Category Archives: Leveson Inquiry

Will judge Leveson become one of history’s heroes not for debugging and democratising the British press but his own profession — law and the courts?

. 4th Estate moves, Leveson hearings, Leveson Inquiry, Post-Gutenberg law and the courts . , , , , , , , , , ,
This conclusion of a communityaustralia.org.au report http://www.communitylawaustralia.org.au/wp-content/uploads/2012/07/CLA_Report_Final.pdf in 2012 is actually true everywhere in the English-speaking world -- image modified by postgutenberg@gmail.com

The conclusion of a 2012 Community Law Australia report is actually true everywhere in the English-speaking world
— image modified by postgutenberg@gmail.com

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[ This is a long post — ‘Many cups of coffee!’ as Manne, a Finnish friend, once warned us in a preface to a letter. ]

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We have been surprised to notice that an important but cautiously worded public lecture in London last November by the British judge so far referred to in this spot as Lord Justice Leveson has attracted almost no media attention. Our regular readers will remember that Leveson LJ — now correctly called Sir Brian Leveson, or LevesonP in legal shorthand, after a promotion (see footnote**) — led a government-ordered inquiry into the workings and ethics of the British press nearly five years ago.

Remarks at the start of this exercise by the Lord Chief Justice who appointed Leveson LJ to his inquisitorial post led some of us to hope that, at the inquiry’s end, the judge’s most famous prescription for improving Fourth Estate ethics and objectivity would be to open up journalism to wider public participation. In other words, that he would push for a democratisation of the press as radical as the mass dissemination of knowledge and learning that Johannes Gutenberg’s printing press permitted — not overnight or even in 50 years, but eventually, a point made in our last post.

Exactly why the inquiry failed to yield any such recommendation in spite of the strong nudge from the Lord Chief Justice is unclear. The most interesting possibility is the threat by enraged senior editors and journalists, as well as newspaper proprietors, to turn the tables and demand an equally alarming and humiliating investigation of lawyers and the legal establishment. In the lingering press anger about the judicial probe in 2013, one columnist, (Sir**) Simon Jenkins — a former editor of The Times and The Economist — barked that ‘Lawyers should stick to the law.’ One year earlier, as the Leveson hearings were in full, addictive sway, he noted that ‘Judges consider themselves institutionally beyond correction,’ adding delectably, ‘As for the fee-fiddling, court-delaying, job-sharing, ambulance-chasing antics of the legal profession, you will wait for Doomsday for a judge-led inquiry into that.’

Well, LevesonP might yet rise to the Jenkins challenge. On 12 November, speaking about the early stages of ‘substantial reform’ to ‘secure an efficient and effective justice system … fit for the 21st century,’ Sir Brian said that ‘Information technology is likely to provide the means by which we can do so.’ He spoke of a future with more frequent resolutions of legal disputes ‘other than by trial’; of ‘the development of an online court’; and of an ‘IT dependant system through which the courts can manage disputes so that they can be resolved appropriately.’

Ah. Appropriately. A careful, neutral word chosen by a supremely cautious justice, a signal understatement of the death blows that digitisation and sweeping procedural changes could deal the anciently entrenched customs and culture of lawyers and the legal system. The effects of these transformations, not just in Britain, will fall mainly into two wide, linked categories:

LAWYER-FREE LITIGATION

The richest countries in the English-speaking world have in common the lamentation encapsulated in Australia with the graphic above highlighting the dismaying fact recorded by Community Law Australia that ‘Repeated government and Parliamentary inquiries over the past decade have recognised that the legal system is out of reach for many Australians.’ That is stunning in a country whose people rank as the world’s wealthiest, or nearly so; a country famous for its militantly egalitarian ‘tall poppy syndrome’ culture, and surpassed only by the US in the availability of lawyers (357 vs. 391 per 100,00 people in the late ‘00s, according to a 2010 Harvard Law School study).

As for the US, in a joint contribution to The New York Times in 2010 titled ‘A Nation of Do-It-Yourself Lawyers,’ the chief justices of California — the US state with the world’s largest court system — and New Hampshire invited ‘members of the legal profession to join with us [in] making unbundled legal services and other innovative solutions — like self-help Web sites, online assistance programs and court self-help centers — work for all who need them.’

