tag:theconversation.com,2011:/us/topics/sun-newspaper-11653/articlesSun newspaper – The Conversation2018-07-19T11:25:45Ztag:theconversation.com,2011:article/1002542018-07-19T11:25:45Z2018-07-19T11:25:45ZCliff Richard judgment a new shift in legal balance between free speech and privacy<figure><img src="https://images.theconversation.com/files/228383/original/file-20180719-142428-7lt6fl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sir Cliff Richard: what BBC did was an abuse of free speech.</span> <span class="attribution"><span class="source">Victoria Jones/PA Wire/PA Images</span></span></figcaption></figure><p>The question at the heart of Mr Justice Mann’s High Court judgment in the <a href="https://www.judiciary.uk/judgments/sir-cliff-richard-obe-v-bbc/">Sir Cliff Richard v BBC</a> case had been a longstanding legal conundrum: how far do a celebrity’s privacy rights – or indeed anyone’s – extend in respect of the pre-charge stage of a police investigation?</p>
<p>Until this judgment, this was an unresolved area – made all the more difficult by a range of conflicting opinions. I have to disclose some experience in this area. Two or three years ago, when I was the duty lawyer on The Sun newspaper, I advised that Rolf Harris, who had not been arrested but was voluntarily facing further police questions about serious sexual offences, could be identified. </p>
<p>The editor stood by the story, Harris was identified in the copy, other victims came forward and there was a conviction after a full trial. Harris is still alive and serving a significant prison sentence.</p>
<p>My advice would be different now. There are clear factual differences between my case and Mr Justice Mann’s judgment in respect of Sir Cliff. Foremost is that the allegations of an historic sex offence against Sir Cliff that led to this highly publicised search of his property in Sunningdale, Berkshire, in August 2014 resulted in South Yorkshire Police (SYP) announcing, in June 2016, that there <a href="https://www.telegraph.co.uk/news/2016/06/16/sir-cliff-richard-cleared-of-sex-assault-claims-after-prosecutor/">would be no charges</a>. The police investigation into the case on which I advised led to Harris’ rapid arrest, charges and conviction. </p>
<p>Following Mr Justice Mann’s judgment, to stay on the right side of this privacy gulf, the media must now wait until someone is arrested. Doubtless the arguments will continue that even that goes too far and that identification in such cases should only take place after they are charged or a full trial and conviction. Issues of preserving the principles of open justice should prevail against that kind of extension – but each new restriction carries with it the cumulative potential to erode free speech and <a href="https://www.libertyhumanrights.org.uk/human-rights/what-are-human-rights/human-rights-act/article-10-freedom-expression">Article 10</a> of the Human Rights Act.</p>
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<img alt="" src="https://images.theconversation.com/files/228385/original/file-20180719-142426-pmmifn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/228385/original/file-20180719-142426-pmmifn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/228385/original/file-20180719-142426-pmmifn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/228385/original/file-20180719-142426-pmmifn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/228385/original/file-20180719-142426-pmmifn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=425&fit=crop&dpr=1 754w, https://images.theconversation.com/files/228385/original/file-20180719-142426-pmmifn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=425&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/228385/original/file-20180719-142426-pmmifn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=425&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The BBC has indicated it may appeal Mr Justice Mann’s decision.</span>
<span class="attribution"><span class="source">pxl.store via Shutterstock</span></span>
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<p>Mr Justice Mann’s detailed 122-page judgment – written after 12 days of hearing evidence – fundamentally alters the judicial balance between the media’s Article 10 right to inform readers and the public about a factual situation and the individual’s <a href="https://www.libertyhumanrights.org.uk/human-rights/what-are-human-rights/human-rights-act/article-8-right-private-and-family-life">Article 8</a> right to privacy. </p>
<p>My understanding of his reasoning is as follows: </p>
<ul>
<li><p>That Sir Cliff DID have a legitimate expectation of privacy in relation to the fact of the investigation and the fact of the search of his apartment.</p></li>
<li><p>Given that Sir Cliff prima facie had such a right, the BBC was NOT justified in these circumstances in publishing by virtue of its rights of freedom of expression under Article 10. So there had, therefore, been an infringement. </p></li>
</ul>
<p>Mr Justice Mann awarded Sir Cliff general damages for the infringement totalling £190,000, split between the police and the BBC. The BBC is to pay the lion’s share (65% on the basis that it was a significantly greater contributor to the damage that was caused). He also ordered the BBC to pay aggravated damages of £20,000 because it had nominated the story as “Scoop of the Year” for an award (it did not get) from the Royal Television Society.</p>
<h2>Sensation and stigma</h2>
<p>The judge noted that the position might have been different if the general public was capable of adopting a completely open and broadminded view of an investigation, so that in cases where no charge resulted there would be no damage to a person’s reputation. Mann added, however:</p>
<blockquote>
<p>But neither of those things is true. The fact of an investigation … will of itself carry some stigma, no matter how often one says it should not.</p>
</blockquote>
<p>He also observed that, if information starts out as private, it retains that quality unless it is disclosed for police operational reasons, described elsewhere in the judgment as “shaking the tree”. </p>
<p>The judge said that his decision had not been influenced by the “sensational” manner in which the BBC covered the search, using footage obtained from a helicopter in its report. A “lower key report of the search and investigation (for example, done merely by a measured reading of the relevant facts by a presenter in the studio) would … be a serious infringement,” he said. “What the BBC did was more than that.”</p>
<p>The BBC had added drama and a degree of sensationalism by the nature of its coverage. The impact of the invasion was, in my view, very materially increased. Pictures had been used to add impact, rather than just as verification of the story. “That is what the BBC did, quite handsomely,” Mr Justice Mann observed.</p>
<p>That last point, the judgment about the manner in which the infringing material was presented, is perhaps the most potentially “chilling” element in this decision as it hints at the possibility of even higher damages depending on the media organisations involved and the manner in which the story is presented.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1019530104463151104"}"></div></p>
