Category: Communications and Media & Law and Policy

A note on the Leveson Report, ten years on

22nd November 2021

The report of the Leveson Inquiry into the culture, practices and ethics of the press was published ten years ago.

I happened to have been a witness at the inquiry, giving evidence on blogging and social media, and so I thought that – after ten years – it may be worth setting out some thoughts about the inquiry.

The Leveson Inquiry was a half-success and a half-failure.

The successful part was the evidence stage, where a huge amount of evidence was placed into the public domain about the culture, practices and ethics of the press that would have not been placed into the public domain, but for the inquiry.

This evidence is in the form of written witness statements, original documents and oral evidence.

We now know so much more about the culture, practices and ethics of the press in the years before 2012 than we otherwise would have done.

There is a substantial archive of public domain information that can be – and has been – mined for fine academic research and media commentary.

The evidence stage was a boon for the public understanding of the media – and how the law was (and was not) followed.

But.

The inquiry got all that evidence…

…and did not seem to know what to do with it.

The four volumes of the report are less interesting reading than the source material.

The volumes were published all at once, and – after a brief flurry of interest – were left unread.

A more staged release of the conclusions would have been far more useful.

And as for the recommendations, they – like Hume’s treatise on philosophy – fell dead-born from the press.

The model(s) of regulation adopted after the inquiry was not that which was recommended.

There are those who (still) are partisans for the Leveson recommendations – but the recommendations have not been of any practical consequence.

And – in the meantime – the nature of the media and of print news has changed significantly.

The Leveson inquiry was at the tail end of when there was an actual newspaper industry – where newsprint was published daily on an industrial scale.

Since the circulations have collapsed.

Now anyone with an internet connection can publish to the world.

If for example a reporter cannot publish something in a newspaper (or news site) there is nothing stopping a tweeter publishing the same to a potentially far wider audience.

And the envisaged second stage of the Leveson inquiry – dealing with media relationships with the police will now not happen – though the Daniel Morgan report gave us a steer for what that probably would have contained.

(See my post on why the Daniel Morgan report is the nearest we will ever get to Leveson Stage Two.)

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In my view, the solution for media misconduct – either in news media or social media – is to strengthen the legal rights of the individual vis-a-vis the news sites and social media platforms (and to strengthen the legal obligations of those sites and platforms), rather than setting up some regulatory scheme.

All regulators tend to be ‘captured’ by who they regulate, and regulatory remedies are more likely to be circumvented or simply ignored.

And the tensions between the news media and those who were affected by media misconduct were such that there would never be an agreed regulatory regime that would serve both interests.

Nothing the inquiry could have recommended would have been accepted by the press and press victims.

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The mantra of ‘more regulation’ presupposes that a thing can be regulated other than by the general law.

But the media cannot be regulated other than be the general law – such as data protection, misuse of private information, defamation, copyright, and so on.

This is not because one is blind to the misconduct of the media (and indeed during the Leveson Inquiry I was able to show one example of such misconduct), but to assert a simple point about things having to work in practice.

There is nothing to be gained by demanding that there should be sector specific media regulation if that cannot work in practice.

So, although the Leveson inquiry had all the paraphernalia of a legal exercise – a judge, statutory powers, barristers, oral examinations, and even taking place in a courtroom – it was ultimately a failure because – ironically – it was not able to take law seriously and was bound by its terms to propose an effectively non-legal regulatory regime instead.

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The United Kingdom state and the asymmetry of information flows

19th October 2021

There is asymmetry in the United Kingdom state (and no doubt other countries) when it comes to information flows.

On one hand: we have the strict official secrets legislation, almost useless freedom of information legislation, and a neat and cosy political-media compact where things can be made routinely – even casually – public without accountability or attribution.

On the other hand: we have extensive surveillance and interception powers by which the state can have access, as and when it wan to almost all information about any individual.

