Press regulation on a sinking ship
28 March 2012
Cairns v Modi  EWHC 756 – read judgment
It was coincidental that this cricket libel case and Lady Justice Arden’s speech on media intrusion and human rights “Striking the Balance” came out on the same day.
Non-followers of cricket and non-followers of Twitter are equally bemused by the vastly frothed story about match-fixing allegations, but this was the first social networking libel to hit the law reports in this country. Despite this, the case has all the trappings of an old fashioned defamation case – strong public figures, ready to come forward to defend their reputation/publication; a long lead time between publication and identification of the libel, protracted cross examination, sheaves of evidence going to both justification and claimant. The claimant is a famous New Zealand cricketer with a reputation to defend. Nothing new there. The novelty was that the defendant, one time chairman of the hugely popular Indian Premier cricket league, posted a line on his Twitter profile implying that the claimant had cheated by fixing matches. It was serendipitous that the author of the tweet, Mr Modi, is both a well known figure, resident in England, and ready to come forward. The justification defence fell apart and the claimant was awarded £75,000, with another £15K for aggravated damages. End of story. Or is it?
Mr Modi’s defamation of Mr Cairns is the tip of a very large iceberg, most of which is beyond the reach of the law. All our libel reforms and multitudinous proposals to instil better behaviour in the press, are, to continue the ocean metaphor, insignificant sea defences, as the columnist Matthew Parris puts it. Considering his position on the board of the free-speech organisation Index on Censorship, Parris muses –
we gave a considered submission to the parliamentary committee considering these draft reforms, and I stand by it. But I do begin to wonder whether the careful little sea walls that lawyers and legislators are hoping to construct are all doomed to be swept away in a tsunami of cultural and technical change.
The point of the web is its near-instantaneous nature. Choruses of voices, barrages of approval, disapproval, complaint, support or dislike sweep across the internet in waves of tweets and blogs and readers’ posts. Most voices are to all intents and purposes anonymous; few can be held to account. The sheer volume and the speed of this traffic makes its impossible for any editor or mediator to make proper checks before comments are posted….I submit that this is intrinsically impossible to supervise or regulate. (“The writing is on the wall for restrictions on free speech”, Spectator 10 March 2012)
As Arden LJ mentions in her speech, the industry regulator in this country, the Press Complaints Commission annouced earlier this month that it was moving “into a transitional phase, transferring its assets, liabilities and staff to a new regulatory body”. Moving the deckchairs on the Titanic, more like. But this obsession with small manoeuvres in the face of imminent catastrophe is widespread; there is ” considerable activity” in other parts of the world as well in relation to media intrusion. The European Commission has established a high level group on media freedom and pluralism. This will be making recommendations for the protection of the media in the autumn. In Australia, the Finkelstein inquiry published earlier this month has recommended the establishment of a government-funded “News Media Council” to set and enforce journalistic standards. In New Zealand, the Law Commission has issued a consultation paper seeking views on the extension of media regulation and the reform of civil wrongs.
The truths about press regulation are trite. Do we need yet another recitation in the form of this latest judicial lecture? The common law protects responsible journalism in some respects, but not others [15 & 18]. Journalists must behave responsibly . Human rights law protects both privacy and freedom of speech [19-23] . Common law controls, such as defamation, are essential prerequisites of a responsible press. Public figures should expect more intrusion from the media than private individuals . Controls on speech should not be content driven. What is in the public interest is not necessarily what interests the public. The press is a vital watchdog. There are cultural differences to free speech in Europe [25, 27 – 29, 64]. So on, and so forth.
Unfortunately, like all prayers, this incantation serves no greater purpose than a rousing recital on a sinking ship. It makes the performers and immediate listeners feel better but does nothing to provide them with the tools for survival in the imminent catastrophe. All the instances of Strasbourg intervention on behalf of responsible journalism [36 – 56] are very praiseworthy, but they belong to an archaic world of quaint reportage, where authors are identifiable, the printing process glacial, publishers accountable, and the courts can move at a leisurely pace of weighty fact examination and equally weighty reprehension of all sides, present and correct. A world in which all players can feel better by delivering to each other fine lists of guiding principles 
Arden LJ predicts that
It is not beyond the realms of imagination to see that in years to come the Strasbourg court will regard it as a necessary step by a state to have some procedures in place to monitor the activities of the media. In that case, however, a state should be able to choose how far to go beyond the basics of a regulatory scheme 
With respect, the realms of imagination are already in the past. The moment for Strasbourg or any other institution to step up to the mark and properly monitor the activities of the media has fled. We are left with the impossible situation where the print media continues to be governed by this leisurely collection of heirlooms from the pre-internet days, whilst blogs and social networks and unforeseeable future methods of communication run amok. Examples can be picked almost at random from any day’s news but a recent chilling reminder of what this is all about is the post-mortem threat of the Toulouse killer to release his film, taken with a Go-Pro camera, of the school massacre – brave threats by the French government to “jam stations” and the agreement by the broadcaster Al-Jazeera to abide by the ban mean nothing in the face of the very high likelihood that this footage will find its way onto the net in a few days’ time.
Perhaps there is nothing that the law can do about this; perhaps it is for the best. Parris suggests that this may be the best hope for the quality press – in an era of uncontrolled and uncontrollable media, where the law has almost no place, will offer new opportunities to identifiable publications which are responsibly run,
In a virtual anarchy, reputation becomes an enormously valuable asset. With nonsense and calumny swirling around everywhere – and when the notion that something must be true or someone would have sued, is obsolete – we will more than ever look for publications we can trust.
So, bring it on, says Parris, let it rip. Let us hope he is right.
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