The veteran Daily Mail editor Paul Dacre delivered a video address to the nation after Associated Newspapers saw off claims of phone hacking from Prince Harry and his celebrity co-claimants. The financier Crispin Odey dropped a £73 million libel action against the Financial Times after allegations of sexual misconduct. Joshi Herrmann, founder of the independent publisher Mill Media, defeated a TV historian who tried to use the General Data Protection Regulation (GDPR) to identify the sources for a story about him.
But the business magnate Dale Vince used the same data protection law to win damages from the Daily Mail after a misleading juxtaposition of headline and photograph. While the piece and photograph, taken together, did not libel Mr Vince, the court of appeal ruled that the Mail had not processed his data fairly. If reporters think that exemptions for journalism within the GDPR grant them immunity, they better think again.
A good time, then, to turn to the 28th edition of McNae’s Essential Law for Journalists, the book that has guided and protected generations of reporters since its first publication in 1954. To celebrate its publication, the National Council for the Training of Journalists (NCTJ) invited its latest editors to join journalists, lawyers, university teachers and representatives from the courts system to address the big questions, kicking off with that big result from the High Court.
DAN TOWNSEND, media law chief examiner: “I wonder if some shadows over media law have been lifted a little in the last few weeks. The Prince Harry judgment feels like that will bring an end, certainly, to legal action in terms of hacking. The Crispin Odey case has been seen off. I’m not saying there haven’t been decisions which are still going on – we’ve seen Dale Vince win a case this week – but I wonder if there’s a bit of a sea change. Will the new Labour government be interested in reviving Leveson? Andy Burnham has been a supporter of that in the past, and he’s been quoted not that long ago, talking about how he still has some interest in it, so that would be the only slight rider.”
GILL PHILLIPS, McNae’s editor: “Matthew Nicklin [the judge in the Associated case] went through every claim one by one and that didn’t produce the result that was being argued for, which is that it’s the collective inferences that you draw from this, which he steered away from. In the earlier cases, a lot of the evidence was inferential, really. But those cases were in Chancery, different rules, different time, different judges.”
SIAN HARRISON, McNae’s editor: “There was also a lot more evidence in earlier cases. The judgment says there’s just not enough evidential link between the complained-of articles and unlawful information-gathering. I also think people failed to appreciate the utter collapse of [the private investigator] Gavin Burrows’s evidence, which we knew from the very early days. He could not be treated as a credible witness because he’d given one statement to one side, saying the opposite of his statement to the other side.”
Would the result change what people think of newspapers?
JIM WATERSON, editor, London Centric, and former Guardian media editor: “Everyone assumed they were all at it anyway, and certainly when I was covering it for The Guardian, they assumed everyone at The Guardian was also at it, and that we were all hacking. The public’s general view remains pretty low.”
JESS GLASS: law editor, PA Media: “Just before I started my NCTJ, I moved back in with my grandmother. I was, like, ‘Oh, you know, I start journalism school next week. I’m really excited’. She went ‘Yeah, but you know, journalists are all scumbags, right?’ And that spirit, that attitude, hasn’t changed.”
Is General Data Protection Regulation the new libel?
JIM WATERSON : “The crucial bit was that Dale Vince was morally clearly wronged by a headline mixing him up with someone who had been involved in a sex harassment case. He won on GDPR, rather than defamation. I’m already seeing that GDPR bit creeping into letters that I’m getting from lawyers. You know how to handle a defamation claim, to a certain extent, but you don’t have the toolkit to take on GDPR. It’s a terrifying new world.”
SIAN HARRISON : “In the Mill Media case, Laurence Westgaph used subject access requests (SAR) within the data protection legislation to try and actually find out the sources, so that’s really worrying. But the journalistic exemption was deployed successfully.”
ANNE MANNION, Lewis Silkin LLP senior associate: “I’ve worked with Joshi at Mill Media for some time now, and he is bombarded by subject access requests by people when he writes articles. It seems to be the way it’s going. We have seen such a rise of them over the last year, driven by AI.
“Somebody goes on to ChatGPT and says ‘What can I do about this?’ and they’re encouraged to bring a subject access request (SAR), and they seem to think they have rights when they don’t. But that’s not what Westgaph did. He was looking for material for his defamation claim, and so he put in a subject access request, hoping to get material on the sources. He wanted to know who was speaking to the media, and Joshi took this very seriously, and tried hard to work out what he could actually give him. But that is really time-consuming for a news organisation. Westgaph didn’t just send one subject access request. ”
“It was clear to us that Joshi was able to rely on journalism exemption. But we needed to go through all those hoops to get in front of a judge to have the judge confirm it, because there are no other judgments on this. It’s only in the county court, so it’s not a very strong precedent, and we don’t yet have a written judgment. We’re asking the judge to give us one because we’ve been asked by very many organisations for the judgment because they all think it will help them.”
