Below is a selection of talks from the Press Freedom session.
Fatima Bhutto: Pakistan is a new country: 61 years young, and its history of resisting press censorship is a very brave one. The last dictator that we had in the 1980s – General Zia ul Haq – enforced strict censorship across the board with provincial censorship boards set up across the four provinces and every article to be printed whether it was in the sports or the comment page had to go to a censor board. Under this dictatorship the censor boards became very strict and they would block out entire articles. So what the broadsheets did was that they started to print empty space in Pakistani newspapers. So you would open up Monday’s paper and there would be three stories and the rest empty boxes. The censorship boards caught onto this and said, ‘OK, not funny. You have got to fill space.’ So what they started to do then was to fill the space with pictures of donkeys, or dogs or farm animals. So we come from quite a subversive history of resisting press censorship.
Two civilian governments and another dictator later, and another so-called democratic government now, and that vigilance has effectively been dropped. In Pakistan we not only have blanket press censorship in terms of what is discussable and what is not discussable, but in our newspapers we censor based on languages. What you can say in English is more flexible because only 14,000 people read the English papers. But what you can say in the Urdu press which 4 million people read is very different. Of course there is a degree of self-censorship as well that is practised.
But I want to speak about this new law which is being introduced in Pakistan and which is currently before the Parliament. It is going to be passed. We don’t have an opposition. It is one of the great things about our democracy! And it is called the Prevention of Electronic Crimes Act. It extends throughout Pakistan and applies to any person of any nationality or citizenship. The definition of what constitutes an electronic crime doesn’t follow any international recognised standards. It consists of, but is not limited to, “electrical, digital, analogue, magnetic, optical, biochemical, electro-chemical, electro-mechanical, electro-magnetic, radioelectric or wireless technology.” So that means anything that you have transmitted via e-mail, via the internet, via your text messaging, or indeed via your toaster! – they all fall under this law.
This idea of cyber crimes came out several months ago under this new government, And what happened first was that the Federal Investigative Authority was charged with “hunting down anti-democratic forces”. This is the other feature of our democracy: it is incredibly vindictive. The authorities were charged with hunting down those who sought to character-assassinate our country’s politicians. In text messaging, really, how much can you do? What they are really interested in is people who transmit information. For example, the recent story about drones flying out from air bases in the Baluchistan province started life as a ticker that exploded in the international press, and then it had to be covered. So everything from basic news and information trading aggravates the Federal Investigative Authority, including a popular joke that can only be described as silly: three countries are sitting around talking about how to deal with their criminals; America says we put them to death, England says we give them clemency for now, and Pakistan says, oh, well we make them President! This constitutes character assassination.
So what this law does is to enforce prison sentences for such crimes for anything from three years to death for vague crimes such as ‘spoofing’ which could mean satire, jokes, who knows; spamming – which apart from spamming – also includes the passing of information to large groups, such as me sending out information to my e-mail list of 200 people; the crime of having a fake e-mail account sends people to jail for three months; ‘investigative officers’ – and we don’t know if this is the army, intelligence forces, or the police, it doesn’t specify – are given access to all and any electronic systems, any and all data banks, and are given the power to coerce service providers, not only to give forth information from people’s Google searches and so forth, but they are also required to keep it confidential that the government has access to their files. This is as scary as it sounds and even more so when you look at the fact that part of Pakistan now is going to be ruled by Taliban law, after this government made a peace deal with militants in the Swat valley. The fact that the government has switched to sharia law in one section of the country unilaterally without a vote or a referendum is not discussed. It just slid by.
