getting a story. The Press should also be free of those with discernible vested interests, including those of the editors (especially their pact of mutual protection). There is a clear need for duality and balance; when the Press works along those lines it does its job best. The CMS committee is doing an excellent job of redrawing that balance.
Technology is allowing people to self-inform, and it is moving quickly. In Jowell’s opinion, the Leveson Inquiry is solving yesterday’s problems. There still needs to be concern about the ability of everyone to access justice relating to the Press, not just the rich. Serving in public life should be upheld as a good thing, but there is a risk that the quality of people coming forward will degrade due to the press risk. As DCMS Secretary, Jowell believed that media literacy was something to be promoted, especially the notion of words and timing. Instead, she feels that regulation is only the starting point; we need to look to an engaged and assertive public demanding the freedom of an intelligent Press.
Martin Moore followed up; he agreed with Jowell in that privacy as an issue is far bigger than the Press. Moore made reference to a Mark Zuckerberg interview where he stated that the age of privacy is over, and he would have made all information public from the start. He pointed out that the practical boundaries of private life have changed, the restraints have almost disappeared; especially with Facebook, publication is easy. He pointed to the suicide of Tyler Clementi, that the publication of videos and the consequences show that the practical restraints have gone, but we need something to replace them. People generally believe that there should be some privacy protection; people should respect the line between the public and the private. If there are no formal constraints, some agencies will use any means to get the story.
However, Moore pointed to the increased use of legal constraints to fill the gap of the now-defunct practical restraints, but this causes further tensions about where the line lies. That this legal protection exists is sensible, but the real question is how to protect the journalist’s right to intrude in the public interest.
This public interest defence barely exists in the protection legislation that is used often, using the case against the Guardian journalist to reveal her source as a good example of this. He set out some themes that form a public interest defence in codes created for organisations:
(i) preventing the dissemination of misleading information;
(ii) disclosing decision making for the public interest;
(iii) for health and/or safety;
(iv) to prevent corruption; or
(v) for the prevention of crime.
However, the one that never gets included is to test allegations of hypocrisy. A right of intrusion would better define the line between public and private. Good journalists will have the confidence to act, bad journalists will think twice.
Gil Phillips followed Moore. Her talk was based upon the Press’ perspective. The state of a democracy is shown by the health of its press. She doesn’t believe that statutory regulation is the answer, but there needs to be a new way of regulating. However, in that search for a new way, we must keep our perspective. Phone hacking is not a failure of regulation, but rather an instance of criminality at a paper and a failure of the police to investigate. Since printing has started, there have been state attempts to control the Press [AF note: a legal history lesson is always welcome]. Illegal printing has in the past resulted in hanging or disembowelling. However, this control works both ways, with the Press involved in a back-scratching relation with the political elite. History tells us that the instinct of those in power is to control the Press strongly, but this is coupled with the knowledge that regulation distorts access to the truth. Phillips suggested that a form of PCC max is required, as self-regulation was never full self-enforcing, but also pointed out that questions exist over blogging, as they operate on the edge of reporting. There will always be those who engage in luminal activities, and more top down regulation will not help, so it is not needed. What needs to be remembered is that this moment in time is part of a wider battle over access to information.
Max Mosley’s opening point was that we don’t want a controlled press, but neither do we want a press-controlled government. People who aren’t British citizens can control the actions of the British government [AF note: his mention of Tony Blair’s visit to Australia makes it clear who this is a reference to], and while the PCC has not failed to make the rules, it has not enforced those rules and cannot do so. He asked how we can enforce them without state control, and his suggestion was to separate the rule-making arm from the enforcement art, which should be completely independent. At this point Phillips interjected, saying that the creation of the free press has been a long fought battle, but admits that some changes do need to be made. Mosley said that there is a clear need to define the public interest in statute. Any such statute must contain some presumptions as to what the public interest is, but it is important that these presumptions can be rebutted. He also requested that any such statute allows the prevention of publication if it is required.
Following the speeches, there was time for some questions:
The first question looked at the Press and incivility; as women are being objectified and disabled people attacked for claiming benefits, what did the panel think of this?