HUGH CARNEGY, Financial Times editor for quality and accuracy: “We’ve seen a distinct rise in the number of SARs over the last 18 months. They’re pretty regular. Some of them are just clearly fishing expeditions, and we apply the journalistic exemption hard and fast every time. But the fact that there hasn’t been a judgment does make it quite tricky, and they’re time-consuming. We’re lucky – we’re fairly well resourced, so we can do it, but it ties people’s time down. And if you’re a smaller organisation, it must be extremely difficult.”
POLLY RIPPON, University of Sheffield: “We’ve had a group of students who were hit with a subject access request over an investigation that they did. Similar circumstances, they weren’t even going to publish their investigation, so it was for an assessment, and we had a letter from a CEO. They’d done this investigation. They’d gone to him for a right of reply. He put in the subject access request because he wanted to find out who the sources were. Luckily, the tutor realised journalistic activities are exempt and the university has a whole department who deal with subject access requests, so they batted it back. But I just thought it’s quite interesting that this is already dripping down to student journalism.”
EMILY HOULSTON-JONES, head of complaints at the Independent Press Standards Organisation: “The Information Commissioner’s Office has produced really good guidance on how to deal with vexatious data requests, so I definitely recommend that. We also have lots of SAR requests. Mostly, people who want to know why the committee reached the decision they did on their complaint by way of wanting confidential committee discussion material, which they’re not entitled to. But it takes a lot of time and energy to tell them that. But also to give what they are entitled to, which is a fair amount, because we have a lot of data about people.”
SIAN HARRISON: “One of the really worrying things is that it’s not fully embedded in newsroom cultures and people’s heads as individual journalists that they have, in order to qualify for the journalism exemption, to regularly review what data they have on people and get rid of it if they don’t need it any more. You can’t just go ‘I’m exempt because I’m a journalist’.”
Is the old libel over?
HUGH CARNEGY: “We were extremely happy that Odey discontinued a couple of months ago. Otherwise, we would have been in court right now. But I don’t think by any means that that’s the end of the story. I mean, obviously there was The Guardian victory last year [in a case brought by the actor and director Noel Clarke] and we were treading down that samepath. We had a very strong truth defence, and we had a very strong Section 4 public interest defence, which he admitted he would have lost on. He obviously couldn’t say publicly that he would have lost on the truth defence as well, but he would.”
“But I don’t think that means that libel claims are disappearing. The FT is not an institution that has been sued very often, but on the other hand, the people we write about have a lot of money. So they’re exactly the sort of people that will fund a defamation claim if they feel they’ve got one. We’re obviously pleased that we’ve seen this one off, and we’re extremely pleased to see The Guardian win their case last year, but we don’t think for a minute it’s over.”
CHARLIE MOLONEY, McNae’s editor: “It’s interesting that you can’t assume he won’t sue anyone, because for some years it felt like Trump was just open season because it’s Donald Trump. You know, he’s everything that everybody says. He’s convicted of this. He’s accused of that. You felt like, firstly, you’ve got the US malice check on him suing. Secondly, he just seemed like he didn’t really sue for libel, and now it seems like you can’t make that assumption because he’s highly motivated, highly funded. Do you really want to spend all that money defending yourself against him? And so, you know, even if you’re in the UK, you might just think, I don’t know if I really want to write that about Donald Trump.”
JESS GLASS: “Don’t forget he did sue Christopher Steele [the former spy who revealed a Russian dossier alleging Trump involvement with sex workers] in England and Wales over the dossier, but the PA subs foiled my attempt to get the phrase “golden showers” in a headline.”
ROBBIE HAWKINS, BBC Newsnight: “We used to get quite good access to people around Trump. We had people speaking to us from within the White House. And a lot of those relationships, they don’t respond to emails any more. They’re much less interested in coming on. So even if there hasn’t been the consequence legally, it feels that at least it sends a message to his allies of who he doesn’t want to be engaging with.”
Social media doesn’t care about the law
JIM WATERSON: “If we’re honest, the true mass media is increasingly someone talking into a forward-facing camera from their bedroom to three or four million people, while the people who actually read McNae’s try and catch up. I find my stories are just stolen, read out on camera with libel inserted – and they’re substantially more interesting with the libel inserted by a random teenager who then does two million views on TikTok.”
