Friday, October 12, 2007
The Court of Appeal has ruled in favor of an author who lost a defamation case last year against a police officer. Michael Charman had alleged that Graeme McLagan's book Bent Coppers libeled him by labelling him as corrupt and a lower court agreed. But the appellate court reversed, accepting Mr. McLagan's "Reynolds defense," in which a defendant can show that it has acted responsibly in doing its research and in publishing material that serves the public interest. The defense takes its name from the case of Reynolds v. Times Newspapers,  EWCA Civ 972.
This is apparently the first time an author of a book has successfully used the Reynolds defense to fight off an allegation of defamation.
Here is an excerpt from the opinion. The justice quoted is Lord Justice Ward; he is commenting on the application of the Reynolds factors by the court below.
"Although I have considerable sympathy for him since he did not have the benefit of Jameel at the time he wrote his judgment, I am satisfied that the judge erred in his approach. I am, moreover, satisfied that I have enough material before me to deal with this defence of Reynolds privilege. I have already expressed views about the professional responsibility of McLagan's conduct and I now turn to the ten matters identified by Lord Nicholls in Reynolds.
(1) "The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true."
Even though the passages bear the meaning of cogent grounds for suspicion rather than guilt of corruption, the charges are nonetheless, as the judge held, very serious for senior serving officers of the Met.
(2) "The nature of the information, and the extent to which the subject-matter is a matter of public concern."
The public interest in this story has always been common ground, and rightly so. The police are here to protect us and we demand and expect that they will carry out their duties without corruption and so, where there is corruption, it must be exposed and where there is a justified suspicion of corruption it deserves to be discussed.
(3) "The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories."
Much of the story comes, of course, from Brennan as revealed in the Gaspar tapes. Brennan was a flawed character as was made obvious. McLagan did not, however, rest on his account alone, he made great efforts to tap his police sources for all the light they could shed on the problem. This was, after all, the story of the Ghost Squad.
(4) "The steps taken to verify the information."
In his judgment the judge said that McLagan did not claim to have verified the information about Charman and that there were no means whereby he could have done so. He held,
"In my view McLagan ought to have carried out an evaluation and analysis of the material available to him."
Indeed he ought to have done. But in my judgment it is plain that he did so. True it is he could not verify the truth of Brennan's allegations because only three people were involved in the corruption and the payment of £50,000 by Brennan to the officers. It was one man's word against another's. What McLagan did do, and what the judge gives him no or too little credit for doing was the further research he carried out, the interviews he held with the investigating officers and the judgment he made as to their credibility and the inferences which could properly be drawn from the material as a whole. It is not easy to see what more he could have done.
(5) "The status of the information. The allegation may have already been the subject of an investigation which commands respect."
"The status of the information" was no doubt introduced in Reynolds because of the importance that it had in the Court of Appeal in that case. At p. 167, the Court of Appeal said:
"We make reference to "status" bearing in mind the use of that expression in some of the more recent authorities to denote the degree to which information on a matter of public concern may (because of its character and known provenance) command respect."
To the extent that matters were investigated at the Central Criminal Court, as they were, they must command respect. The judge held it was "unwise on McLagan's part to have placed reliance on the opinions expressed privately to him by individual officers such as Coles", but these were the investigating officers and their opinions cannot be discounted even making allowance for the counter-attack launched against them by Charman. The status of their information is certainly high enough to warrant writing a story which gives rise to no more serious an allegation than that there were cogent grounds to suspect Charman.
(6) "The urgency of the matter. News is often a perishable commodity."
This factor does not arise in this case as the judge correctly held. I see no reason at all for confining responsible journalism to newspapers and magazines. It must be extended to the authors and publishers of books. Mr Tomlinson did not attempt to suggest otherwise. As Lord Hoffmann said in Jameel, , the Reynolds defence is available "to anyone who publishes material of public interest in any medium", the emphasis being added by me. I agree, however, with Mr Tomlinson's submission that because the authors and publishers are not under the same pressure of time before the presses begin to roll, greater care will be expected of them to ensure they act properly.
(7) "Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary."