Nick Cohen: The point I want to make and indeed rather urge on you is that we need to have a change in the way we think and indeed write about freedom of speech and indeed freedom of the press. To generalise perhaps wildly, since the 1980s, campaigns for liberty have centred on the law and the emphasis on human rights in the Helsinki accords. If I am being honest, this was underpinned by the defeatism of the left in my generation who just saw Thatcher win one election victory after another. We thought, we cannot win democratically, but perhaps we can win by changing the law so that the judges do our work for us. I don’t want to get into the rights and wrongs of that, but one problem is that the judiciary cannot be relied upon to defend freedom of speech. Like the ruling classes in a lot of Europe, they are still an aristocratic element in thinking – which you don’t get in America – that freedom of speech for the masses is dangerous. It is not something you can teach in law school. You have either got an instinctive belief that it is wrong to ban books or you haven’t. The lack of that instinct for liberty in the judiciary is being seen now in our courts and is causing something of an international scandal.
Libel is a very peculiar law. The way most of the people in this room are likely to be libelled is if a credit reference agency gives you a false credit rating; if you are a teacher or a social worker and there is a malicious, anonymous report on your file suggesting some allegation of child abuse; if the police or MI5 just drop something down to you. But you can’t sue for those. Libel is highly peculiar and directed at the press, at television and increasingly blogs. People think it is about truth: libel isn’t about truth. It is about damage to reputation. But for me, the greatest example of why the English judiciary cannot be trusted with press freedom is that they allow people to sue – under highly advantageous terms as we have heard – who have very poor reputations.
Let’s take a few examples. Henry Porter who organised this conference is the London editor of Vanity Fair, an American magazine and wrote a piece about Roman Polanski which came to accusations of a sexual nature. Polanski sues. Now he doesn’t sue in new York, for the obvious reason that no-one sues a paper in New York because they have the first amendment on freedom of speech. But also for a slightly less obvious reason: if he were to return to America, there is an outstanding warrant for allegations of sexual abuse of a thirteen year old girl. He is on the run in exile in France. He goes to the law lords and appeals to them and says, “Can I sue in Britain?” And the law lords of course say yes, even though I would say that a man on the run from accusations of child abuse has – er – less of a reputation to lose than perhaps some of you in this room. But then Polanski says,”But by the way, I can’t come to London either because if I do the British police will arrest me and deport me to America to face accusations of child abuse.” The law lords say, “That’s absolutely fine Roman. You can do it by video link from Paris.”
The case of the US Congress passing a Libel Terrorism Bill is a quite extraordinary case. It relates to a New York writer called Rachel Ehrenfeld who .wrote a book called Funding Evil about where Al-Quaeda got its money from. She is based in a city where three thousand people were killed by Al-Quaeda. This book is not published in Britain. It is not publicised in Britain. Miss Ehrenfeld is not a British citizen. She is sued by a man called Khalid bin Mahfouz who is a Saudi royal families’banker, who not only sued her but thirty other newspapers including the Cambridge University Press, our most distinguished publishing house. Mr Justice Eady even though this book has not been printed in Britain still awards damages and orders the book to be pulped. Now the interesting thing about this is that it is a matter of record that Mahfouz was up to his eyebrows in the Bank of Credit and Commerce International, a notoriously corrupt bank that crashed in the early 1990’s. He has paid a massive fine to the New York regulators in lieu of prosecution. Still, fine, the British judges say, “ You come to London. You sue.” This is becoming a global scandal. The United Nations describes British laws as a threat to freedom of speech. There are international conferences that I have spoken to all over the world – free men and women all over the world – or more seriously men and women who are struggling to be free – suddenly find that they have to worry about Schillings and Carter-Ruck and Mr Justice Eady.
There is a charity called Global Witness that exposed a corrupt, kleptomaniac African dictatorship: it’s sued in London. A Danish paper that just before the banks go bust started exposing the Icelandic banks was sued in London. A concomitant of that is something I find deeply invidious. Anyone who has ever spoken to dissidents who have been in jail and come out knows how immensely grateful they are for any support they have had in democratic countries: letters from Amnesty International matter hugely to them even when they are locked in cells and matters to those who would imprison them. Britain is being stopped from doing that. If people think that they have got money – particularly Russian oligarchs or any in the Saudi nexus – lawyers are now backing off from writing about them. So we are backing off and not offering support to people in the poor world that we should. It really should be a matter of shame for this country that people around the world are having our lawyers and our judges imposed on them.