<p>The BBC has indicated it might appeal, issuing a statement saying that the judgment “creates new case law and represents a dramatic shift against press freedom and the long-standing ability of journalists to report on police investigation”.</p>
<h2>Bad motive</h2>
<p>Mr Justice Mann is a Judge who already has significant judicial experience in this area. Three years ago, he decided the landmark breach of privacy/damages case of <a href="https://inforrm.org/2015/05/22/case-law-gulati-v-mgn-ltd-a-landmark-decision-on-the-quantum-of-privacy-damages-hugh-tomlinson-qc-and-sara-mansoori/">Gulati and others v Mirror Group Newspapers</a> after another 12-day hearing where he delivered a comprehensive 205-page judgment awarding a total of £1,237,000 in damages to eight representative celebrities whose privacy had been invaded by MGN’s admitted hacking of their personal data. </p>
<p>That decision – particularly his methodology, formulation and reasoning – was subsequently upheld by the Court of Appeal with permission to appeal to the Supreme Court refused.</p>
<p>The judge’s meticulous judicial reasoning in Sir Cliff’s case may not stand scrutiny on appeal. He appears to have characterised as “bad motive” the BBC’s urge to get a valid scoop out to its viewers. Arguably, this should not have been given the adverse weight it has in his conclusions.</p><img src="https://counter.theconversation.com/content/100254/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robin Callender Smith does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Judge’s decision means the media cannot identify a suspect until they are arrested. This may be challenged on appeal.Robin Callender Smith, Professor of Media Law, Queen Mary University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/649232016-10-20T18:01:06Z2016-10-20T18:01:06ZRuling on Fatima Manji is further proof that IPSO fails as a press regulator<figure><img src="https://images.theconversation.com/files/142566/original/image-20161020-8862-1be8neu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Some people might find this offensive. IPSO didn't think it was.</span> </figcaption></figure><p>Shortly after the <a href="https://theconversation.com/uk/topics/nice-attack-29339">Nice terror attack in July</a>, Kelvin MacKenzie, a former editor of The Sun newspaper addressed the issue in his regular column in the tabloid newspaper: “Was it appropriate for [Fatima Manji] to be on camera when there had been <a href="https://www.thesun.co.uk/news/1459893/why-did-channel-4-have-a-presenter-in-a-hijab-to-front-coverage-of-muslim-terror-in-nice/">yet another shocking slaughter by a Muslim</a>?” he asked.</p>
<p>His comments related to Channel 4 News’ decision to field a “a young lady wearing a hijab” – as MacKenzie described her – to anchor its evening news bulletin the night after the attack.</p>
<p>In MacKenzie’s opinion, this decision was “massively provocative”. An alternative opinion is that it was a socially responsible attempt to challenge negative stereotypes of Muslims at a time of heightened fears. Yet another is that it was simply a decision to field the best news presenter that Channel 4 News had available on the day.</p>
<p>But as well as expressing an opinion, did MacKenzie’s column violate the Editors’ Code of Practice? The Code <a href="https://www.ipso.co.uk/editors-code-of-practice/">is a set of rules</a> that newspapers and magazines can voluntarily pledge to accept. It is written by the Editors’ Code of Practice Committee, made up of ten editors from the national, regional and magazine industry, as well as three lay members and the chairman of the <a href="https://www.ipso.co.uk/">Independent Press Standards Organisation (IPSO)</a>, the organisation which handles complaints under the Code.</p>
<p>In July, Manji <a href="http://www.standard.co.uk/news/uk/official-complaint-lodged-over-offensive-kelvin-mackenzie-sun-column-a3302446.html">lodged a complaint with IPSO about MacKenzie’s column</a>, claiming that it breached Clause 12 which relates to discrimination: </p>
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<a href="https://images.theconversation.com/files/142564/original/image-20161020-8845-1b8vkik.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/142564/original/image-20161020-8845-1b8vkik.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/142564/original/image-20161020-8845-1b8vkik.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=133&fit=crop&dpr=1 600w, https://images.theconversation.com/files/142564/original/image-20161020-8845-1b8vkik.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=133&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/142564/original/image-20161020-8845-1b8vkik.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=133&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/142564/original/image-20161020-8845-1b8vkik.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=167&fit=crop&dpr=1 754w, https://images.theconversation.com/files/142564/original/image-20161020-8845-1b8vkik.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=167&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/142564/original/image-20161020-8845-1b8vkik.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=167&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Clause 12 of IPSO’s Code of Practise.</span>
<span class="attribution"><span class="source">IPSO</span></span>
</figcaption>
</figure>
<p>IPSO has subsequently published its ruling on <a href="https://www.ipso.co.uk/rulings-and-resolution-statements/ruling/?id=05935-16">Manji v The Sun</a> (No. 05935-16, September 29, 2016), saying that MacKenzie: </p>
<blockquote>
<p>was entitled to express his view that, in the context of a terrorist act which had been carried out ostensibly in the name of Islam, it was inappropriate for a person wearing Islamic dress to present coverage of the story.</p>
</blockquote>
<p>This ruling is perverse and incomprehensible: one is left wondering what IPSO thinks it would take to qualify as a violation of Clause 12. </p>
<h2>Mealy-mouthed and toothless</h2>
<p>Surely MacKenzie’s column qualifies as a “prejudicial” and “pejorative” – two of the terms that define IPSO’s Clause 12 – reference to Fatima Manji’s religion. The reference to her religion was unmistakably implied by the reference to her wearing a hijab, the fact that MacKenzie was questioning whether Manji should have been reporting on “another shocking slaughter by a Muslim”, and by his follow-up question: “Would the C4 editor have used a Hindu to report on the carnage at the Golden Temple of Amritsar?”</p>
<p>The Editors’ Code – and IPSO itself – are doubly toothless. The Code is voluntary and it is being applied by the regulator with a breathtakingly narrow interpretation of the key clauses.</p>
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</figure>
<p>What is more, the Code itself leaves untouched many other harmful forms of discriminatory language. Clause 12 defines discriminatory material in terms of whether it makes “prejudicial or pejorative” or “[ir]relevant” reference to “an individual’s” protected status identity. The problem is that many forms of hate speech – and indeed, many of the evils of hate speech, including a climate of hatred, feelings of insecurity, damage to people’s sense of civic dignity or equal status and the silencing effect – operate at the group level. </p>
<h2>IPSO’s record</h2>
