More work for media lawyers?

There can be little doubt about the growth in media law over the last decade but it is hard to see it being a decisive constituency winner. ‘Mondeo Man’ need not yet step aside. Yet judging from the content of the Liberal Democrats’ manifesto, launched with the necessary razzmatazz last week, it is the media lawyers whose attention they want to grab.

The manifesto includes the following: a new law to introduce public interest defences for journalists who may commit bribery or hacking offences, further safeguards for journalists’ sources under The Regulation of Investigatory Powers Act 2000 (RIPA), a review of the new Defamation Act, changes to the Data Protection Act, a ‘First Amendment’ equivalent and parliamentary intervention to ensure the Leveson recommendations are achieved.  

There are also proposals for a digital bill of rights including the protection of privacy for internet use, a Freedoms Act concerning civil liberties, free speech, limits to CCTV/DNA use and greater access to information. There’s more, but that will do for the time being. It’s a veritable barrage of media law reform.

Perhaps the Lib Dems have calculated that it is only lawyers who are likely to read manifestos, given the tragedy of our absent social lives? But they also know that media, and particularly the press, has been big news over the last term of government. 

The phone-hacking scandal and Leveson inquiry were a genuine threat to the Conservative-led government. The Labour party and Lib Dems recognised the public’s indignation at the behaviour of the press that had been exposed and the need for genuine change following so many previous failed attempts. Even with Conservative support for the Levesonian royal charter, the problem remains unsolved with all national newspapers refusing to commit to a regulator that would seek charter recognition.

Labour and the Lib Dems have calculated that public appetite for press reform remains strong and intend to end the regulatory impasse.

It is fair to record that, like Miliband-led Labour, the largely Conservative-supporting national press (particularly since the election was called) have not thanked the Lib Dems for their support for the Leveson inquiry and thereafter their recommendations. It is perhaps for this reason there has been little newspaper recognition for their work intended to protect press freedom. 

Whilst there were howls of indignation for the conduct of the press during the Leveson inquiry, the howls are now from the press for the failed prosecution of journalists in the Metropolitan police operation Elveden. The Lib Dems’ proposition of a public interest defence for journalists who may be breaking the law whilst pursuing public interest investigations may be just what The Sun et al are looking for. 

The Lib Dems propose to consult on how it is to work, but it is understood that there would need to be an approval process from an in-house lawyer to test both the public interest in the story and the need to use otherwise unlawful investigative methods before the protection would apply. Those, like me, who act mainly for claimants may raise an eyebrow about how effective such a process will be to stop widespread fishing expeditions into individuals who fall into the cross-hairs of an ambitious hack. 

This press-friendly measure follows the Lib Dems’ recent success in introducing into the Serious Crime Bill a protection for journalists’ sources from being identified by police without judicial authority (unfinished business according to their manifesto).

The Defamation Act is hardly headline news and lawyers in this field are still feeling their way with the effect of this legislation that is barely a year old. The Conservative manifesto’s rather more modest description of its media law achievements and ambitions explains how it ‘legislated to toughen media libel laws’ to ensure the media acts responsibly. One assumes the Tories are referring to the Defamation Act, but it contains little to ‘toughen’ the law so far as media defendants are concerned, making the test for bringing a libel actions significantly more burdensome for those wanting to sue for an inaccuracy.  

For non-lawyers, the above is unlikely to make the party manifestos more attractive reading material, and I have not even mentioned the Labour party proposals for media plurality. But it is perhaps fair to conclude that the real possibility of a Lib/Lab coalition will mean little rest for media lawyers. 

Dominic Crossley is a partner at Payne Hicks Beach