All I have added to this excerpt from an article in the Times by David Aaronovitch is emphasis on what I consider to be the key words:
A free press must not be bullied by the state
Readers don’t know, but this happens all the time. Rich men and women threaten, companies threaten, gangsters and dope cheats threaten, aggrieved and time-rich individuals threaten; day in, day out letters before action flow like little streams of menace into our legal department. Almost every single time you expose someone or something, it happens in the context of legal threats. People don’t like it if you tell lies about them and they like it even less if you tell the truth.
Which brings me to the most important thing being considered by Ms Bradley. It goes by the tedious name of Section 40 of the Crime and Courts Act 2013 and is something that can be invoked, or not, by the government. It is, in essence, the stick that could be used to get newspapers and publications to sign up to the new state-approved press regulator, Impress.
What it says is that any publication not agreeing to be regulated by Impress will be subject to the costs of a legal action — even where it wins. Really. That’s what it says. Call the next Lance Armstrong a drugs cheat and even if he loses the case it will cost you hundreds of thousands. Well, no one in those circumstances would take the risk of running the story. These are not days in which newspapers make much if any money and the fastest way to bankruptcy would be to fall foul of Section 40.
And that of course is why, as sticks go, it’s a knout, a knobkerrie, a bludgeon. It would have to be because otherwise the British press, from the pinkest metro-sheet to the shoutiest judge-hating tabloid, will not sign up with the government-approved regulator.
So if I bring thousands of cases on behalf of people who have some small reason to be annoyed at the press, and so long as those cases are “arguable” (whatever standard that might define), I get paid my attorney fees even if I lose?
Damn. If this gets enacted, I’m moving. What a great gift to lawyers!
I only hope your court system has the capacity to process all of the resulting cases. Because there will be hundreds of thousands of them.
“The American Revolution was the first event of its kind in which the media played a salient role — almost a determining one — from first to last. Americans were already a media-conscious people. They had a lot of newspapers and publications, and were getting more every month. There were plenty of cheap printing presses. They now found that they had scores — indeed hundreds — of inflammatory writers, matching the fiery orators in the assemblies with every polysyllabic word of condemnation they uttered. There was no longer any possibility of putting down the media barrage in the courts by successful prosecutions for seditious libel. That pass had been sold long ago. So the media war, which preceded and then accompanied the fighting war, was one the colonists were bound to win and the British crown equally certain to lose. [Fn. 32]”
–Paul Johnson, A History of the American People, p. 140. ©1997, P.B.J. First Harper Perennial Edition, 1999.
Fn. 32. op. cit., p. 986:
B. Bailyn and J. B. Hench (eds): The Press and the American Revolution (Worcester, Massachusetts 1980).
As to who pays the legal fees in civil suits, it seems to me it should always be the plaintiff — win, lose or draw. I would think this would discourage a lot of “frivolous” lawsuits, ambulance-chasing, and just plain intimidation of people and groups who are doing something you dislike but that is not in fact illegal (however rightly you may disapprove of what they’re doing, or saying).
This is not really a contractual matter, it is about being sued by someone who can hope that it will cost him nothing and you lots of money, even if he loses, or rather loses ‘well’, and the rules of Court being rigged against the Defendant who has not submitted to the Regulator.
The relevant sections contain the dreaded words ‘just and equitable’ as a factor in a decision on costs.
This will develop with case law, and sooner or later our Supreme Court will get hold of it and in all likelihood introduce more rigging than the Spanish Armada.
— Of course, that’s assuming that the percentage of cases justly decided is very, very high. On the other hand, if not — if the system is already corrupt or broken — it’s always likely that one side or the other in any particular case will get shafted.
that some percentage of just plaints won’t be made.
I know that you guys like your unwritten “constitution” and fault us yanks (rightly so) for not always honoring our written one, but however much our courts may stretch the rules we still remain fairly faithful to the 1st Amendment. No governmental attempt to create a “state-approved press regulator” would ever be created here (much as some of our political leaders might like to) and if it did it would never pass judicial scrutiny. Frankly, I don’t see how a “constitution” which can be overridden by the legislative body on a simple vote can fairly be called a “constitution” at all.
In the USA, forfeiture without even being charged with a crime (let alone convicted of one) would seem to be an example of this. If you have a pesky written constitution, just decide to arrest the money or arrest the property because money and property have no constitutional rights in and of themselves, yes? And you can even reverse the burden of proof and demand the former owner prove no crime was committed! So whilst the First Amendment has been largely defended, much of the rest… not so much. I used to be much more of a fan of the US notion of a written constitution but US history over the last twenty years has made me far more ambivalent.
