Category: Communications and Media & Law and Policy

18th August 2022

I am working on a couple of long posts, and one of these – about Freeports and so-called “Charter Cities” – involves consideration of “conspiracy theories”.

So I thought it may be useful, as a separate post, to consider this term.

I do not think it is a useful term in many discussions, because it is pejorative.

You may have considered, rational  opinions – but they believe in conspiracy theories.

Few people will admit readily that they believe – or could believe – in a conspiracy theory.

And so merely calling something a conspiracy theory is unlikely to change minds.

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This is not to say conspiracies do not exist.

Conspiracies do exist.

That people can act in concert for wrongful purposes is a common feature of everyday life.

Of course, there is also the cock-up theory.

And cock-ups – that is, things that happen by chance – also exist.

In my view, conspiracies often come into existence to cover-up the cock-ups – for it is only when there has been a mistake that there will be sufficient focus and motivation for people to act in concert.

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At this point in this discussion, someone will usually refer to “Hanlon’s Razor” – the rule that one should never attribute to malice that which is adequately explained by stupidity.

(They will often also link to an explanation of it, on the assumption you have not heard the term before.)

And Hanlon’s Razor may be a good general rule, but concerts and conspiracies do exist – and can be hidden under a guise of stupidity.

So Hanlon’s Razor is perhaps a sound presumption, but it should never be an absolute law.

A better approach when looking at something untoward is just to see where the evidence takes you, and what best explains that evidence.

Sometimes the evidence will point to a cock-up, sometimes to a conspiracy, and sometimes to a mix of both.

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People like to see patterns, people will tend to want their prejudices confirmed, and some people even find comfort in the idea that bad things happen for a reason.

Writing about issues of law and policy – especially controversial and topical issues – means that I realise some readers will just want their views endorsed and suspicions confirmed.

A few – a minority – will say instead they want their views challenged, and a smaller minority will actually want to be challenged.

But the readers I am writing for primarily are those who are aware of an issue and want understand it better so as to form their own views, and want also to have the tools to do so.

They are the people I blog for – and, indeed, blog with.

And so, oddly, even the act of regularly writing a blog in partnership with attentive readers is a form of concert.

Though, of course, if this blog is ever successful in explaining an issue well, then that will be sometimes by chance.

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28th July 2022

From time to time there are fundamental shifts in human communication.

One was the invention of writing – where no longer would things have to rely on memory and oral transmission.

Information could be stored and it could travel distances.

Another was the invention of the printing press.

This meant that – in principle – it was now open to any person to publish and circulate information far more widely than before.

And this was why “the freedom of the press” was such an important principle – long before the advent of Fleet Street and modern newspapers.

Each of these two shifts meant that the ripples expanded of what was capable of being communicated and circulated.

Without writing a person is limited on how much information they can absorb and impart – and you are practically limited to what you remember and who you see face-to-face.

And without printing a person is limited to how much information they can personally publish – by hand copying or otherwise – and how widely that information can be distributed.

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When I was young, it was still practically impossible to circulate information without going through a gatekeeper.

If you wanted to publish or broadcast something to the world, you normally had to go through an established publisher or broadcaster.

Yes, in theory, one could self-publish a “vanity” book, or print a pamphlet, or take a boat in to the English Channel as a “pirate” radio station.

But unless you did one of these eccentric things, you pretty much had to rely on established publishers or broadcasters if you wanted to publish or broadcast your thoughts to the world.

And then came along the internet and the World Wide Web – or at least general access to the internet and the WWW.

At a stroke any person with an internet connection could publish and broadcast to the world.

The old technological boundaries dissolved.

The gatekeepers were still there – and established publishers or broadcasters are not gone (yet) – but they were no longer essential.

On either side of the gates there are now holes in the fences.

This is, I think, a revolution quite as profound as the invention of writing or the development of the press.

And I do not think we are yet fully aware of the consequences of this shift.

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For example, in my own area – law – the old certainties of legal liability were based on there being a moment where a thing was “published”.

Once a thing was “published” then there was potential exposure for liability in defamation or copyright which a person would not have a moment before.

And so publishers took the moment of publication seriously – and things were not published lightly.

Where the law of defamation most visibly broke down in pre-internet days was when you had a leaflet or a small-circulation pamphlet outside of established publishing practices – as in the McLibel or Tolstoy cases – and then there was a mismatch between the scale of the legal process and the scale of the publication.

Now, the McLibel or Tolstoy situation is the norm, and not the exception.

And it was ten years ago yesterday that the appeal was won in the once-famous Twitterjoketrial case, where communications legislation that predated social media was misused to prosecute a non-serious tweet.

(I was the appeal solicitor in that case.)

Now, new legislation needs to be premised on the existence of social media, rather than being strained to make it apply.

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The old channels of information transmission and exchange – be they newspaper titles or political parties – are having less and less purchase.