The legal profession’s incandescent reaction — across the globe — to all such proposals has been put bluntly by an antipodean judge at the highest tier, Deputy Chief Justice Faulks of the Family Court of Australia, who does not consider it a response to be condoned or indulged:

Most judges tend to couple the word self-represented litigant (SRL) with an expletive. It is customary to regard them as difficult, time-consuming, unreasonable, and ignorant of processes of the law. … [C]ourts should regard self-representation by litigants as a challenge rather than as a problem. … Self-representation has reached a level in many courts where it is common for at least one of the parties to be unrepresented for one half of the time. This means that courts are no longer dealing with a minority aberration but are being obliged to contend with change which may require altering the way in which courts operate.

TRANSPARENCY: LETTING THE PUBLIC SEE WHAT REALLY HAPPENS IN LITIGATION

Idealistic and naïve non-lawyers, litigation virgins who have always thought of trials and court procedures as instruments for uncovering the truth in any legal battle, are in for a rude shock when they get enmeshed in an actual case. Honest judges will explain that a trial is not a quest for truth. Why is this a fact of which even highly educated people are mostly ignorant? Most litigation, especially civil litigation — which has no celebrity murderers or Scott Turow thrillers about corrupt judges to supply education-by-entertainment — happens in the dark, out of public view. No stranger to the process has any conception of the brutal details of how legal action commonly amounts to the licensed bullying of those with less money by those with more — or is capable of grasping the near-universal truth of what Chief Justice Faulks has said, with a symbolic illustration from Australian court procedure:

The legal profession is one which guards its turf jealously. To an SRL, being in a court room feels somewhat like being in an old-boys’ club where members of the club are speaking to each other in a strange language known only to them, where the members know each other quite well and are disparaging and discouraging of interlopers. … Most judges prefer to have a triangle of dialogue that involves a judge and two lawyers, preferably counsel, at the Bar table. In my opinion this is a perpetuation of the “old boys club”-like environment associated with litigation. … [I]f courts remind themselves that access to justice requires that it should be to all “without fear or favour, affection or ill-will” then it follows that we should place all of our processes, language, practices and assistance under the microscope of that access to justice …

Simon Jenkins’ counterattack on lawyers and judges in the UK arose from fears about the endangerment — implicit in the inquiry’s remit — of the independence of the Fourth Estate; of its special privileges; and of its ability to restrict membership. In his Guardian column two months ago about technology forcing all professions to kneel before the transformation of their work by the internet — mostly, by demystifying their expertise and supplying open access to their tools and knowledge — he quoted Bernard Shaw’s trenchant take on the professions as ‘conspiracies against the laity’.

Doctors and lawyers were the chief focus of his commentary, which strangely made no mention of the need for traditional journalism to adapt to the arrival of ‘citizen journalists’ or ‘citizen bloggers’. Whether the recommendations of the Leveson Inquiry have had or will in the future have any significant role at all in reshaping press practices is impossible to tell from our perch seven thousand miles away. The scant coverage of this subject by the British press is contradictory with, for instance, the Daily Mail implying last month that proceeding with the second stage of what was set as a two-part investigation would be an even bigger waste of resources, whereas the Independent drew attention to the new press watchdog to which the Inquiry gave birth, and said that it ‘has started to show its teeth’.

A LevesonP who sets an example with a more vigorous mucking-out of his own profession — which happens to be the one most successfully insulated from change — will be a judge for the ages. He certainly seems to have grasped the unfairness of a profession least affected, so far, by the digital juggernaut, imposing more revolutionary change on one so battered by internet publishing’s destruction of its economic viability that the most representative image of its state would be a stage strewn with corpses from which just a survivor or two limps away, in the final act of a tragedy.

Richard Susskind, the British judiciary’s principal adviser on digitisation for nearly 18 years, has been pegged by the American Bar Association as ‘far and away the best analyst and predictor of the evolution of the legal marketplace.’ His slender book, Tomorrow’s Lawyers, a model of concision, is gripping essential reading with a well-earned conclusion:

[T]he law is no more there to provide a living for lawyers than ill health exists to offer a livelihood for doctors. … [T]here is an opportunity to be involved in shaping the next generation of legal services. You will find most senior lawyers to be of little guidance in this quest. Your elders will tend to be cautious, protective, and conservative, if not reactionary. They will resist change … In truth, you are on your own. I urge you to forge new paths for the law, our most important social institution.

