Private lives, public interest

We asked leading media lawyers how they feel about the future of media law. How will the sector develop in a post-Leveson environment? Will privacy laws be affected?

Click on the pictures to find out what they had to say.

When you’re a media lawyer your instinct must be to mistrust reporters, for here am I on a windy afternoon in the offices of London media firm Michael Simkins with its latest recruit, former Schillings partner Gideon Benaim, peering across the table trying to take a squizz at my notes. We’re talking about the media and the law, a topic that polarises opinion.

As the lawyer who represented Manchester United FC footballer Ryan Giggs in his brawl with the tabloids last year, Benaim knows how it feels to be in the eye of the storm. It was an episode that covered neither the media lawyer nor the tabloid press with glory.

Benaim had been there before, with Naomi Campbell back in 2004 when she successfully sued the Daily Mirror after it published pictures of the supermodel emerging from a Narcotics Anonymous meeting.

With Giggs it was different. The press was whipping up a storm over the apparently excessive use of super—injunctions when The Sun plastered across its front page: “Footie Star’s Affair with Big Bro Imogen”.

All hell broke loose.

Giggs instructed Benaim to apply for an injunction to stop the tabloid revealing more details. The footballer became known in the courts as ‘CTB’. He was successful in his first attempt to secure an order preventing the paper from revealing more details.

The tabloids screamed louder - why should this family man be entitled to privacy? He lived a life in the public eye and, they said, it was right that he be outed.

The injunction story became a guessing game, with people taking to social networks to suggest who the footballer might be. In the US, a jurisdiction beyond the High Court’s remit, Giggs’ identity was laid bare. He began trending worldwide on Twitter.

All the while, the footballer had an order in place that effectively made it illegal for him to be named in England and Wales, but not in Scotland.

While Benaim was sending court papers to tabloid lawyers in London, the Sunday Herald in Scotland took the decision to publish Giggs’ picture on the front page. Yet still the anonymity order remained in place.

It was only when John Hemming MP used his Parliamentary privilege to break the order two days after the Sunday Herald’s front page that Giggs’ identity could be revealed without fear of breaching court orders. The following month the News of the World (NotW) revealed that Giggs had been having a long-running affair with his sister-in-law Natasha.

Benaim’s legal battles with News International and News Group Newspapers came to an end in March after Mr Justice Tugendhat ruled that Giggs’ claims against The Sun for breach of privacy could not be reinstated, because the footballer was himself in breach of previous court orders. Just a few months later he settled claims against News International in which he alleged that the tabloid had hacked into his phone.

The Giggs affair turned out to be a last hurrah for the NotW. The paper was closed down the following month.

Rejecting Giggs’ subsequent bid for damages in March, Tugendhat J said: “The way this case has been conducted by the parties has done much to undermine the confidence in the administration of justice.”

Benaim was forced to explain why he was seeking to bring the claim in January when the court had already issued a deadline of 18 November to issue directions. The claim, for alleged misuse of private information, had been struck out at that point and Giggs’ lawyers subsequently sought to reinstate it.

Today Benaim is refusing to talk about the saga but Tugendhat J’s judgment revealed that he had taken “full responsibility” for the error and had apologised to the court.

While Benaim’s conduct was open for all to see, what was not clear was the extent to which tabloids were fighting back against the use of injunctions. They sensed a threat to the kiss and tell story.

“My view about this is clear, having been involved in numerous injunctions,” Benaim says emphatically and without a hint of hesitation. “Views are distorted and abused by certain individuals in the press.”

Star bookings

Giggs was not Benaim’s only client while he was at Schillings. The list is long and includes Harry Potter author JK Rowling, cyclist Lance Armstrong and film director Roman Polanski.

Benaim joined Michael Simkins last month, with the aim of building a reputation protection practice fit for the post-Leveson environment, whatever that may look like.

A bit like Giggs, Schillings is not on the agenda today. Benaim says he will not discuss clients and insists he is on good terms with his former firm. Instead, he would prefer to debate the most contested topic in the media. He is calling for statutory press regulation.

It is not lost on Benaim that in doing so he will enter a raging debate about the future role of the press. It is a difficult concept for many to swallow, including this reporter. The very idea that the press needs to be governed by mandarins from outside the profession is an alien concept to many, and one that many will say would encroach press freedoms - the thin end of the wedge.

Benaim is emphatic in his belief, however; arguing that there is no other way to rein in a press that has spiralled out of control in the false belief it was above the law.

He has thought carefully about what he plans to say today and comes armed with notes to ensure that he gets his point across. The notes will be emailed over at a later date, just in case we miss the point. He seems nervous, although repeatedly insists otherwise.

As someone who has spent more than a decade fighting with press lawyers he is naturally sceptical of the press, although disarmingly engaging at the same time.