The goal of the modern state is to know as much as possible about individuals, while ensuring individuals know as little as possible about the state.

For just as Frank Wilhoit once defined political conservatism – “There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect” – the same is true of the state more generally, but with information flows.

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Why ‘legally ringfenced’ is a phrase used by political knaves to take you for a fool

7th September 2021

Another late-night revelation about our current government-by-essay-crisis:

The phrase ‘legally ringfenced’ is a legal and political nonsense.

It is a legal nonsense because nothing in the United Kingdom can, in any meaningful way, be ‘legally ringfenced’ .

This is because of the doctrine of parliamentary supremacy, which means a parliament can make or unmake any act of parliament.

Nothing – to use a similar dishonest phrase – can be ‘enshrined in law’.

Even if there were a provision put in a statute – with super-duper protections intended to prevent its repeal or amendment – the provision and all those super-duper protections could be repealed or amended with a simple parliamentary majority.

And it is a political nonsense for it is a trick that that has been played before and which has been exposed as trick before.

The international aid budget was, supposedly, legally ringfenced.

The fixed-term parliaments act was, supposedly, enshrined in law.

The current triple-lock on pensions likewise, and so on.

And so on.

But still politicians use this trickery – and still too many nod-along by these impressive sounding phrases.

The claims ‘legally ringfenced’ and ‘enshrined in law’ do have a rhetorical purpose, of course.

They invoke the majesty of law to charge up what would otherwise be a banal political utterance.

An utterance intended to reassure waverers or even win over somebody who would otherwise be opposed.

And in that way, it is perhaps slightly significant that politicians still feel law has sufficient respect so that political statements can be framed as grand legal announcements.

But it is trickery all the same.

Any politician who uses the phrases ‘legally ringfenced’ and ‘enshrined in law’ is a knave – and a knave taking you to be a fool.

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Why we should cherish the Supreme Court of the United Kingdom for complying with the Freedom of Information Act, when other public bodies would not have done

 

5th September 2021

Bless the justices of the supreme court of the United Kingdom.

As you may be aware, there has been a substantial – and amusing, even embarrassing – disclosure under the freedom of information act of documents relating to the departure of former supreme court justice Jonathan Sumption.

A pdf of the disclosure is here – and it rewards being read in full.

I was alerted to this disclosure by this thread from Adam Wagner.

And Joshua Rozenberg has set out a characteristically detailed post about the situation on his blog.

My post is just a footnote to the disclosure and Rozenberg’s post – from the perspective of a former central government freedom of information lawyer.

And, in summary, the footnote is: bless.

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By which I mean no disrespect to the justices of our supreme court.

Quite the opposite: they should be cherished.

For they must be the only senior public sector officials who comply with the freedom of information act in the spirit in which the legislation is intended.

Senior figures at any other public body would have worked with their freedom of information officer to invoke cynically any exemptions to delay and/or block publication.

Indeed, most senior figures in public bodies would not have been so naive as to create things which are capable of being FOId in the first place.

If the freedom of information act worked as it was supposed to work than the sort of disclosures we now have from the supreme court would be commonplace throughout the public sector.

But it isn’t, because it doesn’t.

The freedom of information act is, in effect, an ornament not an instrument.

There is not real sanction for non-compliance or evasion – and any appeal will take years to get anywhere.

It is almost impossible to have disclosure from a public body against its will.

And it is actually impossible to do it short of years’ long process of appeals.

Everyone concerned knows this.

And non-disclosure letters from public bodies are the most dismal, unconvincing and insincere documents produced by public bodies.

Nobody produced in the production, dispatch and receipt of a freedom of information non-disclosure letter has any sincere belief in the contents.

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A bit like pizzas, in a way:

Source: The Onion

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The supreme court, bless them, has taken the scheme of the freedom of information act seriously – and thereby taken the rule of law seriously.

Good on them.

For even though there is no real risk of sanction – nor even compulsion – the supreme court has followed the act, and it made potentially embarrassing disclosures properly.

