Careless whispers

The recent rape accusations that have rocked the football world are further confounding the issue of freedom of speech versus the right to privacy. Jon Robins reports on keeping the men with no names anonymous

When a story contains the vital ingredients – sex, violence, football and celebrity – in such plentiful quantities (as that of the alleged rape of a 17-year-old girl by a group of men, including Premiership football players, at the Grosvenor Hotel in Park Lane a couple of weeks ago) the law of contempt seems powerless to silence lurid speculation.

But that will not stop lawyers from trying to shut down such allegations. So far the Attorney-General Lord Goldsmith QC has issued guidance to newspaper editors urging them to avoid “prejudicial reporting”. To little avail, judging from the tabloids’ ‘nudge nudge, wink wink’ innuendo about the identities of the men. The Daily Sport even went so far as to name the club to which, it said, most of the footballers belong.

Broadcasters had their sound engineers glued to the volume dials on Saturday afternoon to censor chanting on the terraces through fear of unwittingly transmitting a libel. The panic was also palpable on the internet, as scores of websites were closed down after fans inundated message boards speculating as to the identity of the players. Incredibly, even office workers idly firing off emails guessing at the men’s identities have received lawyers’ letters.

“It’s partial fire-fighting and partial identifying where the problems are coming from,” comments one solicitor acting for a number of the players caught up in the case. The litigation partner in question is well known for representing a number of high-profile soccer clients, but prefers to remain anonymous to avoid fuelling further rumours. He claims there have even been attempts by the press to ‘out’ him as a way of revealing his clients.

“Emails are like chain letters, but ones that go out of control extremely quickly,” he says, adding that “publishing in that fashion is exactly the same as publishing via a newspaper or other media, and there are exactly the same issues of confidentiality, privacy and defamation.”

It was two days after the story broke on Monday 29 September that the Attorney-General invoked the contempt laws in a warning to newspaper editors not to “engage in conduct, not to publish material, including comment, that may create a substantial risk of serious prejudice to the course of justice”. Under the Contempt of Court Act 1981, a contempt is committed if a newspaper creates a substantial risk of serious prejudice to legal proceedings.

It is a shot across the bows that has riled some Fleet Street lawyers. Lord Goldsmith started firing such warnings at the end of last year when he called for restraint over coverage of Ian Huntley’s first appearance in court to face charges of abducting and murdering the two schoolgirls Holly Wells and Jessica Chapman. Since then there have been about eight such warnings.

“There is a very confused message coming out here,” reckons Gillian Phillips, head of litigation at The Times. “The reality is that these [guidance notes] don’t have any legal substance to them. The Attorney-General has powers under the Contempt of Court Act to take proceedings against the publications if he thinks there has been a substantial risk of serious prejudice. So you begin to wonder what he’s doing.”

Phillips interprets such warnings as a pointed reminder to the press. “They aren’t directed to us as lawyers, we don’t get them,” she adds. The ironic effect is that Lord Goldsmith’s intervention became another reason for running the story for one more day, which, as Phillips points out, “rather makes a mockery” of it. “I don’t know of a single publication that has had any complaints made as a result of their coverage before or after the guidance, so what’s the point?” she asks.

Dan Tench, a media partner at Olswang, is also no fan of the Attorney-General’s new habit of firing out warnings. “In this particular case, there isn’t any legal basis for his concern,” he argues. “For a start, we’re not in the ‘active period’ of contempt, which starts only when the accused is arrested or charged. But also, so far as simply naming the individuals is concerned, there’s obviously a potential libel problem here, but I don’t see it as an obvious contempt problem, providing that there is no suggestion that they are actually guilty.”

David Hooper, a partner at Reynolds Porter Chamberlain, shares such concerns about what he sees as Lord Goldsmith trying to “expand the scope of the law of contempt”. “It quite clearly isn’t contempt at the moment,” he says. “And in a sense the Attorney-General is becoming a legal social worker.”

Not everyone takes this view. For example, Justin Wolford, legal adviser at Express Newspapers, sees it as the Attorney-General just “trying hard to police the present law”. But the barrister questions whether the press coverage would amount to statutory contempt even if the

proceedings were active. In cases where stories are written up as if individuals are “almost guilty”, this does not necessarily amount to prejudicial material, he reckons. He draws a distinction, for example, with evidence that suspects have relevant previous convictions.

Wolford believes that research needs to be commissioned into the impact of such stories on juries, which are outlawed under the Contempt of Court Act. “The problem with this whole area is that no one has any hard facts about what’s prejudicial and what isn’t,” he says. He is mindful of the threat of legislation hanging in the background. Back in June, peers backed an amendment by the former Law Lord Lord Ackner to the Sexual Offences Bill that would restore anonymity to protect those accused of rape. The present furore will provide further ammunition for those campaigners, alongside the recent debacle of the John Leslie investigation. “This is the moment to focus on a proper inquiry into what actually causes prejudice,” says Wolford.

