Tag: journalism

Campbell’s costs and journalists’ sources

Naomi Campbell“Even the judges know who Naomi Campbell is”. At least Baroness Hale of Richmond does, since this is how she began her speech in Campbell v MGN [2004] AC 457, [2004] UKHL 22 (6 May 2004), in which she was a member of the majority which held that aspects of the Mirror‘s coverage of Naomi Campbell’s fight against narcotics addiction – in particular, the publication of photographs which did not advance the public interest in the story – infringed her privacy. Today, in MGN v UK 39401/04 (18 January 2011) the Fourth Section of the European Court of Human Rights (ECHR) held that this holding did not infringe Article 10 of the European Convention on Human Rights. Campbell was awarded £3,500 for that invasion of privacy. For the appeal to the House of Lords, she had retained solicitors and counsel pursuant to a conditional fee agreement (“CFA”) which provided that if the appeal succeeded, solicitors and counsel should be entitled to success fees of 95% and 100% respectively. For the appeal to the House of Lords, legal fees were £288,468; and the success fees were £279,981.35; so the total fees were £594,470. Adding in the fees at first instance and before the Court of Appeal, Campbell’s costs amounted to a total of £1,086,295.47. In Campbell v MGN [2005] UKHL 61 (20 October 2005), the House of Lords approved an award of costs to her in this amount. In today’s judgment, (which I have noted here), the ECHR held that addition of the success fee infringed Article 10. As the Guardian‘s headline put it: the European court deals [a] blow to no win, no fee deals in Naomi Campbell case.

This is a very signifcant decision for several reasons. (more…)

Fast cars and journalists’ sources

Cover of Autoweek via their websiteIn Sanoma Uitgevers BV v The Netherlands Application no 38224/03 (14 September 2010) (Inforrm’s Blog | Index on Censorship Free Speech Blog | JuraBlogs), the Grand Chamber of the European Court of Human Rights (ECHR) has held that an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources requires legal procedural safeguards commensurate with the importance of the principle at stake. This is an important standard, and the actions of the Dutch authorities failed to meet it. An order to disclose journalistic material was made by a public prosecutor, whom the Court considered to be a party rather than impartial, so that there was no independent assessment as to whether the interest of a criminal investigation overrode the public interest in the protection of journalistic sources. As a consequence, the Court unanimously held that there was a violation of Article 10 of the European Convention on Human Rights.

The case concerned illegal car races being investigated by the Dutch magazine Autoweek, published by Sanoma Uitgevers BV. The journalists took photographs and made notes, but edited the published photographs to guarantee the anonymity of the participants in the race. The participants in the illegal race were suspects in other serious crimes, and the public prosecutor took the view that the need to identify them justified a summons ordering the production of the CD-ROM on which the original photographs were stored. The Third Section of the ECHR held that this did not infringe Art 10 (a decision which I criticised at the time). On appeal, the Grand Chamber has now made amende honorable.
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Updates: Joyce, hecklers and broadcasting

Updates logo, via Apple websiteI suppose if I spent ages thinking about it, I could find a spurious thread linking three stories that caught my eye over the last few days, but in truth there is none, except that they update matters which I have already discussed on this blog. (Oh, all right then, they’re all about different aspects of freedom of expression: the first shows that copyright should not prevent academic discussion; the second shows that hecklers should not have a veto; and the third is about broadcasting regulation).

First, I had noted the proclivity of the estate of James Joyce to be vigorous in defence of its copyrights; but it lost a recent case and now has agreed to pay quite substantial costs as a consequence:

Joyce estate settles copyright dispute with US academic

The James Joyce Estate has agreed to pay $240,000 (€164,000) in legal costs incurred by an American academic following a long-running copyright dispute between the two sides. The settlement brings to an end a legal saga that pre-dates the publication in 2003 of a controversial biography of Joyce’s daughter, Lucia, written by Stanford University academic Carol Shloss. …

More: ABA Journal | Chronicle | Law.com | San Francisco Chronicle | Slashdot | Stanford CIS (who represented Shloss) esp here | Stanford University News (a long and informative article).

