Freedom of Expression

Libel Trial against Investigative Journalist Concludes Before the High Court: A Landmark Test of the Public Interest Defence

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Carole Cadwalladr speaks at TED2019: Bigger Than Us (April 15 – 19, 2019, Vancouver, BC, Canada) Photo: Marla Aufmuth via Flickr

By Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 14 January 2022, a high-profile libel trial began before Mrs Justice Steyn at the Royal Courts of Justice in London. The British businessman Arron Banks sued investigative journalist Carole Cadwalladr for libel. Mr. Banks is an outspoken backer of Brexit. Ms Cadwalladr is an award-winning journalist who writes for the Guardian and Observer in the United Kingdom. She is particularly known for her work in uncovering the Cambridge Analytica scandal.

The case arose out of remarks in a Ted Technology Conference titled ‘Facebook’s role in Brexit – and the threat to democracy’ given by Ms Cadwalladr in April 2019, and a related Tweet. In the course of the Ted talk, which centred on the UK’s 2016 vote to leave the European Union, she said: “And I am not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian Government”.

Arron Banks has always strongly denied any illegal Russian links, but he has admitted meeting Russian embassy officials on a number of occasions. Although his Leave.EU campaign was fined GBP 70,000 over multiple breaches of electoral law, the National Crime Agency’s investigation found no evidence of criminal activity.

Proceedings were issued on 12 July 2019. In a preliminary ruling on the meaning of Ms Cadwalladr’s words, Mr. Justice Saini held on 12 December 2019 that an average ordinary listener would have understood her words to mean: “On more than one occasion Mr. Banks told untruths about a secret relationship he had with the Russian Government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding.”

Mr. Banks maintained in his legal claim that the threshold of ‘serious harm’ under section 1 of the Defamation Act 2013 had been met in terms of damage to his reputation. Ms. Cadwalladr stated that this was not the meaning she had intended and that she had always taken care to say there was no evidence to suggest Banks had accepted any money. She originally pleaded the defence of ‘Truth’ under section 2 of the 2013 Act but, after Mr. Justice Saini handed out his ruling on the meaning her statement bore, Ms. Cadwalladr withdrew this defence in November 2020. She is now relying on the defence of ‘Publication on a matter of public interest’ under section 4 of the Act.

The defence under section 4 reflects principles established by previous case- law. It consists of two elements: Section 4(1)(a) requires that the words complained of were (or formed part of) a statement on a matter of public interest, and if the publication in question passes this test, then it also needs to meet the requirement of section 4(1)(b), which contains objective and subjective components.

The subjective component is that the defendant must believe the publication was in the public interest and the objective component is the question of whether it was reasonable for the defendant to hold that belief. Section 4(2) of the 2013 Act requires in particular that, in determining these matters, the court ‘must have regard to all the circumstances of the case’.

Thus, the central issue at this trial is likely to be whether it was reasonable for Ms. Cadwalladr to believe that the publication of her statements was in the public interest. The court will also look at the content and subject of the allegations, and the way the journalist acted in researching and reporting them. If Ms. Cadwalladr loses, she faces legal costs of up to GBP 1 million on top of damages.

In a piece published by Open Democracy, Ms. Cadwalladr stated: “Right now, we can’t police the money spent in our elections: this is a massive problem for our democracy. Facebook is unregulated and our electoral laws are still hopelessly unenforceable. There was (and still is) a huge public interest in journalists raising these issues – both as a warning for us here in Britain, and for countries everywhere”.

An interesting aspect of this case is that Arron Banks sued neither the Guardian Media Group which published Ms. Cadwalladr’s reporting for years nor TED which hosted her talk (or other large media outlets which made similar allegations). Instead, he chose to sue Cadwalladr personally. Press freedom groups have called for the case to be thrown out and described it as bearing many of the elements of a so-called SLAPP lawsuit – Strategic Litigation Against Public Participation. A key characteristic of such types of actions is the disparity of power between the claimant and the defendant.

The case has renewed calls for the UK Government to ensure that SLAPPs are not used to silence legitimate criticism and stifle any public interest reporting. Action to combat the emergence and growth of abusing litigation targeting journalists throughout the EU and ensure convergence in Member States’ approaches to SLAPPs is currently being considered at the EU level.

The Banks v Cadwalladr trial was heard over five days and judgment was reserved. The case has been followed closely by several investigative reporters. The Reporters Without Frontiers emphasised in particular that “the ruling will have serious implications for journalism not only in the UK, but internationally, given the popularity of London courts as a jurisdiction for such suits, and highlights the need for greater protections for journalists facing legal threats”.

This article was first published on the IRIS Merlin database of the European Audiovisual Observatory and is reproduced on the ELR Blog with permission and thanks.

New Socio-Legal Research on Harmful Gender Stereotypes in Advertising

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Photo by Joshua Earle

Dr. Alexandros Antoniou and Dr. Dimitris Akrivos, Lecturers in Media Law, University of Essex

A year after the introduction of the UK Advertising Standards Authority’s (ASA) new rule on gender stereotyping, a new study evaluates the regulator’s approach to depictions of harmful gender stereotypes in advertisements.