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**In an exception to our usual practice of ignoring titles awarded in Britain’s honours system — in a blog written outside any national boundaries — we refer to him in this post as Sir Brian Leveson, though it was as Lord Justice Leveson that he supervised the hauling over the coals of some newspaper proprietors and editors who were undoubtedly burning him in effigy, out of sight, in revenge. We used that title in our posts about the Leveson Inquiry because it was not a so-called gong or decoration, but part of his job description. Though peers (‘Lord’) rank higher than knights (‘Sir’) in the hierarchy of honours, Sir Brian has not been demoted, since then: he was a Lord Justice simply because that is what judges of the Court of Appeal are called.

Explaining the reasons for that would call for an even lengthier exposition than if we were to try to explain why, since his elevation from that position to his new job as president of the Queen’s Bench Division of the High Court of Justice, or Britain’s third most senior judge, he wears a black gown with a ‘short wig’ to hear criminal cases, but a ‘full wig’ on ceremonial occasions — when justices at the very top of the top, in the UK Supreme Court created just ten years ago, do not usually appear in gowns or wigs, but on ceremonial occasions, wear gowns but no wigs. (Impossible! you say? See the Wikipedia entries for Judiciary of England and Wales and Judiciaries of the United Kingdom.)

We are following law reporting practice when we refer to LevesonP, for shorthand.

Inventory-taking time for post-Gutenberg.com

. 4th Estate moves, Culture after Gutenberg, Leveson Inquiry, Re-arranging publishing for the 5th Estate . , , , , , ,

Note on 27.12.2020: This stale and outdated inventory of pG posts will, with luck, be replaced — in some week in which there are fewer excitements than the Great Conjunction of Jupiter and Saturn on the Winter Solstice last Monday. See fuzzy white specks on lower-right margin

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Indoors or out, no one relaxes
In March, that month of wind and taxes,
The wind will presently disappear,
The taxes last us all the year.

Ogden Nash, ‘Thar She Blows,’ Versus (1949)

How spring came to be blighted by reckoning is a mystery we must remind ourselves to investigate, some day. At post-Gutenberg — in the spirit of the season — we have been taking stock of what we have been doing in this space. Here is a capsule history:

In 2011, an unexpected development guaranteed an audience for proposals for new economic structures or ‘business models’ for media organisations – such as the scheme with which this blog began. The British prime minister ordered a judicially supervised public investigation of the practices and culture of the British press, in the wake of a scandal about the widespread, routine hacking by reporters at — chiefly tabloid — newspapers of private communications of targets who included celebrities and prominent public figures, extending all the way up to government ministers and heirs to the throne.

In the prelude to this Leveson Inquiry, supervised by Lord Justice (Sir Brian) Leveson — charged with making recommendations for press reform, if necessary — the Lord Chief Justice at the time, Lord (Igor) Judge, made a historic speech reminding his fellow-citizens that:

‘the liberty of the press is the birthright of every citizen, that is, the community as a whole. It is birthright of the citizen that the press should be independent. It is therefore not a right of one section of the community, not just a sectional right.’

Because traditional media in Britain are unhappy about the competition from citizen journalists and feared that the Leveson Inquiry would lead to government regulation of the press — ending the historic independence of the Fourth Estate — this speech went virtually unreported.

But the LCJ’s theme perfectly fit the reasoning behind a proposal for an inclusive ‘keiretsu-cooperative’ scheme as a gentle transition towards, and possible replacement for, the traditional economic structure for media.

The Leveson hearings, commencing on 15 November 2011, were closely monitored by media round the world. In spite of this interest, for several weeks, the traditional British press virtually boycotted or (very) selectively reported on the Inquiry – as if blind to the unique parade of witnesses that included newspaper proprietors, chief editors, famous columnists, leading politicians and ex-prime ministers and their advisers. Post-Gutenberg.com and INFORRM (The International Forum for Responsible Media Blog) — a site administered from London by a prominent barrister, Hugh Tomlinson — and a scattering of other bloggers, ran analyses and long excerpts from the extraordinary testimony broadcast live and in full by the BBC.