Mosley pointed to the evidence given by Moy at the Leveson Inquiry which showed that this is a problem that is coming to the fore, including collusion with government departments over stories to help foster an attitude towards policies. Jowell furthered this by remarking that some papers focus more on the sales they make to certain groups more than the dissemination of information. However, she made the very important point that we can rely on drafting regulating principles well to safeguard every reader from offence, we should rely on people being offended on behalf of others and to refuse to buy the paper.
Mosley set out a plan for a free tribunal that would give access to anyone feeling aggrieved by the Press, with a hearing being allowed on one of four grounds: defamation, accuracy, offence, and misleading information. Phillips also said that offence is a matter of internal culture, and the appropriate use of words. Complaints are also learning opportunities for the Press, working out when they go too far. It is the only way the Press learns, such as describing victims in a derogatory way, i.e. acknowledging that a murder victim is a prostitute when such a description is not required.
A second question noted that this is just a part of a wider debate, and asked what the panel thought about whether a press commissioner should be a privacy commissioner. Another question asks why no-one seems to have done anything about the police passing information to the press.
Jowell agreed that the police passing information is an accepted fact, that it helps to supplement the income. As the cases are dealt with by the relevant authority, the government didn’t look at the problem systemically. However, it is important to remember that most police don’t do this, that they feel ashamed and wish to reassert the professionalism of the police. Mosley did however ask why the Home Secretary has never required the Commissioner for Police to investigate. He also referred to Hugh Grant’s statements in evidence that a call to the police would lead the journalists to arrive before they do. Phillips agreed with this, as the journalists knew that Harry Redknapp was to be arrested; the question is how.
Tomlinson then brought the question back to one of a privacy commissioner. Moore said that that the idea sounds sensible but looking at the ICO, the commitment and practicalities regarding resources would need to be met and safeguarded to make it work. Mosley returned to his idea of a free tribunal to adjudicate matters.
Following on from this, a question was asked about who should sit on such a tribunal to ensure that it is a fair deal for both the press and public.
Mosley’s response was barristers or solicitors could the tribunal ‘judges’, but as with the PCC as it stands, it should be funded by the Press. He noted that this is cheaper than the overall cost of litigation. Jowell liked the idea of a tribunal and the presumptions for public interest in a statute, but also suggested that members of the public be used for the tribunal as well. Jowell said that any system would require proportionality and access to representation for those who want it.
A fifth question noted that the definition of public interest is a key issue but asked how it could be defined. Following that, should people in the public eye be held to a higher standard? A sixth question asked how the public interest matter sits with the need to sell papers, and a seventh question asked how privacy on the Internet can be protected. Can we draw a line?
Moore said that transparency can have a chilling effect on poor behaviour, and that the public interest is also about what isn’t in it, as well as what is. Jowell went further, saying that the consequence of press campaigns can also intensely damaging, pointing to the Daily Mail’s campaign against the triple vaccine which has been found to be untrue. Jowell believed that the Internet would have been a strong force for good in that. Mosley said that just because something is popular doesn’t make it right. For him, the net is just another medium, removing the power of its mystery is key. On the matter of public interest, Phillips believed that there should be positive criteria for public interest, including public information and encouraging debate. There should be a stronger and clearer definition of privacy, and the public need to be educated about the dangers of the net.
What was clear from this was that there was no real debate around the matter as such: all the panel agreed that change, and drastic change at that, was needed. All also agreed that the freedom of the Press is important, and that the revelations we have all become familiar with are the work of only a very small number of individuals. It was however very interesting to note that the PCC was very rarely mentioned, and it seems that the panel reflected the public mood that the PCC is now a defunct organisation.
However, there was very little to be said about what could be done to effect this change. Mosley’s idea of a free tribunal is an intriguing one, fairly similar to a plan devised by Chris Bryant MP, and incredibly similar to the organisation Early Resolution which started up last year. However, this doesn’t seem to help with the problems of self-regulation that we have seen arise from the Leveson Inquiry. It was merely agreed that it was a difficult task, as it requires both a controlled and a free Press to exist. These ideas seem mutually exclusive, and the panel acknowledged this. Perhaps the silence on this from the panel was out of respect for the ideas that will come from the Leveson Inquiry, or perhaps it was more out of recognition for what a difficult question it is to answer.
