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21 July 2014
Is 'privacy law' just a new term for breach of confidence? And how many times have you read these sentences in the last two months?
Probably hundreds, because privacy is all media lawyers in private practice are talking about in the press. But privacy is not the only thing about to change the face of media litigation. And while solicitors are rushing to rebrand themselves as 'privacy' specialists, those at the coalface of media law - the editors - are concentrating on a more sinister legal development about to be embraced by the UK Government.
A proposed change in the law could see financial journalists facing imprisonment. It is found in the EU Commission directive on market abuse, which ominously states: "Anyone publishing information which gives, or is likely to give, false or misleading signals as to the supply, demand or price of financial instruments including rumours or false or misleading news, could be found guilty of the criminal offence of market abuse."
In practice, any financial journalist, or their editor, who repeats market speculation about a stock which subsequently turns out to be wrong, could be charged. The media activity of publishing rumours about goings on in the stock market is, many argue, an institutionalised part of the market itself. Editors are loath to give this practice up, but could soon find themselves forced to. And leading media lawyers seem blissfully unaware of the development.
If the directive is adopted into UK law, how will media lawyers respond to calls from editors who are facing jail for allowing a false stock market rumour to be repeated? And are editors more likely to reach for a criminal lawyer than a media luvvie if they are hauled into a police station for 'illegally' publishing stock market rumours?
David Sherborne, media barrister at 5 Raymond Buildings, points out that editors are likely to plump for both. "If an editor is held at a police station, of course they'll want a lawyer who knows the procedure," he says. "But for media advice you'll go to media firms and barristers."
Robin Esser, parliamentary and legal chair of the Society of Editors and executive managing editor of the Daily Mail, doesn't agree. "If you're faced with a criminal charge, you call a criminal lawyer," he says.
But Sherborne points out that it is unlikely we will see financial journalists going to prison for wrongly tipping a share. He says that, while it is worrying when directives contain statutes that could see journalists going to prison, similar situations have been resolved in the past. The media was facing a similar threat of being criminalised when the Data Protection Act came into effect in 1998. But after the media applied pressure, Section 32 was added to the act to provide exemptions regarding the publication of material deemed to be in the public interest.
"European Commission officials are very good at realising where directives might contravene Article 10 [Freedom of Expression in the Human Rights Act]," Sherborne says.
Esser is lobbying personally the European Commission and the UK Government on this issue on behalf of the Society of Editors. He has had no guarantee of a media audit that would recognise contravention of Article 10 in the Market Abuse Directive so far. The European Commission aims to implement the directive by 2003. And as we move closer to Europe, Esser says, the UK Government may feel politically obliged to adopt European laws quickly and without any time for reflection.
Esser is also concerned that, in his experience, media lawyers are not recognising the directive. "It's creeping up on us slowly, and only financial journalists have cottoned on so far," he says.
It may well be time to stop thinking about Naomi Campbell.