<p>Previous IPSO cases show that it is unlikely to find in favour of a complainant if the speech in question makes no reference to an individual or individuals. Thus, in <a href="https://www.ipso.co.uk/rulings-and-resolution-statements/ruling/?id=02741-15">Greer v. The Sun</a> (No. 02741-15, July 20, 2015) involving a complaint against Katie Hopkins’ infamous article in The Sun published on April 17, 2015, in which she compared refugees to “cockroaches” and advocated the use of gunships to prevent their entering Europe, IPSO ruled that the article did not breach clause 12 because it mentioned an entire group or category of people. </p>
<p>In another case, IPSO tied itself up in knots trying to apply Clause 12 to a case involving a group of individuals. <a href="https://www.ipso.co.uk/rulings-and-resolution-statements/ruling/?id=02624-15">In Partnerships in Care v Ayrshire Post</a> in July 2015, IPSO ruled that Clause 12 could be engaged where a reference is made to “a distinct class of individuals”. In this case, the newspaper used the term “deranged criminals” to refer to residents of Ayr Clinic, a secure psychiatric unit. </p>
<p>Perhaps IPSO reasoned that a reader could, using information in the public domain, find out the identify of the “distinct group” of residents. But at the same time, IPSO inexplicably rejected the complaint under Clause 12 maintaining that the term “deranged” had been used “with reference to those individuals’ criminal behaviour; it was not therefore discriminatory in relation to their mental health specifically”.</p>
<p>It is interesting to consider how IPSO would handle a complaint made about the publication of negative stereotypes about people from Liverpool or from Scotland. What if a reader could, using the electoral roll, find out the identify of individuals living in these parts of the country? </p>
<h2>New protection needed</h2>
<p>I have written to the Editors’ Code of Practice Committee suggesting a better alternative. That they immediately bolster Clause 12 with the following additional sub-clause: </p>
<blockquote>
<p>iii) The press must also avoid publishing material that is comprised entirely and overwhelmingly of negative stereotypes or stigmatisation of a group identified on the basis of race, colour, religion, sex, gender identity, sexual orientation or any physical or mental illness or disability.</p>
</blockquote>
<p>I believe that the new sub-clause would both provide greater protection for groups against hate speech material that does not name specific individuals, but would at the same time be drawn narrowly enough to prevent excessive restriction of free speech on issues of public interest relating to groups. It would also bring the Code into line with similar regulations adopted by media organisations in other parts of the developed world.</p><img src="https://counter.theconversation.com/content/64923/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Brown does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Why the Editors’ Code of Practice needs to be reformed.Alexander Brown, Senior Lecturer in Contemporary Social and Political Theory, University of East AngliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/596912016-05-20T09:56:05Z2016-05-20T09:56:05ZCelebrity injunction: why the law is not an ass when it comes to privacy<p>As you would expect, the UK’s tabloid newspapers are incandescent at the decision not to lift what has become popularly known as the “three-way gagging verdict”. After months of <a href="https://theconversation.com/daily-mail-is-right-about-three-in-a-bed-injunction-the-law-is-an-ass-57459">legal and popular debate</a>, the <a href="https://www.supremecourt.uk/cases/docs/uksc-2016-0080-judgment.pdf">Supreme Court ruled</a> that the public identification of a celebrity, who allegedly had a threesome with another couple, could have a negative impact on the couple’s young children, given the likely media firestorm. </p>
<p>This, despite the couple being named in the US, Scotland and in numerous social media outlets in the UK – which was seen by many people, including most newspapers, as rendering the temporary injunction pointless.</p>
<p>Cue predictable press outrage. As you’d expect, The Sun – whose sister paper The Sun on Sunday brought the case to reveal the identity of the celebrities involved – <a href="http://www.thesun.co.uk/sol/homepage/news/7162761/Outrage-as-PJS-gagging-order-is-upheld.html">went ballistic</a>: “The day free speech drowned in a paddling pool of olive oil … outrage at celeb threesome gagging verdict,” read the paper’s front page splash the day after the ruling, warning that “celebs were yesterday granted a cheaters charter” and noting that “within minutes, the name of the celebrity involved saw a 9,000% surge in social media views.”</p>
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<a href="https://images.theconversation.com/files/123345/original/image-20160520-10353-1tunmer.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/123345/original/image-20160520-10353-1tunmer.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/123345/original/image-20160520-10353-1tunmer.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=764&fit=crop&dpr=1 600w, https://images.theconversation.com/files/123345/original/image-20160520-10353-1tunmer.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=764&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/123345/original/image-20160520-10353-1tunmer.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=764&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/123345/original/image-20160520-10353-1tunmer.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=960&fit=crop&dpr=1 754w, https://images.theconversation.com/files/123345/original/image-20160520-10353-1tunmer.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=960&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/123345/original/image-20160520-10353-1tunmer.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=960&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Outrage? Or hyperbole?</span>
<span class="attribution"><span class="source">The Sun</span></span>
</figcaption>
</figure>
<p>Equally predictably, the Daily Mail, having slammed the original imposition of the injunction as a “farce”, reported the story under the headline “<a href="http://www.dailymail.co.uk/news/article-3598396/Married-star-threesome-couple-gets-identity-SECRET.html">MPs slam … ‘perverse’ decision</a>”. The article quoted Tory MPs dismissing “unelected and out of touch judges”, “bringing the law into disrepute”. And of course the cry goes up again that our once free press is being “gagged”, “suppressed” and “shackled”. </p>
<p>So are they right? </p>
<h2>Absurd? Americans can read the story</h2>
<p>The press seems particularly fixated on this issue. The Mail’s <a href="http://www.dailymail.co.uk/news/article-3526916/American-publication-goes-UK-injunction-report-known-celebrity-extra-marital-threesome.html">front-page report</a> on the original injunction last month began: “British justice descended into farce last night after the identity of a celebrity who cheated on his spouse was revealed in the US but blocked here.” </p>