The political consequences of these declines are becoming apparent, but they are not fully worked through.

Some of the effects are unwelcome – as this blog set out this week with reference to the “3 Ps” – populism, polarisation, and post-truth.

And the sheer, unrelenting nastiness of “culture wars” shows what people can publish to the world when they no inhibitions.

Human beings – as primates – can be said to be bound by Dunbar’s Number – the number of meaningful social relationships one can have at one time.

In pre-internet days, even the greatest celebrities could control their contacts with more than a small group of people.

And now, there is the possibility of constant interactions with limitless people – and not just for celebrities.

Can we, as a species, cope?

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This fundamental shift has to be be accommodated by our constitutional and legal structures.

Otherwise, there will be constitutional and legal dislocations.

And – in the context of the “3 Ps” – populism, polarisation, and post-truth – it is difficult to see how our current constitutional and legal structures, derived primarily from the past, can easily survive.

They were not built for this – and neither, as a species, are we.

Even without the knavery and foolishness of the likes of Trump and Johnson, there are serious issues to be addressed about how we govern ourselves in this internet age.

Or even whether we can still govern ourselves effectively at all.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

20 June 2022

The pulling by the Times of the ‘Chief of Staff’ story about Boris and Carrie Johnson is interesting in many ways – and this post explains why it is interesting from a media lawyer’s perspective.

As a preliminary point, however, I must mention I have no private information about any of this – this post is based entirely on information in the public domain.

And this post is not about the details about the story, of which I have no knowledge – it is instead an account of how decisions are made and not made to publish and pull such stories.

(By way of background – part of my own legal practice is media defence, protecting journalists and publications from legal threats.)

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From a media lawyer’s perspective, there are two key decisions here.

The first was the decision to publish.

For a well-resourced, well-lawyered news title like the Times, things are not published casually in their print editions.

There is an internal editorial and often legal process that is followed.

The published article is often like stage five of a process, and not stage one.

And this is especially the case when the reporter in question is experienced and competent.

There will be a lot of source-checking and verification by the reporter themselves.

Sometimes corners are cut and mistakes made – and ‘online’ stories often do not have the same care.

But stories in print editions of well-resourced, well-lawyered news titles like the Times are not published by accident.

This means that it was believed that the story “stood up” before it was published – and that the serious allegation made in the story was sufficiently grounded so as to minimise or eliminate legal risk.

It also means (usually) that the targets of the serious allegation have had an opportunity to have the allegations put to them before publication – or at least should have done.

And this pre-publication stage would have been the time for any legal threats aimed at preventing publication.

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The second is the decision to pull the story.

Here I will put forward the perhaps unpopular view that there is nothing wrong with a story being pulled from later print editions (and from the internet) if it becomes obvious that the story no longer stands up.

Indeed, it is a pity that does not happen more often – but most editors are reluctant to pull something once published.

But if new information comes to light so it is plain that the story published is not correct, or if it becomes apparent that legal wrong has been committed in how the story was put together, then pulling the story can be an appropriate and responsible thing to do.

It is, however, exceptional.

The new information must be substantial, or the crystallised legal risk must be overwhelming.

As to pull a story is a serious thing to do.

Especially when that story stood up after the editing and (what is called) ‘lawyering‘ process.

And for a story to be pulled rapidly implies that the process before publication had failed.

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So when this story was pulled, I assumed that something had come to light that meant that the story no longer stood up.

This was unlikely, in the circumstances, given the seniority and reputation of the journalist involved.

But other possibilities seemed even more unlikely.

Some on Twitter speculated wildly and breathlessly about ‘super-injunctions’ and ‘D-Noticies’ – but neither made sense in these circumstances, not least because that would not explain the decision to publish, as both such an injunction or a D-Notice would usually have been served once those against whom the allegations were being made were approached for prior comment.

And the subject matter of the story also did not lend itself to ‘super-injunctions’ and ‘D-Noticies’– it was about public money (not an entirely private matter) and there was no obvious, serious issue of national security.

(‘Super-injunctions’ are also now almost impossible to obtain.)

So, ruling out a ‘super-injunction’ and a ‘D-Noticie’ left only the mundane explanation that the story no longer stood up – notwithstanding the pre-publication process and the standing of the journalist.

This sort of thing happens – and there is nothing wrong with pulling a story that no longer stands up.

But.

The journalist then stated that he did stand by the story – meaning that, as far as he was concerned, the story still stood up.

And many of the details of the story had already been published in a book – and this made it difficult to see how the story was legally problematic.

So there was not a journalistic reason for pulling the story.

And there was not a legal reason for pulling the story.

This meant that the story may have been pulled for another reason – a non-journalistic, non-legal explanation.

How curious.

Downing Street did speak to the Times in between them publishing the story about Boris Johnson and Carrie and the paper taking it down, his spokesman suggests.

— Adam Bienkov (@AdamBienkov) June 20, 2022

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.