Townend, J. (2014). Defamation, privacy & the ‘chill:’ A socio-‐ legal study of the relationship between media law and journalistic practice in England and Wales, 2008-‐ 13. (Unpublished Doctoral thesis, City, University of London) City Research Online Original citation: Townend, J. (2014). Defamation, privacy & the ‘chill:’ A socio-‐ legal study of the relationship between media law and journalistic practice in England and Wales, 2008-‐ 13. (Unpublished Doctoral thesis, City, University of London) Permanent City Research Online URL: http://openaccess.city.ac.uk/15981/ Copyright & reuse City University London has developed City Research Online so that its users may access the research outputs of City University London's staff. Copyright © and Moral Rights for this paper are retained by the individual author(s) and/ or other copyright holders. All material in City Research Online is checked for eligibility for copyright before being made available in the live archive. 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Defamation, privacy & the ‘chill’ A socio‐legal study of the relationship between media law and journalistic practice in England and Wales, 2008‐13 Judith Townend A thesis submitted for the degree of Doctor of Philosophy School of Arts and Social Sciences City University London Centre for Law, Justice and Journalism Submitted for examination, October 2014 Submitted to library, March 2015 Defamation, privacy & the ‘chill’ Tables & illustrations Figure 1: Reasons for abandoning stories (general sample, n=74) 186 Figure 2: Reasons for abandoning stories (hyperlocal sample, n=69) 187 Figure 3: Reasons for changing stories (general sample, n=68) 188 Figure 4: Reasons for changing stories (hyperlocal sample, n=63) 188 Figure 5: Defamation claims issued in London 1992‐2013 231 Figure 6: Number of privacy injunctions granted, August 2011‐June 2014 257 Figure 7: Number of articles relating to super injunctions, 2009‐2014 258 Table 1: Access to pre‐publication advice (employer) 174 Table 2: Access to pre‐publication advice (own publication) 174 Table 3: Media law insurance (employer) 175 Table 4: Media law insurance (own publication) 175 Table 5: Impact of libel (changing stories) 177 Table 6: Impact of libel (abandoning stories) 178 Table 7: Impact of privacy (changing stories) 178 Table 8: Impact of privacy (abandoning stories) 178 Table 9: Threats of libel 192 Table 10: Threats of libel, in the last year, compared to the year before 192 Table 11: Threats of libel, since began writing for publication 193 Table 12: Types of complainants (libel) 193 Table 13: Experiences of libel action 194 Table 14: Threats of privacy action 196 Table 15: Types of complainants (privacy) 196 Table 16: Number and value of defamation claims in London, 2002‐13 230 Table 17: Table in Ministry of Justice Impact Assessment 232 Table 18: Sample siZe of defamation claims, 2009‐12 235 Table 19: Types of media organisations defending claims, 2009‐12 236 Table 20: Number of libel writs set down for trial, 1990‐1994 237 Table 21: Breakdown of media writs set down for trial 237 Table 22: Number of injunction applications, August 2011‐June 2014 258 3 Defamation, privacy & the ‘chill’ Contents Table of Contents Tables & illustrations 3 Contents 5 Acknowledgements 9 Declaration 11 Abstract 13 A note on the text 15 SECTION I 1. Introduction 17 1.1. Scope of research 17 1.2. A socio‐legal approach 27 1.3. Methodology 32 1.4. Data access 41 1.5. Chapter summary 45 SECTION II 2. The ‘chilling effect’ on free expression 47 2.1. A popular metaphor 47 Schauer’s typology 50 Chilling effect studies 54 2.2. Defining rights to freedom of expression, reputation and privacy 58 Freedom of expression 58 Protection of reputation 65 The right to privacy 69 Public interest 72 2.3. Uses of the chilling effect 75 Jurisprudence 75 General use 82 2.4. Conclusions 85 3. The journalistic environment 89 3.1. Microcosms and ecosystems 89 The journalistic field 89 The news ecosystem 94 3.2. Conditions of the field 100 News values 101 Gatekeeper roles 105 3.3. External fields 107 5 Defamation, privacy & the ‘chill’ Public opinion 108 Media economy 111 Law 116 3.4. Conclusions 118 SECTION III 4. Legal gatekeepers: Their role and views 121 4.1. Professional structure 122 4.2. Work practices 126 Pre‐publication activity 126 Post‐publication activity 142 4.3. Policy opinions 148 Substantive and procedural law 149 Dispute resolution systems 150 Costs and damages 154 4.4. Chilling effects 158 4.5. Conclusions 165 5. Legal perceptions of online and hyperlocal journalists 167 5.1. Decentralised news work 167 Hyperlocal activity 168 5.2. Survey overview 169 Legal