<p>But isn’t there a problem here, especially for a newspaper so passionately committed to Britain being governed by its own, not foreign laws? Such injunctions can’t be obtained under US law (because of the famous <a href="https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution">First Amendment</a>), so when a celebrity obtains a privacy injunction in the UK, their lawyers can’t prevent the likely reporting of the story in the US, and subsequent discussion there on social media, which can immediately cross national borders. This is the point at which the British press promptly calls it “farcical” that they can’t also report it. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/123350/original/image-20160520-16754-1yrm6rz.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/123350/original/image-20160520-16754-1yrm6rz.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/123350/original/image-20160520-16754-1yrm6rz.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=362&fit=crop&dpr=1 600w, https://images.theconversation.com/files/123350/original/image-20160520-16754-1yrm6rz.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=362&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/123350/original/image-20160520-16754-1yrm6rz.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=362&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/123350/original/image-20160520-16754-1yrm6rz.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=455&fit=crop&dpr=1 754w, https://images.theconversation.com/files/123350/original/image-20160520-16754-1yrm6rz.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=455&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/123350/original/image-20160520-16754-1yrm6rz.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=455&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Daily Mail lays down the law.</span>
<span class="attribution"><span class="source">Daily Mail</span></span>
</figcaption>
</figure>
<p>But if the British courts accept this argument and lift these injunctions then US law would be, in effect, dictating the outcome of an English case and it would be on its way to becoming a global standard setter. But the unconditional priority US law gives to free speech over nearly every other interest is starkly different, not only from English law, but that of every other liberal democracy. </p>
<p>In a well-known decision called <a href="https://supreme.justia.com/cases/federal/us/491/524/case.html">Florida Star</a>, the US Supreme Court, astonishingly to European eyes, struck down an award of damages against a newspaper that had published the name and address of a rape victim, as an illegitimate restraint on press freedom. It brought further intimidation at the hands of her assailant. </p>
<p>If freedom is to not only pass but give effect to laws in Britain, then this first argument has to be resisted. US readers can read the story because their law is different. Full stop. </p>
<h2>An unjustifiable threat to press freedom?</h2>
<p>While much of our press – and many American lawyers – say yes, the response in most European and Commonwealth democracies is a firm no. This – the argument goes – is a narrow restriction on press freedom, designed not to stop the press reporting on matters of real public concern, but only to offer protection against damaging intrusion into a basic right that many democracies regard as of equal importance to free speech: privacy. Both rights are protected by the <a href="http://www.echr.coe.int/Documents/Convention_ENG.pdf">European Convention on Human Rights</a>, as incorporated by the UK’s Human Rights Act. </p>
<p>So to win a case about a story that invades an individual’s privacy, the press needs a proper public interest argument – just satisfying public curiosity doesn’t suffice. That does mean judges drawing lines, you might say in a paternalistic manner, but the only alternative is for the press alone to do so. Or – in other words – for the market, ultimately, to determine what may and may not be published. The <a href="https://theconversation.com/uk/topics/leveson">Leveson Inquiry</a> revealed what happens when the British press, at least, are left to self-regulate like that. </p>
<p>In this case, all the judges agreed that there was no public interest in learning the identity of the celebrity – he hadn’t pretended to be in a monogamous relationship, so there wasn’t even a false impression for the press to correct. On the other side of the coin, the story went to the very heart of the couple’s private life, and judges feared the damage to their children’s welfare that an unrestrained media firestorm might cause. So privacy won that one. </p>
<h2>But isn’t this futile?</h2>
<p>This was the key issue on which the Supreme Court differed from the Court of Appeal. The difference turns on a conceptual distinction between breaching <em>confidentiality</em> and intrusion into <em>privacy</em>. In true confidence cases, such as those involving state secrets about national security, even very limited dissemination can destroy the value of the secret – since all your adversaries can now find it out. </p>
<p>But in this case, the courts were trying not so much to keep a secret as to prevent the further damaging intrusion that blanket coverage in the mass media would entail – particularly the possibility of the children or their peers learning of it. Now think about how often you’ve walked past a newsstand and seen the headlines, without even picking up the paper (let alone searching online). That’s the kind of difference we’re talking about.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"733560190226731012"}"></div></p>
<p>There was also a contradiction in the newspapers’ argument. On the one hand the <a href="http://www.dailymail.co.uk/news/article-3598396/Married-star-threesome-couple-gets-identity-SECRET.html">Mail complained</a> the injunction meant “millions of people in England and Wales still cannot know” – but the very same article argued that the injunction was “ridiculous” because “every single person knows who it is”. Well, it can’t be both. If the injunction means that millions of people don’t know who it is (and the judgment notes evidence that around <a href="https://www.supremecourt.uk/cases/docs/uksc-2016-0080-judgment.pdf">75% of the public don’t know</a>) then it has done at least some of its job. </p>
<p>People can find out, but they have to make a bit of an effort to do so, instead of it being splashed across headlines they can’t help seeing. And – in terms of the effect on the couple and their children – that is why the injunction still makes a worthwhile difference.</p><img src="https://counter.theconversation.com/content/59691/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gavin Phillipson is affiliated with IMPRESS, the independent press regulator: he is a member of its Code Committee - see <a href="http://impress.press/">http://impress.press/</a> </span></em></p>There is a stronger public interest in privacy than in revealing salacious showbiz title-tattle, no matter what the papers say.Gavin Phillipson, Professor of Law, Durham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/493872015-10-20T05:18:00Z2015-10-20T05:18:00ZAs Leveson reforms become law, has press regulation made victims of us all?<p>When Sun journalists Chris Pyatt and Jamie Pharo <a href="http://www.theguardian.com/media/2015/oct/15/last-the-sun-journalists-prosecuted-operation-elveden-cleared">were acquitted recently</a> of aiding and abetting a Surrey police officer to commit misconduct in a public office, Pyatt’s lawyer Nigel Rumfitt QC told the court there had been a “monumental error of judgement in pursuing the case”. He was right. Four years, millions of pounds of public money, 29 cases brought – only one of which went to trial and ended in conviction: that of Sun crime reporter Anthony France.</p>
