Guido Fawkes and the Dogs of Law

In all the UK political drama of the last week regarding the publication of the McBride email, there is - for me - a curious incident of legal dogs not barking.

Strip out the personalities and sordid content, and consider the simple fact as of last Friday/Saturday.

The UK government undoubtedly knew that an email sent by a senior civil servant at 10 Downing Street to external persons was about to be published without permission.

Indeed, it may not have been clear at that point how the email had even been obtained: there could have been a criminal act or significant email security breach.

In normal circumstances I think there would have been a legal move to prevent publication.

The UK government must have considered whether an injunction could and should be obtained. This would have prevented publication of the email by UK newspapers, or the MSM making the email available to the public on their websites. Such an injunction would have been on an interim basis, pending full trial.

But no injunction was obtained, and it seems no injunction was applied for, or even threatened.

I emailed Guido to ask whether he was threatened with any injunction by the government. He confirmed to me that he was not.

So here I speculate as to why no injunction was obtained: why there was no bark from the dogs.


Was the government on notice?

First, one has to assume the government was on notice that the email was to be made public.

Guido tells us that he had alerted McBride in advance about the email. In any case McBride must have known what Guido's teasers and intentions were likely to amount to. Presumably McBride notified the senior civil service as to the potential unauthorised disclosure and publication of an email (or emails) from 10 Downing Street. Surely, by the eve of publication, McBride wouldn't have kept this from his employer...

Even if he did not, the (once admirable) Daily Telegraph's spoiler, on Saturday said that the government was by then alerted to the imminent publication (and, as Guido tells us, the Telegraph may have already tipped off 10 Downing Street). Indeed, McBride had "informed colleagues".

So last Friday/Saturday the government was undoubtedly faced with a stark decision: should a pre-publication injunction be sought? And as with any such question there are two key questions. Can an injunction be obtained? And should an injunction be obtained?


Copyright infringement or other breach of civil law

Guido tells us that he had taken Counsel's advice and that, as long as Guido did not get paid, there would not be any copyright issue.

Assuming that the copyright in the McBride email (though not the Draper reply) lay with the Crown, then - before 2000 - an injunction may have been possible on copyright grounds alone.

However, on 2 October 2000, the Human Rights Act 1998 came into force. This Act, witlessly derided by many current Conservatives, provided the real legal basis of the "public interest" which allowed Guido to avoid the issue of copyright infringement.

The key case was the one about Paddy Ashdown's diaries and the Daily Telegraph (back when it still did proper journalism) before the Court of Appeal: Ashdown v Telegraph Group [2001] EWCA Civ 1142. Paddy Ashdown wanted to prevent unauthorised publication of "minutes" regarding a possible coalition arrangement.

At paragraphs 58 and 59, the Court of Appeal held that:

"...the circumstances in which public interest may override copyright are not capable of precise categorisation or definition. Now that the Human Rights Act is in force, there is the clearest public interest in giving effect to the right of freedom of expression in those rare cases where this right trumps the rights conferred by the Copyright Act. In such circumstances, we consider that s.171(3)of the Act permits the defence of public interest to be raised.

"We do not consider that this conclusion will lead to a flood of cases where freedom of expression is invoked as a defence to a claim for breach of copyright. It will be very rare for the public interest to justify the copying of the form of a work to which copyright attaches. We would add that the implications of the Human Rights Act must always be considered where the discretionary relief of an injunction is sought, and this is true in the field of copyright quite apart from the ambit of the public interest defence under s.171(3)."

Section 171 of the Copyright etc Act had hitherto been a little-used residual provision. The Court of Appeal also stated that the HRA would also have an effect in allowing publication of copyrighted material for the purpose of fair dealing in reporting current news (the section 30(2) defence).

In Ashdown, however, the Court of Appeal held that the HRA supercharged the copyright exemptions so to allow publication of copyright material in the public interest. An important issue was whether the infringement was for commercial gain: hence the advice for Guido that he give the material for free.

On the facts of Ashdown, the newspaper had actually published more than was strictly necessary so as to meet the public interest point.

In respect of the McBride email, I think that only actual reproduction of the text of McBride's smears would have substantiated the news report. It was in the public interest to reproduce them. There was a public interest in copyright not applying.

If a systematic plan to make serious and false allegations against senior political opponents, using the machinery of 10 Downing Street, does not engage the public interest, it is difficult to see what does.

