Category: Media law

How the civil justice system forced Hugh Grant to settle – and why an alternative to that system is difficult to conceive

17th April 2024

Hugh Grant has acted in many counter-intuitive scenarios.

But the situation he described today on Twitter is perhaps the most counter-intuitive predicament of them all:

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Grant has been correctly advised by his lawyers – both as to the legal position and that he should settle.

Had Grant’s lawyers not given that advice they would have been negligent: this was the legal advice that had to be given.

But it seems wrong – how can this be the position?

And what can be done to change it?

These are good questions – though the second question does not have an easy answer.

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First let us strip the case of the celebrity of the claimant. We shall the claimant [X].

And we will strip away also the notoriety of the defendant. We can call them [Y].

Now consider the following:

– X is suing Y for damages in respect of a tort committed to X by Y.

– Damages is a money remedy.

– Y offers X more money than X would be likely to win at court if the case does go to trial.

In this circumstance, what should be done?

As the claim is only for money, and more money is offered than the claimant would receive if the case goes to trial, then what is the point of going to trial?

From one perspective, there is no point in the case continuing. After all, X is seeking damages – a money remedy – and X is now receiving money – more money than they are likely to be awarded by a court.

This perspective is the traditional one in English civil litigation: a claim in tort for damages is just another money claim, and so it can be addressed by money.

It does not matter if the tort is negligence, or copyright infringement, or misuse of private information, or whatever. Damages are the thing.

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But.

For a claimant there may be a desire for a public determination by a court of their claim.

A claimant here can point to, say, the relevant part of Article 6(1) of the European Convention of Human Rights:

“In the determination of his [or her] civil rights and obligations […], everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly…”

Surely, X – here, Grant – is entitled to “to a fair and public hearing” with the judgment “pronounced publicly”?

Surely?

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Well, you would think so.

And in a technical (but somewhat artificial) sense, Grant has not been refused his public hearing and public judgment. There is no express prohibition on him continuing.

What has changed is not his entitlement to a public hearing and to a public judgment – both are still available – but the consequences of him exercising his entitlement.

These consequences are because it is seen as a good thing – generally – for civil cases to settle before trial where possible.

And so the rules of the court are that if one side offers a high amount in settlement then the other side should be, in turn, encouraged to accept that offer.

Such settlements save time and money for the parties and they save scarce resources for the court system.

And as many claimants in money claims are concerned with, well, money then an early offer of money is often welcome.

In general terms: why should X and Y have to go to court if the matter can be resolved before trial?

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Some offers to settle are flexible, and can be set out in correspondence marked “without prejudice” or “without prejudice save as to costs” (though for many non-lawyers and even some lawyers, these terms can be employed incorrectly and counter-productively).

But the rules of the court have also fashioned a man-trap of a procedural device which we can presume was used in the Grant litigation.

This is the…

(drum roll)

…Part 36 Offer.

 

Part 36 is a powerful procedural weapon – for good and for bad – perhaps the most powerful single provision in the civil procedural rules.

Part 36 offers are to be taken seriously – very seriously – by both sides.

In essence, Part 36 provides teeth – like a man-trap – to an offer to settle.

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A Part 36 offer is usually an offer to settle the entire claim.

If it accepted them the the legal costs of the claimant up to the offer are paid.

Hurrah!

But.

If the Part 36 offer is not accepted then the pressure is on the offeree to “beat” the offered amount a trial.

And if the offeree does not “beat” the offered amount, then the effects are much as Grant says in his tweets.

The offeree has to pay the other side’s legal costs, despite winning the case.

And the stressful thing is that the judge who awards the damages will not be shown the Part 36 offer. The judge will not know what the parties know.

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It is a very brave – or foolish – party who rejects an even-plausible Part 36 offer.

In practice, there is an art and a science to the timing and setting of Part 36 offers. At the right moment and at the right amount, a skilled litigator can bring a civil claim to a speedy halt.

There is also – unsurprisingly – extensive case law about what constitutes a Part 36 offer and what constitutes acceptance, and so on. This case law is because so much depends on the offer being valid.

It is a man-trap in the middle of a mine-field.