“So I’ve done this careful legal version, and another one is what’s reaching people. But the lawsuit ends up on the professional organisation that published it. You’ve got this weird thing where we’re doing all the regulatory burden, all the costs, and the people who are actually reaching the mass audience are just random accounts. I don’t think many of them getsued, or expect to get sued.”
TRISTAN KIRK, courts editor, PA Media: “We had the Top Boy actor in a rape trial and we have a reporter doing blanket coverage of the whole trial. But we are competing with an influencer who ended up getting into trouble with the judge for basically standing outside and reading out his notes, accompanied with his own thoughts on the way the case wasgoing.”
“He got kicked out of the trial and threatened with contempt. Then he took to TikTok to explain what happened to him in a way that did not reflect reality. But that became the truth that went out there, that he’d done nothing wrong, basically just reported the case. And then you have people piling on, going ‘Oh, they don’t like you because of your reach’. The problem is it looks like if somebody is an influencer, goes and reports on a court case, and then does too good a job, then the establishment will kick you out. Maybe courts need to engage a little bit more in the idea of bringing in people who can have that reach to do it, rather than leave it for the wild ones.”
CHARLIE MOLONEY: “Why didn’t the judge do anything? It seemed like what the influencer did was really egregious. You know, reading out his thoughts on the complainant’s credibility and going up to the family and filming inside the process.”
TRISTAN KIRK: “A judge will look at what’s in front of them, which is protection of the trial. And once the trial is protected, then it is a hassle to get support for contempt. I believe that there should be far more people done for contempt than there are, and we should have a government and an organisation that aggressively pursues people who do that kind of thing.”
SIAN HARRISON: “This is the biggest problem for all of us, which is the nonsense on social media, which doesn’t have to comply with any rules, seemingly, because it’s like playing whack-a-mole trying to do people for contempt. There’s this massive gulf between traditional media, who follow the rules, and social media, where there’s massive misinformation, and we’re potentially seeing huge audiences getting that misinformation. People are not engaging with the actual truth, the news. They’re just believing Bob on Facebook putting out some absolute rubbish, and I don’t know how we tackle that. I’d like to see some contempt proceedings brought because I think there’s really a danger. I’ve spoken to senior judges about this. There’s a kind of consensus that contempt isn’t really functioning properly any more.”
TRISTAN KIRK: “I think we’ve, over time, gone way too far on to the cautious side, with reporters now terrified to report anything other than the facts on this charge of murder. Whereas the law says we’re allowed to do a summary, and what we’re supposed to be looking out for is not derailing a trial, not self-censoring ourselves so far because we’re just terrified of the consequences. We, as an industry, should be looking at what our role is. It’s to go to court and inform the public about what’s going on. Do that in a sensible fashion, but not in a way I’ve just seen it become over the years, which is to pull down the shutters. We can’t say anything until the trial… well, that’s not the way forward either. Because then, what we allow in is the conspiracy theories and the disinformation.”
What would make courts coverage better?
TRISTAN KIRK: “The real barrier now is to do with digital court systems and our job, which is essentially stuck in the analogue age. Imagine if we were to have this discussion, and we came along with our points, and said we’ve uploaded them to the cloud, and we can all read them in our own time. That’s essentially what it’s like covering court cases sometimes, wherethe lawyers say ‘I’ve uploaded my arguments, so I’ll take this shortly’. And the court system has not even come close to engaging with what that means practically for court reporters. We’re now facing a sinister threat of just not being able to know what people are saying.”
“A barrister turns up for a hearing. They’ve prepared well for it. They’ve drafted a 20-page argument. They’ve uploaded it to the digital case system. The judge has read it before they come in. The judge comes in and says ‘I’ve read your argument’, and then the barrister speaks for a minute. That’s not atypical. That happens all the time, and then I can spend the next week trying to get hold of that argument.”
What if reporters aren’t in court?
TRISTAN KIRK: “The answer is to publish things. Publish everything that’s documented. Ninety-nine per cent of sentencing remarks by crown court judges are not published yet. At least 98 per cent of them will have written them out before they deliver them, and they say ‘I’ll upload this to the digital case system so the lawyers can have a look at it’. Why not publish it? Then you will have content hitting the media, and media can look at all of that content and say ‘I’d like to report on this case’.”
