Don't put a gag on the public interest

In a much, much smaller way, I have some idea of what Lord McAlpine, the former Conservative Party treasurer falsely accused of paedophilia, has been through.

For more than a year, a potentially devastating allegation about me has circulated in the wonderful world of blogs and Twitter: that, while working for my previous employer, the London Evening Standard, I hacked into someone’s private emails – à la News of the World – for a story.

If true, it would be a career-killing claim, perhaps even a newspaper-killing claim, not to mention a crime. Last week, a High Court judge dismissed it as “without any basis in logic or fact”, calling it “an attempt at extortion”.

Yet, unlike Lord McAlpine, I will be picking up no damages, apologies or compensation. None of the people who gleefully circulated the false allegation online need fear a letter from my lawyers. Instead, my then employers at the Evening Standard will have to pay at least £80,000, possibly £200,000, for the privilege of clearing their name and mine. Welcome to the wacky world of British media law.

In the week that Lord Justice Leveson delivers a report expected to claim that the press needs more laws to clip its wings, the case of Peter Abbey v Andrew Gilligan and Associated Newspapers is a useful reminder of the true, rather more complicated, position.

There is no shortage of laws about the press in Britain. Newspapers are already subject to “statutory regulation”, in the sense that there are more than 80 statutes, Acts of Parliament, that affect us. It’s how the law works that’s the problem.

Tiny parts of the British press have indeed done terrible things, but have until recently been allowed to get away with them. Hacking, harassment and telling defamatory lies about people was, is, and always has been against the law – but the law, all too often, was not enforced, or it was too difficult for victims to assert their rights.

Yet, at the same time, the entire British press has been impeded from doing responsible, public-interest journalism by some of the most onerous legal restrictions on free expression in any Western democracy. These laws, by contrast, are enforced, and are getting more and more burdensome. My case is a good example.

The person who brought it, Peter Abbey, is an upmarket Arthur Daley, a man who for the past 30 years has left behind him a long trail of business failures, bankruptcies, County Court judgments and unpaid bills. In 2007, bizarrely enough, Abbey was effectively running a company called the Complete Leisure Group (CLG), which controlled the commercial interests and image rights of the head of the London Olympics, Lord Coe.

In September 2007, in the Standard, I published extracts from a series of emails in which Mr Abbey admitted that Complete Leisure Group had “p-----d away” £400,000 of Lord Coe’s money, that its auditors were refusing to sign off its accounts, and that the directors (including Coe) were being threatened with criminal prosecution for failing to file those accounts. Some of the emails were copied to Lord Coe’s Olympic-funded personal assistant at Locog, Susie Black, who had a CLG email address – casting doubt on Locog’s claims that Coe kept his commercial money‑making interests strictly “ring-fenced” from his public duties. Lord Coe, however, maintained there was nothing improper in the arrangement.

The first that several of CLG’s investors knew of all these difficulties was when they read about them in my article. The company subsequently lost many of those investors a great deal of money. Happily, however, it is now about to make Lord Coe himself a very rich man indeed – with a reported sale of CLG to Chime Group for £12 million. (Neither Coe nor CLG were a party to Abbey’s legal action and the judge made no findings or observations against them.)

Mr Abbey declined the opportunity to comment before publication, and didn’t make so much as a phone call of complaint afterwards. We heard nothing at all from him, in fact, for almost four years.

Then, in August 2011 – just as the hacking scandal was reaching its climax – Peter Abbey heard the tinkle of the cash register. He issued a writ accusing me of hacking the emails, claiming they were a breach of his privacy, threatening to call in the police and demanding £100,000. The bonus, for him, was that court documents are privileged: anyone could now report his claims without fear of libel.

As even Abbey accepted, months before the case came to trial, I didn’t hack the emails. They were leaked by a confidential source. Nor were they private to him: the ones we published contained nothing about his personal life, personal finances or family. Even if they were held to be private, the story they revealed was clearly a matter of public interest. The judge agreed with us, dismissing the claim on every point.

Abbey denied that he was motivated by damages. In our opinion, however, he calculated that the very mention of the H-word in the post-News of the World climate would scare us enough to pay him off. Mr Justice Tugendhat agreed there, too. As he put it: “What is troubling here is that Mr Abbey repeatedly alleged that the Defendants had committed criminal offences which are serious […] but in circumstances where there was no evidence to support those allegations.