The Inquiry helped to establish post-Gutenberg.com’s focus on:

+ what might be gained from harnessing the greater, international inclusiveness of the internet in various spheres – not just citizen journalism, but regular attention to the cultural traditions, achievements and conversations of large and increasingly important countries, such as China and India; challenging mutual biases against literary taste and conventions in English-speaking cultures on both sides of the Atlantic; contributing to the conversation about literature that can and cannot be translated from other languages successfully with detailed, specific examples.

+ supplying and proposing corrections for biased reporting and analysis by the traditional press – about, for instance, the Snowden leaks, and the subsequent debate about ‘mass surveillance’; and of distortions of the historical record, such as the mistaken assignment to Steve Jobs of credit for the user-friendly technological core of Apple’s well-loved products.

+ drawing attention to the weakening of democracy and cost to society of a proudly partisan press, parts of which feel under no obligation to present opposing views or information that undermines their positions.

+ highlighting examples of successful power-sharing in collaborative and consultative organisations, such as cooperatives – and, in more than one post-Gutenberg.com entry, the inspiration that Switzerland and Swiss institutions provide; as well as suggesting how digital technologies might be used to overcome traditional handicaps of democratic decision-making (slowness; difficulty sharing complex information; quarrelling between members of organisations and groups).

+ non-traditional media organisations and specialists leading and accelerating the pace of the post-Gutenberg revolution – responsible not just the explosive growth of indie e-book and self-publishing, but novel journalistic enterprises operating on schemes closely parallel to the sketch of a keiretsu-cooperative (De Correspondent in the Netherlands, for example.)

+ chatty, informal, often lighthearted commentary on effects and implications of the transition to a post-Gutenberg world – and nods to the spontaneity, intimacy and friendliness of social media, including entries to mark personal experiences of the seasons and religious holidays.

The Guardian’s ‘moderation,’ again – and reader-commenters on newspaper sites correcting the unbalanced coverage of mass surveillance

. 4th Estate moves, Leveson Inquiry . , , , , ,
Nikki de Saint Phalle’s one-tonne L’Ange Protecteur (Guardian Angel): could there be a more perfect emblem of The Guardian’s institutional persona? photograph: Wikimedia Commons

Nikki de Saint Phalle’s one-tonne L’Ange Protecteur (Guardian Angel): could there be a more perfect emblem of The Guardian’s institutional persona?
photograph: Wikimedia Commons

No, we do not dislike The Guardian at post-Gutenberg. It is a newspaper that meets a vital need. With its unstinting support of every vulnerable or marginalised social group – immigrants, same-sex lovers, the transgendered, disabled and poor – it is the single internationally famous old media name backed by a supremely feminine sensibility. It is a sort of zaftig, mammoth-breasted Ur-Mother angel, in spite of being led by a male editor, Alan Rusbridger. We arrived at this thought indirectly, after a male critic of p-G inexplicably characterised as ‘homophilic’** the excellent ProPublica site that has been The Guardian’s co-publisher (with The NY  Times) of Glenn Greenwald’s reports on mass surveillance by governments.

Yes, in our post on that subject last week, we were indeed criticising The Guardian – but for the reason we have in the past, on many occasions. (See ‘Good Guardian, bad Guardian …’) It censors reader comments in the Comment-is-Free section of its web site. Not, as you’d expect a priori, contributions by readers swearing or resorting to scatology, personal attacks or childish insults – most of which are allowed, to support the appearance of encouraging free speech and debate.

All over the net, there are groups of people complaining that The Guardian shuts down too many sharp, well-informed commenters who persistently disagree with certain of its cherished political positions and beliefs, or conventional wisdom that, in its view, should not be challenged. Type such strings as ‘comment moderation censorship Guardian’ into any good search engine from time to time, and you will find intelligent folk who write clearly and grammatically but are opposed to vaccinating children; do not believe that global warming is an actual phenomenon; or support Israel and have some objection to Palestinians.