Our press regulator will come about when a private actor – say, Facebook – develops such a monopoly on delivering “news” to the public that its filtering decisions affect the “news” delivered to 70% of the population.
…say, Facebook…
Perry, I’m not going to defend civil asset forfeitures (which is what you’re talking about); in fact, I am working with some of my state legislators to make some major changes to our law in that regard. But I will point out that in rem actions (legal proceedings against property rather than persons) arose out of the common law, and have been an important element of admiralty law since long before there was a United States.
Laird, it’s quite simple. The socialists in government and judicial office call certain Acts ‘Constitutional’ and afford then special protection against repeal or amendment, by going to great length to regard them as undisturbed by interpretation of subsequent legislation they dislike. Probably the worst of both approaches.
Yet an MP, Mr Neil Hamilton, was permitted to amend the Bill of Rights 1689 so that he could bring a libel action without infringing his own Parliamentary Privilege.
This started with the despicable “Sir Max” Mosley (the son of the British Fascist leader and supporter of Adolf Hitler) – a newspaper quite correctly reported that Mosley engaged in a Nazi themed orgy with some prostitutes, but rather than change-his-ways Mosley got a pet judge of his to award him lots of money against the newspaper (the newspaper was punished, by a intellectually corrupt judge, for telling the truth about “Sir Max” Mosley).
Not content with this injustice, Mosley funded a far left campaign (a sort of rerun of the Nazi-Soviet pact of 1939) to impose censorship of the press. And the British government has gone along with the censorship campaign (thanks to a disinformation campaign pushed by the left – including the left media).
When “Civil Asset Forfeiture” first stated to really be pushed in the United Kingdom only one member of Parliament (the late Enoch Powell) spoke out strongly against its fundamental injustice.
As for the United States – both 4th and the 5th Amendments have been largely ripped up (by “RICO” and so on as well as Civil Asset Forfeiture) and the “conservatives” on the Supreme Court have been at least as guilty as the “liberals” in this regard.
I wish Laird well in enforcing legal principles in South Carolina (of course Admiralty Law owes more to Roman Law than Common Law), although such evils as Federal “sharing” (the sharing of money and property STOLEN by the Feds) are hard to stop.
So now the MSM realises the importance of free speech, liberty, and the dangers of an authoritarian government? Shame they went along with the programme for so long, isn’t it?
Paul,
Whilst I have no liking for Mr Moseley (I don’t think he has a knighthood – is he a baronet?), he is fully within his right to claim for damages for having aspects of his personal life splashed around the press, true or otherwise. If I wish to engage in a Nazi-themed S&M orgy with prostitutes (which I had planned for tonight, but my wife tells me I have to clean the bathroom instead) then I am free to do so, and it is of no business of others (other than said prostitutes, suppliers of Nazi-themed paraphenalia and by the contract I entered into my wife). If the press should decide to publish this, I therefore suffer damage (regardless of the fact it is my actions that are peceived as damaging, it is the press who cause the damage by promoting these actions).
Should I make a political career of opposing prostitution and still do this, then the press can freely expose me as hypocrtical. I am less certain about a career opposing Nazism, but as fantasy and reality are separate areas I would be inclined to accept this should not be a public matter if it is a sexual fantasy. Mr Moseley’s father may have been a fascist, but as we do not believe in the sins of the father I presume (his father was also the effective founder of the Labour party in Birmingham anyway – so even if we are attributing paternal sins, which set applies here?) since we believe in individual liberty, and nothing Mr Moseley at the time did seems to have any justification for public interest in his sex life (ironically I know believe anything he does is newsworthy simply because he is trying to control the press…).
So in short, what drives Mr Moseley seems to be an unfair and damaging revelation about his own personal business for the profit of others. Mr Moseley is clearly wrong and verging on evil in his actions following his court case, but the original offence was that of the media. However, the offence was settled with damages paid, and there is no justification for his present actions.
No Watchman, sorry. “The Press” is just people, i.e. individuals whose business is collecting and disseminating information for profit. If John Doe, an individual who happens to make his living by other means (say he’s a doctor), happened to come upon the information about such a party and Mr. Moseley’s participation in it, said Mr. Doe should have the full right to disseminate such information, potential damages to said party-goers notwithstanding.
The only two scenarios where either “The Press” or Dr. Doe should be held liable are where either of them obtained such information illegally (such as through trespass), or through breach of promise they made to keep such information confidential.