<p>I do wonder if the campaign for media victims has had more than its pound of flesh since <a href="http://webarchive.nationalarchives.gov.uk/20140122145147/http:/www.levesoninquiry.org.uk/">“Hackgate” and the Leveson Inquiry</a>. At least half a billion pounds has <a href="http://www.pressgazette.co.uk/news-corp-hacking-scandal-costs-rise-512m">been stripped out of the media industry</a> in compensation, legal fees and police and prosecution costs. That’s hundreds of jobs my students will not be able to get in journalism.</p>
<p>Some <a href="http://www.theguardian.com/media/greenslade/2015/apr/17/operation-elveden-was-flawed-the-cps-should-have-realised-that-sooner">34 journalists were arrested</a> in the Operation Elveden Met Police inquiry into paying public officials for stories. Many said they were terrorised with dawn raids and being put in police cells for a construction of crime that <a href="http://www.pressgazette.co.uk/they-call-it-crime-we-call-it-democracy-lawyers-condemn-unmitigated-disaster-journalist-prosecutions">some media lawyers say was and is simply democracy</a>. For many it was a nightmare that went on for years taking its toll on the wronged journalists’ careers, their personal lives and their health.</p>
<p>Not only that, but more than a score of <a href="http://www.pressgazette.co.uk/content/betrayal-newspaper-sources-jailed-under-operation-elveden-casts-shadow-over-our-industry">confidential sources have been jailed</a>. More lives ruined and careers destroyed. Now, any public official who dares give unauthorised information, let alone take money from a journalist, knows that instead of losing their job are more than likely to do porridge at her majesty’s pleasure.</p>
<p>Media relations with the police are at their worst for as long as anyone can remember. Can it really be democracy when police officers and soldiers have to <a href="http://awards.pressgazette.co.uk/2015/10/06/met-officers-told-register-relations-with-journalists-consider-motivation-of-drinks-and-avoid-off-the-record/">write up reports</a> on their dealings with journalists? Is it democracy that police forces have been able to <a href="http://www.pressgazette.co.uk/sun-tells-tribunal-met-violated-journalists-rights-secret-grab-phone-records">secretly hack into</a> the communications meta-data of journalists to identify sources without judicial oversight? </p>
<p>I was disgusted by the horrors of phone hacking and sympathise with the victims. But I do not believe I would be betraying their right to justice and compensation by being opposed to state body approval for media regulation.</p>
<p>The press media landscape has changed catastrophically. We no longer have the country’s biggest selling Sunday newspaper, the News of the World. That imploded in shame and <a href="http://www.telegraph.co.uk/news/uknews/phone-hacking/8624421/News-of-the-World-shut-down-in-bid-to-end-phone-hacking-scandal.html">was snuffed out</a> by its own proprietor. </p>
<p>The Press Complaints Commission has also committed harakiri to be replaced by <a href="https://www.ipso.co.uk/IPSO/aboutipso.html">a more expensive independent self-regulator, IPSO</a>. This takes third-party complaints and by contract with its members can impose huge fines, can initiate investigations and is also preparing to dip its toes into a <a href="https://www.ipso.co.uk/aboutus/consultationonarbitrationscheme.html">media law disputes arbitration service</a>. </p>
<h2>Chilling effect</h2>
<p>The only sensible recommendation arising from the Leveson Inquiry was that there should be a statutory declaration for media freedom (a kind of British First Amendment) though – like with the Human Rights Act – always balancing freedom of expression with other rights. </p>
<p>Nothing will be achieved for media victims by introducing a form of quasi state licensing of the regulation of content by newspaper and online publishers. I think it’s a breach of <a href="http://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/9">Article 10 of the European Convention on Human Rights</a>. </p>
<p>Regulation by the <a href="https://www.gov.uk/government/publications/leveson-report-cross-party-royal-charter">medieval constitutional instrument of Royal Charter</a> constitutes state interference. And surely we’ve moved on since the times of the Curia Regis, absolute power by Tudor monarch and arbitrary Star Chamber justice. In any case when the convention says this article: “shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises” by default this means: states must not be involved in the regulation of press content.</p>
<p>The Leveson Inquiry was set up to reach a solution that had the support of media victims, the public and the media industries. Sadly it failed to do this.</p>
<p>The biggest problem of unequal media laws in a democratic society is that journalists will be constrained from publishing truth to power because of the potential costs and penalties of libel and privacy litigation, and state prosecution for information crimes.</p>
<p>Libel and privacy are the only civil wrongs where <a href="http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/36206.htm">defendants have to prove their case</a> as <a href="http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/1997/366.html">McLibel campaigners</a> Helen Steel and Dave Morris found out over several tough years trying to fight the might of a major global corporation under Britain’s terrifying libel laws. And the chilling effect created by those laws is the big black hole in this debate. When media publishers don’t believe they have the money, time or resources to prove their publications the harm to democracy is incalculable, catastrophic and frighteningly unknown.</p>
<p>Brace yourselves: in early November the provisions of the <a href="http://www.legislation.gov.uk/ukpga/2013/22/contents/enacted">Crime and Courts Act 2013</a> relating to press regulation will be coming into force, meaning that media publishers who do not join a Royal Charter-approved regulator <a href="http://www.legislation.gov.uk/ukpga/2013/22/part/2/crossheading/publishers-of-newsrelated-material-damages-and-costs/enacted">face getting punitive damages</a> when losing libel and privacy actions. </p>
<p>The other Levesonian stick approved by parliament is that these publishers would also have to pay the costs of defending media law cases <a href="http://www.newsmediauk.org/write/MediaUploads/PDF%20Docs/Leveson's_Illiberal_Legacy.pdf">whether they win or lose</a>. This will turn the chilling effect into an arctic of defensive journalism and, as a result, there is bound to be a shrinking of investigative journalism by print media. </p>
<p>These silly laws and disproportionate measures will make media victims of us all.</p><img src="https://counter.theconversation.com/content/49387/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim Crook is Chair of the Professional Practices Board of the Chartered Institute of Journalists.