The debate about having cameras in court has been going for some time now. The basic point, that justice should not only be done but should also seen to be done is an important one (if a very literal interpretation of the point), holds true. We are so used to seeing the goings-on in Parliament on TV; the growth of interest in the work of Parliamentary committees and inquiries has led to their broadcast; and with tweeting is now allowed in courts so long as it complies with the Lord Chief Justice’s guidance. We have instant updates from journalists, bloggers, and interested observers to these proceedings, so why shouldn’t there be cameras in court, broadcasting proceedings?
I went to a debate held by the Media Society at the ITN building on Gray’s Inn Road on this topic on 18 October 2011, and my note on the proceedings is as follows:
On 6 September 2011, the Secretary of State for Justice and Lord Chancellor Ken Clarke announced that the blanket ban on filming in courts was to be lifted as a way to increase public understanding of the justice system. The plan is to broadcast the sentencing remarks of Court of Appeal judges, with a later move to those in the Crown Court. Witnesses, jurors, and deliberations would not be broadcast.
This move came after the criticism of sentencing and reasoning in light of the August riots. However, the notion of filming in court has been mooted for a long time, and the debate on the topic is not new. In light of this announcement, the Media Society held a panel discussion on cameras in court.
Alastair Stewart, ITN newsreader of long standing, was the Chair for the event, and the following were the panellists:
John Battle (ITN Head of Complaince);
Simon Bucks (Sky News);
Fran Unsworth (BBC); and
Stewart started with a few remarks about the background to the topic, point both to Clarke’s announcement and the UKSC’s broadcasts. He also noted that Scottish courts sometimes allow it for cases of public interest, but there has been varied success with the scheme. He continued by saying that while TV has a role in increasing confidence in the criminal justice system, some critical thinking needs to be done about how to make it work to the tastes of the parties involved, both those involved in the proceedings, and those broadcasting them.
Following a video by Mark Austin which set out an introduction to the debate as well as some initial points for both sides, the discussion got underway.
[AF note: two things stood out for me in the video: firstly, I never knew that the debate about film and photographs in court dated from the Dr Crippen trial in 1910, with photography being banned 15 years later; and that the first major push for the debate in modern times was as a result of the Louise Woodward trials in the US].
Whittingdale started by commenting that he was surprised it has taken this long to get a point where courts proceedings will be televised, considering how simple, easy and natural it seems as part of the #Leveson inquiry. His comments followed along the same lines as a speech given by the Master of the Rolls about proceedings and judgments being given in public already, noting that the public don’t scrutinise them by visiting courts. He noted that the arguments for cameras in court are very like those made for the televising of Parliament, and that the behaviour of MPs has not changed much [AF note: there always seems to be a lot more people in the public gallery in Parliament than in a court though]. Certainly, the now very well-known footage of Murdochs Senior and Junior in front of the Select Committee commanded a huge audience, but perhaps this was due to the range of interest in the subject matter, as few people would have seen it otherwise.
Moving on to Sir Ivan Lawrence QC, his rebuttal focused on the notion that Parliament is not concerned with the activity in courts, and the courts are targeted on individuals, not issues. As such, the two cannot be held to be the same. His fear is that the proceedings could be tainted:
- advocates are very unlikely to grandstand, but there is always the temptation;
- justice is a delicate matter, and the perceptions of the non-lawyers involved may mean they are less willing to take an active role; and
- judges will be constantly thinking about whether something can be broadcast or not.
An important pointt Lawrence raised is that there is very little considered when someone is acquitted, as the media simply does not allow the stigma to to fall away.
Fran Unsworth of the BBC followed by saying that it is a valid experiment as it supports open justice, and naturally the BBC has a role in educating people. She noted that England and Wales is lagging behind other jurisdictions, even though this type of broadcast improves transparency. The question is whether a reporter should take this role or whether people should have direct access to it.
Unsworth felt that there is a sense of double standards, as tweeting is allowed in court but cameras are not, though of course camera equipment technology has improved dramatically so it would not take up nearly as much space as feared. She felt that the proposals were too limited as the the public would be bored and the chance wasted. Any worries that hearings would become a media circus should remember that US trials like the OJ Simpson trials were unique for obvious reasons.
