Should national newspaper editors be allowed to use the organisations they run to mount their own PR campaigns against the judiciary?
Last Tuesday, five editors from the four major broadsheets and Reuters held a conference, where they told an assembled group of media types, mostly journalists, mostly employed by them, that they were going to change the law. They want Section 10 of the 1981 Contempt of Court Act amended to make it more favourable to the press.
The editors have been held in contempt over Interbrew, a wrangle over leaked and possibly faked documents concerning the Dutch brewer's plans to take over South African Breweries, which the press has refused to hand over. The publishers lost to Interbrew in the High Court and the Court of Appeal and the Lords refused to hear the case, but they are still hanging on to the documents.
Now the editors of the Financial Times, The Guardian, The Independent, The Times and Reuters want to take Interbrew to Strasbourg and are calling for a review of the contempt laws that they lost the case on.
The first part of Section 10, “no court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible”, is highly popular with the press.
It is the second part, “unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder of crime”, that the editors want doing away with.
The Guardian editor Alan Rusbridger, leading the charge for a change to contempt laws, says the second part is a set of “weasel words, without which a lot of lawyers would be so much poorer”.
Rusbridger admits that sometimes a source should be shopped if, for example, they are telling the press they intend to threaten national security by planting a bomb outside Buckingham Palace.
It is the term 'interests of justice' that the editors take issue with, partly because they see it as so flabby and vague that it can keep solicitors busy for hours debating what exactly it means.
But the main reason the editors hate these three 'weasel words' is because their seemingly innocuous presence within Section 10 brought the weight of Interbrew crashing down against them. In the appeal, the judgment stated that the term 'interests of justice' was an “obvious Section 10 ground for removing the shield” put up to protect a journalist's source.
The five editors are unanimous on the need for a review of Section 10, and the day after the conference their newspapers, in particular Rusbridger's own paper The Guardian, paid much positive lip service to the campaign.
The editors probably have a very good point. But wouldn't it be lovely if every industry heavyweight could organise an event, actually a thinly veiled press conference, in which journalists would listen, take notes and report positively on the changes that industry would like to make to the law?
Want to give the bank manager a heart attack? Just tell them you need money to start a defendant libel firm. A year ago this week, The Lawyer revealed that niche libel firm and one time main adviser to the Daily Mirror Swepstone Walsh had shut its doors.
With almost spooky timing, H20, a firm mainly known for defendant libel work, reported last week that it no longer wants to rely on the sector.
H20 has formed an exclusive alliance with two largely non-contentious media boutiques – internet specialists McNeive Solicitors and sole practitioner and broadcast specialist Sean McTernan, presumably to widen the net, because as UK fishermen know, it's no fun trawling for what isn't there.
H20, which split into two last December when the intellectual property half of the firm waved goodbye to the media division and trotted off to KLegal, is well aware of the need to diversify.
The demerger coincided with in-house media lawyers becoming increasingly sparing with their use of external lawyers. After the split, many predicted that H20 would limp after Swepstones into the land of lost libel firms.
But the two remaining partners after the demerger, Paul Fox and Jason McCue, soon realised that sticking to defendant libel would mean days of staring at lots of empty office space waiting for phone calls from their main newspaper client, The Times.
They quickly started – and finished – merger talks with Charles Russell, Halliwell Landau and celebrity media outfit Schillings before forming this alliance.
The alliance, known as Legal Circle, will be an exclusive referral network and is believed to be the first of its kind among domestic media firms.
Legal Circle is being dubbed a 'one-stop' service. This (highly irritating) term sits just below 'seamless global integration' in law firm marketing bland-speak, but at least everyone knows what it means.
Building on the 'one-stop' concept, Legal Circle could even evolve into a kind of Olswang 'mini-me', an all-round service for media clients comprising defamation, e-commerce, broadcasting contracts and the like.
The standard will certainly be as high. While H20's Fox and McCue are recognised defamation experts, McNeive founding partner Liam McNeive was formerly head of e-commerce at Masons and acts for AOL Europe and QXL, while McTernan was head of legal at Carlton until 2001.
And, of course, clients should expect lower rates from Legal Circle than from larger firms.
But can these firms physically provide a one-stop service to more than a couple of clients? This is possibly where the mini-Olswang concept starts to look dodgy.
H20 is now a three-partner firm – McNeive has two lawyers while McTernan works alone. Together, the firms could probably convince their most loyal clients, such as AOL Europe, to use them for all their media needs. But others?
Ironically, if Legal Circle catches on, this small group of experts could find itself referring potential clients to larger firms because it does not have the capacity to work for them. This is exactly what the alliance has been set up to avoid.