Dr Alexandros Antoniou and Dr Dimitris Akrivos from the School of Law are the authors of ‘Gender portrayals in advertising: stereotypes, inclusive marketing and regulation’. Their study, which was recently published in the Journal of Media Law, a leading journal in the field, offers an in-depth socio-legal analysis of the ASA’s modern practice which systematises for the first time the regulator’s rulings in the field of gender stereotyping.

For a long time, academic research has highlighted the impact gender stereotypical advertising images can have on people’s aspirations, professional performance and mental well-being. In response to long-standing concerns around the matter, the ASA introduced in June 2019 a new advertising rule and guidance into its harm and offensiveness framework. The new rule, which came into effect on 14 June 2019, states: ‘Advertisements must not include gender stereotypes that are likely to cause harm, or serious or widespread offence’. Academic discussion has not until now queried whether the actions taken by the ASA constitute a satisfactory response to the problem.

Dr. Antoniou and Dr. Akrivos had previously analysed on the International Forum for Responsible Media Blog the first ads to be banned under the new ASA gender-stereotyping rules, including the Volkswagen’s ad, which promoted the manufacturer’s eGolf model and the TV commercial promoting the Philadelphia cream cheese.

Their new article brings a new perspective in the ASA’s approach by paying close attention to the complex structure of gender stereotypes and the interaction between their multiple components. More specifically, Dr Antoniou and Dr Akrivos’ research looks at how the ASA has dealt with different forms of gender stereotyping, including sexualisation and objectification; body image; gender roles, behaviours and characteristics; and the ridiculing of those who do not conform to gender norms.

The authors argue that, although the ASA’s new rule and guidelines constitute a step in the right direction, they represent a missed opportunity to take bolder action against ads that objectify or inappropriately sexualise individuals. Dr Antoniou and Dr Akrivos stated: “the new ASA guiding principles need to be revisited in order to go beyond the traditional male/female binary”. They recommend that the new guidance on gender representation in marketing communications needs to reflect the multi-faceted nature and fluidity of modern gender identities. “We propose the introduction of a new concept requiring advertisers to give ‘due weight and consideration’ to the diversity of modern masculinities and femininities”.

The University of Essex’s press release on the study can be found here. The research also featured in an article on the global marketing magazine Campaign and a piece on the LGBTQ magazine GScene.

Tackling Online Hate Speech in France – Quo Vadis?

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The main entrance of the French Constitutional Council, Palais-Royal, Paris, France (source: Wikipedia Commons)

Dr Clotilde Pegorier, Lecturer in Law, University of Essex

Note: the hyperlinks to the relevant webpages are in their original languages – French and German.

On 13 May 2020, the French Parliament passed a new bill geared to combatting online hate speech. Disputed from the outset, the bill was, on 18 June 2020, subsequently ruled by the Conseil constitutionnel – the Court that reviews legislation to ensure compliance with the French Constitution – to be partially, even largely, unconstitutional. Indeed, the ruling effectively quashed seven of the bill’s provisions, and made substantial amendments to several others, notably paragraphs I and II of Article 1. Small wonder that Bruno Retailleau, Vendéan Senator and president of ‘Les Républicains’, spoke of the ruling – in fitting French manner – as having “totally decapitated” the bill.

What is afoot here? And what does this mean for the French government’s efforts to regulate online content?

What was in the Original Bill?

Before reviewing the Conseil constitutionnel ruling, let us first consider the rationale and content of the original bill.

Named for its main sponsor, MP Laetitia Avia of Emmanuel Macron’s ‘La République en Marche’ party, the law was largely inspired by the German Netzwerkdurchsetzungsgesetz (NetzDG), which came into effect in October 2018 and which foresees significant fines for online platforms that do not remove “manifestly illicit” content within a stipulated timeframe of 24 hours after it being reported.

The ‘Loi Avia’ was designed in the light of the NetzDG to update the current legislative framework supplied by the Law on Confidence in the Digital Economy (Loi pour la confiance dans l’économie numérique, LCEN) of 2004, notably by reinforcing the contribution of digital providers and platforms to the struggle against online hate. Its central provision, set out in Article 1, was to command online platforms falling under the purview of the bill “to render inaccessible, within 24 hours of notification by one or more persons, any content manifestly constituting of the offences” stipulated in this and other laws – that is, content that violates France’s hate speech provisions. According to the bill, platforms were also obliged to adopt “appropriate resources to prevent the redistribution” of content deemed manifestly illegal (article 2). The scope of the law was to extend to “operators of online platforms […] offering an online public communication service based on connecting multiple parties for the purpose of sharing public content or based on classifying or referencing content by means of computer algorithms, which is offered or placed online by third parties, where this activity on French territory exceeds a threshold, determined by decree” (article 1). Where, precisely, this threshold lay was to be decided subsequently. Notably, the bill covered social media platforms and search engines, but not internet service providers. Failure to comply with the new law would incur a criminal fine of up to 250’000 euros for individuals and 1’250’000 euros for corporations. In addition, an administrative penalty of up to 20 million euros or 4% of a company’s global annual turnover could be imposed for “serious and recurrent” failures.

