Trying to count posts on the web is like trying to number grains of sand on a beach. In June 2012, a data management company called Domo attempted the fool’s errand nevertheless. It calculated that, every minute, the then 2.1 billion users uploaded 48 hours of YouTube video, shared 684,478 pieces of content on Facebook, published 27,778 new posts on Tumblr and sent about 100,000 tweets.
Its figures were not exhaustive and they were out of date in an instant, but for a moment they captured the explosion of self-expression the net has brought. As the European Court’s demand that Google hide writing that breaks no law shows, technological change has made finding a way to defend freedom of speech, while protecting the rights of the unjustly maligned, one of the great democratic challenges of our time.
Nowhere more so than in Britain. If you deny yourself the pleasure of browsing the celeb press, you may not heard of James Stunt. He is the husband of the Formula 1 heiress Petra Ecclestone. He cuts a swanky figure as he purrs around Mayfair in his Phantom Mansory Conquistador — a luxuriously adapted Rolls-Royce which looks like a well-upholstered Humvee. A convoy of security guards follows behind, whether Stunt is leaving his £32 million home in Belgravia or his LA mansion, which comes with a bombproof anti-terror room, parking for 100 cars, and a whole floor devoted to housing his wife’s frocks.
The Stunts are conspicuous consumers by any measure. James Stunt does not like being conspicuous in the press, however. In February, the Mail on Sunday asked whether he was a billionaire in his own right, or merely because he had secured the hand of Petra and with it the lavish trust fund her father had given her. It hired the freelance financial journalist Dominic Prince to go to Companies House. Prince reported that most of Stunt’s companies appeared to be dead or dormant. Olswang, an expensive firm of London solicitors, threatened the paper with injunctions and did the same to the Daily Mail when it picked up the story.
Maybe the newspapers had their facts wrong. Granted, if Stunt wants to sue, he should consider suing his father-in-law too. Bernie Ecclestone told the Mail that before the marriage ‘We checked James out and he wasn’t a billionaire.’ Despite the unhelpful intervention from his family, Stunt may still have a case. I won’t pretend that I care either way.
The defence of a free society is worth giving a damn about, however. The lawyers at Olswang are not bringing a standard case against a news organisation, but personally threatening Prince with actions for harassment, invasion of privacy and breach of the Data Protection Act. Stunt has the money to go ahead on all three fronts. Even though the Mail on Sunday is standing by their journalist, the threats against him have caused outrage. Private Eye is campaigning on Prince’s behalf, and it is easy to see why. If the lawyers’ new tactic of holding journalists personally liable catches on, who will want to investigate rich and litigious men and institutions? Increasingly impoverished newspapers and broadcasters may not stand by freelancers they are under no obligation to defend. The way media finances are going, they may not stand by staff either. A chill will then fall on investigative journalism. Reporters will wonder if they can risk losing what savings they possess and conclude that it is safer to write about Kim Kardashian or the weather.
The web has turned everyone into a potential journalist. Professional reporters are merely falling into the same exposed position as the millions tweeting, posting and blogging online: becoming as easy to intimidate as an activist typing on a tablet on his kitchen table.
In theory, the government has responded well to the democratisation of publishing. Those who fall into easy cynicism, and say that a crooked political class rigs the system to suit its friends, should examine the Defamation Act of 2013. Public-spirited politicians from all parties gave new defences to writers and allowed courts to throw out claims from vengeful litigants who had suffered no serious harm. But the coalition sidelined the urgent issue of money. An investigative journalist, or a blogger with an important story to tell, can spend tens of thousands just on lawyers’ letters and consultations. If the case goes to trial, Oxford University found the cost of defending a libel claim in an English court was up to 140 times higher than the European average.
Only very rich or very brave publishers will risk facing cost orders of £1 million or more if they defend what they have written and lose. The web has allowed mass publishing. But the law continues to impose a money bar on justice.
Two years ago, the coalition appeared ready to tear the bar down. When he was justice minister, the Liberal Democrat peer Lord McNally was discussing whether to ensure that the economical county courts heard most libel cases. They already hear most demands for compensation for damage to property; they should decide on damage to reputation too. But McNally left the Justice Ministry. Lord Faulks — a QC, I can’t help but notice — replaced him. Lord Lester, a great liberal proponent of justice for all, asked what had happened to the plan to cut the cost of justice. The coalition was ‘still considering the way forward’, Faulks replied.
The government’s dawdling is intolerable. There is no such thing as ‘the press’ any more. Everyone who blogs, tweets and posts, and everyone who is blogged, tweeted and posted about, needs a fair and above all cheap method of settling disputes. Freedom of speech is a fundamental right because other rights depend on the citizen’s ability to argue without coercive constraints.
The way to protect it in the 21st century is to understand that justice is not merely a system designed to provide fees for libel silks and Olswang’s partners. Access to it should not depend on whether you are a rich Stunt.