The judge accepted that approaches to obtain Charman's side of the story were rebuffed. The judge concluded that McLagan was entitled to assume that Charman would have remained uncooperative if allegations to be published in the book had been put directly to him, rather than through his brother-in-law, Millar who was co-ordinating the Charman campaign to publicise their side of the story.
(8) "Whether the article contained the gist of the claimant's side of the story."
The judge accepted that the book did contain Charman and Redgrave's side of the story. Curiously the judge appears to criticise McLagan for not having sought comment as to the "positive case" which was going to be made against him in the book. This seems inconsistent with his earlier correct finding that Charman would have remained uncooperative if he had been approached.
(9) "The tone of the [book] and [author] can raise queries or call for an investigation. It need not adopt allegations as statements of fact."
The judge relied on his earlier finding of partial adoption of the Brennan allegations as true but that does not really deal with the tone of the book. In my judgment the tone of this book is exactly what one would expect of an objective investigative journalist. The "inside story" of Charman and Redgrave was essentially factual in context and unsensational in tone. Even the "damning" words of prosecuting counsel Richard Latham Q.C. chosen "with care" do not more than add permissible colour to the book. Reading it as a whole the author expresses no personal judgment but leaves it to the reader to form his or her own impression of the two officers concerned. That seems to me to be a hallmark of responsible journalism.
(10) "The circumstances of the publication, including its timing."
There is nothing in this point.
- What seems to me to be lacking after the judge's analysis of those ten factors is some assessment of whether a fair balance was being held between the freedom of expression and the reputations of the individuals, bearing in mind that the court should suffer no greater limitation of press freedom than is necessary to hold that balance. Lord Nicholls concluded:
"The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know … Any lingering doubts should be resolved in favour of publication."
This theme was emphasised in Jameel as I pointed out in paragraphs 66(6) and (7). Gray J. would not have been aware of their Lordships' rebuke of the lower courts for their failure to appreciate how "liberalising" an opinion Reynolds was intended to be. Given that Charman and Redgrave had themselves put the attack on their character in the public domain by their press announcements and by the statement made on their behalf in Parliament, the balance of fairness falls in my judgment heavily in favour of the case against them being put to the public.
- Having given the matter most careful consideration, I am totally satisfied that this was a piece of responsible journalism. As Lord Bingham said in Jameel (35):
"It might be thought that this was the sort of neutral investigative journalism which Reynolds privilege exists to protect.""
- Having given the matter most careful consideration, I am totally satisfied that this was a piece of responsible journalism. As Lord Bingham said in Jameel (35):
Wednesday, October 10, 2007
Amit M. Schejter, Pennsylvania State University, and Moran Yemini have published "Justice, and Only Justice, You Shall Pursue: Network Neutrality, the First Amendment, and John Rawls' Theory of Justice," in a forthcoming issue of the Michigan Telecommunications and Technology Law Review. Here is the abstract.
Analyzing policies that guided the regulation of electronic communication technologies over their relatively short history, allows to identify a pattern by which these technologies were viewed through a metaphor of scarcity, which called for solutions based on a theory of utility, maximizing the common national good at the expense of some personal freedoms. Technologies of the 21st century – digital broadcasting, wireless-mobile telephony and above all the global technology of the Internet – make possible the introduction of a new metaphor, one of abundance, and as such require a new theory of regulation in the public interest, with a wider, global, public in mind. Theories of utility led to policies in which the few and fortunate were awarded longer and longer-term control of the little available, having their interests guarded through the control of the voices of the many (in the name of the “common good”). The opportunity provided by the promise of abundance, has advanced so far the development of similar policies; however this study argues that a new theory is required, which will allow for the wealth of channels and resources to offer an opportunity for an egalitarian and participatory form of their utilization by employing a theory based on John Rawls' theory of distributive justice, which works to redress past harms, while proposing a more equitable distribution of the new available resources, and in a global setting. The policy debate surrounding “network neutrality” serves as the central case study for the promotion of such a theory.
Download the entire article here from SSRN.
The Media Guardian reports that BBC employees are taking possible job cuts, numerous stories about scandals, and increasing slapdowns from watchdog agencies very hard. The most recent flap, over a documentary about Queen Elizabeth, is nicknamed "Crowngate", and precipated the departure of creative talent Peter Fincham. One source told the Media Guardian, ""If you can't back senior creative leaders, especially ones as popular and successful as Peter, it's a pretty poor outlook."