More than (yet another) ponderous extra-judicial speech about the ‘rule of law’ this disclosure by itself shows how the supreme court takes the rule of law seriously.

As a supreme justice once averred in another context: that is a relief.

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Was the ‘surveillance state’ a price worth paying?

 

30th August 2021

Over at the Foreign Affairs journal is this fascinating, well-argued article:

From a liberal perspective, there are parts of the piece that are both convincing – and disturbing.

For example, the author Thomas Hegghammer avers that not only is the west better resourced:

‘Western governments have also proved to be less scrupulous about preserving civil rights than many expected in the early years of the war on terrorism. When faced with security threats on their own soil, most Western states bent or broke their own rules and neglected to live up to their self-professed liberal ideals.’

The gist of this seems true – and what is disturbing for the liberal is that it may well have been a ‘price worth paying’.

Hegghammer amplifies this point in respect of privacy laws and the surveillance state:

‘The reason information technology empowers the state over time is that rebellion is a battle for information, and states can exploit new technology on a scale that small groups cannot. The computer allowed states to accumulate more information about their citizens, and the Internet enabled faster sharing of that information across institutions and countries. Gadgets such as the credit card terminal and the smartphone allowed authorities to peer deeper and deeper into people’s lives. I sometimes serve as an expert witness in terrorism trials and get to see what the police have collected on suspects. What I have learned is that once the surveillance state targets someone, that person no longer retains even a sliver of genuine privacy.’

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Hegghammer sets out that surveillance and the disregard for civil liberties are just one element of a general anti-terrorist strategy – alongside techniques, resources, intelligence, and the dynamics of the state-terrorist relationship.

And it is not clear whether it is an essential element.

Had Western governments and their citizens been more mindful (or to critics, precious) about their civil liberties, would it have meant that the other elements of anti-terrorism policy would not have worked so well?

And what would it have practically meant for Western governments to have been more ‘scrupulous about preserving civil rights than many expected in the early years of the war on terrorism’ rather than less?

Most liberals will accept that the state can do all sorts of things for the purpose of anti-terrorism, as long as it has a lawful basis and is subject to democratic and judicial supervision and the principle of proportionality, and it lasts no longer than necessary.

Would such requirements really have hindered the security services in their work?

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To a certain extent Hegghammer’s argument has a flavour of ‘just so’ story – there is less terrorism now than before, and so what happened between then and now must explain why there is less terrorism.

But that said: Hegghammer’s observation that the state now has access to online information and communications data that makes it difficult-to-impossible to use electronic devices, media and payments for the purposes of organised terrorism is compelling.

However: terrorism, like other forms of human cruelty, adapts.

It may well be that we have not ascertained or imagined how the next generation of terrorists will work out how to be cruel.

But in the meantime: we will still have the surveillance state – and no state voluntary surrenders its powers.

Perhaps that was – and will continue to be – the ‘price worth paying’.

The price was a high one, all the same.

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The folly of diverging from the GDPR just because we can

26th August 2021

Like a dog that caught the car, the United Kingdom government is wondering what to do with Brexit.

Today’s offering, reported in the Telegraph is overhauling or replacing or something to do with GDPR – the European Union’s detailed data protection regime.

The flavour of the suggestion is in these tweets:

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The proposal has the usual signs of superficial thinking, with the ‘ending red tape’ and ‘row with Brussels’ lines that are the substitute for any serious policy thought.

In fact, the rows will not be with Brussels – the European Union and its businesses will be at ease with the United Kingdom erecting yet another non-tariff barrier against the interests of British businesses.

The rows instead will be with those British businesses, which will now have two lots of red tape to negotiate instead of one.

This is so bleedingly obvious that it really should not need typing out.

None of this is to say that the GDPR is perfect legislation – it certainly is not.

But compliance with one technical and complicated regime is onerous enough – multiplying such regimes just because we can is folly.