Whatever the demerits of those stances might be, we believe that to support its boasts about fostering free expression, The Guardian should leave the job of opposing or condemning them to other reader-commenters.Its heavy-handed Mother Knows Best interventions are dismaying enough in these cases, but disgraceful when it deletes comments by — and sometimes bans — writers of posts that expose weaknesses in the research or arguments of its reporters and writers. (See ‘Should ordinary citizens be shut out of the debate about the media’s future?’)  As we said last week, the most disturbing instances of such censorship virtually shut down reader commentary on the Leveson Inquiry into press ethics, practices and behaviour. (See: ‘Why is The Guardian censoring debate about press reform and ignoring the Lord Chief Justice’s endorsement of citizen journalism?‘)

Interference with comments on the Leveson Inquiry on other newspaper sites, too, could partially account for the public’s low opinion of the press. The latest post on INFORRM (International Forum for Responsible Media) notes:

The […] anti-corruption NGO Transparency International, which publishes a Global Corruption Barometer every year […] asked 114,000 people in 107 countries which of 12 institutions in their countries they considered most corrupt.

Only in Britain, Egypt and Australia did the media top the table of perceived corruption. In Britain 69 per cent of respondents said the media were the most corrupt, up from 39 per cent three years ago.

Anyone scrolling through the archive for this blog can see that p-G is politically neutral. So there is a vanishingly small risk of being identified with raving on the political right when we say that most of the press coverage of the understandable rage about mass surveillance by governments is so one-sided that a space alien might conclude, first, that ‘special intelligence’ from spying is devoid of all value; secondly, that the west no longer has any enemies that need watching.

We are just as alarmed by the deadly possibilities of government spying – by our own or hostile foreign authorities — being used to control us. Stores of information, once they are gathered, can acquire new owners.

Unfortunately, good intelligence is one key to strong defence. The library of books dedicated to this subject would be immense. When we tried looking up the role of spies in Spanish conquests of the Americas, a dim memory, possibly from Jared Diamond’s Guns, Germs and Steel, we stumbled on a fascinating account by Zhenja La Rosa of human beings actually kidnapped as military intelligence tools.  Extract from ‘Language and Empire’:

The Spanish presence in America got its authority from language acts, such as that of taking possession and naming; it derived part of its military advantage through the control of interpreters, and therefore, of information; … Columbus […] initiated the practice of kidnapping natives to serve as interpreters for the Spanish conquistadors. Interpreters were an indispensable instrument in the military conquest of the Americas. […] As stated in Columbus’s record of the first encounter with the natives in the Caribbean, one of the first things Columbus did was “take” six of them in order to teach them Spanish. […] Greenblatt comments that: ‘The radically unequal distribution of power that lies at the heart of almost all language learning in the New World is most perfectly realized in the explorers’ preferred method for dealing with the language problem… From the very first day in 1492, the principal means chosen by the Europeans to establish linguistic contact was kidnapping.’

Nasty, indeed. … We recommend reading the one objective consideration of mass surveillance we have so far found in old media  — in a Canadian magazine, Maclean’s, posing the essential question: how and where do we draw the line on surveillance?

… Otherwise, in our usual haunts, we have found only reader-commenters supplying the essential balance to press coverage on this subject. A sample:

(from a reader of The Economist):

CA-Oxonian

Aug 15th, 16:09

Obama’s problem is purely political: if he reduces in any way the current measures and if some terrorist incident occurs that claims the lives of US citizens, then as sure as night follows day the Republicans will crucify him for sacrificing American lives on the altar of “liberal” values. Although there may be no plausible connection between an actual terrorist incident and the extraordinary intrusions of the NSA, such a link would undoubtedly be made by political opponents. So to keep himself safe (if not the rest of us) Obama will maintain the Bush-era over-reach and in the spirit of McCarthyism yet more of the Constitution’s supposedly guaranteed freedoms will be lost. But who cares so long as iStuff is available, movies on demand are cheap, and McDonalds continues to churn out its gut-busting fare?

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** post-Gutenberg made a curious mistake in transcribing this single word from our lively critic’s email. He actually used the word ‘homophily’ — and, in the comments section below, explains that ‘homophilic’ means something else altogether.  Read our brief exchange for proof of how much we enjoyed what we learnt from our inadvertent sloppiness. … The error makes no difference to what we say about The Guardian. Thanks to A. A. for sparking a conscious realisation of where on the gender spectrum we have always placed the newspaper.

