Judges should read The Sun

Volume 34 Number 2 June 2023

How rare but welcome it is to be urged to feel sympathy for the press. The central theme of Geoffrey Robertson’s important polemic is the media’s plight in the face of intimidation from the rich and powerful, intent on preventing exposure of how they became rich or how they deploy their power. Hemmed in by the arcana of the law, a pusillanimous and unsympathetic judiciary, and fearful of financial extinction should they have to bear the exorbitant costs of those Robertson calls reputational lawyers, it is no wonder that the press is reluctant to investigate and expose the oligarch or the sheikh. But in the end, it is not so much the press who are victims of the stultifying weaponry wielded by those who fear the truth, it is we, the readers, who suffer. When you suppress freedom of speech, you suppress our right to know.

Robertson comes on hot and strong in his explanation of how this woeful state of affairs has arisen and been tolerated. The risks in pursuing a story against one who has unlimited funds or excessive power is not new; he cites historic examples of the many cases where UK libel laws have successfully protected a rich Establishment from the truth. But the more recent growth of eye-wateringly expensive costs incurred by lawyers who bully and threaten journalists and editors when they get so much as a sniff of an adverse story makes Robertson’s plea for reform of our media laws all the more compelling. Few, if any, newspapers can now afford to investigate and publish a story when, if sued, they face extinction.

This is not just a question of the costs they would have to pay, in addition to their own, if they lose. As he explains, the law and the judiciary have sanctioned a slot-machine of uncertain litigation to light up with a tilt button, winking brightly in favour of the claimant. The byzantine procedures before a case ever gets to court, the failure to strike a proper balance in favour of the public interest when weighed against assertions of a right to privacy, and above all the imposition of the burden of proof on the media both in asserting the public interest and in establishing the truth, all conspire to ensure that stories remain untold and that lies and the unconscionable use of power are hidden in cold storage under the threat of an injunction and writ.

No one could fault Robertson’s analysis of the problem. We should all be ashamed, that, in contrast to the USA, our media laws are inadequate to protect our right to know and make judgments. But he is too optimistic when it comes to the solution. Robertson correctly identifies judges as one of the sources of the problem. He points out that they are not sympathetic to the underlying justification for an unruly media; they have no feeling for the press. This is, in part, because they do not read newspapers; a few read The Guardian but they detest the Daily Mail and fly their chariots far beneath The Sun.

One of the well-founded criticisms I used to face as a former judge and chair of IPSO was that I had hitherto not been a regular reader of The Sun or of the Daily Express. Judges, therefore, are ill-equipped in background and experience to understand the public interest. As Robertson rightly says, they trot out the tired false dichotomy between the public interest and what interests the public, without appreciating that a story may satisfy both. Robertson’s remedy, to reintroduce juries who would better understand the meaning and importance of public interest, seems to me pie in the sky. But I see no reason why non-judicial assessors should not sit with the judge when the question of whether a story is in the public interest arises.

He is on firmer ground in explaining where the courts have gone wrong in balancing the rival claims of privacy and the public interest and showing that far too much weight is given to protecting privacy. If a story is in the public interest, it should trump privacy. At the heart of the difficulty, and I am not sure Robertson emphasises it sufficiently, is the failure of the law to recognise that the real importance of public interest journalism lies, as Harold Evans explained, in the search for the truth. Courts like to focus on proof, failing to recognise the importance of defending a journalist who has embarked on this process. If only we had recognised that journalists should be protected when they search for the truth behind the wealth and power in this country, we might never have been forced to put up with Londongrad or a town called Sue.


Alan Moses

Sir Alan Moses KC was a High Court judge (1996-2005), Lord Justice of Appeal (2005-14), and chairman of IPSO (2014-18). He is joint chairman of the Spoliation Advisory Panel, which advises governments on claims arising from Nazi-looted property.

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