If and when to make and accept (or reject) a Part 36 offer is often the single most important decision a party and their lawyers will have to make in any valuable civil case.

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In the Grant case, it is apparent that the alleged tortfeasor chose now was the best time to set the man-trap.

It would have to have been for a substantial amount – which was higher than the likely amount to be awarded to Grant.

It was an offer he could not refuse.

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But.

Understanding the purpose of Part 36 – to make parties consider their positions seriously – does not counter the sense that there is something wrong here.

Yes: the Grant claim is a claim for damages.

But it was also a claim for the court to determine whether there had been wrongdoing by the defendant, which is denied.

And now there will not be a judicial determination – and the defendant can continue to maintain its lack of liability.

A Part 36 offer, as a settlement offer, is not an open admission of liability – or of culpability.

You can see why Grant and others are upset.

The defendant has been able, in effect, to again purchase its way out of any admission or a determination of any wrongdoing.

The defendant has adopted a clever and deft litigation strategy – and it is working well, insofar as no admissions or determinations have been made.

Surely this cannot be acceptable?

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The issue is that Part 36 works well for many relatively mundane cases.

It means the claimant can get a generous offer of money at an early stage of a case, with their legal costs met. It means a defendant has to err on the side of generosity in the amount that is offered.

It means that hard-headed decisions about the litigation have to be made at an early stage, rather than put off for trial.

In essence, what seems wrong in the Grant case is also what goes well for damages cases generally.

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There is an exception to the automatic operation of Part 36 – a court has the discretion not give effect to the consequences of Part 36 if it is “unjust”:

But that is a very high hurdle to meet: and a judge in the Grant case may not be easy to convince that it would be unjust in what is a damages claim for Grant to suffer the consequences of rejecting what was a generous Part 36 offer.

That Grant wanted a public determination of culpability by the defendant would not, by itself, make a Part 36 offer unjust.

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The hard question is how the system could be changed so that Part 36 could not be used as it has been in the Grant case – but still could be used in other damages claims.

And there may not be an easy answer.

Perhaps there can be a public interest exception – where a certified claim will not meet the normal consequences of not beating a Part 36 offer.

Or perhaps the “unjust” exception could be widened to have regard to the wider public interest.

Whatever the solution – if there is a solution – it would need to not have adverse consequences for those claimants that achieve early resolution of their damages claims against powerful defendants.

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The ultimate problem, of course, is that this damages claim was doing the work which should have been by other parts of the legal system – and by the aborted part 2 of the Leveson inquiry – where clever and deft use of the civil procedure rules would not help the defendant.

(No doubt lawyers skilled in those alternative procedures would employ their own tactics.)

But this was a damages claim – an important damages claim with wide implications – but still a damages claim. And from a litigation perspective, that is how it has been dealt with, and the claim is now resolved.

Perhaps the upcoming claim of Prince Harry will lead to a determination of wrongdoing.

Perhaps he is the claimant brave – or foolish – enough to reject a generous Part 36 offer.

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A close look at the Donelan libel settlement: how did a minister make her department feel exposed to expensive legal liability?

8th March 2024

Yesterday over at Prospect I did a post on the curious situation of the Michelle Donelan libel settlement. Please click and read the post here.

Here I want to set out some further thoughts on what is, in one way, a remarkable law and policy news story – and what was, in another way, an accident waiting to happen given the practices now common in politics and media.

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This is her statement:

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Donelan is a Secretary of State and a Member of Parliament – and, as such, she can say and publish whatever she wants in a libel-safe way, as long as she goes about it sensibly and in the right way. The law of the United Kingdom is configured so as to allow ministers and parliamentarians an “absolute privilege” for what they say in parliament. The law is further configured so that in official correspondence, defamatory things can be freely stated (with “qualified privilege”) as long as the recipient has an interest in receiving the information, and it is said in good faith and without malice.

This configuration can be seen as unfair and one-sided – especially as, with qualified privilege, the onus is on the complainant to provide there was malice and bad faith. But this is how, in this context, the overall balance between free expression and reputation rights has been set in the public interest.