Some describe him as a relentless Rottweiler, someone who gets his teeth stuck into a case and doesn’t know when to let go. That said, old adversaries are the worst critics.

Some say Benaim and his former Schillings colleagues, along with those at Carter Ruck, should be held responsible for helping create a culture that enabled the press to make super-injunctions front page news.

 Nonsense, says Benaim.

“I don’t accept that if you serve an injunction you just make things worse,” he claims. “Much will depend on the facts and the press’ interest in the individual.”

It was the media that used injunctions to round on privacy laws, Benaim insists. “The tabloids believed that the way to curtail privacy laws was to attack the whole issue of injunctions.”

Up the injunction

One tabloid lawyer says it was routine for his paper’s legal department to inform the editorial department should the threat of an injunction arise. Without being able to name the individual at the centre of the case, journalists would instead give clues as to his or her profession as The Sun did in Giggs’ case, or perhaps the colour of their hair or which geographical region they might hail from, carefully avoiding infringement of the order. The aim was to make the anonymity orders, as the former Master of the Rolls Lord Neuberger called them, the talk of the nation.

Benaim, who asserts that a privacy law exists in this jurisdiction, having been introduced ‘through the front door’ by Article 8 of the Human Rights Act, comments: “There’s no doubt about it, there was a concerted effort by News Group to rid this country of privacy laws by making injunctions difficult, knowing that most victims will not go to trial.”

As someone who is believed to have brought the highest number of cases in this field - aside from Keith Schilling himself - Benaim was at the eye of the storm. In reality, he believes there were very few anonymity cases before the courts.

“There weren’t that many,” he says. “It’s believed to be up to 100 over a 10-year period.”

Hack to front

Looking back, Benaim believes there was an ulterior motive for keeping injunctions in the news. Lurking in the background, the phone-hacking allegations were quietly simmering.

“I’m certain that at the time the mischief was being created during the Injunction Spring, when everyone on the other side felt that phone-hacking had gone away and nothing was going to happen,” he says.

He started working on cases relating to the allegations dating back in 2009, long before Leveson LJ became a household name, and back when Rebekah Brooks was chief executive of News International and Andy Coulson was comfortable in Downing Street as media adviser to Prime Minister David Cameron. Coulson and Brooks are both now facing criminal charges relating to phone-hacking.

“I recall a conversation in which I told a distinguished newspaper lawyer that the press’ continuing bad behaviour would result in a position much worse than could be imagined,” Benaim says. “Little did I know about what was still to come out.”

It was the allegations made in July 2011 that the NotW had hacked into the voicemail of murdered schoolgirl Milly Dowler that led to calls for a judicial inquiry.

“It was the Milly Dowler allegation that broke the camel’s back,” says Benaim. “Privacy laws had been in the press for months on end by that time.”

An army of lawyers are currently feeding on the NotW carcass. Dozens of civil cases are being pursued through the courts against News International, several of which have been settled. Up to 20 firms are understood to be involved, with another former Schillings partner, Mark Thomson, now of Atkins Thomson, leading the claimant team.

Meanwhile, Leveson LJ is preparing to release his report into the culture, practices and ethics of the press after a year-long investigation. Dozens of lawyers, high-profile individuals, editors and newspaper proprietors have appeared before the inquiry, quizzed by 39 Essex Street’s Robert Jay QC.

Benaim’s name was not on the guest list, but he attended the inquiry alongside client JK Rowling, who told the judge that at times she felt she was “under siege” from the tabloid press after the birth of her children.

“For a week it was impossible to leave the house without being photographed,” she said.

Statute of liberty?

Benaim believes segments of the tabloid press stomped over the privacy rights of individuals unremittingly. The only solution, he says, is for Leveson LJ to recommend a statutory organisation that would rein in the excesses with effective regulation and drive up editorial standards.

“What’s needed is a truly independent regulator within a statutory framework so it has teeth, is able to have an enforcement arm that has remedies available to it, and is able to compel the large media organisations to join,” he outlines.

Many in the media would baulk at such a suggestion, concerned that a statutory form of regulation could compromise the freedom of the press.

Director of editorial legal services for Guardian News & Media Ltd Gill Phillips says it would be a step too far.

“There’s a real danger of throwing the baby out with the bathwater,” Phillips insists. “The debate has become polarised between self-regulation and statutory regulation. Everyone forgets that there is an area of independent regulation in the middle that would allow for the safeguards that everyone wants.”

Benaim, however, is determined.

“None of the media is in favour of statutory regulation,” he emphasises. “The general view of the -media is that it would be going back to the Dark Ages, but it’s not the doomsday scenario they paint, the Government will never be in control of the media, it’s simply scaremongering.”