“I find that this was an attempt at extortion, and that it was an abuse of the process of the court to attempt to obtain settlement of this claim by that means.”

The judgment was everything we could have wanted. But it took 16 months, a great deal of time that could have been spent doing journalism – and £200,000 of Associated Newspapers’ money for our excellent lawyers (we hope to get £120,000 of this back from insurance). Peter Abbey, meanwhile, was on a “no-win, no-fee” deal with his solicitors, PSB Law – so even if he lost, he risked absolutely nothing. And if he won, his solicitors, PSB, would have claimed costs and “success fees”, taking our bill over the half-a-million mark.

In the witness box, Mr Abbey seemed to suggest that it was in fact PSB, not him, who were driving things. He said, on oath, that the letters written to us by PSB differed in a number of important respects from the instructions that he had given them. The judge made no finding about PSB, and the firm itself yesterday said it could not discuss the point for client confidentiality reasons. But as Mr Justice Tugendhat observed: “Objectively, it does appear that the only people who stand to gain from this litigation to any material extent are the lawyers representing Mr Abbey.”

Abbey v Gilligan is an extreme example of the growth there has been in libel and privacy claims from chancers trying their luck and lawyers seeking a payday. For liberal opinion, until the News of the World scandal broke, this growth was a major concern. Now, however, those same liberals appear to be lining up behind a new Leveson-favoured press regulator that will give those chancers and those lawyers yet more opportunities to hassle journalists.

Tough, some may say. The ghastly antics of the tabloids mean we deserve it. But regulation often fails consumers, too. Britain is stuffed full of useless, ineffectual regulators that impose significant burdens on those they regulate without doing much to serve the public interest.

The railways were not regulated until the Nineties. Now they are. Can anyone truthfully say that they treat customers fairly, are good value for money, or are more esteemed than they were by the public? Care homes and hospitals are regulated. But horrendous abuses, including literally hundreds of deaths, have taken place in hospitals given satisfactory or good reports by the regulator, the Care Quality Commission. Abuses, indeed, tend to be exposed not by the CQC but by the media.

And those are in many ways easier areas to regulate than journalism. Everyone broadly agrees what constitutes a good hospital, school or train service. There is much more disagreement about what constitutes good journalism. For the supporters of Ken Livingstone, the former mayor of London, my stories revealing the scandals of his inner circle were, and remain to this day, textbook smears. For my peers, who gave me the top award in the profession for them, they were the best reporting of that year.

Almost any worthwhile piece of investigative journalism, including the hacking story itself, is denied, disputed and denounced. But just because a story is disputed does not mean that it is untrue. The essence of journalism, indeed, is dispute, and often confrontation. The idea, voiced by Lord Leveson himself, that a regulator should aim to satisfy all parties is a nonsense.

In the end, no doubt, I would have won any complaint that Mr Livingstone brought to some regulator. He has never been able to identify a single specific thing in the stories that was untrue. But, as Abbey v Gilligan shows, the very act of challenge makes our work far more onerous and time-consuming, even if the eventual outcome is in our favour.

Almost all investigative journalism involves an assessment of the balance between risk and reward. By raising the risk – if only the risk of time-consuming arguments with a regulator – that balance is tipped further away from journalism, particularly on marginal stories and particularly when newspaper resources are stretched anyway.

The cost and time of Abbey v Gilligan was out of all proportion to the wrong that even Peter Abbey claimed had been done to him. The scale of the Leveson Inquiry, with its months of work and its panoplies of expensive lawyers, has been equally out of proportion with the scale of the wrongdoing it has exposed. It is hard to understand why the actions of some journalists on some tabloid newspapers have been deemed worthier of a full-scale inquiry under oath than, for instance, the banking scandal, which objectively affected far more people and whose consequences are of far greater concern to the public.

What the News of the World did was indeed a scandal – but it was a relatively second-order scandal, involving a very small number of journalists. The danger, when Lord Leveson reports, is that his proposed “remedy” – for the entire profession, not just the wrongdoers – will be every bit as disproportionate as his inquiry has been.