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Free speech, press accountability, and the ‘wisdom of crowds’

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This is a piece I wrote this week for the Guardian’s Comment is Free (published under the title, ‘Between the lawyers and the mob‘):

Last week was a good week for those of us who support press freedom and at the same time believe the press should be made more accountable. But it also raised difficult and rather disturbing questions about free speech and the future of press self-regulation.

The Guardian’s courageous decision to challenge the remit of the Trafigura super-injunction sparked justified outrage in the blogosphere and “Twitterverse” and led to a climbdown by Trafigura’s lawyers, Carter-Ruck. Meanwhile, Jan Moir’s deeply offensive piece about the death of Stephen Gately, which alleged – with no evidence – that there was “nothing ‘natural’ about Stephen Gately’s death” – provoked an even greater response on Twitter. Many of those offended (more than 22,000 of them by Tuesday morning) then complained to the Press Complaints Commission, in part prompted by Stephen Fry, Derren Brown and Charlie Brooker.

The Daily Mail did not apologise, though it changed the title, and removed advertising from around the piece. Moir did not apologise either, but after the unprecedented public reaction released a disgruntled statement suggesting her piece had been misinterpreted and that the public response to it was orchestrated (which raises the question, was the public response to the Jonathan Ross/Russell Brand episode not orchestrated?). The Mail also then published a follow-up piece by Janet Street-Porter that was critical of Moir. The case is now being looked at by the PCC.

Hooray, you say. Two victories in a week – one for press freedom and another for press accountability – what a result. Yet both episodes also raise worrying questions about press freedom, the current state of newspaper accountability, and the threat of mob justice.

In the Trafigura affair, it was striking that almost no newspapers (with the exception of the Guardian) spoke out strongly, despite the danger super-injunctions represent to press freedom. Indeed many newspapers remained strangely silent even after Carter-Ruck relaxed Trafigura’s super-injunction. Nor was there a substantial reaction from formal bodies. The PCC did not say anything, despite in the past promoting itself as a defender of press freedom (even though, unlike its predecessor, it is not constituted to do this). Nor, outside Index on Censorship, were other industry bodies vocal.

The outrage at the Guardian gagging came from individuals, and was remarkably spontaneous and disorganised. Twitter provided the platform for people with common views to come together. This was exciting and tremendously heartening, but showed how few formal institutions there are to protect press freedom despite the significant and growing threats it faces.

The Moir case, on the other hand, illustrates how little accountability there is at some newspapers. If you were offended and wanted to complain, what options did you have? The Daily Mail has no readers’ editor, and no formal complaints process that is publicly accessible in the newspaper or on its website. The only reference to the PCC on Mail Online is not linked to from any other page on the site and is therefore, to all intents and purposes, invisible. This is a newspaper whose editor is the chair of the PCC’s editorial code committee and who sits on the PCC’s appointments and funding body, Pressbof. Yet his newspaper lacks the most basic public accountability mechanisms.

And, if you escalated your complaint to the PCC, as thousands did, you would probably find yourself equally dissatisfied at the outcome. This is not the fault of the PCC’s secretariat, who are diligently working their way through the largest number of complaints over one article in their history. Rather it is due to the rules that artificially limit the complaints they can accept, and the limited sanctions available to them. All 22,000 of these complaints can, according to the rules laid down by the industry, be rejected – since they are considered “third party complaints” (complaints not made by someone directly referenced in the article). In this case, the PCC has said it will consider the complaints and write to the Daily Mail for a response. However, when that response is a small apology tucked inside the paper, many will feel the Daily Mail has got off considerably more lightly than, say, the BBC after the Ross/Brand affair.

This means you are left with the wisdom of the crowd – also known as mob justice. It seem appropriate and proportionate when you happen to agree with it, as in this case, but will seem decidedly unjust if you disagree.

Unless newspapers take more responsibility for their own content, give people the opportunity to complain and respond adequately to those complaints, then they – and their journalists – will come under increasing criticism and attack from the blogosphere, the Twitterverse and other social media. Similarly, unless news organisations protest about the misuse of injunctions, actions such as Trafigura’s will become even more difficult to prevent. We do not want to find ourselves in a situation where free speech is constrained by expensive lawyers, nor one where it is dictated by the mob.