Simon Bucks of Sky News followed; he pointed out that broadcasts of the House of Commons have been the norm for nearly 22 years, and now it all seems innocuous and unsurprising. That the trials for Parliamentary expenses fraud were not broadcast, despite the public interest (both meanings), was strange, as it is a core part of democracy to see such events. It must be remembered that people with day jobs or who works away from courts location do not have access to justice in the sense of a viewer or a consumer. Bucks continued by saying that broadcasters have been running a steady campaign for years on this topic, and saw the riots hearings as a perfect example of what could be achieved.
Professor Barendt admitted straight away that he comes at the concept as a sceptic, especially noting that the progression to the Crown Court could be more interesting, as the participants are usually more unwilling. His main concern that is the broadcasters will use their discretion to cover more newsworthy trials, and not local or civil matters. He wonders whether it would leave to mandatory gavel-to-gavel coverage as in the USA, or only extracts; the choice requires an editorial distinction. He agreed that we need to think about the reputation of an acquitted defendant given that the media can shape views and ideas.
John Battle started by mentioning that he has also been heavily involved in the background to the campaign, having met the Lord Chief Justice years before on the matter (prior to Judge LJ being the LCJ). However, he stated very simply that filming is not a revolutionary idea; the courts the British public don’t get to see are their own, and the images available are scarce and very selective.
Returning to earlier concerns, he believed that there is very little evidence to support worries about disruption to advocates, and no evidence about the loss of protection for vulnerable witnesses. Judges will also be able to control the filming, in line with the rules for protected applications. He went on to say that the experiment can help feed the debate and assure those in proceedings what will happen. There will be better reporting of trials, and will also show the public just how informed and knowledgeable both judges and counsel are.
Questions from the floor:
Joshua Rozenberg asked why the Lord Chancellor has agreed to this now; are the government concerned the public aren’t well-informed? And would reporting on TV show the judges as capable of supporting and sympathising?
JW responded that he wasn’t sure why, but there is a definitely a growing feeling for openness in this government, something JB agreed with. IL is supportive of broadcasting judgments, something EB agrees with but there is a caveat that the media need to work closely with the LCJ to ensure standards on both sides are maintained, especially as the media needs to respect a judicial decision to not have a camera in court. FU believes that the plans do not go far enough, and that the audience would benefit from hearing the arguments.
Bob Satchell of the Society of Editors said that he feels it is a bit innocent to believe that the word rapist would no longer be used in association with an acquitted defendant. IL agreed, saying that a lifetime of working in courts says that the public don’t see someone as acquitted, but as an acquitted rapist. JB says that legislation would be required to ensure that it is done fairly, but the regulators already exist to protect defendants; he also wonders why the statements and summing up could not also be included to give a more rounded picture. JW believes that this trial would increasingly remove the stigma as they can understand why a decision was reached. SB points out that the proposition would be introduced incrementally, and that the nature of media coverage is selective.
A question asked about whether legal terminology and arguments would be explained. FU felt that that is not what is of interest, but the principle of broadcasting remains. She felt it is like Parliament, some of the debates are electric, but most of it is boring.
In response to a point raised by Stewart again about liberty and reputation, IL stated that it is important to ensure that the stream of justice is not polluted. FU says that people are selective already in what they write, so they should not expect anything different about broadcasts. IL points that this may also make an increasing problem with juror research worse.
After some personal comments directed at IL, EB defended his co-panellist and espoused the view that there is no right to see a criminal trial, which could be supported by a very narrow reading of Article 6 ECHR. FU accepts that this is true, but states that the judge would have control; the important thing to consider would then be why the trial could not be viewed.
A question from the floor made a point that journalists would select trials based upon what they think, so would it better to consult the public on what they wish to see? IL reiterated the point that most court proceedings are dull, and dipping in and out gives a poor understanding of how proceedings work. FU for the most part agreed, saying that people need to be allowed to choose themselves. However IL thinks that it is more a practical issue which would add to judicial workloads. SB mentioned a red stop button for judges to stop a live stream and wondered whether this would be an option for criminal trials. JB points out there still need to be a clear delineation between editorial and judicial controls.