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Ministers and their political and media supporters will clap and cheer at this exercise in nose-cutting in spite of a face.

The European Union, like bemused household cats, will just stare at the spectacle.

It is all rather silly, and rather depressing.

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The United Kingdom’s digital economy will not so much turbocharged but torpedoed.

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The unwise tweeting of the Home Office – an exercise in the misuse of official communications

23rd August 2021

Our story begins with this article on the Guardian website, published on Saturday evening.

The first part of the piece comprises a report of the following eight things about Afghan child refugees:

1. child refugees from Afghanistan are being held by the home office in hotels for weeks on end without shoes, spare clothes, money or access to healthcare;

2. one unaccompanied Afghan minor who arrived in the UK a month ago said they had also been given no legal advice or interpreter, their asylum claim had yet to be processed and they had no idea where they were or even where to find the nearest mosque;

3. despite repeated offers from a number of specialist charities, including Barnardo’s, to enter the hotels and assess the children, the home office has so far turned them down;

4. a Muslim community group that offered to supply child refugees in a hotel near Brighton with halal food was turned away despite complaints from some youngsters they were only being offered “boiled vegetables”;

5. there is a claim that children are being put into taxis and driven across the country with no escort or child protection system in place;

6. a child is said to have been driven by taxi more than 250 miles from the south coast to Yorkshire without an escort;

7. one hotel near Brighton is said to hold 70 minors;

8. a five-year-old Afghan refugee fell to his death from a ninth-floor Sheffield hotel window, days after arriving in the UK, and asylum seekers were previously removed from the hotel because it was unfit for them to stay in.

The remainder of the piece mainly consists of quotes from interested parties and the home office, and some background information.

But the the nub of the article comes from the above (eight) pieces of news, of which the first five are stated as facts and the other three are framed as claims.

Presumably that is because the first five were verified and sourced more than the final three.

On the face of it, this was a good strong news report about a worrying situation, resting on particularised examples as well as third party statements.

The sort of news item that not only would not be easily dismissed but should not be dismissed.

An article to be taken seriously.

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But.

Late on Saturday night, the home office press office chose not to take the article seriously.

The home office did not say that it would look carefully at the worrying report and its numerous examples.

No, the home office chose to be silly instead.

The official home office account sent this tweet.

Just looking at the first sentence: the home office assert the article does not only contains ‘inaccuracies’ and ‘claims which are untrue’ (and what is the difference?) but also that the article is ‘littered’ with such ‘inaccuracies’ and ‘claims which are untrue’.

Like many such weak public relations statements, it claims that there are many mistakes in a hard-hitting piece but it does not specify them.

In particular, nothing is said directly about any of the key eight things reported about Afghan children refugees.

The follow-on tweets from the home office were also in general terms.

Nothing in any of these tweets met the detailed news reported.

It was a broad-brush denial that, in effect, denied nothing.

It was also a wrongful – indeed disgraceful – use of a government social media account.

This was not official information nor an informed precise rebuttal.

The author of the piece set out his response:

Then another home affairs journalist shared her experience from January following this home office tweet:

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The home office press office is perhaps clapping and cheering at such misdirection and misinformation.

Perhaps the press officers think themselves very clever.

But a moment’s thought should make them realise that this is being very foolish.

Credibility in official statements can be lost.

And once that credibility is lost then there can be serious political and social implications.

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If a detailed press article is incorrect then, of course, a government department can seek to correct it – but the correction should be as detailed as the report.

Else the official objection reeks of bluster and bombast – and it has no place as an official publication.

The home office has many faults – some of which are depressingly familiar – but in its desire to manage bad news, it should avoid such disgraceful late night tweets.

The currency of official information can be debased, just like any other currency.

A wise home office should realise this.

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The thin threads of power – politics and policy in an age of impotence

17th August 2021

When I was at school in the 1980s, the well-meaning progressive teachers showed us the film Threads.