What could the Government do to most effectively police the contempt regime? “Cut the

period of time between arrest and trial,” he replies. “The courts repeatedly emphasise that it’s that delay which is the most important factor. But also, juries have a much greater capacity for putting aside material that they haven’t heard in court and concentrating on the material that they have.”

While the more salacious commentary presently falls outside the contempt regime, Hooper flags up Clause 93 of the Courts Bill. This controversial proposal would give judges and magistrates the power to order third parties to pay costs if their “serious misconduct” leads to the abandonment or delay of a criminal trial. He cites the trial of Geoff Knights, the partner of the actress Gillian Taylforth, over a particularly brutal assault. It was abandoned after the judge complained of “outrageous, unfair and oppressive” pre-trial reporting.

“What could happen here, and what the media has to be aware of, is the possibility of judges saying that newspapers have stirred up prejudicial publicity and that later they can’t have a fair trial,” Hooper says. “I don’t think we’ve reached that situation, but if the judge said this coverage is so prejudicial that the trial’s going to be called off, it’s possible that the newspapers could face some kind of backdoor contempt liability.”

Although the threat of legal sanction has done little to dampen the enthusiasm of the tabloids for the story, the internet industry appears to have been taking them rather more seriously. Of course, while newspapers and broadcasters have been careful not to name names, web users have shown no such reticence. Many football website message boards have now been closed down following the requests of solicitors threatening injunctions against internet service providers (ISPs) if their clients’ names were not erased. Some sites replaced the names with asterisks.

Much has been made of the unregulated excess of the internet, but in reality most ISPs tend to remove an offending item at the faintest whiff of trouble. So what is the potential liability of ISPs?

“Where they’re simply acting as a ‘mere conduit’ and they aren’t involved in initiating the transmission or dealing with content, then the E-Commerce Directive excludes them from liability,” comments Paul Barton, a technology law partner at Field Fisher Waterhouse. Nevertheless, he points out that parties now often seek an injunction through the courts that covers ISPs as well as conventional media. “But as the law stands at the moment, unless you have managed to get that injunction, [ISPs] are free to carry material over the network and avoid any liability,” he adds.

The ISPs, though, are calling for still clearer guidance in the wake of the legal activity flowing from the case. A spokesman for the Internet Services Providers’ Association (ISPA) complains that the position of its members is confused. “ISPs are ‘mere conduits’, carriers of information somewhat like the postal service,” he argues. “An ISP is not a publisher and doesn’t have editorial control over content published on its servers by a third party.”

ISPA points to the Law Commission report into defamation, published in December 2002, which supported its view. The commissioners recommended that the UK follow the US model and exempt ISPs from liabilities for the sites that they host. The Law Commissioner, Hugh Beale QC, noted that it is currently easier to complain to the ISP about objectionable material than to the author. “There’s a possible conflict between the pressure to remove material, even if true, and the emphasis placed on freedom of expression by the European Convention on Human Rights,” he said.

The present problem for ISPs is that, according to the directive, they should be liable for prosecution if they have “actual knowledge” of illegal content. “An ISP simply can’t act as judge and jury in these cases,” the ISPA spokesman contends. “If they do take action they face liability from the website owner who has had their content removed, and if they don’t they then face potential liability from the person who’s been defamed. We want the Government to give us legal clarity.”

As for the liability of emailers sitting at home and in their offices engaging in online gossip, the solicitor acting on behalf of the players has already “identified a number of individuals and placed them on notice” as to claims. He has also contacted their bosses if they are spreading rumours on company time. “It’s all part of the strategy to stem the flow of rumour and seek damages if necessary,” he says.

Tench believes that the case is “another reminder as to the dangers of email”. When it comes to defamation law, emails are treacherous in two ways: for a start, they instantly disclose the list of people who have previously seen them; second, work emails are also capable of being tracked through subject access requests under the Data Protection Act 1988.

“People use email as if they were chatting to a mate down the pub, but it’s different,” explains Olswang’s Tench. “It’s a permanent form of publication and so they are libels (rather than slanders) and they give rise to potential liability in exactly the same way as with any other print media. You are also pretty likely to incur liability on the part of your employer for any such emails.”

Having said that, lawyers doubt that any such prosecutions will ensue. As Barton at Field Fisher points out: “It may be worth advising a client to pursue a claim, but in 98 per cent of incidents I’d say it’s just not worth wasting your time or money, because they either haven’t got the means or it will just end up inflaming the situation.”

Some are taking no chances though. Malcolm Clarke, chairman of the Football Supporters Federation, advised fans to practise self-censorship at the match on Saturday. “We’d urge fans to stick to the field of play and keep their chanting to what’s happening in the game,” he said.

After all, footy fans could inadvertently end up standing next to an enterprising lawyer on the terraces.