All this means that if Donelan, or any other minister, had genuine concerns about the appointments to a board of an agency which their department supervised, those concerns can be expressed and received, and it would be hard-to-impossible for any person mentioned to actually bring a claim in libel.

And so it is pretty remarkable for a minister to (purport to) do this and end up facing personal liability for libel – and to also expose their department to liability for libel.

Something wrong happened, and it needs explanaing.

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What converted this into a situation where the minister and her department became exposed to legal liability was the decision by the minister to tweet a copy of the letter stating these concerns about specific individuals.

At a stroke (of the keypad) the qualified privilege that would otherwise have protected that communication was lost. The thousands of people to whom the letter was now published had no proper interest in the contents.

And as the key accusations had not been investigated with any duly diligent checks, the publication of the letter on Twitter also could not be said to be in the public interest, which meant that an alternative defence to libel was also not available.

So not only was it a very strange thing for the minister to do, it was legally reckless.

Since the Prospect piece was written and published, it has been reported in the news that the minister had had advice before the letter was tweeted.

If this is correct, and the advice was legal advice (and not, say, a non-legal adviser nodding along), then either:

(a) the minister went against that legal advice; or

(b) the minister was given the wrong legal advice.

If the latter, then the decision to publish the letter on Twitter does not become any the less strange as an act, but the minister can at least say that she was not properly warned of the legal consequences. (And the latter is perhaps possible if the government lawyer concerned was not a media law specialist, though the law here is pretty straightforward and basic.)

But, in any case, no competent lawyer with a knowledge of media law could have advised that publishing the letter on Twitter would be covered by qualified (or absolute) privilege.

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From looking closely at information in the public domain, it would appear that the lawyers for the complainant (and she will not be named in this post, as she has suffered enough) sent a letter before claim to Donelan in her personal capacity.

(This can be inferred because the letter complained of was tweeted from her personal Twitter account, and the retraction was also tweeted from her personal account – hence the legal threat was made against her personally.)

But.

It would seem that the government immediately took the claim as meaning the department would be on the line, and so the government legal service acted for Donelan and not any private law firm.

(This can be inferred from the government statement “This [settlement] was subject to all the usual cross-government processes and aims to reduce the overall costs to the taxpayer that could result from protracted legal action.”  The reasoning for this inference is in the Prospect piece.)

Normally the government would not need to do this.

Indeed, given the rules on public expenditure, the government should not have done this – unless the government believed itself to be exposed to potential liability.

But something about how the claim was framed put the frighteners on the government, and the government legal service jumped in.

Yesterday in Prospect I averred there were two possible reasons for the government dealing with the claim, but recent news reports now suggest a third.

The first is that the government saw the tweet as being connected to her role as Secretary of State – it was part of her departmental work and, although the tweet was from her personal Twitter account, it should be treated as an official communication.

The second is that although the tweet was in her personal capacity, the litigation would drag in the department in a costly and time-consuming way, and this litigation could also develop so as to expose the department to direct legal liability about the letter to the agency. In particular, the department may be anxious that “disclosure” of internal documents could undermine any qualified privilege it had in the letter to the agency.

The third – further – reason is that the department gave the minister duff legal advice saying that the letter was safe to publish on her personal Twitter account.

Whatever the reason – whether it be one of the above, or a mix of them, or a reason not currently obvious – a decision was made that this was the department’s problem, and not just the minister’s unfortunate personal political predicament. And this decision presumably was made by a senior official under government accounting rules.

That this is the position is the only natural meaning of the government’s statement: “This [settlement] […] aims to reduce the overall costs to the taxpayer that could result from protracted legal action.”

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Once the government realised it was on the libel hook then it was sensible for the department to close down this litigation as soon as possible.

It appears that the litigation did even not get beyond pre-action correspondence. It seems no claim was issued at the High Court or served on Donelan.

The government legal service seems not to have indulged in any tiresome litigation posturing along the lines of “as taxpayers money is involved we really would need to see the case properly set out in served particulars of claim” or any other similar nonsense.

Government lawyers needed to settle this case, and fast.

There was a problem here.

Fortunately for the government, it was also in the interests of the complainant to settle this matter quickly.