</span></em></p>State regulation and punitive libel laws are no way to ensure a fair and free press.Tim Crook, Professor in Media and Communication (Goldsmiths), Visiting Professor of Broadcast Journalism (Birmingham City University), Chair of Professional Standards Board, CIoJ., Goldsmiths, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/411112015-05-01T16:06:58Z2015-05-01T16:06:58ZTwo-faced Sun shows Rupert can swing both ways if there’s something in it for him<p>The front pages of the Sun and the Scottish Sun on Thursday morning provided further evidence of <a href="http://www.theguardian.com/media/greenslade/2015/apr/04/nicola-sturgeons-tv-success-exposes-the-so-called-national-press">Roy Greenslade’s</a> recent assertion that the idea of a national press is a fallacy.</p>
<p>In images which appear to have left the twitterati spluttering out their skinny lattes, the <a href="http://www.sunnation.co.uk/the-sun-says-its-a-tory/">“English Sun”</a>, in reference to the imminent Royal birth, had a rather hideous picture of a set of arms cradling a shawl with David Cameron’s head peeping out of the top. “Its A TORY” was the lame pronouncement.</p>
<p>In the <a href="http://www.thescottishsun.co.uk/scotsol/homepage/news/ge2015/6434287/Stur-Wars.html%20%C2%A0:">Scottish Sun</a>, Nicola Sturgeon was portrayed brandishing a light sabre as an eerily misshapen Princess Leia from Star Wars. “Stur Wars” runs the headline, “May the 7th be with you: why it’s time to vote SNP.” </p>
<p>The editorial said:</p>
<blockquote>
<p>Scotland voted No but there can be no doubt the referendum changed the nation. And today The Scottish Sun urges our readers to continue that change and vote for Nicola Sturgeon’s SNP on 7 May.</p>
</blockquote>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/80080/original/image-20150501-23884-ztuxuq.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/80080/original/image-20150501-23884-ztuxuq.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/80080/original/image-20150501-23884-ztuxuq.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/80080/original/image-20150501-23884-ztuxuq.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/80080/original/image-20150501-23884-ztuxuq.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/80080/original/image-20150501-23884-ztuxuq.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/80080/original/image-20150501-23884-ztuxuq.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/80080/original/image-20150501-23884-ztuxuq.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">One paper: two visions.</span>
<span class="attribution"><span class="source">The Sun</span></span>
</figcaption>
</figure>
<p>Those expressing surprise that the UK Sun was supporting the Tories while its sister newspaper in Scotland supported the SNP should relax a little and understand that this positioning is nothing new. In the 2010 election <a href="http://www.thesun.co.uk/sol/homepage/news/election2010/article2961073.ece%20">the Sun</a> came out for “our only hope” Cameron whilst in the Holyrood elections of 2011 the Scottish Sun‘s <a href="http://www.thesun.co.uk/sol/homepage/news/scottishnews/3534178/Scottish-Sun-urges-voters-to-hand-Alex-Salmond-second-term-at-May-5-election.html">front page</a> pictured a smiling Alex Salmond holding the paper above the strapline: “Play it Again, Salm.”</p>
<p>As a <a href="http://www.independent.co.uk/news/uk/politics/generalelection/general-election-2015-scottish-sun-to-back-snp-while-uk-edition-throws-support-behind-tories-10214258.html">spokesperson</a> for the Sun helpfully pointed out:</p>
<blockquote>
<p>The Sun is written first and foremost for its readers, and the UK edition and Scottish edition have two very distinct audiences.</p>
</blockquote>
<h2>The Sun loves power …</h2>
<p>There are two other related reasons why the newspapers are different in outlook. One is economic, the other ideological.</p>
<p>There is <a href="http://www.thecourier.co.uk/news/politics/ge2015/nicola-sturgeon-says-it-is-wrong-for-conservatives-to-govern-scotland-with-one-mp-1.870263%20">one</a> Conservative MP presently representing constituents in Scotland. Just one. Add to this the <a href="http://www.thecourier.co.uk/news/politics/ge2015/poll-shows-snp-clean-sweep-in-scotland-1.870161">final Ipsos MORI poll</a> for STV News which puts support for the SNP at 54%, compared to 20% for Labour, 17% for the Tories and 5% for the Liberal Democrats. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/80087/original/image-20150501-23852-5r02zd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/80087/original/image-20150501-23852-5r02zd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/80087/original/image-20150501-23852-5r02zd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/80087/original/image-20150501-23852-5r02zd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/80087/original/image-20150501-23852-5r02zd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/80087/original/image-20150501-23852-5r02zd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/80087/original/image-20150501-23852-5r02zd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/80087/original/image-20150501-23852-5r02zd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Sun doesn’t always shine on Scotland.</span>
<span class="attribution"><span class="source">Matito</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Based on these numbers the <a href="http://www.electoralcalculus.co.uk/homepage.html">Electoral Calculus website</a> is predicting that the SNP will take all 59 seats available in the Scotland. Under these circumstances it would be ludicrous to suppose that News UK would jeopardise losing sales and offending its readership (and the Scottish Sun is the newspaper which sells the <a href="http://www.bbc.co.uk/news/uk-scotland-scotland-business-26366464%20">most copies</a> north of the border) by even hinting at support for the Tories</p>
<h2>… but hates Red Ed</h2>
<p>Supporting Miliband’s Labour is completely unthinkable for any Murdoch newspaper. Miliband, after all, is apparently committed to the break-up of Murdoch’s empire. As I’ve <a href="http://www.jomec.co.uk/blog/wp-admin/%20https:/theconversation.com/mili-no-mates-mocking-labour-leaders-is-what-tabloids-do-best-34555">written before</a> it was Miliband, in an interview with the <a href="http://www.theguardian.com/politics/2011/jul/16/rupert-murdoch-ed-miliband-phone-hacking">Observer</a>, who spoke out against Murdoch’s influence. He said:</p>
<blockquote>
<p>I think it’s unhealthy because that amount of power in one person’s hands has clearly led to abuses of power within his organisation. If you want to minimise the abuses of power then that kind of concentration of power is frankly quite dangerous.</p>
</blockquote>