Written by Martin Moore

October 23rd, 2009 at 1:26 pm

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Twitter, Trafigura, and the future of press injunctions

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Goodness knows what it was like from the editors chair. But from where I sat watching the live twitter feed of #trafigura on Tuesday was utterly compelling. First there was the detective work – people trying to figure out, based on the sparse information in the Guardian’s initial article about the absurdly wide-ranging ‘super-injunction’ – which Parliamentary question the paper had been prevented from talking about. The key was ‘Carter Ruck’. Searching through Parliamentary written and oral questions a few bright sparks alighted on Paul Farrelly’s question:

‘”To ask the Secretary of State for Justice what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura.”

They then tweeted about this to see if other people agreed it must be the question, and within hours confirmed with one another this must be it.

From there twitterers started looking for the Minton Report. Again, thanks to the net this was available on Wikileaks – a site unthreatened by injunctions or super-injunctions because its ‘information is distributed across many jurisdictions, organizations and individuals’. As it claims on the site, ‘Once a document is leaked it is essentially impossible to censor’.

Then social media and the power of the ‘link economy’ kicked in. Hundreds, then thousands, of people started posting 140 character messages on Twitter expressing outrage at the injunction and pointing people to the Parliamentary question, articles about Trafigura, and the Minton Report.

Within hours #trafigura had become the number one trending topic in Twitter. In other words more people were tweeting about #trafigura than about anything else in the world. At one point four of the top five trending topics on Twitter were about this story (the fifth was ‘Google Wave’).

Then, shortly after 1pm, the editor of the Guardian posted a tweet saying Carter Ruck had backed down. They would not try to prolong the injunction, and the Guardian was free to mention the parliamentary question.

Much whooping and cheering on Twitter. Stephen Fry, comedian and uber twitterer, tweeted, “Carter-Ruck caves in! Hurrah! Trafigura will deny it had anything to do with Twitter, but we know don’t we?”.

But was it Twitter wot won it? And if so, what does this mean for press freedom and the future of injunctions?

Well, if it wasn’t Twitter then one can safely say it was not the other mainstream media outlets. Almost all other newspapers, and the BBC, remained silent during the course of the morning, prevented from publishing by the ‘super injunction’. The Telegraph broke the silence in the late morning but only to report that ‘Trafigura tops list of Twitter trending topics’. There was no mention in the article of the Guardian, Paul Farrelly, or the injunction.

Newspapers are still relatively easy targets for lawyers. They are institutions, they have their own lawyers. They have editors and journalists who can be sent to jail if they break the law.

Twitterers are a far less easy target. They (or rather ‘we’, since I twitter and was twittering on Tuesday morning) are mostly individuals, not institutions or outlets. To stop twitterers Carter Ruck would have to take on thousands of individuals – many of whom are tweeting pseudonymously. To use a military analogy, it’s like an army fighting a guerilla rather than a conventional war.

Yet will these guerilla twitterers have any substantive impact on the law? Well, if they can do another #trafigura with the next injunction then injunctions may be seen to be increasingly ineffective. But this is unlikely given the Guardian took a risk publishing as much information as it did about this super injunction – and probably only got away with it (if indeed it has got away with it) because the injunction appeared to prevent the paper from reporting on Parliament – a privilege held for over 200 years, since John Wilkes’ famous battle in the 18th century (Carter Ruck subsequently denied they tried to gag Parliamentary reporting). Whether or not a Parliamentary gag was intended, one would certainly hope MPs will now put an end to the so-called ‘super-injunction’.

Most injunctions are not about issues that may be debated in Parliament, and therefore do not raise issues of parliamentary privilege. The Guardian perhaps hopes it can use the Trafigura case as a lever to crank open the whole question of injunctions. Maybe. But Private Eye has been making a lot of noise about injunctions for a long while, yet there use appears to be increasing rather than decreasing.

Moreover, there is an understandable public interest in some injunctions. When a media storm grew around the 13 year old ‘baby father’ in February the family court stepped in and issued an injunction to prevent harm to the children involved in the story.

For commercial injunctions, history has shown that people cling most closely to things they are about to lose. So it is likely to be with these injunctions – at least 12 of which have already been served this year against the Guardian (presumably more against other outlets, though we don’t really know, since they are – by law – secret). Over time, and following similar #trafigura incidents, such injunctions should become less and less effective. But the Carter Rucks of this world will keep doggedly serving them up until it costs their clients more than the benefits of buying a temporary silence.

Still, the twitterati should take heart. This was a victory for press freedom, and a victory won by the power of collective voices.

Written by Martin Moore

October 16th, 2009 at 5:02 pm

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