A retraction was offered, with damages and costs, and this suited the complainant.

Had the complainant pressed on, there is little doubt she could have secured an apology – and the word “sorry” was not in the published retraction.

(Given the news coverage, the minister may have well apologised – as it has been widely but incorrectly reported as an apology.)

In the circumstances, both sides could be satisfied with this outcome – though one suspects there was a rather loud “Phew!” in Whitehall when the settlement was reached.

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For a government minister to visit potential legal liability on their department is remarkable, given how the law generally protects ministerial statements and communications. This required a special fact situation.

But.

This sort of thing was also an accident waiting to happen.

There is a information economy in and about Westminster – where ministers and special advisers and lobbyists and researchers and pressure groups and journalists are constantly swapping material between themselves (and sometimes those involved are wearing more than one hat).

It was perhaps only a matter of time before an example of this spilled into official correspondence, and then was tweeted from a minister’s social media account.

And when it happens there can be legal consequences.

Here it was the law of libel – but one can conceive of situations where other areas of law could be engaged, such as misfeasance in public office.

For not only is the law configured so as to protect ministers and politicians in some situations, it also configured so as to impose immense legal liabilities in others.

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Disclosure: I was a government lawyer about twenty years ago.

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The importance of access to good legal advice: how Johnson had only one penalty while junior Downing Street staff had many

23rd May 2022

Some of the best lawyers in the country work for those who often state publicly their disdain for lawyers.

Some of the best media lawyers work for the tabloid press who insult lawyers on front pages and blame them for many social and political ills.

And some of the best regulatory and procedural lawyers help populist politicians and pundits get out of all sorts of scrapes.

None of this is surprising – being part of the tabloid media or being a populist politician or pundit is a high-risk activity.

Such figures will regularly face civil and/or criminal liability in what they want to say or do, but thanks to their good lawyers they are kept safe.

The irony is, of course, that the stock lines-to-take of such figures include ridicule and hostility towards the lawyers who help others.

Those lawyers are ‘activists’ and invariably ‘left-wing’ – some are even ‘human rights’ lawyers.

In other words: the populists dislike lawyers that keep other sorts of people from legal harm, while taking the benefit of lawyers who keep populists safe.

From time-to-time you can see this discrepancy in practical examples.

During the phone-hacking cases, certain publishers took the benefit of outstanding legal advice, while sometimes letting individual reporters and their sources fend for themselves.

And last week we saw the same with the Downing Street parties and the now-closed Metropolitan police investigation.

It would appear that senior Downing Street figures escaped penalties while junior staff incurred them.

And it seems to be the situation that this discrepancy may be because senior figures had the the benefit of deft legal advice in how to complete (and not complete) the questionnaires, while more junior staff provided answers that had  not had the benefit of such advice.

This sort of ‘getting off on a technicality’ would – if it were about migrants or other marginalised group, or loud protesters – be met by emphatic criticism from populist politicians and the tabloid press.

But as it is the leaders of a populist government, then there is hardly a word.

There is nothing wrong with such senior figures having access to competent legal advice.

The issue is not that some have access to good lawyers, but that not everyone does.

Everybody facing criminal liability should have access to the legal advice of the standard that assisted Boris Johnson in ‘Partygate’.

And when you next see denouncements of ‘activist’ lawyers, remind yourself that those denouncements often come from those with ready access to the best quality legal advice, when those that need help from ‘activist’ lawyers often do not.

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SLAPP and English courts – some preliminary issues

21st March 2022

SLAPP – strategic litigation against public participation – is a new-ish name for an age-old problem.

Here is L. Ron Hubbard in 1955 advocating law suits against those who were using Scientology materials without authorisation:

“The purpose of the suit is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, well knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly”

(The Scientologist: a Manual on the Dissemination of Material, page 157)

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SLAPP is, of course, a pejorative term (as this blog recently averred) – but, for want of a better term, is the best name we have got for a certain thing.

The problem with SLAPP being a pejorative term is that, just as one person’s terrorist can be another person’s freedom fighter, one person’s SLAPP case is another person’s legitimate attempt to defend their reputation and/or privacy rights.

