Misuse of the law is not an argument for self-regulation

There’s something curious about Baroness Buscombe’s speech to the Society Of Editors. She talks a great deal about our “dysfunctional democracy” and the role of the press in supplying oppositional scrutiny. She is – and this is very welcome – severely critical of superinjunctions, and the harm they do in restricting information. But none of these things are within her remit as chair of the PCC, and she seems adamant that while there’s plenty to be fixed around the PCC, everything inside is working just fine.

The PCC is a “discreet”, “sensible”, “democratic” service she proclaims, and she has a chilly warning for anyone who thinks the PCC should be doing more:

So to those people who have recently signed a petition on the Number 10 website urging the government to put the PCC on a statutory footing I say: be careful what you wish for.

Yes, there were many people angered by Jan Moir’s controversial article about the death of Stephen Gately; and indeed 25,000 people were sufficiently moved to complain about it to the PCC. But when there is – in the PCC – already a channel to express dismay that a paper has overstepped the line, do people really want a government body telling us what we can read and think? […]

But a statutory press council is, in any case, pie in the sky. We need look no further than the other great development of the last few weeks to see why. The most benign thing that can be said about the recent Trafigura injunction fiasco was that it showed a touching naïveté on the part of the highly paid lawyers advising the company.

Baroness Buscombe, “Speech to the Society of Editors”

From a restricted perspective, the revulsion at Moir and the exposure of Trafigura might look like contradictory impulses: the conflicted twittermob wants The Mail to hush up, and The Guardian to speak freely. But Trafigura was about verifiable, public interest information. Moir offered nothing but crass speculation – and it’s important to note that she didn’t just outrage the delicate and arbitrary mores of online liberals. Her column broke the PCC’s own code – a code which her employer, The Mail, is ostensibly committed to maintaining.

The PCC’s impotent position means that newspapers feel able to disregard the rules they’ve signed up to. Buscombe, in her interview on Today the next morning, congratulates the PCC on the work it does in averting breaches pre-publication, but when something as clearly egregious as Moir on Gately can make it online and in print, her confidence looks misplaced.

Superinjunctions and libel law need reform, badly. But if legal remedies are going to be made increasingly inaccessible, the PCC will have to do more to assist individuals who end up on the wrong side of reporting: ugly intrusions into personal grief are not the fair price of a free press. The PCC could impose all sorts of penalties on a columnist like Moir without standing in the way of a single Trafigura. But the conflation of personal intrusion with public interest has long been the PCC’s argument for doing nothing: Buscombe is simply aligning recent events to fit a very old way of doing things.

Text © Sarah Ditum, 2009

Running rings round Carter-Ruck

rusbridger statusDid the Guardian game Trafigura and Carter-Ruck? Because if they did – and did it with the assistance of one MP, a clutch of bloggers, and Twitterers of every political conviction – then they did it brilliantly.

Pretty much all of the information that Carter-Ruck sought to smother is now better known than it ever would have been from a normal below-the-fold Guardian front page story. The injunction on mentioning the parliamentary question on the Minton Report has been lifted, and gagging orders have gone from being a  pernicious journalistic niggle to a lead item. It has given the Guardian a compelling unfolding story, attracted virtually universal positive coverage for the paper, and opened the way for a widely-supported campaign against abuses of the legal system.

Jack of Kent says of the initial report of the case in the Guardian, “I thought it a carefully worded article, almost like a crossword clue.” In other words, anyone who had the interest and the inclination could match the information in the parliamentary record with the information provided by the Guardian, and work out which question they weren’t allowed to report on. Plenty figured it out, and by the time I caught up with the story, Richard Wilson (like several other bloggers) had published the question on his own blog.

The question came from Paul Farrelly – who is, I learnt via Aaronovitch Watch, a former Observer employee. The Legal News column in the most recent Private Eye mentions that “one MP hopes to break the conspiracy of silence, under parliamentary privilege, when the Commons reassembles.” If that “one MP” is Farrelly, then he probably figured beforehand (maybe in concert with his former colleagues, and maybe not) that a gag could be just as productive as a publishable answer in exposing Trafigura and Carter-Ruck.

From the time the Guardian published its first non-coverage of the parliamentary question on its website, the paper played the whole thing perfectly. Editor Alan Rusbridger was active on Twitter, along with most other Guardian hacks, following the hashtag activity and encouraging supporters to tweet and retweet on the names and links that made the story.

Was it the Twitter wot won it? It’s impossible to know how the case would have  been decided without a tweet campaign, and perhaps the original injunction would have been overturned on appeal anyway. Still, it seems likely that the presence of #trafigura and #carter-ruck in Twitter’s trending topics would have been taken as evidence that the injunction was both useless and counter-productive. Print media brought the information and supplied the authority to stand it up; social media ensured that the coverage didn’t freeze in legal chill.

Trafigura and Carter-Ruck are the perfect opposition for a cause like this, because they’re easy to pick out as villains and there’s little collateral damage. If similar activity lead to, say, the widespread revelation of Maxine Carr’s new identity or the naming of defendants in a case of child abuse with living victims, I’d think the outcome much less peachy. But the UK legal system is currently being gamed into submission by organisations who don’t just have something to hide, but also want to hide that they’re hiding anything. This time, the Guardian outplayed them.

** EDIT Updated at 23:41, 13 October to clarify status of injunction on Minton Report. **

** Update 19 October 2009 ** The Guardian’s investigations editor, David Leigh, has tweeted a link to this post, describing it as “interesting” – which I’m hoping can be taken to mean “not hideously wrong”.

Text © Sarah Ditum, 2009