What is the significance of today's apology by the News of the World in respect of the voicemail hacking scandal?
In legal terms, it isn't that important.
None of the claimants in the civil actions have agreed to settle their claims on this basis. It also does not cover all the claims outstanding. No apology seems to have been accepted, nor any compensation paid.
In strict terms, the apology is nothing other than a gesture: a tactical manoeuvre in a far wider complex of legal problems which News International (and possibly other publishers) are trying to contain and close down.
That said, it is a clever move.
Some claimants may accept settlement on this basis. If so, their claims are brought to an end and they receive compensation. It may be that such a settlement includes non-disclosure and similar provisions. Claimants who press on, notwithstanding the offer of settlement and the admission of civil liability, will do so at the risk of additional legal costs: English courts tend to penalise with adverse costs awards those parties which go on to trial when the other side has already conceded defeat.
It is also a clever move in terms of public relations: it is part of the common "we put our hands up" and "let's just now draw a line" rhetorical approach often used by the insincere and culpable.
But the apology will not help News International much more than that.
The main legal problem they have is not from the civil claims of individual victims of the phone hacking activity but potential criminal prosecutions against individuals and, possibly, against News International as a corporation. The apology will have no legal or (it seems) practical effect on closing down the re-opened police investigation.
The further problem facing News International is the various parliamentary and press investigations into the irregular relationship it had with the Metropolitan police.
There still appears no good reason why the original police inquiry was narrowed so quickly. The explanation could be knavery or foolery, but there is a public interest in finding out what curtailed the original investigation.
It may well be that we will never find out - that this current crisis is defused before any revelations are made.
One cannot have any doubt that the lawyers for anyone who did act wrongly are doing everything they can to put the problem in a box and tie it up.
The question is whether the parliamentary and press investigations can get to the bottom of the botched police investigation first. Whoever wins that race, today's apology is strictly irrelevant.
And there is the broader problem of how far the phonehacking went beyond News International.
Was it prevalent on an industrial scale?
Were they all at it?
Who knows?
Today's apology does not tell us which other parties were involved in this criminal activity. But it does tell us that the old fiction of one rogue reporter cannot any longer be sustained.
And, in turn, that tells us that however well the "fixers" and "problem solvers" believe they have "dealt with" a problem, as those at News International undoubtedly believed they had done before the current storm, it is possible - sometimes - that parliament, the courts and a free press can sometimes work together to expose unlawful and perhaps corrupt conduct.
Today's apology would simply not have occurred without the combined efforts of MPs, lawyers, and certain journalists; and, perhaps, that is its main significance.
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Sunday, 10 April 2011
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10 comments:
I think the most worrying thing is the hacking of the assorted culture ministers - as they are meant to regulate the turgid sewer of the press.
Can you imagine the scandal if a bank was hacking the FSA?
I sense that there's something else going on here- that this move is also about the media. Predictably, the BBC and Guardian leapt on the settlement story and made a big deal out of it, only for it to come to nothing. Next time something seems to be happening in this case, editors will be wary of giving too much attention to what could turn out to be a non-story. Though News International has had to endure a big blast of negative attention just now, this may actually innoculate it against future embarrassing headlines.
Would a court be inclined to face a claimant with adverse costs when they had rejected an offer of settlement on the grounds that they were not prepared to accept a non-disclosure provision?
I would hope that they were sufficiently aware of the importance of freedom of speech not to penalise a claimant for seeking to preserve their freedom of speech.
It will be interesting to see the present Government's reaction to an admittance of intercepting a Government Minister's voicemail.
I would have thought that any self respecting Government would want to ensure that it's own means of correspondence are as secure as possible. Surely they would want a full inquiry into what has gone wrong here for future reference.
To Jennie Kermode, it's not only The Guardian and the BBC (who I suggest you cast as the leftie rabblerousers out to scupper Murdoch) of the main media outlets who have joined the party. The BBC were late on the scene anyway, and possibly only after the Channel 4 Dispatches programme had shown them the way. The Independent has also been asking awkward questions.
As for others in the media - well there are the News International papers and the other tabloids apart from SkyTV. I think I can guess as to why they haven't liked to comment until now. They all appear to have followed Rupert Murdoch's lead given in an interview on FoxNews in the US back in September last year that he was not going to comment on the allegations made in the New York Times. As to "come to nothing" success doesn't come instantly in the Courts of Law. I suspect this story has some way to go before the full truth comes out.
Anyone heard from the Press Complaints Commision recently - do they still exist or were they one of those quangos no longer fit for purpose to be abolished?
I imagine there would be any number of people interested in ensuring that an "apology" was issued. Like other such "apologies" they are merely about damage limitation.
Although it may sound paranoid to even suggest it anyone in the public eye in any way would be wise to work on the assumption that their words are being monitored by someone.
"English courts tend to penalise with adverse costs awards those parties which go on to trial when the other side has already conceded defeat."
Whenever I picture myself in the situation of a negotiated settlement my imaginary eye falls on the "non-disclosure" clause, my imaginary hand reaches for a pen and strikes it out.
When my opponents start saying that the £1m compo comes with a requirement to stay stum I retort that the £1m compo is to settle the case.
Silence is extra.
If I were in, say, Sienna Miller's position I'd want to spread the settlement everywhere. I'd want to wave the compensation cheque in peoples faces, I'd want to slag off NI on the chat shows.
So would a judge look upon restrictive clauses in any settlement as a good reason to turn it down? Would the judge not give an adverse costs award if the other side had maybe, sort of, admitted-defeat-but-you're-not-allowed-to-tell-anyone?
I saw an analysis somewhere that suggested that NI was not even the best at conjuring up accurate stories without any obvious sources. The implication was that NI was not even the worst abuser here. But what does it take to start investigations of the other newspapers? Is there any public interest in it (and I don't mean of the prurient kind), if the pillorying of NI can be seen to hvae closed the practice down across in the industry?
Ni is reported to have set aside £20m to met claims, and to have expressed hope that most claims would be settled for less than £100,000. Possibly over 200 victims.
I think this tale is much deeper and murkier than has been revealed so far. Further, I am suspicious that voice-mail hacking is the only sin so far revealed.
With a moderate budget it is quite possible to hack mobile phone calls - and leave no trace. This practice would be so attractive that I am sure it must go on - but not a dicky bird about it.
A wise Home Office would keep very quiet about this and allow the legislators to huff and puff about voicemail - to no useful effect.
rogerh
rogerh, I don't think it's that simple. We know mobile phone hacking happened before encryption became routine, because it was in the news that Prince Charles suffered from it. Mobile phone encryption since became standard, at least in Europe under GSM. Although the codes were cracked a couple of years ago, the BBC suggested it was not hte basis of practical cheap decrypters.
http://news.bbc.co.uk/1/hi/technology/8429233.stm
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