Few if any claimants will say expressly that their case is a SLAPP case – not many are as brazen as L. Ron Hubbard.

And it is possible that what one side considers to be a SLAPP case will genuinely not be considered to be a SLAPP case by the other side.

That said, SLAPP as a term has two useful qualities.

First, it is not limited to any one area of law – for example defamation – and so it implicitly recognises that various areas of law can be (mis)used – not only defamation but also misuse of private information, data protection, confidentiality, intellectual property rights, and so on.

Second, it indicates that certain decisions are being made strategically – or at least, tactically (though TLASS is a less handy acronym) – about the purpose to which law is being used.

Another problem, however, with SLAPP as a term is that its American origins may mislead people into thinking all anti-SLAPP legislation is the same.

In fact, much of what constitutes anti-SLAPP reform in the United States is already part of English law, including the ready availability of costs sanctions and early opportunities for meritless cases to be struck out.

There is no single anti-SLAPP reform that fits all jurisdictions.

So as long as the strengths and weaknesses of SLAPP as a term are borne in mind, it is the best description we have got of a certain thing.

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But – what is that thing?

Well.

One thing it usually is not about is the law or procedural rules being broken by lawyers or their clients.

In almost all SLAPP cases, the lawyers are using the laws and court procedures available to them: the issue is the ulterior purpose to which those laws and court procedures is being put.

This is why, in my view, attempts to ‘name and shame’ the lawyers involved are misconceived.

(Though, for completeness, I know and deal with many of those who are involved.)

The lawyers that have so far been publicly named are but a sub-set of the lawyers competent and willing to take on such claims.

And – frankly – you do not need parliamentary privilege to ‘name and shame’ the lawyers: all you need to do is look at the case reports to see who they are, and at their own websites to see how they promote their practices.

I happen to be a media defence lawyer (among other things) – acting for journalists, campaigners, and politicians – and I chose not to act for claimants in these sort of cases, but that is entirely a personal choice.

In my experience of seeing dozens of threatening letters (of varying quality), almost all the threats are within the scope of law and practice as it stands.

And if a threatening letter did not come from one firm, I can imagine pretty much the same sort of letter coming from a dozen other firms.

The problem is with the law and practice, and so – if you sincerely want to solve the problem – that is where the solution will be.

Although therapeutic, ‘naming and shaming’ the lawyers involved is a cul-de-sac.

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Another thing to note is that, in England, SLAPP is not just about costs – even if the amounts involved can be eye-watering.

Yes, London claimant lawyers are expensive – too expensive.

But: American lawyers are expensive too, sometimes even more expensive than English lawyers.

Media lawyers in other jurisdictions are also high-charging and highly paid.

Yet, it is in England that certain cases are brought – and threatened.

This is because the problem with SLAPP cases in London is not just the costs, but how those costs can be easily weaponised as part of of a legal threat.

London litigation is often not a game of thrones, but a game of costs.

The dynamics of many cases will come down to costs, and how costs consequences can be inflicted and deflected.

And how this happens comes down to the structure and practice of the relevant law.

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But perhaps the biggest difficulty about discussing SLAPP in England is that the discussion can sometimes seem abstract.

SLAPP is a bad thing, and nice people are against bad things.

Let’s boo at SLAPP!

But the challenge is to make any SLAPP reform work practically – to make a difference in actual cases.

There are a number of ways law and practice can be misused, and so any reform needs to be set against actual cases to see if the reform would make any practical difference.

One thing I recall from the campaign which led to the Defamation Act 2013 is that the key case for mobilising support – the misconceived and illiberal claim brought by the British Chiropractic Association against science writer Simon Singh – turned out not to be directly relevant to the legislation that was then passed.

Little in that Act would stop another such case being brought again – and indeed it was the court’s own decision in that case, and not any legislation, that has stopped further similar claims.

There can be a practical disconnect between cases that attract public concerns and the reforms then promoted for dealing with such concerns.

That is why this blog is going to look over the next few days at a ‘data-set’ of SLAPP cases, to see what the actual problems are and to see what, if any, solutions can be put in place to stop similar cases being threatened and brought.