Second, I have long been of the view that hecklers should not be allowed to veto unpopular views, and none come more unpopular that holocaust-denier David Irving. Now comes news that NUI Galway’s Lit & Deb society have withdrawn their controversial invitation to Irving for security reasons:

David Irving address in NUIG cancelled due to ‘security concerns’

The proposed visit of the controversial historian David Irving to the NUI, Galway Literary & Debating Society has been cancelled. In a statement the Lit & Deb said the cancellation was “due to security concerns and restrictions imposed by the university authorities”. …

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Journalism and Blogging in the New York Review of Books

New York Review of Books image, via their websiteThere is a wonderful essay by Michael Massing in the current edition of the New York Review of Books about the deepening relationship between print and online journalism. In form, it’s a review of Eric Boehlert Bloggers on the Bus: How the Internet Changed Politics and the Press (Free Press | Amazon), which traces the online events that affected the 2008 presidential campaign and reveals the stories of the internet activists who made them all possible, and Bill Wasik And Then There’s This: How Stories Live and Die in Viral Culture (Viking | Amazon), which seeks to demonstrate that the rise of the internet means that our culture is now created from the ground up. Common to both books is the argument that a small online quiver can easily become a massive earthquake in the real world. In fact, Massing’s piece is a fascinating assessment of the state of journalism on the internet, filled with references to all sorts of blogs, but which only tangentially touches on Boehlert’s and Wasik’s book. In that, I suppose, it’s much more like a long blogpost than a traditional book review.

Indeed, Massing’s piece almost resembles a blogpost in another way: the online version has links to many of the online sources referred to in the piece, a practice other publications could adopt, to save me having to add links when I quote paragraphs from newspaper websites – it is this kind of added value that makes online reporting different from the paper kind, and the sooner newspapers realise that the online version is not simply the text of the paper version, the better. Don’t get me wrong, I’m not advocating that the online version replace the paper version – indeed, I read the paper version of the article first – just that online versions should fulfill their potential. And anyway, the Review’s practice of putting a list of links at the start of the article rather than embedding them in the text only goes half way, so in the extracts below, I’ve still had to add the links.

The core of his argument is in this extract (though the whole thing is well worth reading, even on paper, over a cup of coffee):

The News About the Internet

In an online chat with readers earlier this year, New York Times executive editor Bill Keller deplored the “diminishing supply of quality journalism” at a time of “growing demand.” … Keller’s lament—one of a steady chorus rising from the industry—contains a feature common to many of them: a put-down of the Web and the bloggers who regularly comment on Web sites. …

This image of the Internet as parasite has some foundation. Without the vital news-gathering performed by established institutions, many Web sites would sputter and die. In their sweep and scorn, however, such statements seem as outdated as they are defensive. Over the past few months alone, a remarkable amount of original, exciting, and creative (if also chaotic and maddening) material has appeared on the Internet. The practice of journalism, far from being leeched by the Web, is being reinvented there, with a variety of fascinating experiments in the gathering, presentation, and delivery of news. And unless the editors and executives at our top papers begin to take note, they will hasten their own demise.

Massing traces the history of journalistic blogging from the Mickey Kaus and Andrew Sullivan “snip-it-and-comment approach”, via blogs that not only comment on the news but also break it, to “an emerging new breed of ‘hybrids,’ schooled in both the practices of print journalism and the uses of cyberspace” as well as to online commentators and citizen-journalists (though he uses neither of these terms); the internet offers a podium to those

… of all ages and backgrounds who are flush with ideas but lack the means to transmit them. A good example is Marcy Wheeler, … [who] first began blogging in 2004, gaining notice for her posts on the Valerie Plame leak case; in early 2007 she “liveblogged” the Lewis Libby trial. Later that year, after giving up her consulting job, she began blogging full-time for FireDogLake

“The idea that our work is parasitical is farcical,” Wheeler told me by phone. “There’s a lot of good, original work in the blogosphere. Half of all journalists look at the blogosphere when working on a story.” At the same time, she said, “I’m happy to admit I’m still utterly reliant on journalists …” … “We ought to be talking about a symbiotic rather than a parasitical relationship,” she told me. What disturbs bloggers, she added, are those journalists who reside in “the Village”—shorthand, she said, “for the compliant, unquestioning, conventional wisdom that comes out of Washington. …”.