The purpose, no doubt, was to make us pupils think critically about the cold war and the (then) nuclear arms race.

The primary impact it had on me was, however, different – and this was because of how the film portrayed the telephones in the bunker.

The film gave me a life-long fascination about the nature of practical political authority and control.

Here on YouTube some helpful person has put together the bunker scenes from the film:

If you watch these scenes with special regard to the telephones, you will see the telephones going from an active means of communication, to an inactive means, to being discarded, and then to finally damaged beyond repair.

And this matches the collapsing political authority of those in the bunker.

To begin with there are other people at the end of the telephone, and then there is nobody, and then ultimately nobody cares – or knows.

The political authority of those in the bunker, like the communications, is cut off.

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The lesson I learned from this as a pupil was it was not enough to have people who want to be in control and to believe themselves to be in control – there also had to be infrastructure, and for there to be people to accept that control.

Without such infrastructure and deference, those ‘in control’ are akin to the motorist wriggling a gear stick or pressing the brakes when both have been disconnected.

Those ‘in control’ may as well be playing with some grand political simulator.

And so I became interested in processes and transmissions and logistics and policies and rules and laws, and less interested in personalities and partisanship.

To answer the question: just what happens when the telephone rings out but it is not answered?

I suspect that this not the intention of the film makers, or the teachers.

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I mention this because of the impotence many in the West now feel about the fall of Kabul.

There is a general sense that something should have been done.

Here is our current foreign secretary:

The phrase “no one saw this coming” could be the motto of the United Kingdom government since at least 2016.

And here is Susie Dent, the subtle genius who no doubt will be regarded by future historians as the best political commentator of our age:

All true: but even if we had the foresight, what could have been done?

Of course: the execution of the final departures could have been better.

But beyond the arrangements for the final exit, it is difficult to see what further control the West could have had.

And part of the problem for the United Kingdom is that not only do we have no control, we also have no meaningful policy for what we could do.

Here, there are some hard truths on the lack of any meaningful United Kingdom policy in this RUSI post:

‘This week’s ignominy may be set instead against some of the blithe statements made just six months ago in the Integrated Review: that the UK will be ‘a problem-solving and burden-sharing nation’; that it already demonstrates a ‘willingness to confront serious challenges and the ability to turn the dial on international issues of consequence’; that the UK will embody ‘a sharper and more dynamic focus in order to adapt to a more competitive and fluid international environment’; and that it will ‘shape the international order of the future’.

‘The UK’s Afghanistan experience demonstrates none of this.

‘Instead, it speaks to a generation of political leaders who have too easily fooled themselves that being Washington’s most reliable military ally constitutes in itself an effective national strategy.

‘Such a relationship may be one element of an effective strategy, but it cannot simply be the strategy.’

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Yesterday this blog looked back to a 2017 Financial Times post where I put the old calls for ‘regime change’ together with other simple notions from the first part of this century, as part of a general politics of easy answers:

Since 2017, with the ongoing experience of Brexit but also with Covid and many other things, we still see the politics of easy answers.

The sense that all that needs to be done when something must be done is for politicians to want it to be done.

The hard and complicated work of policy and (meaningful) strategy is often not even an afterthought.

We have politicians in their modern-day bunkers, thinking that having telephones to hand will be enough for their will to be done.

But political power hangs on, well, threads.

And those threads snap easily, if they exist at all.

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Why both the Science Museum and Shell were unwise to agree to a ‘gagging’ clause

30th July 2021

Last night Channel 4 news revealed that the science museum in London had agreed to a ‘gagging’ – or non-disparagement – clause in a sponsorship agreement with Shell.

This revelation has been a reputational disaster for both parties.

Here is Greta Thunburg:

In my view, both parties deserve this flak – as it was an unwise provision to have in such an agreement.

They only have themselves to blame.