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In the meantime, I would suggest anyone interested in SLAPP, and what practical reforms can be implemented to prevent such cases, look at the following:-

– the transcript of the oral evidence at the foreign affairs select committee on the use of strategic lawsuits against public participation (or watch it here);

– the excellent and comprehensive work by Susan Coughtrie and the Foreign Policy Centre on SLAPPS – including this policy paper;

– this House of Commons library briefing on SLAPP; and

– the UK government’s recent call for evidence on SLAPP.

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The Chelsea FC statement that is not what it seems

27th February 2022

Last night – at 6.45pm on Saturday – Chelsea Football Club unexpectedly published this statement:

In terms of media coverage, the statement could not have been timed better.

It was early enough to be just about picked by the Sunday newspapers, but late enough to avoid lengthy scrutiny.

And it was at that time on a Saturday that those on Twitter are expecting ‘breaking’ stories.

Accordingly, the statement was quickly taken (and shared) by many in news and sports media as being significant.

This apparent significance also seemed warranted by the content of the statement, which I publish below (with sentences split out):

“Statement from Club Owner Roman Abramovich

“During my nearly 20-year ownership of Chelsea FC, I have always viewed my role as a custodian of the Club, whose job it is ensuring that we are as successful as we can be today, as well as build for the future, while also playing a positive role in our communities.

“I have always taken decisions with the Club’s best interest at heart.

“I remain committed to these values.

“That is why I am today giving trustees of Chelsea’s charitable Foundation the stewardship and care of Chelsea FC.

“I believe that currently they are in the best position to look after the interests of the Club, players, staff, and fans.”

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Let us look at what this actually says.

One phrase which stands out is “stewardship and care” – which Abramovich is “giving” to the “trustees of Chelsea’s charitable Foundation”.

Two sentences before that phrase – deftly – this is framed as a “decision”.

This looks solemn and legally meaningful.

But.

The statement has no legal meaning at all.

Indeed, it would seem that the statement was crafted deliberately so as to give the impression that something legally significant was happening – a “decision” to transfer a thing to “trustees” – when nothing legally significant was happening at all.

This is PR – and this is what you get when you can afford expensive and wily PRs.

And it had the desired effect:

And there were many excited tweets from those in news media who should have known better suggesting the statement said something important.

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The phrase “stewardship and care” looks like it should be a legal phrase.

It is similar to, say, “duty of care” (which is a legal term of art) – and “stewardship” has a nice legal-ish comforting ring to it.

But it is flapdoodle.

What one transfers to trustees is not “stewardship and care” but ownership of property.

The trustees then – literally – hold that property on trust on behalf of beneficiaries.

But if you look at the Chelsea FC statement there is no property been passed to trustees.

The word “trustees” is, in effect, a misdirection.

They may as well be assistant referees or physiotherapists, for their title is – strictly speaking – irrelevant to what is being described

It is very skilfully put-together statement for journalists and others in a hurry.

And only those with a background in commercial and trusts law would realise immediately that the statement did not actually say what it seemed to say.

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This does not mean that the fact of such a statement is not without its own significance.

There would be a purpose to such a statement at such a time: statements like this are not randomly put out at 6.45pm on a Saturday when Russia is invading Ukraine.

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Of course: there is nothing wrong about retaining ownership of Chelsea FC – even from my perspective as an Aston Villa supporter.

It is certainly not defamatory to say that Abramovich remains as much the owner of Chelsea FC after this statement as he was before.

(And we would especially like to welcome all the representatives of London’s defamation law enforcement community who have chosen to join us here on the law and policy blog at this time.)

Nothing on this blog should be taken to mean that one should think any worse of anyone involved – indeed, this post registers admiration at a such a perfectly deft exercise in PR.

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

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 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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From 1984 to Miss Minutes: the surveillance state is watching you, and there is little or nothing at law you can do about it

19th July 2021

One of the many pities about Nineteen Eighty-Four being too familiar a book is that one can overlook the care with the author of the story constructs the world of an intrusive surveillance state.

The author, a former police officer, does this briskly and subtly.

First he takes the central character through a hallway where a poster has face that is – metaphorically – ‘watching you’.