So, unless I have missed something else (and I confess there are many obscure elements of Crown copyright of which I may not be aware), it appears that Guido's Counsel advised in effect that the post-HRA copyright law would provide protection - at least for Guido - from a claim from the copyright owner either for an injunction or for recovery of Guido's "profit".

If this legal opinion is correct and the Ashdown principle applies, then other similarly-important government emails will presumably be fair game for publication, as long as there is no commercial gain.

(But do take legal advice first!)

Aside from copyright, there were other possible civil law bases for an injuntion - for example, confidentiality or even privacy/data protection, but each of these also have public interest defences, especially post-HRA.

As a result of the HRA, and on the particular facts of the McBride email, it seems to me that it would have been difficult for the UK government to have got an injunction on civil law grounds alone.


Criminal law and security breaches

Nonetheless, I do not think the lack of an injunction application was solely because the UK government anticipated the public interest defence for a copyright or other civil law claim.

Putting copyright and other civil law on one side, and indeed also putting aside the sordid content of the email, there was still a possible real and serious issue as to whether the email had been obtained by some criminal means or that there had been a serious email security breach. Such a circumstance by itself would usually have warranted an application for an urgent injunction, at least until it was clear how the email had actually been obtained.

The High Court is invariably deferent if the UK government seeks an injunction because of a security issue.

In the spoiler, the Daily Telegraph mentioned a "security scare" and that "[i]f the emails, which were originally sent to Derek Draper, a close friend of Lord Mandelson, who also runs an influential political blog, were obtained by a hitherto unidentified person hacking into the No.10 computer system or Mr Draper’s, the police could be called in to investigate. Mr Staines declined to tell The Daily Telegraph where they came from".

The mention of No 10's computer system was of course disingenuous by the "journalist" who wrote it, especially as he admits in the same article that a spokesman said that "[w]e are not aware of any security breach in the No 10 system".

The government did not seek an injunction on any security basis - the various legal grounds for the injunction could have ranged from the Computer Misuse Act to common law conspiracy.

One possible explanation for this inaction is that the government itself actually knew it had no criminal or security issue as to how the email was obtained by Guido.

It seems to me that had the government could probably have obtained an interim injunction against publication by the newspapers (if not Guido), had they really wanted to, if there was an arguable security concern, and this would not be affected by any copyright or similar point.

(In passing, I emailed the Law Officers' press office - they cover the Treasury Solicitor's department, who in turn conduct most government litigation - asking for any information about an injunction; but they would not comment on matters of legal advice.)


The practical decision not to injunct

Even if an injunction could have been obtained, having a legal right does not mean that it is always wise to exercise that right.

As the Spycatcher affair demonstrated, an injunction against unwelcome publication can be a hollow victory. This is more so in the days of the Internet.

An injunction against the mainstream media would not of course have prevented Guido posting it on his own site: and it would have been the email the government tried to ban.

And, even if an injunction could have been obtained in respect of publishing or making the available the actual email, that would not necessarily prevent any summaries of the email content even in the mainstream media.

Such summaries would have been at least as sensational even if repeating the actual words would have been prohibited.

The injunction may also not have covered publication of Draper's gormless reply.

So, it seems to me that the likely decision-making was that before actual publication, the government decided, absent a real security concern, not to make any legal move to prevent publication of the McBride email.

There was nothing realistic that could be done to avoid the damage about to be caused, and there was no real security concern to counterbalance such damage.

What I suspect happened in reality is that the person making the decision whether to obtain an injunction just looked at the awful email in question, and was disgusted.

And, as the essence of the story would break anyway, and in view of the immense and speedy legal effort which would be involved in obtaining interim injunctions against the UK newspapers, a decision was simply made to hang McBride out to dry and to - implicitly - permit the publication of a senior civil servant's email.

Absent the personalities and the sordid content of the email, I guess that this would normally be a rare concession by the government, even faced with the Ashdown caselaw.

So, if my speculations are correct, the UK government undoubtedly knew that an email sent by a senior civil servant at 10 Downing Street was about to be published without permission, and they knew also that an injunction was possible if either they had a security concern or the publication was to be more extensive than the public interest required.

However, I wonder whether just because of disgust at the email's content, and at it's author, they did nothing to stop publication.

There are limits to what even the dogs of law can bark at.