The Process of Adoption

It is worth reflecting for a moment on the particular process by which the bill was first adopted. In May 2019, the Government decided to apply the ‘procedure accelerée’ (accelerated procedure) foreseen in Article 45 of the French Constitution. This decrees that, after a reading by each of the two chambers of Parliament – the Assemblée nationale (roughly equivalent to the House of Commons) and the Sénat (House of Lords) – and in the case of no agreement being reached on a common text, the Prime Minister or the Presidents of the two Houses can convene a joint committee, comprising equal members from each House, to propose a compromise text on debated issues. This is what occurred here: the two parliamentary chambers could not find an accord on the text of the bill and a commission was constituted. This failed, however, to yield a compromise text acceptable to both sides, and so the ‘normal’ legislative procedure resumed – the original text as amended and adopted by the Sénat went back to the Assemblée nationale, which made its own modifications, and this new text was then returned to the Sénat for further amendment.

As the process stalled in this back and forth between the chambers, the Government eventually decided to give a final reading before the Assemblée nationale – again in line with constitutional provisions – and the bill was adopted in May 2020. All of which is to say that, as a consequence of such wrangling, the bill was passed only by one of the two parliamentary chambers, albeit it the more ‘democratic’ one. Given the nature of the bill, and the current “state of health emergency” in place in France, one can readily question how well- or ill-advised this move was on the part of the Government. What seems clear, though, is that it lent an air of almost inevitability to subsequent challenge and dispute. Following adoption, on 18 May, 60 members of the senate submitted an appeal to the Conseil constitutionnel to contest the constitutionality of the bill.

The Conseil Constitutionnel Ruling

The arguments put forward by the challengers to the bill – and those upheld by the Conseil constitutionnel – were, unsurprisingly, connected to the matter of legitimate and illegitimate restrictions to freedom of expression. Unsurprising, as these concerns were already at the forefront of jurisprudential and public debates and discussions during the bill’s drafting.

Citing the 1789 “Declaration of the Rights of Man and of the Citizen”, the Conseil constitutionnel determined in its ruling that both Paragraph 1 (demanding the removal of content relating to terrorism and child pornography within the hour) and Paragraph 2 (requiring the removal of hateful content within 24 hours) of Article 1 constitute an “infringement on the exercise of freedom of expression and communication that is unnecessary, inappropriate and disproportionate”. The follow-through from this determination on Article 1 was to render an entire raft of subsequent provisions unconstitutional. The removal window in both scenarios was, the council held, “particularly brief”, and the severity of the proposed sanctions would “only incite online platform operators to remove flagged content, whether obviously unlawful or not,” especially in the absence of specific cause that exonerates from responsibility. With no judicial intervention foreseen, it would be for platform administrators (as private actors) to determine whether or not particular content is unlawful – a situation that would, in the verdict of the council, likely encourage an excessively censorious approach and the removal of materials that are in fact lawful.

What remains of the bill after the ruling is modest. Perhaps most notable is the acceptance of a proposal to create an official online hate speech watchdog (article 16). While by no means inconsequential, this and other minor provisions represent a meagre return when set in the context of the bill’s ambitious aim to overhaul the legislative landscape for dealing with online hate speech.

And Now? 

So where does this leave the government’s efforts to police online content? Clearly, this is a substantial setback. While the bill was officially enacted, the ruling of the council stripped it of almost all meaningful impact.  If not quite in tatters, the government’s strategy is tarnished, and there is obvious need for a rethink. Not that there is any sign of submission – in a statement following the ruling, Laetitia Avia vowed not to give up the fight, and asserted that the judgement offered a “roadmap to improve a plan that we knew to be unprecedented and therefore perfectible.” Thus the show will go on. But the implications of the ruling should not be downplayed. These may also extend beyond national borders – the government had hoped that the new bill might provide a template for the European Commission’s Digital Services Act, scheduled to be put forward by the end of the year. The Commission said that it “took note” of the council’s ruling.  

Both of itself and as part of France’s extended efforts to regulate speech across diverse contexts, this recent chapter is variously revealing of the idiosyncrasies of our jurisprudence and constitutional arrangements, of the relationship the French state maintains with its citizens, and of its approach to balancing free speech with anti-discrimination concerns and the fight against harmful content  (which differs markedly from the US, for example). It has also proved another flashpoint in ongoing debates on possible limits to freedom of expression and the dilemma of hate speech. That this is a fraught and thorny issue barely needs restating. Nor does its importance. The question of where to set the line between permissible and impermissible speech is contentious, daunting and potentially confusing – most reflective minds would probably admit to being pulled in different directions at different times and in different contexts. Just as we bristle at attempts to muzzle freedom of expression, so we do at the harms caused by hateful speech. Marking that boundary was, is, and will likely always remain, a tightrope walk. How the French government opts to move forward in the coming months will be an interesting watch.