Rajeev Thacker is a barrister at Garden Court Chambers in London, specialising in human rights. He has been a guest lecturer on the MSc Science Communication course at Imperial College for the last three years.
So, the Crime and Courts Bill 2013 has cleared its way through Parliament and is ready to become law. What has this got to do with a blog post about science communication, you may ask? Well, that legislation now includes, rather inelegantly, some of the new law about press regulation that you have doubtless been reading about and listening to over the last few days. I say rather inelegantly because the Bill, as originally drafted, and as its title suggests, was largely designed to deal with matters relating to criminal justice. It can be inferred that the shoehorning of the hastily negotiated press reform into the Bill was done before anyone could change their mind about the cross-party consensus. Of course, much of the reform is not contained in an Act of Parliament at all, but rather in a Royal Charter, a most unusual vehicle for such an important change. In yet another sign of the poverty of modern political discourse, this device was adopted in an attempt to avoid charges of legislative interference with the freedom of the press, but it is difficult to see why the form taken by the reform should make any real difference.
And there is another consequence of agreement about press regulation. The important Defamation Bill, which constitutes one of the most significant reforms of libel law, can now come into being. It had previously been held up by a number of members of the House of Lords, unhappy with the government’s prevarication over implementation of Leveson. For those writing in science journals, this legislation is particularly welcome, since it creates a new, specific defence where an article is published in a peer-reviewed academic journal.
But even a cursory reading of the various texts reveals a significant omission. There has been no real attempt to grapple with the online world, which is becoming increasingly dominant insofar as the written word is concerned. This failure has been evident throughout the process, whether it be the lack of time spent by the Leveson on the impact of the internet, or the lack of clear definition in the new legislation. This leads to real difficulties in interpretation. The unwillingness to engage with modern methods of free speech is exemplified by the most controversial aspect of the reform – the power of a court to make an award of exemplary damages. I use this to illustrate an important point about fundamental liberties which impact upon our daily lives, namely, that hastily enacted law is invariably bad law.
Now, although rather legalistic, the idea of exemplary damages is not particularly complex. It has long been open to a court to make an additional award of compensation to an injured party in civil litigation, payable by the wrongdoer, where that wrongdoer has behaved particularly badly. Such awards are typically made in cases where there has been an abuse of state power, such as a police officer fabricating evidence in order to obtain a conviction of an innocent citizen. The intention of the new law that regulates the media is to enable a court to make such an award against a “relevant publisher” who has committed certain civil wrongs, such as libel and breach of confidence (including phone-hacking) but has failed to join the new regulatory body. So far, so good. After all, it can be argued, given that many newspapers have failed to adhere to the most basic journalistic standards, that they should face additional punishment should they fail to join the body that is charged with the duty of upholding such standards.
As ever, however, it is the detail that matters. How is a relevant publisher to be defined? What type of material is to be covered? How much will any award be? It is here that some troubling issues arise. As to the first, a relevant publisher is somebody acting in the course of a business, whether or not for profit, who publishes news-related material written by different authors and which is subject to editorial control. And news-related material is that relating to news or current affairs, opinions about news or current affairs and, wait for it, gossip.
On the face of it, therefore, it seems as though this blog would potentially leave itself open to an award of extra compensation in an appropriate case. Whilst it is not run for profit, it certainly is subject to editorial control and contains news-related material. There might be debates about whether it is published by somebody in the course of a business but there is certainly an argument that the University is the ultimate publisher and it is running a business, at least to some extent.
Now, I immediately accept that the prospects of a claim being brought against this blog are, in reality, non-existent, given its subject matter. But what of the aspiring journalists who decide to create a blog, subject to editorial control, which they use as a shop window for their work and within which they express trenchant views about the funding of clinical reviews, accusing companies and individuals of bias? Under the new law, they would be expected to join the regulatory body in order to completely protect themselves. And smaller publications, such as Private Eye, have also expressed profound reservations about the impact on other forms of political speech. There are, in addition, numerous other unanswered questions posed by the reforms. For example, the new regulatory body has power to direct the publication of an apology. How will that work in the case of an online only newspaper where the editors, support staff and equipment are all situated outside the UK?
I am not saying that there are solutions to all these issues. But, in a laudable attempt to protect victims of unjustified media intrusion, politicians have yet again produced a number of undesirable consequences. What we can and can’t say, or write about, is one of our most cherished freedoms in a modern civilised society. It is right that there are restrictions on this freedom, but they need to be founded in logic. The new law does not, in some important respects, satisfy this essential requirement.