“In a crown court sentencing, in most cases, the judge will write out their sentencing remarks, and then they will read them out. And then they will essentially publish them to the lawyers who are in court, but they won’t actually publish them to the world.”
Do young journalists want to do court reporting?
POLLY RIPPON: “We have fewer numbers doing court reporting. But those that do do it absolutely love it, and the way that we prepare them.”
“One thing that’s really, really important is resilience. We’ve all said it, but young people these days are far less resilient. They don’t like hearing nasty things. They don’t like hearing about murders. They don’t like hearing about rapes. We have to give them content warnings. We’ve had complaints when we haven’t given content warnings, and we’re, like, how the hell are you guys going to be journalists if you can’t cope with the fact that someone’s just been murdered in Sheffield? So what we do at Sheffield is a mock trial. We have actors who play the parts of a prosecutor, a defence barrister, a judge. We found a rapist, which was amazing because that was quite a person to have to play. He’s actually a volunteer.”
“We were, like, ‘Will you volunteer to just stand up and say not guilty?’ But he does it for us every year, and he’s brilliant. He’s lovely. So he comes in and we act out this trial. And this year, we managed to partner with the police, and we had some detectives who came in and gave some post-court interviews, which was brilliant because the students had to think on their feet about what they were going to ask them. They read out a statement. They were interviewed, and so those students that did it loved it, and then they went to court and did it for real and, you know, they really, really enjoyed it.”
But is shorthand necessary in these days of digital devices?
POLLY RIPPON: “Court reporting used to be a core module for all of our undergraduates. We decided that we would make it optional because they weren’t all engaging the shorthand. So I would say probably a third get their shorthand now, if that. They just don’t have this willingness to be persistent – you know, it was like you just did it. You did your driving test. You got your shorthand. You just got on with it. There is not that attitude towards it any more.”
SIAN HARRISON: “It’s easier and quicker than having a recording and transcript. Yeah, we had transcripts in the Johnny Depp trial that came through every evening. They were often highly inaccurate. They were also massive. You couldn’t search them properly. Obviously, transcripts will improve over time, but I would still, even if they were perfect, want a shorthand note because I know exactly where the quotes are that I’m going to use. It’s just quicker and easier.”
CHRISTIAN LOWE, Reuters Europe special correspondent: “I do shorthand. I learnt shorthand. They made me do shorthand. Yeah, I can do it. And it’s easier to find your notes. It’s absolutely true. But then, if we’re creating this barrier for students who think ‘Geez, I have to learn shorthand if I want to go to court, let’s remove the barrier’.”
TRISTAN KIRK: “There’s a fair amount of reporters I see in the courts that don’t have shorthand. Well, if they do, they don’t use it. There are a lot more just typing into their laptops. For me, as a day-to-day court reporter, it’s completely impractical to record the whole thing unless you’re doing some sort of long-form journalism. Because you know, I can’t get my earphones out and go back to what I’ve just heard. It’s completely impractical. I always say to reporters that it’s better, but you can do without it and lots of people do. And you know, it’s all about just bringing out the story as best you can. That’s the essence, isn’t it? So as long as you’re accurate, then you know you’re doing a good job.”
SANDRA LOY, Cardiff University, chair of the NCTJ shorthand board: “It is just so much easier to have a shorthand note because you’re not scrolling backwards and forwards in your phone or whatever. It doesn’t let you down. Your batteries don’t run out, etc. We all know that, but also know that it’s hard. I would say about two-thirds of ours still do shorthand. But they are the ones who come back and say it’s so much easier with shorthand.”
JESS GLASS: “I cannot be a bigger proponent of shorthand, and this is someone who took 11 goes. It was one of the hardest things I’ve ever had to do. It did not click with me. I had a fantastic teacher, but it just did not click with me. But I kept at it, and now, these years later, when I am hiring people, I won’t take someone who doesn’t have shorthand. We’ve seen court cases where a reporter has had to produce their shorthand note, and even if it’s not quite exactly what was said in court, if it’s similar enough, we have seen journalists win libel defences on that. Learning it shows such persistence and that determination to be a journalist.”
ROBBIE HAWKINS, BBC Newsnight: “I haven’t got shorthand, and out of everything, it’s the thing I wish I did have because I don’t do court reporting, but just as a day-to-day thing. Talking about transcripts, the amount of times we watch an interview, and what bit of interview we’re going to use, and then go back through it, or sending out lines afterwards, or writing a copy – it’s such a pain in the arse. It is the thing that I wish I had. And I really encourage people to do it. I also tell them that I missed out on jobs because I haven’t got it.”