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One difference between a good contract lawyer and a wise contract lawyer is to know the difference between a provision being available for an agreement and a provision being appropriate for such an agreement.

The agreement here was a sponsorship agreement – and in the normal course of things, and as between private commercial parties, such a non-disparagement clause would be unexceptional.

Such a clause does two things.

First, it expressly regulates what a party can and cannot do.

Second, it provides an express basis for terminating a contract (or for some other legal remedy) if the provision is breached.

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In this particular case, Shell could well have ‘taken a view’  – to use a common commercial lawyers’ phrase – on the risk of whether the science museum would disparage Shell.

And if so, whether Shell would really want to rely on such an express provision in ending the sponsorship agreement.

Yes: there was a risk of disparagement – but did it really need to be dealt with on the face of the agreement?

Really?

Or was it a risk that could be better managed by other, less legalistic means?

A far greater risk – and one which was entirely foreseeable, and indeed has to come to pass – is that the clause itself would be disclosed.

Shell was contracting with a public body in a highly sensitive political and media context.

There was a strong chance – indeed a virtual certainty – that at some point the terms of the sponsorship agreement would enter the public domain.

And when this happened, that the reputational fall-out would be far worse than any disparagement that the clause itself would ever manage.

The insertion of such a clause in such an agreement was a media catastrophe in the making.

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Some lawyers may bleat that such a clause was ‘reasonable’ – and they are right insofar that such a clause would be sensible in a normal sponsorship agreement between private parties.

But the very same provision can be absolutely lacking in reasonableness in this media and policy sensitive context.

To the extent there was any serious risk of disparagement by the science museum of Shell, then Shell should have taken the view that there were far better and less legalistic means of addressing the risk.

And the science museum should in turn have insisted that there should be no clause that would limit their ability to discuss any of the issues relevant to the sponsorship.

In essence: this was not a contractual clause that Shell should have insisted on.

And it certainly one to which the science museum should not have agreed.

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The Home Office wants to reform Official Secrets law by pretending journalism does not exist

Over at the Guardian there is an important article – which is also worth reading just for its byline

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A rare sighting in the wild of Duncans Campbell

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The article in turn refers to this government consultation document.

The document is interesting (and worrying) in many ways – but one significant feature is how it shows the state has realised that the old state secrecy model in unsustainable in the new technological and media context.

The concern primarily used to be about what could be done by means of espionage.

And this generally made sense, as the means of publication and broadcast were in the hands of the few.

Now the bigger threat is mass-publication to the world.

This is a particularly striking passage (which I have broken into paragraphs):

“…we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.

“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage.

“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”

Unauthorised disclosure is, of course, at the heart of investigative journalism – indeed some define news as being what other people do not want to hear.

And there is already an offence in respect of unauthorised disclosure by third parties.

But that offence was enacted in the happy halcyon days of 1989 – the year incidentally that the WWW was conceived.

A time where the technological extent of unauthorised disclosure was Spycatcher being published as hard copy books in Australia.

So to a certain extent, the consultation paper is not new: the state still wants to control and prohibit what unauthorised third parties can disclose to the world.

What has changed, however, is the scale of potential disclosures – and that also has changed the priority of dealing with such onward disclosure.

But, as the Duncans Campbell aver, this reorientation of the law of official secrets needs to accord with the public interest in accountability and transparency.

In the consultation paper, ‘journalism’ is not mentioned – and ‘journalist’ is mentioned in passing twice.

The role of the media – and the rights and protections of those who publish information to the world – should instead be integral in any sensible regime of official secrets.

Else we will have the spectacle of the 2020s equivalent of the misconceived and illiberal (and preposterous and futile) Spycatcher injunctions of the 1980s.

Not having proper regard to the public interest in transparency and accountability in the making of any public policy – and especially in respect of national security and official secrets – means you have to deal with these foreseeable concerns later.

Journalism does not go away, just because you do not mention it and pretend it is not there.

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