The blogosphere, by contrast, has proven especially attractive to those who, despite having specialized knowledge about a subject, have little access to the nation’s Op-Ed pages. … Beyond such individual sites, the Web has helped open up entire subjects that were once off-limits to the press. …

But Massing admits that it’s not all roses here in the world of electrons and computer screens; and this allows him a paragraph each on the books putatively under review. First, bloggers often reject the attempts at “balance” that are made by mainstream print publications, though of course

… it’s their willingness to dispense with such conventions that makes the blogosphere a lively and bracing place. This is nowhere more apparent than in the work of Glenn Greenwald. A lawyer and former litigator, Greenwald is a relative newcomer to blogging, having begun only in December 2005, but as Eric Boehlert notes in his well-researched but somewhat breathless Bloggers on the Bus, within six months of his debut he “had ascended to an unofficial leadership position within the blogosphere.” In contrast to the short, punchy posts favored by most bloggers, Greenwald offers a single daily essay of two thousand to three thousand words. In each, he draws on extensive research, amasses a daunting array of facts, and, as Boehlert puts it, builds his case “much like an attorney does.”

Second, Massing quite rightly acknowledges

… some of the more troubling features of the journalism taking shape on the Web. The polemical excesses for which the blogosphere is known remain real. In And Then There’s This, an impressionistic account of the viral culture on the Internet, Bill Wasik describes how “the network of political blogs, through a feedback loop among bloggers and readers,” has produced a machine that supplies the reader with “prefiltered information” supporting his or her own views. According to one study cited by Wasik, 85 percent of blog links were to other blogs of the same political inclination, “with almost no blog showing any particular respect for any blog on the other side.” …

Finally, the Internet remains a hothouse for rumors, distortions, and fabrications. … For all these problems, the Web is currently home to all kinds of intriguing experiments … [which t]aken together … suggest a fundamental change taking place in the world of news.

Massing’s piece offers insights into where this change has come from as well as tantalising glimpses of where it might be going. The key point is that, whilst the world of print journalism may not be dieing, it will need to rejuvenate if it is to thrive. How it responds to that challenge will be interesting. And remember, as it does, please embed those links!

Bonus links: the Review‘s podcast page has a conversation between Manning and Charles Petersen about the rise of blogs and the ascent of online journalism (mp3); and while you’re there, check out Fintan O’Toole‘s gripping interview by Sasha Weiss about the genius and misfortune of Flann O’Brien (mp3).

Two journalists’ conceptions of source privilege

Cover of Novak's autobiography In today’s Irish Times obituary of Robert Novak (pictured left, on the cover of his autobiography), there is an excellent summary of the Judith Miller affair. From the obituary (with added links):

Conservative US columnist revealed identity of CIA officer

… Six years ago, he crowned his long record of controversial disclosures by revealing the name and position of Valerie Plame, a clandestine CIA officer involved with intelligence on weapons of mass destruction. Her husband, Joseph Wilson, a former US diplomat, had enraged the Bush administration by publicly questioning the White House’s misuse of such intelligence to justify its invasion of Iraq.

Publishing Plame’s name broke federal law and there was a ferocious hunt for Novak’s source, which he stoutly refused to name. This witch-hunt eventually brought prison sentences for a New York Times reporter, Judith Miller, and for Lewis Libby, the chief of staff of former US vice-president Dick Cheney.

Under continuing pressure, Novak told all to a federal grand jury, naming the deputy secretary of state, Richard Armitage, and US president George W Bush’s political adviser Karl Rove as his sources. He justified his action on the basis that both officials had already identified themselves. No one else was prosecuted, but it was not Novak’s finest hour. …

There are also excellent obits in the Economist, New York Times (also here), Time, Wall Street Journal and on the BBC website. Thus ends another chapter in a fascinating case study on journalist source privilege: both Miller and Novak published stories with Libby as the main source, but there the similarities end: although Miller declined to name her source until after she had served 85 days in jail and Libby had given her permission to do, Novak did eventually name Libby without going to jail and without his permission. It graphically illustrates the difference between conceiving of the privilege as attaching to the journalist (as Miller did in her assertion of the privilege even after Libby had outed himself and given her permission to name him) and conceiving of it as attaching to the source (as Novak did by claiming that he was no longer bound by it after Libby had outed himself). Despite what the Supreme Court said in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) therefore an important distinction which can make a great deal of difference on the facts of any given case, and the sooner the law recognises both species of the privilege, the better.