 

How Lord Justice #Leveson let down everyone who cares about the practice of journalism ‘without fear or favour’

. 4th Estate moves, Leveson hearings, Leveson Inquiry . , , , ,
Partisan press = blinkered view + distorted facts photograph: postgutenberg@gmail.com

Partisan press = blinkered vision + distorted facts
Reichenau Island, 2011, by postgutenberg@gmail.com

A few days ago, The New York Times columnist David Brooks, arguing from first principles, made the case against a partisan press incontrovertibly. Like all the best essayists, he did this by also constructing the best possible case for the opposing side, listing all the disadvantages of detachment.

That was not long after a Leeds scholar, Paul Wragg – speaking at a workshop of Oxford’s Foundation for Law, Justice and Society on the 12th of April –  expressed his dismay at Lord Justice Leveson’s failure, in his report, to explain or justify adequately his support of press partisanship. This, said Wragg, was inconsistent with the judge’s own repeated reminders of his mission — to find ways to stop the  ‘real harm caused to real people’ resulting from the ‘cultural indifference to individual privacy and dignity’ on the part of the British press.

This blog’s worst fears for the Leveson Inquiry into press ethics and behaviour were expressed in a headline last May:

‘Will Leveson end blessing press partisanship and slamming the brakes on the rise of new media and the 5th estate?’

We had not quite given up hope before our earlier blog entry on the same subject, in February, when we had begun to sense — but not believe — the drift of the judge’s sentiments on partisanship, from his remarks during the hearings:

‘Leveson hearings: can a “blind and unreasoning” or partisan press censoring citizen-journalists be good for democracy?‘

We are dismayed by the proof that our pessimism was so fully justified. At the Inquiry’s inception, a speech by the Lord Chief Justice – who selected Leveson LJ for the job – had given us every reason to hope for a diametrically opposite outcome:

‘Why is The Guardian censoring debate about press reform and ignoring the Lord Chief Justice’s endorsement of citizen journalism?‘

Everyone should have a chance to weigh what David Brooks said about the virtues of detachment – of non-partisan journalism:

… The detached writer also starts with a worldview. If you don’t have a philosophic worldview, your essays won’t even rise to the status of being wrong. They won’t be anything.

But the detached writer wants to be a few steps away from the partisans. She is progressive but not Democratic, conservative but not Republican. She fears the team mentality will blinker her views. She wants to remain mentally independent because she sees politics as a competition between partial truths, and she wants the liberty to find the proper balance between them, issue by issue.

The detached writer believes that writing is more like teaching than activism. Her essays are generally not about winning short-term influence. (Realistically, how many times can an outside writer shape the short-term strategies of the insider politicians?) She would rather have an impact upstream, shaping people’s perceptions of underlying reality and hoping that she can provide a context in which other people can think. She sometimes gets passionate about her views, but she distrusts her passions. She takes notes with emotion, but aims to write with a regulated sobriety.

There are trade-offs, no matter what spot on the continuum you ultimately choose. The engaged writer enjoys a tight community and a powerful sense of commitment. The detached writer enjoys more freedom and objectivity. The engaged writer emphasizes loyalty, while the detached writer emphasizes honesty. At his worst, the engaged writer slips into rabid extremism and simple-minded brutalism. At her worst, the detached writer slips into a sanguine, pox-on-all-your-houses complacency and an unearned sense of superiority. The engaged writer might become predictable. The detached writer might become irrelevant, ignored at both ends.

These days most writers land on the engaged side of the continuum. Look at most think tanks. They used to look like detached quasi universities; now some are more like rapid response teams for their partisan masters. If you ever want to get a political appointment, you have to be engaged, working on political campaigns and serving the team.

But I would still urge you to slide over toward the detached side of the scale. First, there is the matter of mental hygiene. You may think you can become a political partisan without becoming rigid and stale, and we all know people who achieve this, but the risk is high.

Engaged writers gravitate toward topics where they can do the most damage to the other side. These are topics where the battle lines are clearly drawn, not topics where there is a great deal of uncertainty. Engaged writers develop a talent for muzzle velocity, not curiosity. Just as in life, our manners end up dictating our morals. So, in writing our prose, styles end up shaping our mentalities. If you write in a way that suggests combative certitude, you may gradually smother the inner chaos that will be the source of lifelong freshness and creativity.

Also, detached writers have more realistic goals. Detached writers generally understand that they are not going to succeed in telling people what to think. It is enough to prod people to think …

[ … Read the whole column here … ]