Mark Stephens of FSL pointed out that the Commonwealth has evidence related to broadcast proceedings, and notes that the populace of each country was just as concerned as those here, but the broadcasts work. He points to a prosecutor following the Vancouver riots who felt it was important to have justice seen to be done, and done openly. EB responded by saying that selectivity is a very unattractive proposition, and it was noticeable that a media conference in Beijing pointed to the criminal justice system in England and Wales as lacking in freedom of speech.
A question from the floor about how filming courts could make celebrity defendants and glamourise the facts was responded to by SB saying the visual consequences may act as a deterrent. FU says that it would make no difference to the impact of a case, as such as case would be well known enough anyway; the paper press creates the marketability.
Another question from the floor made a point about scrutiny of justice, and the need to distinguish between open and transparent democracy and how journalism works [AF note: this is also something I thought about, will there be a need for legal pundits to explain the rationale behind judgments?]. Another question asked whether reporters would use footage to increase their ratings. JW said that it would be a slow process of increasing access, as there is a clear need to work out how the system would work, but JB said that it is important it happens as the open justice system here is very weak. JW continued by saying that the Murdoch pie incident in itself was good news, but the irritation comes from the fact that a pie could make it into a Select Committee hearing.
IL moved the discussed back to selectivity and pointed to current examples in the news about a focus on views concerning a defendant and their families, and the witnesses, which could be viewed by jurors. JB disagreed with this, pointing the trial of Conrad Murray in the USA, and the role of jurors and their oath in proceedings. However, EB and IL pointed out that people can get their information about cases from papers anyway.
Some final remarks:
EB feels that TV coverage of trials will exacerbate unfair influence on the criminal justice system, but the coverage itself will be more sensational than the trial.
IL believes that there has been no public demand for this, as the public see there are dangers to justice [AF note: or they may just see it as too dull].
Finally, JW believes that the trial will go ahead and will be extended, especially with improving technology. A mention in the Queen’s Speech could show proper commitment to the process.
Where are we now?
Now we have the campaign reaching a new strength, with BBC, Sky, and ITN writing to the heads of the political parties to gain their support for broadcasting courts. It cannot be denied that the principle is a sound one, but my concern is more about the practicality. Putting aside all the worries about grandstanding and witness protection, for which I am sure protocols would be developed, what good would broadcasting court proceedings actually do?
Watching my Twitter timeline, at times it is fascinating to see that people tune into web broadcasts of the Supreme Court and Parliamentary proceedings while they are at work. However, these are people with an interest in the matter at hand, be they wanting to see the outcome of a trial, or just marvelling at the levels of advocacy. How many of the people the broadcasters say cameras in court will reach actually care? My guess is not many. Also, how many people will be able to watch court proceedings live? How many will watch them on catch-up TV? Probably more for the latter, but still those not able to catch it will go for one of the excellent round-ups that is provided by other sources. I can’t quite imagine people wanting to avoid news of a verdict in a case quite the same way as avoiding the football scores.
Another concern is that courts are odd places at times, with some very archaic expressions and behaviours still used in the more traditional proceedings. Would the broadcasters just leave their audience with the proceedings, or would they provide a talking head or two to explain what is being broadcast? A lot of the court proceedings broadcast already are watched by practitioners or those with a good understanding of what is happening, but to watch Supreme Court tv with a bare understanding of what is happening will not improve anyone’s knowledge or experience of the justice system. There are excellent bloggers out there explaining the law, cases and developlments; The Judicial Office is getting extremely good at putting cases and remarks of interest on its website for people to find; and the Supreme Court publishes its judgments with press releases and summaries to help explain the decision reached. There so far has been no comment by the broadcasters about what they will do with the information gleaned from the broadcast. Each has used experts in the past to discuss important cases and developments, but there was no mention of such explanation in the debate, nor in any subsequent media (if someone can find it, please do show it to me). The public will still be left with the same information; it will be presented in a new, instant way, but still with the same level of understanding of what is happening and what is being said.
While I agree with the principle that justice should be seen to be done, cameras in court as they stand simply appear to be improving democracy in style only. Transparency has become a watchword of this government, turning something fundamental to popular democracy into a tickbox exercise. It is my belief that it is not the presentation of the information that matters, it is what you do with it and how we understand it that matters.