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The influence of the rich and powerful over what can and cannot be published in the UK is longstanding and often rooted in a broken system. But it is not an unfixable problem.
Last week, the Guardian, the Mirror, various other Reach sites, and The National removed stories after a legal warning made by a lawyer acting for suspended GB News presenter and former MailOnline columnist Dan Wootton, following a Byline Times investigation into his conduct and subsequent Metropolitan Police investigation.
In response, a spokesperson for the Guardian Media Group told Press Gazette bluntly: “Following a review, the article has been taken down.”
The basis for such legal threats is often along the lines of ‘the police investigation triggers a right to privacy’, with the 2022 decision of ‘Bloomberg LP v ZXC’, where the Supreme Court found pre-charge suspects have a reasonable expectation of privacy, invariably cited.
Coincidentally, this seems to be the basis for guidance issued by the Attorney General following the reporting on the Russell Brand allegations – something Impress has recently moved to clarify in a letter to Victoria Prentis KC.
While an awkward teething phase can follow new legal precedents which limit press freedom, in this instance any reasonable expectation of privacy Wootton (who denies criminality but has never denied being, or being connected, to false online personas) may hope to enjoy pre-charge is not absolute and can be eclipsed by another powerful legal position: the public interest.
The public interest is a fluid concept, ultimately decided by judges and regulators, but offers a broad protection to journalists and editors where it is interpreted in good faith.
This latest retraction of news coverage across high-profile archives reveals either that these news providers were not persuaded that there was a strong public interest defence in the Wootton reporting (although seemingly strong enough to publish in the first place), or that the legal threat was sufficiently chilling that they caved and removed the stories.
#MediaToo investigation AND CROWDFUNDER
This is the start of a wider report into the toxic culture of the national media. We want to keep telling the story. Contributions to our #MediaToo crowdfunder will go directly to funding our journalism.
Without a doubt, legal threats can present an existential challenge to news publishers. Litigation costs are, on average, £750,000 and most legal cases now take years to be resolved through the courts.
Even if an editorial team stands behind an investigation, the spectre of litigation can collapse a news business, even more so now because of the fragile post-digital news business model.
However, this is not a new phenomenon, and sadly legal threats from powerful interests who do not want to be held to account by free and independent journalism are par for the course. In the absence of cohesive regulatory infrastructure and political leadership on press policy, a new allotment of research and inquiries, both at a national and international level, have been unleashed to find a remedy to this age-old problem.
Early solutions have been left wanting, tinkering at the edges of civil court procedure, which presumes news publishers and claimants can first afford a day in court, even after passing through the costly pre-litigation labyrinth when the first legal writs arrive in the inbox. Frequently, however, they cannot – and it’s at this point many bow out of the process before lawyers and their billables get involved.
A real solution would address and weed-out the roots of the problem.
1) People (including journalists) are not well-versed in the legal and ethical issues arising from publishing (particularly online). 2) Zealous and vexatious litigants on both sides feel empowered to threaten and bluster because of a broken legal system. And 3) the absence of political leaders with the courage to put forward bold press policy reform that supports free and independent journalism.
Press policy is now an elephant graveyard. Most regard the only legal incentive left, the executive commencement of section 40 of the Crime and Courts Act 2013, as dead-on-arrival.
The Conservative Party politicised it and, after nine years of posturing, has found a legislative vehicle to repeal it. Meanwhile, Labour seems minded to oppose its repeal although an official stance is yet to be taken.
The legislation intended to reduce the burden on publishers, only allowing people to sue if a publisher rejected independent self-regulation, and also gave ordinary people who couldn’t possibly afford to sue a newspaper without the judicial discretion to make unregulated publishers pay for their costs where judges thought it was fair to do so, access to justice.
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So, what’s the alternative?
In the past 10 years, none of the bright minds of media policy or lobby has come up with a viable alternative proposition, and the situation has deteriorated to such an extent that it’s needed a facelift in the form of a new acronym: a threat such as that from the Wootton camp is in the territory of the new trendy moniker ‘SLAPPs’ (Strategic Lawsuits Against Public Participation).
As a regulator, we’ve triaged many such threats and separated the wheat from the chaff, and only allow legitimate claims to go forward. We’ve been able to provide publishers and claimants with assurance that our processes will be fair and transparent and enabled many news publishers to stand their ground where they believe in the legitimacy of their journalism and, alternatively, provide efficient redress when they’ve got it wrong. The result? No publisher regulated by Impress has been successfully sued in the courts.
A future in which publishers are protected by the threat of exorbitant and debilitating legal fees, and where the Woottons of the world must go through an independent body rather than targeting individual newsrooms, is not only possible, it’s working in action.
But it must continue to be fought for. If we want to see fewer arbitrary take-downs of legitimate journalism, we must build on systems of self-regulation already underpinned by law, rather than being held back by the current policy approach that lacks the courage and vision of our news past and that our news future desperately needs.
Lexie Kirkconnell-Kawana is the CEO of press regulator Impress