And things are only going to get worse. I just don’t concur with the techno-Utopian belief that this will all be overtaken by blogging. When an investigation is published in the Guardian or the Standard or the Observer it has been through an editing process, and the editor and all the people who work for him are saying, “We put our stamp of authority on this.” But also for the rather more prosaic reason that anyone here who blogs knows that as soon as they get a letter from a solicitor they will fold, they will pull it offline. Everyone does it. So, if the press which is haemorrhaging money has to stop this, I suspect that nobody else is going to do it. The Robert Maxwells and the bin Mahfouz’ and the George Galloways and all these people who use the libel courts will ensure that the next generation of them will have a far easier time of it.
There is one idea on extending the privilege, essentially making us more like America that is being contemplated by the Conservative Party. If you write as Alan Rusbridger’s paper did about a murderous quack who is telling South African aid victims that they can be cured with Vitamin C – frankly there is no way you can go before an English judge and close a seal upon all those reports for eighteen months. For eighteen months, when hundreds of thousands of people are dying in Africa, no-one in Britain can write about a man who thinks he can cure Aids with Vitamin C and that retroviral drugs are dangerous. This is not a matter for judges to stick their noses in. We need to be more like America where frankly we say, if it is a matter of public interest, people can pretty much say what you want, and if you don’t like it, argue against them before the court of public opinion which in my experience is far more reliable and far more just than the court of Mr.Justice Eady.
Alan Rusbridger: Libel is a difficult subject to speak about: it seems like a small subject of interest to journalists. But I hope to convince you that it is something you all ought to be interested in, especially against the background where the established media in the western world is in crisis. A lot of them are about to be obliterated by a combination of technology, the recession and the economy. For the first time since the Enlightenment, we are going to have societies, cities, communities, regions, countries, which don’t have a verifiable source of information because the old economic model for what we do is dramatically threatened. However much we dislike newspapers and disapprove of what journalists do, we have to bear in mind what society is going to be like without any.
You could begin almost anywhere, with the laws on confidence, data protection, privacy, contempt and their impact on free speech. I personally am wondering about state surveillance and what impact that has on whistleblowers and sources and that confidential interaction between people who want to tell journalists things and the receipt of information. If every phone call and e-mail can be traced, then we are going to see an awful lot of whistle blowers and journalists in the dock for doing things that seemed unremarkable in the past.
But today I want to talk about two aspects of libel: libel tourism and cost. The libel industry in this country is a bit like the investment banking industry before the bubble burst. London had become the centre fro this industry like banking. It has become well-established now that anyone with a dodgy reputation wanting to stifle free speech not only in their own countries but in Britain and the world will come and sue in London. They do that because the laws and the costs of sueing in London are so favourable to those who want to silence free speech. The press itself has some borderlines to draw, like the ones between what is private and what is public. But there is insignificant protection for journalists who are writing about things that do matter, and we should ask ourselves why it is that the US Congress in a country with such a reputation for free speech is currently passing a bill through Congress which would make the British libel judgments unenforceable in America so alarmed are they by the developments going on here.
Something is wrong, and this teaches us that the British libel laws have an impact far beyond these shores. The other way it all resembles the bankers before the collapse is the fees that lawyers are paying themselves in order to suppress free speech. There was a well-intentioned piece of law that allowed conditional fee arrangements, no-win-no-fee, so that people could have more access to libel law, but that has enabled lawyers to double fees that were already grotesquely large in my opinion to start with. There was a fascinating study done by the Comparative Media Law Centre in Oxford which compared the cost of libel in the UK to the other European states. It won’t surprise you to know that England and Wales come top of the league. The gap between them and the next country which was Ireland, is that England and Wales are four times more expensive, and Ireland is ten times more expensive than the next country. England and Wales are 140 times more costly than anywhere else in Europe – that’s right – 140 times.