<p>From that moment on any sort of positive relationship between the Murdoch press and Miliband vanished and in his recent interview with <a href="http://www.theguardian.com/politics/2015/apr/29/milibrand-labour-murdoch-miliband-election-russell-brand-trews">Russell Brand</a> he made a similar point about being willing to “stand up to powerful forces”.</p>
<p>The other issue to consider is that the Sun has a history of backing winners. Or at least it has a history of loudly proclaiming that it backs winners. It’s <a href="http://www.sunnation.co.uk/the-sun-wot-done-it/">free-to-view website</a> “Sun Nation General Election 2015” is as bombastic as one would imagine:</p>
<blockquote>
<p>From Maggie’s win in 1979, to Kinnock’s defeat in 1992, and Tony Blair’s 1997 victory, our iconic front pages have literally written history.</p>
</blockquote>
<h2>Complete control</h2>
<p>Many sense the hand of Murdoch in all this and the stories of his interference in editorial matters at election times are legion. In 2007, a <a href="http://uk.reuters.com/article/2011/07/19/us-newscorp-murdoch-papers-idUSTRE76I1IT20110719%C2%A0">House of Lords committee</a> tasked with examining media ownership in the UK noted that Murdoch was a “traditional proprietor” who “exercised editorial control on major issues – like which party to back in a general election or policy on Europe”. </p>
<p>In his memoirs, the former editor of the Sunday Times Andrew Neil wrote of how Murdoch would terrorise his tabloid editors. Kelvin Mackenzie, writes Neil, “endured almost daily bollockings” while former News of The World editors Patsy Chapman and Wendy Henry would “live in fear and trembling of his calls”. </p>
<p>Speaking of his 11 years at the Sunday Times Neil <a href="http://www.jomec.co.uk/blog/wp-admin/%20http:/uk.reuters.com/article/2011/07/19/us-newscorp-murdoch-papers-idUSTRE76I1IT20110719">stated in 2008</a>:</p>
<blockquote>
<p>On every major issue of the time and every major political personality or business personality, I knew what he thought and you knew, as an editor, that you did not have a freehold, you had a leasehold … and that leasehold depended on accommodating his views.</p>
</blockquote>
<p>But whether or not one believes the 84-year-old Murdoch has any influence over his newspapers any more, we can be more certain that he sees this election as a fight for survival. <a href="http://www.independent.co.uk/news/media/rupert-murdoch-berated-sun-journalists-for-not-doing-enough-to-attack-ed-miliband-10191005.html">The Independent</a> reported that on a visit to London in February he reminded News UK executives that Labour would attempt to destroy them and “berated Sun journalists for not doing enough to attack Ed Miliband and stop him winning the general election”.</p>
<p>In every sense then the positions of the Scottish Sun and the Sun are entirely consistent and predictable. The aim is to keep Miliband out of Downing Street. The coming week will see more scaremongering and negative press for Labour as the Murdoch titles ramp up operations. And as former Sun editor <a href="http://www.theguardian.com/media/2015/apr/30/scottish-sun-snp-rupert-murdoch-nicola-sturgeon">David Yelland</a>, told the Guardian, if Miliband is elected he will be the first PM for generations to “get into Downing Street knowing he owes no debts to any editor, any proprietor or any newspaper”.</p>
<p>This is what scares the hell out of Murdoch.</p><img src="https://counter.theconversation.com/content/41111/count.gif" alt="The Conversation" width="1" height="1" />
The front pages of the Sun and the Scottish Sun on Thursday morning provided further evidence of Roy Greenslade’s recent assertion that the idea of a national press is a fallacy. In images which appear…John Jewell, Director of Undergraduate Studies, School of Journalism, Media and Cultural Studies, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/296132014-07-24T13:54:16Z2014-07-24T13:54:16ZCollapse of Tulisa trial a sting in the tail for Fake Sheikh and the tabloid exposé<p>The fall-out from the collapse of the Tulisa Contostavlos prosecution in London is the detonation of another anti-media rage in the continuing crisis for British journalism ethics.</p>
<p>The former X Factor judge’s trial for brokering a drugs deal came about because she had been targeted in an <a href="http://www.independent.co.uk/news/people/fake-sheikh-tulisa-may-sue-over-fake-sheikh-sting-after-drugs-trial-collapses-9621819.html">elaborate undercover sting by the “Fake Sheikh” investigative reporter Mazher Mahmood.</a></p>
<p>She said she had been set up, plied with drinks, and in the words of her QC Jeremy Dein: <a href="http://www.independent.co.uk/news/people/tulisa-trial-collapses-fake-sheikh-mazher-mahmood-tried-to-persuade-singer-to-have-sex-with-him-in-return-for-film-role-9622401.htmll">“from start to finish, evidence has been gathered in a background of lies, deceit, manipulation and falsity.”</a> </p>
<p>Judge Alistair McCreath said there were “strong grounds” to believe Mahmood, working on the exposé for the Sun on Sunday, had lied on the witness stand and <a href="http://www.theguardian.com/media/greenslade/2014/jul/21/mazher-mahmood-ukcrime">“had been manipulating the evidence”.</a></p>
<p>There might be some irony in Tulisa’s celebrity status being enhanced by her transformation from drug offence defendant to tabloid media victim. She will be describing her “horrific and disgusting entrapment” in <a href="http://www.pressgazette.co.uk/tulisa-tell-ruined-year-sun-sunday-story-bbc-documentary-following-drugs-trial-collapse">a BBC Three documentary next week.</a></p>
<h2>Broadsheet disapproval</h2>
<p>Meanwhile the bishops at The Guardian have been banging their staffs in disapproval. The influential journalist-turned-professor, Roy Greenslade, has been in full flow – largely because he has tracked Mahmood’s career since leaving the Sunday Times <a href="http://www.theguardian.com/media/2014/jul/22/mazher-mahmood-fake-sheikh-tulisa-contostavlos">under a cloud when Greenslade was a news editor there.</a></p>
<p>Greenslade has produced a frisson of articles headlined in the style of <a href="http://www.theguardian.com/media/2014/jul/21/mazher-mahmood-tripped-up-notorious-stings">“Mazher Mahmood has finally tripped up after years of notorious stings”</a>. The Sun on Sunday publisher, News UK, has been seeking rehabilitation and post-hacking exorcism through re-branding, and leaving “Fortress Wapping” for the “Baby Shard”. Greenslade’s advice to them is that Mahmood “is an embarrassment, as the Contostavlos episode illustrates, and the paper should now bid him farewell”.</p>
<p>The Fake Sheikh’s stock is therefore very low. In addition to being suspended by his employing paper, he faces an action for civil libel and calls for the Metropolitan Police to investigate <a href="http://www.theguardian.com/media/2014/jul/22/mazher-mahmood-sun-perjury-probe-tulisa-contostavlos-trial">his conduct for perjury.</a> While Guardian and Independent books on the phone-hacking and News of the World scandals are best sellers, Mahmood’s 2008 “Confessions of a Fake Sheikh: "The King of the Sting” Reveals All" <a href="http://www.amazon.co.uk/Confessions-Fake-Sheik-Sting-Reveals/dp/0007288107/ref=la_B0034PH8RG_1_1_title_2_pap?s=books&ie=UTF8&qid=1406129538&sr=1-1">can be bought second-hand at Amazon for 1p.</a></p>
