Archive for September 2nd, 2010

The recent, and rather absurd,  High Court case about The Stig’s identity – known to countless people and available on the net for some time –  has brought into sharp relief the issue of suppression of information, commercial interests and the controllability of the media. The High Court’s writ has only ever run in England & Wales.  Scotland has a separate legal system. The world has many legal systems.  In pre-internet days it did not matter that much – newspapers could be (and still, to some extent are) cowed into withdrawing publication of  ‘inconvenient’ information by a letter from a specialist firm of libel lawyers.

The chilling effect of a libel letter is known to many. Libel tourism, libel reform and the whole issue of a right to privacy is very much in the frame for debate and law reform.  It is widely believed that there at least three superinjunctions out there protecting the commercial interests / private lives of leading footballers granted in recent weeks / months. I don’t know.  In fact, none of us are supposed to know.  That is the point of a superinjunction.

As an aside – I don’t buy into the ludicrous claim by Harper & Collins that their victory in The Stig case is a victory for freedom of speech. My view is that it isn’t.  That case is all about commercial interests and the claim by the publishers demeans the noble ideal of  ‘freedom of speech’ when it really matters.

Guido Fawkes published information on his blog about William Hague and his SpAD (see the follow ups on his blog). This has led to a great deal of vitriol and Hague issuing an emotional statement about his private life – which, being fair, is his business and his alone.  Sundry kneejerkers got in on the act and published tablets of stone on their blogs, some even , absurdly, criticising Guido for what they had themselves, in earlier times, done!  – their motives for doing so, possibly honourable, possibly self aggrandising.  It matters not. I am getting to the point..

Today, in The Times, Frances Gibb wrote a fascinating piece entitled “Law struggles to keep up with bloggers”. I can’t give you a link – because The Times is now behind a paywall.

Frances Gibb argues…”Is the internet and its blogosphere killing our laws? When print or even broadcasting media ruled supreme, a lawyer’s writ had a powerful reach. The courts, too, could grant injunctions – binding on not just one newspaper but every media organisation.  But now the law is struggling to keep pace as stories, or just rumour, surface on the internet, with a global reach in seconds.”

Gibb notes the Hague / Myers case raised by Guido – and now countless others.

Mark Stephens, a well known media lawyer with Finers Stephens Innocent makes the point: “The internet is not a law free zone…but once material is out there, it is very difficult to put it back”.

I suspect that Mr Justice Morgan in The Stig case had this phenomenon in his mind – I will read the judgment.  I have not done so as yet.

Frances Gibb  then quoted Dan Tench, another very well known media lawyer – from London firm Olswang. Dan Tench is reported as saying

“The lack of accountability dilutes the impact of what is said.  People can’t rely on it. The traditional media is accountable to the law – and that is its strength.  What is has to sell is its authority – and that is the difference.”

Dan Tench is a very shrewd and experienced lawyer – but I am going to disagree, without being critical of him, with this proposition in three ways:

1. I am not at all sure that the supposed lack of accountability of bloggers et al dilutes the value of what they say. Bloggers (who may not be worth suing because they have no money) often have wider reach (and knowledge)  than some quality specialist newspapers and even broadsheets in the case of the leading political bloggers.  This is particularly the case for political bloggers.   They also have an audience, net savvy, who repeat the information and, thereby, dissemination is remarkably wide for big issues. I am not at all sure that people regard the writings of journalists from politically biased newspapers as any more authoritative than independent (but politically aligned) bloggers.  This may well come as a shock to traditional journalists and TV autocuties – but life in the internet age has changed influence and the dynamics of  commentary on the events of our times. The days of reading the news in a dinner jacket are long gone – thankfully. Do ‘people’ really rely on the information in newspapers and TV broadcasts these days? I’m not so sure they do to the extent that Dan Tench, impliedly, supposes.  I regard the leading political bloggers as being  better informed and capable of sharper analysis than many of the journalists writing in the newspapers.  I have also found this to be the case in the field of finance, economics and science. That, of course, is a personal view and not ‘evidence’!

2. The traditional media is accountable to law.  Unfortunately / fortunately, for bloggers and users of twitter – so are we. So that is not the forceful point it seems to be – but I will admit that a newspaper or TV station  is an easier target than a host of bloggers, libertarians, conspiracy theorists, nutters and anarchists – some of whom are very poor and neither contactable through anonymity or worth suing.

3. What it (Traditional media)  has to sell is its authority – and that is the difference. I don’t really think I need to comment on that.  You will draw your own conclusions on the reality of that statement.

Frances Gibb did note in her excellent commentary “Mr Stephens said that rather than trying to make futile attempts to control the media, the law should defer to the “innate good sense of the crowd” – in other words, people will make up their own minds about allegations on the internet.  “You can’t stop debate, he said”

And… if you really want to make a complete hash of things, involve lawyers,  and try to suppress the unsupressable just be warned about The Streisand effect. Trafigura and others have found out about that to their cost.

The genie is out of the bottle – but the law is not being killed. It will simply have to adapt to accept a reality.  I don’t, personally, think that that is such a bad thing.

As always – for I am merely a commenter not a pronouncer – your comments will be most welcome.


Note:  Mark Stephens and I plan to do a podcast very soon – it would seem that we have many things to discuss.  Coming soon….

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