Most of this is hidden from public view. We have a few well-publicised cases, such as the case of Tesco versus the Guardian in which the Guardian was wrong in essence, or at any rate we got some facts wrong, which we apologised for twice and corrected twice and used the Swissist, cheapest, easiest route in which to settle the case, and we have just received the bill for 800,000 pounds which includes a staggering 350,000 pounds which was for Tesco’s own accountants to explain to their own lawyers, the tax avoidance schemes about which we got muddled. So that is a staggering amount of money and it leads on to the chill factor.
The predictable consequence of this is that almost nobody will write about tax avoidance in future, because they look at that and they think, “If we get it wrong, it’s so complicated – it’s almost impossible to understand anyway and we probably will get something wrong and if we do, it’s just so forbidding – we are not even going to try.” I thought it was important that we at the Guardian did go back and write something else about tax avoidance. We recently did so. The cost of legalling that series over two weeks to get us to the point where the lawyers and the accountants agreed that this was “probably right” – the best thing you can go for in that area – was 100,000 pounds. No news organisation is going to spend that amount of money. Which means that this terribly complicated subject isn’t going to be written about or discussed in this country. Parliamentarians across the board do not understand it, and if they don’t have journalists to explain it to them, they are not going to discuss it and there will be very little pressure to change those laws. If you believe in tax avoidance then it is highly rational and sensible to invest in that amount of money to suppress that subject, and just get it out of the public eye.
We can’t blame the litigants: we have to change the law. This is urgent because as I say the press is in a dire financial state. It has been hit by revolutions in advertising and technology. Libel is no longer as it was once, a battle between Davids and Goliaths. There are very few Goliaths left. There is the BBC and Rupert Murdoch. That’s about it. In a few years time, we won’t be asking why newspapers made mistakes in digging into complex matters, we will be marvelling that they ever tried reporting on this stuff, because they simply won’t be able to take the risk under the laws that we have. That is what should worry us. At the heart of this is not a debate about the perhaps arcane subject of libel law – usually people switch off and journalists don’t expect and don’t get much sympathy for bleating on about libel – but whatever it is that you care passionately about, and that will become undiscussable with the laws that we have at the moment. This is about what is discussable in society and what happens when a matter becomes undiscussable.
Andrew Gilligan: The threat to press freedom is more complicated than some of the others. It comes not just from the state, from judges, from the increasingly precarious economics of the industry and actually from the press itself. One of the biggest state threats is the data base that they are proposing to construct where literally everybody’s transactions with any internet provider, Google search, e-mail, telephone records, movements in your car as tracked by number plate recognition cameras – all those will be stored in a giant database – and clearly it is the end of privacy for all of us and also the end of journalism. A lot of journalism relies on confidential sources and no source is going to want to come forward if they know that their confidentiality is no longer assured. Did the media make a fuss about that? I have read a few articles and written one, but no.
There is a policy to crack down on whistle blowers. They are doing a great deal to be aggressive towards whistle blowers already even without those powers: for example, two men called David Key and Leo Connor were recently jailed for leaking to the Mirror I believe a story which completely fits the definition, I believe, of a public interest story – which is that George Bush and Tony Blair discussed the bombing of a TV station, Al Jazeera – during the war on Iraq. Did anyone make any fuss about that? The media was almost silent about that major attack on press freedom. Even the journalists they have leaked to have been arrested and searched. The journalist on the Milton Keynes Citizen, Sally Murrer was arrested, strip-searched, spent two nights in the cells. She got off, but again it was almost eighteen months before anyone in the mainstream media even mentioned her name. In the case of Jean Charles de Menezes, one of the key details, as is often the case in this very secretive country, came out from the media. The leaked IPCC report revealing that Menezes was not in fact running away, and that he had not been wearing a heavy coat and a number of other incriminating details that raised very serious questions about the police decision to shhot him – all those details came out first from a leak to ITV news. The IPCC Secretary and the ITN journalist who received the leak from the Secretary were arrested. To this day, those two journalists are the only people to have been arrested for the shooting of Jean Charles de Menezes.