<p>Yet again a construction of unethical tabloid skulduggery is being met with the triple jeopardy of dismissal, civil litigation and criminal enquiry. The desire for retribution and revenge against tabloid miscreants is becoming something of fetish. </p>
<h2>End of the tabloid “sting”?</h2>
<p>Does this latest storm herald the <a href="http://www.theguardian.com/commentisfree/2014/jul/22/tulisa-contostavlos-trial-sting-fake-sheihk">end of the journalism sting?</a> What it does indicate very starkly is that public, judicial and political tolerance is on a very short fuse for media undercover operations that go wrong. It is the most dangerous and costly form of journalism and attracts the deadliest of legal shrapnel. </p>
<p>When the BBC’s Mark Daly infiltrated the Greater Manchester Police in 2003 as a probationer constable to expose racism, he was <a href="http://news.bbc.co.uk/1/hi/magazine/3210614.stm">initially arrested for obtaining a pecuniary advantage by deception</a> and criminal damage to his uniform by impregnating it with a pin-hole so he could fit his secret camera. </p>
<p>In undercover programmes for the BBC, Donal McIntyre had to deal with being the victim of a knife mugging, an attack by soccer hooligans in Copenhagen <a href="http://www.bbc.co.uk/pressoffice/pressreleases/stories/2002/10_october/08/donal_macintyre.shtml">and libellous allegations</a> from the Kent Police over his 1999 exposure of poor care standards in a residential home in Gillingham. Channel 4’s Dispatches programme also had to sue the West Midlands Police and CPS in 2008 for being accused <a href="http://www.channel4.com/info/press/news/dispatches-vindicated-over-undercover-mosque-film">of fakery in their programme Undercover Mosque.</a></p>
<h2>Breaking the law</h2>
<p>Nearly every aspect of the performance in undercover journalism engages breaches of civil privacy law and a myriad of criminal offences. At the top of the list is bribery and fraud. </p>
<p>None of these offences have a public interest or “for the purposes of journalism” defence. Media undercover investigators willing to commit these offences for the good of the story are therefore usually at the mercy of the police, CPS and courts.</p>
<p>As the criminal law is often being broken on a <em>prima facie</em> basis, the offending has to be venial or pardonable under common law. That means the performance of deception, lies and criminality has to be shown to be exposing a greater evil. </p>
<p>The performers of media stings are not obliged to comply with the <a href="http://www.legislation.gov.uk/ukpga/2000/23/contents">Regulation of Investigatory Powers Act 2000</a> which is the duty of all state investigating authorities such as the police, HMRC, Trading Standards and intelligence agencies. The hoaxing of potential targets by journalists and use of agents provocateurs is not something the police could get away with.</p>
<p>Media regulation in the UK does demand, however, that undercover subterfuge is engaged only when all other <a href="http://www.pcc.org.uk/cop/practice.html">legitimate journalistic methods cannot achieve the purpose.</a> Fishing expeditions targeting organisations or individuals on the basis of mere suspicion is not enough. The investigation has to be prompted by specific information triggering the public interest to <a href="http://stakeholders.ofcom.org.uk/broadcasting/broadcast-codes/broadcast-code/privacy/">justify any breach of a reasonable or legitimate expectation of privacy.</a></p>
<p>The concept of a defence of entrapment is not recognised in the English legal system. State prosecution of offenders caught by sting operations may fail if they are shown to breach the <a href="http://www.legislation.gov.uk/ukpga/1984/60/contents">Police and Criminal Evidence Act 1984</a>. They can also be judged an abuse of process if it is shown that the investigating authority created a state crime that was <a href="http://www.lawgazette.co.uk/55972.article">an affront to the public conscience.</a> </p>
<p>But these rules do not apply to evidence collected by Fake Sheikh-style media stings. The material generated is by a non-state private third party. It is merely presented by the police and CPS in fulfilment of their duty to prosecute when evidence of crime is brought to them. </p>
<p>There is a clearer crossing-of-the-line point for state investigators. Undercover drugs officers are allowed to pretend to be junkies in cold turkey pleading for a fix in order to arrest somebody whom they suspect of supplying. But it is not permissible to set up a state funded money laundering operation in Spain in order to lure criminals into fencing their ill-gotten gains through it.</p>
<p>Media performers can be more sly, imaginative and the temptations they dangle more exceptional.</p>
<p>It may be the case that Mazher Mahmood’s undercover adventures are more controversial because the tabloid demand to expose the peccadilloes of celebrity no longer chimes with the public’s desire to gorge on gossip and scandal. The News of the World has been shut down, nobody appears to mourn its passing, and his modus operandi faces greater scrutiny from the incisive development and intervention of privacy law.</p>
<h2>Public interest defence</h2>
<p>If the public is genuinely recoiling from the humiliation of public figures over their private sins, it should not be forgotten that Mahmood has also courageously investigated international terrorism, organised crime and corruption. In 2010 this included exposing <a href="http://www.dailymail.co.uk/sport/cricket/article-2056073/Pakistan-trio-guilty-cricket-match-fixing.html">Test Match fixing by Pakistani players.</a></p>
<p>Is it logical that the public interest of the Sun on Sunday has to be the same as that of the Guardian, Independent, Financial Times and BBC? </p>
<p>If the Tulisa sting proves to be Mahmood’s nemesis, British journalism will lose an investigator who can claim to have <a href="http://www.pressgazette.co.uk/node/49877">delivered 134 successful criminal convictions.</a> Is that something that can be claimed by any other journalist in Britain?</p><img src="https://counter.theconversation.com/content/29613/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim Crook is affiliated with the Chartered Institute of Journalists and is a member of its professional practices board.</span></em></p>The fall-out from the collapse of the Tulisa Contostavlos prosecution in London is the detonation of another anti-media rage in the continuing crisis for British journalism ethics. The former X Factor…Tim Crook, Reader in Media and Communication (Goldsmiths), Visiting Professor of Broadcast Journalism (Birmingham City University), Goldsmiths, University of LondonLicensed as Creative Commons – attribution, no derivatives.