totallylegal

The Fixed-term Parliaments Bill

Regular readers of the Head of Legal blog will know I’m opposed to fixed-term Parliaments. But that point of principle isn’t the only reason to be concerned about the Fixed-term Parliaments Bill.

 

The Clerk of the House of Commons himself, Malcolm Jack, has expressed concern about it, apparently, in his evidence to the Political and Constitutional Reform Committee, comments I first heard about from Charon QC (who else?).

 

What's (still) hot in digital media law

From Laurence Kaye on Digital Media Law


Dear Reader,

I've always liked Bill Gates' observation that "We always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten".

So I thought I'd apply that to my own observations back in the early credit crunch days of April 2008 about the changes we're seeing in digital media law. You can find a transcript of my talk on 'What's Hot in Digital Media Law' here.

The pre-determined sacking

In their quest for raised profiles, employment lawyers and Human Resources consultants like to talk about the new legislation and how this is going to change the way we work – all well and good.

One of the issues that I come across in my capacity as employment lawyer and mediator is the pre-determined sacking.
Essentially, this is when an organisation embarks the dismissal of someone, frequently though not exclusively by means of redundancy.

Law Review: Law – Red top assassins – Blair and freedom of speech

By charonqc

Breaking news for lawyers – the internet has arrived!

Guardian: The Attorney General had a surprise at the official launch of Guardian Law.

The decision by The Times to drop off the face of the legal net (Yes, I am sure a few are paying to read it online) by disappearing behind a paywall must have assisted Guardian Law in their new endeavour. I like the format and I like the style. The content is developing and a couple of my friends have been contributing – Carl Gardner who writes the Head of Legal blog and BabyBarista.

Guardian Law is definitely one for student, lawyer, academic and member of the public to follow. Afua Hirsch seems to have a wise head and keen eye and brain on young shoulders, if I may say so – good stuff. She does the Guardian Law Afua Hirsch blog as well!

Metgate grinds on….. Phone hacking: MPs ‘were too scared to testify in court’ says MP

Guardian: Simon Hughes, who gave evidence against a NoW journalist after his phone was hacked said others were afraid to join him.

Astonishing really… but Tom Watson MP was certainly happy to get up on his feet, albeit using the protection of Parliamentary privilege, to talk of red topped assassins yesterday in a good speech. Whether anything will actually come of this remains to be seen – but if the *evidence* points that way, we will know for sure. The key is to get the evidence – so the campaign has been worthwhile in shaking the tree. Forgive me if I continue to take the well worn path of assuming innocence until guilt is proven – a very different matter from innocence or my own personal thoughts on the matter.

Commons declares war on ‘media barons and their red-topped assassins’

Independent: New parliamentary inquiry will have the power to force senior newspaper executives to give evidence

Tom Watson MP Speech….

“Referring to News International Chief Executive Rebekah Brooks, Mr Watson told the Commons: “The truth is that we all of us in this House in our own way are scared of the Rebekah Brooks of this world.

“If you fear passing this resolution, think of this; it’s almost laughable. Here we sit in parliament, the central institution of our sacred democracy, between us, some of the most powerful people in the land, and we are scared of the powers she wields without a jot of responsibility or accountability.

“They, the barons of the media, with their red-topped assassins, are the biggest beasts in the modern jungle.

“They have no predators. They are untouchable. They laugh at the law. They sneer at parliament. They have the power to hurt us, and they do, with gusto and precision, with joy and criminality.

“Prime Ministers [cower] before them. And that is how they like it. That, indeed, has become how they insist upon it.

“And we are powerless in the face of them. And we are afraid. And if we oppose this resolution, it is our shame.

“That is the tawdry secret that dare not speak its name…..”

Kay Burley accused of being ‘a bit dim’ by Labour MP Chris Bryant

Guardian: Sky News presenter has on-air spat with MP during interview about News of the World phone-hacking story.

Burley was interviewing Labour MP Chris Bryant about the Commons debate on the News of the World phone-hacking story. When Burley challenged Bryant to provide evidence for his claim that phone hacking and other illegal techniques were “endemic” in the newspaper industry in the past, he cited a report by the Information Commissioner that identified more than 1,000 cases.

Burley said: “So you are in a position to have listened to the debate and read the report and as a result you are content to say that on telly.”

Bryant replied: “I have just said that. You seem to be a bit dim, if you don’t mind me saying so.”

I quite enjoyed this. I rarely watch Sky - not out of some bizarre anti-Murdoch protest – but simply, try as I might, I can’t actually find a single thing, news or otherwise, that I actually want to watch apart from Cricket and I decline to pay to watch when BBC commentary does the job just fine. Good to see a politician not putting up with nonsense from TV people – some of whom appear to think they are more important than the people they are interviewing.

For Tony Blair and free speech

Lawyer and Jack of Kent blogger, David Allen Green writes a short article in The New Statesman asking “Are we censoring a retired politician?” Blair has cancelled a number of events recently – to what appears to be the delight of some Libertarians and others who might, otherwise, be expected to be the first to storm the barricades from the comfort of their Parker Knoll chairs and complain about erosion of their free speech. Tom Harris MP tweeted the other day expressing the hope that Blair would not cancel events due to ‘thuggery’. Blair cancelled the events – explaining, not unreasonably, that he did not want to put additional burdens on Police and the like. It may also be that he recognises that sentiment is not with him on the Iraq war and does not wish to fan the flames further. It may be that book sales are going so well that he doesn’t need to. Kerching! – for the British Legion…so that is just fine by me. I am enjoying his book.

David Allen Green makes a rather good point when he says this… “The defence of free expression is often most important when the beneficiary is unpopular.” On this issue, emotions run high and the rights of those who wish to express dissent our outrage at Blair, in a peaceful way, have as much right to do so as Blair does to promote his views. Both are now denied such an opportunity face to face. The comments in The New Statesman article are revealing – and some, understandable. The principle of freedom of speech is a good one. The reality may not always be quite so ‘convenient’. We should promote the former and guard against development of the latter.

I agree with Green – freedom of speech is all. Unfortunately, unlike America, we don’t have a First Amendment – so if any Pastors over here developed a taste for Koran burning – they would simply be banned and, possibly, locked up. That is the British way with dissent and ‘difficult’ issues. Freedom of speech? You’re having a larf…… doesn’t exist in Britain – there are pragmatic and, sometimes, politically convenient limits. Superinjunctions, libel laws, privacy laws and good old fashioned funk at what a journalist can find lurking in a cupboard to dissuade MPs (and others), according to the news story above, ensure that freedom of speech is very much controlled by those with the money and influence to do so.

***

Is Twitter killing our law? Is blogging killing our law?

By charonqc

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.

A fair cop

As the Coalition Government marches towards its date with destiny and the great British public in October, some departments are in warp drive to achieve the necessary savings to balance the budget.
 
Leading the drive, and with well aimed publicity, is Kenneth Clarke, the Justice Secretary. He has already signalled the closure of hundreds of courts, the reduction of legal aid across the board, and the burgeoning prison population.
 
Next on his agenda is the discount to be expected on a custodial sentence in return for an early plea of guilty. This achieves two laudable aims: the first is that prison sentences will be shorter, and so relieving the chronic overcrowding; and the second is the enormous saving of court time.
 
Under the present nebulous regime, the defendant is entitled to a one third discount for a plea of guilty to be indicated “at the first opportunity”. The jury are out on the exact meaning of this.