13:07, February 24 229 0 theguardian.com

2018-02-24 13:07:03
We need a special court for free speech, delivering justice for all

In the 21st century, everyone can be a journalist and everyone can be a victim of journalism. Debates about free speech are fierce because millions now feel the urgency of questions that were once rarely aired outside publishers’ offices. All it takes is a mobile phone and a social media account for a citizen to become a serious commentator explaining the misconceptions of Brexit, an investigative journalist showing how power corrupts, a jeering tabloid thug on Twitter or a pornographer humiliating his ex with revenge porn.

In a country governed by the rule of law, the explosion in disputes ought to be the business of the courts. Yet our courts still operate as if the web had never been invented. The law is an irrelevance to all but a minority because the risks of going to court are out of all proportion to the benefit of protecting your words from those who would censor them or protecting your good name from those who would destroy it.

Two cases last week make my argument for me. The high court awarded Shakir Ali and Shahida Aslam £10,000 apiece after the Channel 5 reality series Can’t Pay? We’ll Take It Away! showed them being evicted for non-payment of rent. As Mr Justice Arnold noted, Channel 5 made no attempt to look at the rights and wrongs of evicting people from their homes. Its cameras just went in with the bailiffs.

They “recorded videos with abusive, dirty ,disrespectful shouting commentary”, Mrs Aslam complained. Mr Ali appears in a vest and pyjama bottoms. There are shots of their bedroom and their children’s rooms. Inevitably, their children were ridiculed at school after the show was broadcast.

Channel 5 was so keen to revel in the poverty porn it missed the story that Ali was a former official with the British branch of Nawaz Sharif’s Pakistan Muslim League and, as such, had once been a figure of some consequence in Asian Britain before his health failed.

I can see why the judge found the show voyeuristic. But I’ve more sympathy for tabloid journalists than most people of my class. At least Channel 5 shows the miseries of life at the bottom of the pile.

Or take the case of the standup Louise Reay, whose husband is suing her for libel because she used details of their marriage break-up in her act. I instinctively believe the law should allow artists, and the rest of us, the freedom to say as much as possible. But a wife denigrating her ex on stage can just as easily be seen as a version of revenge porn.

We can argue if you wish about the rights and wrongs of both cases, but for the overwhelming majority of people our debates would be a waste of breath. The laws of libel and privacy are vastly expensive and the manoeuvres needed to navigate them astonishingly complicated. The law is not for the likes of them.

Channel 5 would not say how much the case cost. Robin Shaw, whose years as Private Eye’s solicitor have so toughened his skin that nothing the English law does can shock him, estimated it would be between £300,000 and £500,000. All this for a privacy action that resulted in damages of just £20,000.

Reay has launched a crowd-fund appeal to fight the libel case against her. Good luck with that, as they say. Most people caught up in speech laws either give in or fight with a “no win no fee” agreement. It’s not easy to get one. They must find lawyers willing to take on their case and risk not recovering their costs if they lose. They must then find insurers to cover them against having to pay the other side’s costs.

It’s too much. Victims of abuse, who might want to sue Twitter and other social media companies for refusing to take down lies that are destroying their lives, ought to have a cheaper way of defending their reputations. Conversely, journalists and online activists ought to have a cheaper way of fighting off libel threats from the powerful. Because the law is so expensive, the courts are empty when they should be full.

In the absence of the rule of law we have ever-more bizarre schemes to resolve disputes. The Formula One tycoon Max Mosley is funding a state-approved regulator. Labour and the Liberal Democrats propose that, if news organisations do not sign up to it, they will have to pay all the costs of libel and privacy cases even if they win them.

Imagine trying to explain that to a visiting delegation of human rights monitors.

“You say a local oligarch’s trust paid for this press regulator after the tabloids revealed he participated in a sado-masochistic orgy.” Indeed.

“And your liberals and socialists are behind him?” All the way.

“Surely if newspapers must pay even if they win, every fraud will sue and investigative journalism will stop at once.” Yes.

“And the British still say you live in a free country?” Apparently so.

The age of the web demands a specialist court for free speech cases that delivers quick and cheap justice. We have both elsewhere. Trademark and copyright disputes are far more complicated than arguments about sending a camera crew into a repossessed home. Yet since the 1990s, small businesses have had the help of the intellectual property enterprise court, which offers streamlined procedures at a fair price.

When it overthrew the charges the government imposed on sacked workers going to employment tribunals, the supreme court declared that justice must be open to all. “People must in principle have unimpeded access” to the courts, it thundered . Deny this right and “laws are liable to become a dead letter” and democratic elections a “meaningless charade”.

The laws governing freedom of speech are as fundamental to democracy. But government and the legal profession are content to let them remain an expensive game too few dare play.

Nick Cohen is an Observer columnist

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