Then you are told:

‘In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the police patrol, snooping into people’s windows.’

So you are being watched – not metaphorically – from the outside.

And when the character enters his flat:

‘The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it, moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard.’

You are also thereby being watched – and again not metaphorically – from the inside.

We are still fewer than 700 words into the novel, but the author has already depicted the claustrophobic predicament of living in a surveillance state.

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Today’s Guardian has set out in a number of articles the extent to which such a surveillance regime is now translated from a literary text into social and policy reality.

None of this is surprising.

And none of this is new: the author of Nineteen Eighty-Four easily imagined such things in the 1940s.

What has not changed is the want of those with political control to have such power.

All that has changed is that those with political power now have access to the technology that enables them to have that power.

But perhaps unlike the state in Nineteen Eighty-Four, those with power do not proclaim from posters – in hallways or otherwise – that we are being watched.

And instead of it being on a big screen on your wall, you willingly and casually carry the means of this intrusion around with you.

Indeed, you are probably looking at that very device this very moment.

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From a constitutional and legal perspective, the obvious issues are the extent to which – if at all – there is any accountability for the use of these powers and the extent to which – if at all – there is any regard for human rights and civil liberties.

And as this blog has previously averred, there is very little accountability and transparency for those with political power even for things which are in the open and without the daggerful cloak of ‘national security’.

Indeed, even cabinet ministers have realised recently that they are under surveillance in their own offices with no control over that surveillance and the uses to which it will be put.

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The one welcome, fairly recent development is that this surveillance state is now (nominally) on a lawful basis.

Each power and exercise of power by the state has to be within the law.

But.

Two things.

First: such is the lack of real accountability and transparency, it makes no difference to the surveillance state whether it is within the law or not.

Even when there is something that is known-about and contestable, the deference of our judges when ‘national security’ is asserted is considerable.

Our judges may not use gavels – that is a myth – but they may as well use rubber-stamps.

And second: public law, well, only covers directly the actions and inactions of public bodies.

But as today’s Guardian revelations show, the software and technology comes from the private sector and there is little or nothing that can effectively regulate what private entities can do with the same means of surveillance.

Public law bites – to the extent that there are teeth attached to a jaw capable of biting – only once the technology and data are in the hands of public bodies.

It is a depressing situation – and not one which can be easily addressed, if at all.

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This blog has been criticised that it does not provide solutions to the problems that it describes and discusses.

But sometimes predicaments do not have ‘solutions’.

It is a tidy human habit of mind to conceptualise matters of concern as ‘problems’ – for that often implies there must be solutions.

Once you say a thing is a problem you usually are half-way to suggesting that there must be some solution.

But the predicament of those with power having greater and greater control by means of technology may not have any natural limit.

Each update and upgrade just making it easer for those with public and private power to intrude and invade.

Imagine reboots, stamping out your data – forever.

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The Crown and the Media – from phone hacking to the Dyson report

22nd May 2021

If anyone doubted the often indirect power of the crown in the public affairs of the United Kingdom then this week’s media news about the Dyson report is a useful reminder.

A reporter fabricated documents so as to engineer an introduction to a member of the royal family and then lied about it.

This sort of ‘blagging’ – as  some of those in the media would call it – was one of what was once euphemistically described as the ‘dark arts’.

And as a result of the exposure of this dishonesty, the future of the BBC (itself founded by royal charter) is now uncertain.

To throw the future of the United Kingdom’s state broadcaster into doubt requires a significant intervention.

It is an example of how the presence of a royal element to a story can electrify things.

And it is not the first time.

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The phone hacking scandal – which affected the press in a way that the Dyson report may affect the BBC – also came about because it had a significant royal element.

In short: the telephones of the royal household were hacked – just as the telephones of celebrities and newsworthy non-celebrities were hacked.

(Hacking was another of those ‘dark arts’.)

But because the target was the royal household, a different part of the metropolitan police became involved instead of those parts of the metropolitan police that the press then had a close (and mutually advantageous) relationship.

This in turn led to a police raid of a private investigator’s office, and the documents then seized in turn were a media-legal time-bomb which exploded when disclosed about the time of the Millie Dowler murder trial.

