It’s Not Just About Gathering News Anymore: the Legal Complexities of the Digital Age

“We’ve been sued in Greece, Italy, France, and Zimbabwe, and we’ve been threatened in Pakistan and other countries,” said Gill Phillips, the director of editorial legal services at Britain’s the Guardian News and Media.

And this was just for trying to publish the news.

Gill PhillipsPhillips, speaking at the Oct. 18-19 conference on Media Law and Policy in the Internet Age at HKU, was musing on the difficulties publishers face today as they come to terms with the legal complexities of global publishing.

The Guardian, once a single “’left-leaning” newspaper in Britain, is now a global investigative brand with independent news sites in the U.S., UK, and Australia, each generating enormous amounts of content.  This mass of data, combined with the freedom to access, download, and comment about it from anywhere in the world, presents big legal challenges, Phillips said.

Each day, the news organization has to contend with the growing presence of defamation restrictions, surveillance laws, 24/7 gag rules, official secrets acts, computer misuse, Schedule 7 of Britain’s Terrorism Act, and legislators intent on reining in the press – all of which make the jobs of reporters, editors and lawyers increasingly difficult.

“Today my job is risk assessment,” she explained.  “But when I started doing media law, there wasn’t even a term of art.  It was print only; it was UK only; and within that, we had certain stock-in-trade civil litigation tools, such as libel, official secrets, trespass.  Today we’re dealing with such a completely different set of issues.  Privacy, for example, wasn’t even an issue when I started back in 1987,” she said. “Now we have civil causes of action – about whether you can send journalists to jail.

“Once upon a time the U.S. and U.K. were the bastions and exemplars of protection of free speech.  But now some of my colleagues have observed that there isn’t much difference between our jurisdictions and those in South America.”

It’s not the Guardian’s content that presents the biggest challenge for the legal department, Phillips continued, referring to the newspaper’s reputation for publishing controversial stories of public interest.  It’s the number of constituencies, escalating worldwide suspicions about the press and those who leak information to the press.

“We now have freelancers, bloggers, user-generated comment, below-the-line comment,” Phillips said. “On a day-to-day basis, how does one of the Guardian’s [Internet] moderators deal with all of that?  What do we do with [questions generated from] Section 230 [of the US Communications Decency Act, 1996], the UK Defamation 2013 law, and Australian law? These things alone make for a completely different environment.”

The Leveson Inquiry into UK press ethics and practices following the News of the World phone hacking scandal of 2007 exemplifies moves to restrict the media. The 2012 Leveson Report called for restrictions on journalist-source confidentiality, new rules on data protection, and the risk of damages for any news organization declining to subscribe to a new press regulator.  Phillips – an outspoken critic of the inquiry who has called its outcome “the worst of all worlds” – has warned that a Royal Charter to arbitrate damage claims against publishers might encourage unscrupulous claimants and more frivolous lawsuits.

“Our country now has defamation and laws that others don’t, and the media must constantly challenge bad court orders, and we never get our costs back even if we win,” she said. “Such issues as anonymous speech, whether it’s protected on the Internet, is a very live issue at the moment.”

She said journalists have to be vigilant in protecting the rights of free speech.  “What you’re really looking at here is [preserving] the content of information in the public interest.  It’s not a question of who is a journalist, anymore, but what is journalism.  I’m not sure the law has kept up to speed with that, and neither has journalism.  We need another term [of art].”

The media law conference, which drew leading legal experts from much of the world, was jointly organized by Hong Kong University’s Centre for Comparative and Public Law and Journalism and Media Studies Centre, and by Media Defense South East Asia, a network of media defense lawyers.