resources 173 Altering and abandoning stories 177 Extra‐legal factors 185 5.3. Legal experiences 191 5.4. Policy views 198 Perceptions of the chill 198 Substantive and procedural law 209 5.5. Conclusions 221 6. How information flows in media‐legal events 225 6.1. Locating the legal data 226 Defamation cases 229 Privacy cases 242 Costs 243 6.2. Case study: Privacy injunctions 246 Context 246 Tweeting lawyers 249 Media innuendo 250 The legal record 253 Calm after the storm 259 A clearer picture 260 6.3. Case study: Jimmy Savile and Lance Armstrong 261 National treasures 261 Libel threats 263 The media blind eye 268 The lone reporter 271 6 Defamation, privacy & the ‘chill’ 6.4. Conclusions 273 SECTION IV 7. Concluding discussion: The ‘chill’ on journalism in its social context 277 7.1. Media law in contemporary media systems 278 Understanding influences 278 Media‐legal interactions in a digital environment 286 7.2. Reorienting the chill 297 8. Concluding recommendations: Policy gaps and options 305 8.1. Informing the policy process 308 Stakeholders 308 Monitoring the data 309 Informing legal reform 311 8.2. Improvements for dispute resolution 312 8.3. Future research 313 Appendix 1 319 Glossary of legal terms and abbreviations 319 Appendix 2 323 Sample interview questions 323 Appendix 3 325 Interviewee summary 325 Appendix 4 327 Survey respondent summary 327 Appendix 5 331 Freedom of Information request to BBC 331 Appendix 6 337 A note on costs protection reform 337 Bibliography 339 Cases 376 7 Defamation, privacy & the ‘chill’ Acknowledgements In autumn 2014, as I was putting the finishing touches to this thesis, I was in touch with a journalist who had received a threat of legal action, and was feeling unsure about his position. ‘It’s when things like this happen, it reminds you that the chilling effect is actually real. You can’t help but have it in your mind when stories connected to that person comes up,’ he remarked. It reminded me of why I started the research in the first place, to try and document experiences like these and make sense of the many different ways in which the chilling effect is (or isn’t) perceived. Without the goodwill and enthusiasm of journalists and bloggers who filled in lengthy surveys, media specialist lawyers who agreed to be interviewed, and friends and colleagues who shared their advice and ideas, it could not have been done. In particular I would like to thank the people and organisations I have worked and collaborated with over the past few years. These include: colleagues in the department of journalism and law at City University London; Professor Eric Barendt, UCL; Dr Andrew Scott, London School of Economics; Hugh Tomlinson QC, Matrix Chambers and the Inforrm media law blog; Gavin Rees, Dart Centre Europe; Professor Steven Barnett, University of Westminster; and Index on Censorship. Thank you to Dr Richard Danbury, Damian Radcliffe, Dr Daniel Bennett, Dr David Goldberg, Mike Dodd, Professor Robin Callender‐Smith, Dr Lawrence McNamara, Glenda Cooper, Sam McIntosh, Dr David Pichonnaz for help and solidarity along the way. I am grateful to Dr Ana Villar at the Centre for Comparative Social Surveys for assisting me in the design of the surveys and Emily Allbon, City law librarian at the time of my research, for invaluable help with resources. I also want to pay tribute to the late Walter Greenwood and the late Tom Welsh, who kindly took an interest in the project and were generous with their time. Thank you to the Centre for Law, Justice and Journalism (CLJJ) at City University London for funding my PhD research, to fellow PhD colleagues and the past and present co‐ directors of the CLJJ for their comments and assistance, and in particular, the Centre’s research manager, Peter Aggar, for his help. Thank you to my second supervisor, Nick Hatzis, for his insights, and my first supervisor Professor Howard Tumber for his guidance, encouragement and enrichment of the PhD process. Thank you to my examiners, Professor Philip Schlesinger and Professor Thomas Gibbons, for their suggestions for minor amendments which have improved the final version and will inform future development of the research. Of course, any errors and omissions remain my own. A personal thank you to my family and friends for their encouragement, especially my parents, grandmother, sister and brother. And finally, Jonny, for his input and being brilliantly supportive from the very beginning to the very end of the project. 9 Defamation, privacy & the ‘chill’ Declaration I grant powers of discretion to the University Librarian to allow the thesis to be copied in whole or in part without further reference to the author.