The story is set out in this thread by James Doleman, who reported on the trials (and with whom, I must add, I disagree on other issues):

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Had the mobile telephones of the royal household not been hacked then it is plausible that – even now – we would not know anything about the real extent of telephone hacking.

Such is the indirect power of the crown in our public affairs.

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Why the first paragraph of the lawsuit brought by Dominion Voting Systems against Rudolph Giuliani is a splendid piece of legal drafting

26th January 2021

You would need a heart of stone not to laugh like a drain at the lawsuit brought by Dominion Voting Systems against Rudolph Giuilani.

The pleading is worth reading for its own sake, and the first paragraph – which, as this post will show, rewards re-reading – is a cracker.

But once one eventually stops laughing, what should one make of it?

Of course, the defendant Rudolph Giuilani is now regarded by many as a figure of political fun, a villain in the Trump pantomime.

But principle is – or should be – blind to the person to whom it applies.

So here is a thought experiment.

Imagine – for the sake of argument and exposition – that there was a corporation that provided voting machines and, unlike the plaintiff in this case, there was a serious and consequential issue as to the efficacy of the equipment.

And imagine that the political or media figure bringing loud attention to this issue was not the defendant in this situation but instead a credible and likeable politician or journalist.

Would you still clap and cheer if that noble figure was faced with a 107-page legal claim for $651,735,000 or some other absurdly precise amount?

Or would you re-tweet furiously about threats by corporates to whistleblowing and freedom of expression?

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So how can the court tell the good cases from the bad?

How can the court strike the right balance?

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This thread from American lawyer Mike Dunford sets out the legal challenges for Dominion Voting Systems:

And as would be the position with a similar case in England and Wales, you will see that the legal issue quickly becomes one of showing malice – and there it is called ‘actual malice’:

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At this point the non-lawyer will ask, understandably: what is malice?

And a lawyer will respond, frustratingly: it all depends.

But here it is interesting to now go back to the first paragraph of the the legal pleading of Dominion Voting System (and this is why it is worth re-reading):

“During a court hearing contesting the results of the 2020 election in Pennsylvania, Rudy Giuliani admitted that the Trump Campaign “doesn’t plead fraud” and that “this is not a fraud case.” Although he was unwilling to make false election fraud claims about Dominion and its voting machines in a court of law because he knew those allegations are false, he and his allies manufactured and disseminated the “Big Lie,” which foreseeably went viral and deceived millions of people into believing that Dominion had stolen their votes and fixed the election. Giuliani reportedly demanded $20,000 per day for that Big Lie. But he also cashed in by hosting a podcast where he exploited election falsehoods to market gold coins, supplements, cigars, and protection from “cyberthieves.” Even after the United States Capitol had been stormed by rioters who had been deceived by Giuliani and his allies, Giuliani shirked responsibility for the consequences of his words and repeated the Big Lie again.”

This is not just racy narrative – if you look carefully you will see that it is a clever attempt to show malice.

Giuliani said a thing he knew he could not say in court; he knew it would go viral; he had a financial incentive; and he was irresponsible in respect of its consequences.

Every sentence – every clause – of that well-crafted first paragraph is serving a purpose in showing that there was ‘actual malice’.

It is a lovely piece of legal drafting – enough to make one want to clap and cheer, regardless of the identity of the defendant.

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Corporations – especially those providing public services or supplying equipment for use in public services – should not have it easy when it comes to making legal threats.

Even when they are threatening pantomime villains.

Public figures, especially those in the worlds of politics and media, should have some protection when they are complaining of such corporations.

Even when those figures are pantomime villains.

The purpose of the law in these situations is to strike a balance – to provide for what both sides would need to show in court.

Here the corporation – rightly – cannot just sue because of damaging false statements, it may also need to show that there was malice.

And the lesson of the first paragraph of the pleading and of the rest of the complaint is that in certain circumstances this can be shown, at least arguably.

What comes of this case cannot be guessed at this time – and most civil claims tend to settle.

But Giuliani has a genuine legal fight on his hands here.

And you would need a heart of stone not to laugh like a drain.

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