The template for journalism?

Irish Times clock, image originally hosted on Irish Times websiteA Leader in today’s Irish Times welcomes the passing of the Defamation Bill, 2006, and argues that it will set an appropriate template for the practice of journalism in Ireland:

The template for journalism

The Defamation Bill has concluded its passage through the Oireachtas, with a few deserved wobbly moments on blasphemy, and now awaits the signature of President McAleese. It will set the template for the practise of journalism in the years ahead. …

The new regime for journalism will operate on twin pillars. The Bill attempts – quite successfully – a balancing of constitutional rights: between the public’s right to know and the citizen’s right to a good name. … The concession to the practise of journalism is the new defence of “reasonable publication” allowing newspapers to publish stories of public importance for the public benefit if they can be shown to have been thoroughly investigated and done in good faith – even if allegations made in them turn out to be untrue.

The quid pro quo for these changes is the Office of Press Ombudsman and an independent Press Council which are given legal privilege for their findings in the Bill. These offices give readers a formal and free complaints system which has been in operation for more than a year. The Irish Times supports them wholeheartedly. They face a huge challenge to stem the slide in standards in Irish journalism. …

Read all about it here.

Oh defamation, where is thy sting?

Nettle, via WikipediaTwo defamation stories from the Irish Times. The first concerns an interesting variation on the old defamtion saw, the sting of the libel:

An Irishman’s Diary

… In the Language of Flowers – a Victorian invention by which tortured lovers and the like used to send coded messages – nettles signified “cruelty” or “slander”. So in a sense, Shakespeare’s Cordelia is defaming the symbol of defamation when she lumps nettles (in King Lear Act IV) with “cuckoo flow’rs, darnel, and all the idle weeds that grow in our sustaining corn”. …

Quinn Insurance logoThe second concerns what seems like an important development in the defence of public interest publication:

Quinn group loses action to limit ‘Tribune’ libel defence

Quinn Insurance Group has lost a High Court bid to strike out parts of the Sunday Tribune’s defence to forthcoming libel proceedings taken against it by the insurance company.

The libel action is over articles alleging the group recruited gardaí to approach solicitors to offer them bonuses on their fees to recommend reduced settlements to clients in cases against Quinn Direct.

Ms Justice Elizabeth Dunne yesterday ruled the defendants had provided adequate details of its plea of justification for the article and also sufficiently set out the nature of the public interest being relied upon to justify the article. …

The Quinn Group says that it fully intends to “prosecute its case to conclusion”, so we may yet learn just how stinging the Sunday Tribune’s allegations are. The judgment is not yet available on Bailii or the Courts’ Service judgments’ database (the time it takes to get judgments onto these websites is a source of ongoing frustration for me, and for others), but as soon as it is, I’ll come back to it.

Journalists’ source privilege: one privilege or two?

Journalism Matters banner, from the NUJ website.Journalists’ source privilege is in the air. In the US, the House of Representatives has recently passed a (not particularly readable) Bill recognising a journalists’ source privilege (the Free Flow of Information Act of 2009), and it has been introduced into the Senate. In the UK, a prosecution of a local newspaper journalist and the police source who “leaked” stories to her was recently dismissed (indeed, a similar case against a member of parliament will also not proceed, though another is still pending).

On a judicial level, the Trial Chamber of the Special Court for Sierra Leone (SCCL) (pdf) (noted on the CPJ blog), relying on the earlier decision of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v Bradjanin and Talic (11 December 2002), held that a Liberian journalist did not have to divulge the names of those who facilitated his access to a war zone. In Sanoma Uitgevers BV v the Netherlands Application no 38224/03 (31 March 2009) (noted in my previous post), building on its seminal and hugely influential decision in Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996), the European Court of Human Rights (ECHR) explored the limits of such a privilege.

Moreover, in Ireland and Canada, cases are pending in both countries’ Supreme Courts on the question of the nature and extent of journalists’ source privilege. So, it’s a good time to try to clarify some of the important issues which arise. In particular, a key question, often overlooked, is whether the privilege inheres in the journalist or the source. For my own part, I would say that privileges inhere in both the journalist and the source, that they are two different privileges, and that they arise and are lost in very different ways.

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