Alisa,
The dissemination of information is fine. The making of money through disseminating information about someone else is what is wrong, and that is why I use the press here (as a shorthand for a commercial distribution of information). If there is profit to be had in my sexual relations (and god knows there is none to be made in my selling them…) then why should someone else get to make it based on my labour (I understand it is hard work to whip several women…). It is my choice whether that is commercialised or not.
Note I do not criticise the spreading of information. What happened here was that one of the participants was paid (above and beyond what she was paid for the act) for the story (and a story about another participant that destroyed her career) in order that a commercial enterprise would have a story that it hoped people would buy. I see no reason that this is allowable in any state where we have freedom; after all, if I do have a fetish that might be socially embarassing, why should I be afraid to exercise it in case others use it against me? Allowing others to profit from the labour or actions of someone without their consent does not seem acceptable, and allowing the desires (that do no harm to others) of individuals to be surpressed by implied moral pressures seems frankly against everything for which we stand. Who I sleep with and how is my business – I cannot see how the Sun or the Daily Mail has the right to make money out of this, any more than they have the right to make money out of the work I did for myself when I was last self-employed.
Sorry Watchman, but wrong again: everything each and every one of us is doing, is doing it for gain – whether that gain takes the form of paper with pictures of Important People on it, or otherwise remains in the form of social approval, connections, various types of favor, or any other benefit (including mere attention from others), has no bearing on that simple fact.
Alisa,
Not sure I like the implication that everything that I do is for gain. I like to waste time too… However, I am not really disputing that point, considering the labour that underlies this debate between us is a man hiring prostitutes for his own pressure.
But if everything I do is for gain, then why should anyone else other than those who are engaged in the initial transaction (or future transactions of mine or the other participants’ choosing) be able to also gain from it – you don’t seem to explain that. You can’t just assume that gaining from the labour of others is fine, otherwise you adopt an anarchist position about the impossibility of property (and therefore end up legitimising government control of our assets). If you feel that it is justifiable for organisations (sorry, but newspapers are not collections of individuals, as they are structured through legal agreements and have people with differing interests), then the next stage of your argument better be a good explanation of why if someone who owns (note not works for) a newspaper gaining from my labour is fine, why government gaining from my labour is not. It seems to be that both are examples of exploitation of the labour of others.
While I like the ‘loser pays’ rule as a means of discouraging frivolous lawsuits, something it doesn’t do is penalize the lawyer who brings such a suit. So if I (being a legal ignoramus) go to a lawyer and say “I want to sue Smith”, I don’t know if the lawyer’s assurance that I have every chance of winning is because the lawyer thinks it’s so, or because he wants his fees and too bad about my getting stuck with Smith’s bill, too.
So I propose a ‘loser pays’ system where the loser pays half and the loser’s lawyer pays half. That should discourage both bad lawsuits and bad legal advice.
Watchman, you were the one who brought up the gain point (you called it ‘money making’ or similar) – whereas my point is that it has no bearing on this case.
Hi Alisa,
Sorry if I’m causing confusion – misread that comment’s intent. I would suggest that gain does have relevance though, in that there was no benefit to publishing the information other than to make the publisher of the information money. Yes every activity leads to gain, but you should not gain off the labours of others without their consent. If I am being pernickity I would suggest the legal basis of the damages Moseley won should have been that they should be his earnings, not damages, but the system we live in is imperfect…
Slightly relieved to find that I misunderstood your point – my reading was that you were arguing a point of view that seemed to actually justify extraction of wealth from others, which really does not tally with your normal posts!
No problem, Watchman.
To further explain my own point (beyond simply refuting yours): the reason gain is immaterial is not only only because everyone naturally acts in their own interest (i.e. for gain/profit), but also because even if that were not universally the case, any such gain would still be immaterial to the damages incurred by the aggrieved party (Moseley in this case) – what was material were the actual actions that caused the damages. (More generally, we should be punishing actions, not motives).
What I’m getting at regarding this specific case (and similar cases) is that the reporter who published that information was in a way akin to someone who sold property stolen by someone else – most likely an immoral act, but certainly not the worst offender, provided he did not violate private property/betrayed confidence to obtain that information. I suggest that whoever did that should be the one to look for.
You’ve got to admire the cheek of it, though:
Impress (verb): historical
1 Force (someone) to serve in an army or navy:
‘a number of Poles, impressed into the German army’
1.1 Commandeer (goods or equipment) for public service:
‘they carried a travel warrant authorizing them to impress transport and requisition billets’
They could hardly be clearer about their intentions, could they?