Press pressure

Should Leveson LJ agree with Benaim, any regulatory model would have to be passed by Parliament and there is no telling whether MPs will have the appetite to push it through.

“I suspect the media will group together against Leveson and pressure politicians directly or through column inches,” says Benaim. “Some politicians may not have the stomach for the change that’s needed.”

He is not alone in this belief. Carter Ruck partner Isabel Martorell who, along with partner Adam Tudor, represented Kate and Gerry McCann in their successful libel claims against the Daily Express and the Daily Star regarding the disappearance of their daughter Madeleine, agrees.

“A new regulator will need to have greater independence than the PCC [Press Complaints Commission], and will also need a ‘bite’ - proper sanctions that will not only offer appropriate redress to complainants, but also be sufficient to deter the press from riding roughshod over privacy rights in the first place,” she says.

Doughty Street’s Gavin Millar QC, who represented The Telegraph Group at the Leveson inquiry, believes the sector will first be given an opportunity to make a self-regulation model work.

“Parliament will park any Leveson recommendation for statutory regulation for three years to see if the industry’s new self-regulation package works,” he says.

But, says Benaim, holding firm, “it can’t be an old boys’ network that has no teeth and no power, governed of the editors, by the editors for the editors.

“You’ve got to have people who understand newspapers and the challenges they face. You’ve got to have some people from the press involved, but the regulator also needs to understand the victims’ position better. How does Ofcom manage to govern - they are able to understand the broadcasters well enough. The press can be dealt with by an independent regulator in a similar way.”

So what behaviour should the regulator crack down on and how?

Click march

The recent furore surrounding the publication of topless pictures of the Duchess of Cambridge first in France, then Italy and Ireland shows the power of the internet.

How can privacy laws be effective in the UK when a Google search can deliver public access to any newspaper around the world - newspapers and websites that are not subject to the same rules?

Benaim says we should lead the way.

“These are important times for new technology, new platforms will undoubtedly appear which will challenge traditional thinking,” he says. “To a certain extent we’re in wild-west territory where the rules of engagement are yet to be determined. Let’s lead the way rather than hold our hands up and accept the bad with the good.”

Millar, however, believes that the horse has already bolted and that the internet is a bigger threat to the press than Leveson LJ and any rules he may recommend.

“Pressure will build on tabloids to publish more controversial -material available on other websites, as with Harry and the Duchess of Cambridge,” he argues.

“Our judges will struggle to keep the threshold for private information where it is. There will have to be more press freedom.”

Benaim admits it is a difficult area for anyone to get to grips with.

“It involves different jurisdictions with different laws and attitudes,” he concedes. “It’s often possible to deal with these things through penalties and sanctions.”

Just because it is ‘difficult’ however, he questions whether we should “jump into the cesspit and give up because some other countries have different ideas”.

Some may suggest that bringing in rules that have implications for the internet would only serve to further reinforce London’s place as the libel capital of the world - a city where international figures can dip in and out to secure court orders that will ensure the stories they don’t want in the public eye are kept secret.

“In terms of international litigants they’re coming here often because the contracts are governed by English law - London is a major hub for the world,” says Benaim, who rejects any assertion that London has become a libel hotspot. “I don’t think it is the libel capital of the world.

“We’re an important capital city in a good location, it’s easy to get to and from London, we have the best networks. I just think that shows we’re popular. The English language is traditionally important for business, so reputational damage in the English language can be important to rectify.”

Star qualities

And what about celebrities who use the media to raise their profile, should they still be entitled to a certain level of privacy, I ask?

“There are some people who divulge aspects of their lives for publicity reasons,” he accepts. “If you’re out there, you get asked more and more questions about your private life. In the beginning you may not know what your rights are so you answer.

“But each case is different. Some people may talk about medical issues - and they’re talking about it perhaps to raise awareness of that issue for the public good. It’s a spurious argument that because they have done this then they have no right to privacy at all.”

It is my turn to be sceptical of Benaim. With the worldwide web penetrating almost every avenue of our lives - be it Google and its map machines or Facebook tracking our friendship patterns - can we really demand that our privacy be protected in a statutory instrument? Why does it need to be the Government that does it? Are we not responsible enough to protect our own rights?

Furthermore, investigative journalism plays an important role in modern society. The phone-hacking scandal would not have blown wide open were it not for The Guardian and Private Eye.

As Phillips says, the existence of a statutory regulator would not stop rogue journalists from doing something similar again in the future.

But Benaim is unrelenting and believes that, given the furore surrounding News International, he will have a high level of public -support. If the public wants to see real change, he says, they should speak up.

There is one point on which Benaim and I are in full agreement. This is a hugely significant moment for the modern press and one in which we decide whether we want to live in a world with or without stringent privacy rules.