Monday, October 8, 2007
In an editorial today, the New York Times notes that the independent-minded radio station WBAI will not broadcast an anniversary reading of Allen Ginsberg's "Howl" for fear of triggering fines from the FCC. WBAI is also the station that broadcast George Carlin's "Seven Dirty Words" monologue, and made legal history. Opines the paper, "If Ginsberg were still with us, he would undoubtedly pen a mocking line or two about his poem being banned from the airwaves 50 years after it was ruled not to be obscene. Congress, of course, could redress the F.C.C.’s bullying powers if it wanted to....The poet would understand, having once noted: `Whoever controls the media, the images, controls the culture.'"
Peter Huck writes about the flap over what that controversial college press headline looks like in the UK in an article for the Guardian here. And he uses all four letters of THAT word, tells us what editor David McSwane was up to before he went to Colorado State, and discusses (briefly) where free speech is going on U.S. college campuses.
The Washington Supreme Court has held that a Washington statute forbidding the "sponsoring, with actual malice, a political advertisement containing a false statement of material fact about a candidate for public office" is unconstitutional under both the federal and state constitutions.
In 2002 a candidate for state senate, Marilou Rickert, sponsored a campaign brochure comparing her positions to incumbent State Senator Tim Sheldon's positions. Senator Sheldon won the election and later challenged her characterizations of his record under the existing statute. The Public Disclosure Commission, the agency charged with investigating electioneering complaints, upheld his challenge and fined her one thousand dollars. A trial court affirmed the decision, but the Court of Appeals reversed, holding that the statute could not survive strict scrutiny. The Supreme Court has now affirmed.
"The text of RCW 42.17.530(1)(a) suggests that the legislature may have intended to limit the scope of its prohibition to the unprotected category of political defamation speech identified by the United States Supreme Court in New York Times Co. v. Sullivan....However, as correctly noted by the Court of Appeals, "[U]nder New York Times, only defamatory statements . . . are not constitutionally protected speech." Rickert, 129 Wn. App. at 461. Because RCW 42.17.530(1)(a) does not require proof of the defamatory nature of the statements it prohibits, its reach is not limited to the very narrow category of
unprotected speech identified in New York Times and its progeny. Thus, RCW 42.17.530(1)(a) extends to protected political speech and strict scrutiny must apply....The plain language of RCW 42.17.530(1)(a) provides that the law's purpose is "to provide protection for candidates for public office." ... Legislators apparently concluded this was a sufficient state interest to support the statute based on the concurring opinion of Justice Madsen in 119 Vote No! Committee, 135 Wn.2d at 635-36 (Madsen, J., concurring)....The present case provides an opportunity to reiterate the fundamental principles enunciated by the lead opinion in 119 Vote No! Committee, 135 Wn.2d 618, and to clarify that neither statements about political issues nor those about candidates may be censored by the government under a scheme like RCW 42.17.530(1)(a). In the case at bar, as in 119 Vote No! Committee, the State claims that "it may prohibit false statements of fact contained in political advertisements." ...However, "[t]his claim presupposes the State possesses an independent right to determine truth and falsity in political debate," a proposition fundamentally at odds with the principles embodied in the First Amendment.... Moreover, it naively assumes that the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech. Yet, political speech is usually as much opinion as fact. As aptly summarized by the Supreme Court, quoted by the lead opinion in 119 Vote No! Committee, "'[E]very person must be his own watchman for truth, because the forefathers did not trust any government to separate the truth from the false for us.'"...Particularly relevant here is the fundamental First Amendment principle forbidding censorship or coerced silence in the context of political debate. "The First Amendment exists precisely to protect against laws . . . which suppress ideas and inhibit free discussion of governmental affairs."...Hence, the Sedition Act of 1798, which censored speech about government, has been subject to nearly unanimous historical condemnation. ... For similar reasons, RCW 42.17.530(1)(a) is deserving of condemnation, lacks a compelling justification, and thus must be declared unconstitutional."