The police have those enhanced powers of search and they use them. They have even started branching out into TV criticism. Do you remember the extraordinary decision taken by the West Midlands Police to report Dispatches – the programme I work on though not that particular edition – to OFCOM, the broadcasting legislator, for a programme that they said was a distortion. Now it wasn’t of course: OFCOM ruled entirely in its favour and I believe the police settled a libel action brought by the programme makers. But it is the responsibility of the police to investigate crime, not editorial standards in TV journalism.
As for economics and journalism, we already appear to be witnessing the disappearance of local newspapers and that upsets the whole eco-system. A lot of stories that eventually became big national stories started out in the local newspapers. Major newspapers in America are closing down. My own paper, the Evening Standard was sold for a pound to a Russian oligarch and transferred today. We will see what happens. We have to start thinking seriously about the way in which commercial pressures are preventing journalists from having the time to make basic phone alls, let alone go out and do some of the impressive investigative journalism we have seen in the past. Probably though, the hardest thing of all is to make people understand why a free press is needed. The press I think unfairly is often seen in the wider public as an abuser of human rights as much as a protector of them. It is unfair because that is largely the legacy of past misbehaviour by a fairly small number of red-top tabloids, and there is no question that they did abuse human rights – that they did smear and slander innocent people who could not answer back. There was a very interesting case I wrote about of a perfectly ordinary woman in Scotland living on a council estate who had an autistic child. The Sun wrote up that this child was the most disruptive child in the town, named the child, picture of the child, and the child’s life was destroyed. He couldn’t go to school any more; lost a lot of confidence; started crying at night; told his mother to fuck off. She didn’t have any redress. She didn’t have any money and couldn’t sue. This was in the 1980s. They have cleaned up their act a bit now, but I think we have to remember that the clarion call to defend the freedom of the British press is not one that is always shared.
But I do believe that we are a state with relatively weak democratic institutions. Not as weak as Pakistan’s but weak by comparison with most other advanced democracies. But we have a very strong democratic culture. That’s what makes up for it. Power in this country is very heavily centralised. A very few people take all the key decisions to an extent quite unknown in any other democracy. And a lot of the institutions of state that are supposed to protect us have failed to protect us. You are probably very bored with me banging on about Iraq by now, but the fact is that in Iraq over the dossier story and the case that was made for war – all the institutions of state that were supposed to protect us failed: the civil service in the person of John Scarlett became Alistair Campbell’s accomplice; the courts in the person of Lord Hutton failed rather spectacularly; the legislature in the form of Parliament’s Foreign Affairs Committee seemed to be more concerned with attacking me and David Kelly than trying to get to the bottom of the story about the dossier. The only estate of the realm which did its job in the end, and brought out the truth more quickly and comprehensively than anything else, was the fourth estate.
That’s one of the reasons why we are pretty important and that is part of the case we have to be making. The press themselves need to start getting angry about press persecution, the persecution of journalists, of sources, and they need to start getting angry about attacks on them by the state. The press still has a great deal of power in this country. Whatever they may tell you, they listen to the Daily Mail and even occasionally to the Evening Standard and the Guardian. Journalists are going to have to learn new techniques, including encryption techniques in order to be able to communicate secretly and safely with your contacts and conceal your activities from the state. Because whether we defeat this latest Big Brother thing or not – it is going to come back and is probably happening already in some form, secretly. And journalists are going to have to start making a case for their own work, partly by doing that work. I think there is less of that cowboy journalism than there was in the 1980s. There is more regulation through the PCC. But we have to start making the case for our role as an important voice in society to a wider public, the importance of a free press to a society with weak democratic institutions but a strong democratic culture. Civil society, including a free press is probably the most important safeguard we have. But we need to make that case more widely.