Rather His Own Man

by Geoffrey Robertson

  When it was published, the state pounced and the Treasury Solicitor, that baleful presence in Spycatcher, obtained a court order on the Guardian to hand over the original documents, which could be traced to a specific photocopying machine and ultimately its user. Peter objected that the order would force him to reveal his sources, but the court simply laughed – that was exactly why the order was imposed, and if he did not comply it would fine the paper a massive sum for every day he disobeyed. He had little choice, and soon the ‘mole’ in the ministry was flushed out, a twenty-three-year-old typist named Sarah Tisdall. I went to court to see her sentenced – a tiny weeping presence huddled in the huge dock of Court No. 1 of the Old Bailey. She was sent to prison, and Peter, whom I saw afterwards, was devastated. He felt responsible, and he was – but the law had left him no choice other than the liquidation of the Guardian. Should it not assist journalists to protect their sources?

  I was certain that it should, and this was a reform that I wrote about in Media Law.2 Although a good journalist will have skills of analysis and research, and (like a barrister) the ability to master a complicated subject in a short time, one critical qualification (at least for an investigative journalist) is the ability to cultivate sources of information. Much of the news that gets published is fed to journos by public relations departments, press releases and press conferences – British government departments employ more than five thousand public relations people, and corporations have many more. In reality, they are professional propagandists, putting the spin on their stories that is most favourable to their employer. This makes it important, if ‘news’ is to be worthy of that word, for journalists to have sources – whistleblowers, leakers, insiders et al. – who can tell them the truth. Were it not for ‘unofficial sources’ talking off the record to journalists, there would be fewer facts for discussion in democratic society. If journalists betray their sources, and those sources are in consequence sent to prison, then information for serious investigative news reports will start to dry up, and what is published will be less reliable. That is why journalists cultivate sources by promising them anonymity. This must be a solemn promise, made in the service of the greater public interest, binding the conscience of individual journalists as well as the consciences of their editors and – if they have consciences – their proprietors. But moral rights are worthless unless reflected in legal rights, and unless a legal right could be extrapolated from the principle of freedom of expression in the European Human Rights Convention, there would be no protection at all for journalists faced with court orders to reveal their sources.

  In the early 1990s, a brief arrived that after several years of litigation enabled a change to the law, thanks to the courage of a young journalist named Bill Goodwin. He was working as a graduate trainee for a business magazine when he received copies of a confidential internal document of a much-promoted company which revealed that it was in financial difficulties. He called the company, like a good journalist, to discuss the report, whereupon it went into meltdown and obtained a court order for Bill to reveal his source, which the company insisted must be one of its high-level executives. Bill refused, so we went to the Court of Appeal, which offered him a Faustian bargain: put the name of your source in an envelope, which will not be opened unless you lose in the highest court. The highest court in England, that is – I suspect they knew we were going to take this case all the way to the European Court of Human Rights in Strasbourg.

  Of course we lost in the Court of Appeal, and in the final court the Law Lords were unsympathetic. The presiding judge gave me a condescending lecture: ‘Mr Robertson, legal argument proceeds by building on precedents and statute law. You have cited no precedents and keep giving us this airy-fairy theory about free speech.’ Well, exactly. There were no precedents. We lost, 5–nil.3 We set off for a final appeal. The European Convention of Human Rights had been ratified by the free nations of Europe after the war, and during the Wilson government its great Lord Chancellor, Gerald Gardiner, had given individual litigants the right to petition its court. If their complaint was upheld, Britain had a duty to change its law to comply with the judgment. We argued that Bill’s conviction was a breach of Article 10 of the Convention:

  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority …

  My submissions rolled on for one hundred pages and took us over all the preliminary hurdles until we reached the Grand Chamber of seventeen European jurists.

  Advocacy in Strasbourg is pretty easy – it is mainly done on written submissions, and at the hearing counsel on each side has only half an hour for argument, after which the judges ask their questions. We then adjourn for coffee, and return to speak for another half-hour, so as to answer those questions. Then we adjourn for an as-long-as-you-want lunch, in a city of Michelin-starred restaurants. It’s probably the most pleasurable experience legal practice has to offer, so I invited John Mortimer and Bob Sack. We drove to nearby Colmar (the birthplace of Dreyfus) for lunch at L’Auberge de l’Ill. In its window was the guest book, open on a page for a day in 1956 where the signatures of the Queen Mother and Simone de Beauvoir are displayed, although I doubt they dined together. We left in the late afternoon to catch ‘the little Fokker’ (as Barbara Castle called it) back to London.

  Some months later, the judgment came down. We had won. The court ruled that Bill’s conviction was a breach of Article 10 because of the importance, overlooked by English judges, of ‘having regard [for the] … protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order for source disclosure has on the exercise of that freedom’. It accepted our ‘airy-fairy’ argument, which had been unanimously rejected at every court level in Britain:

  Protection of journalistic sources is one of the basic conditions for press freedom … without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.4

  This ruling became part of UK law two years later in 1998, when the Blair government incorporated the European Convention into its Human Rights Act. It has given journalists in England a protection they do not have in Australia (where the introduction of a human rights charter is so vehemently opposed by the Murdoch media), nor even in the US.

  Journalists in Britain can now give concrete undertakings to their sources that they will not be ordered to betray them, and this should be binding in conscience on newspaper proprietors. But in what was arguably the most shocking breach of ethics in newspaper history, Rupert Murdoch directed that the names of the sources of the journalists working for his papers the Sun and the News of the World should be handed over to the police. This arose after the phone-hacking scandal, when it emerged that tabloid papers had been illegally intercepting the telephone calls and messages of celebrities, in search of sensational stories. It was said that Murdoch was advised by his American lawyers that unless he fully co-operated with Scotland Yard, there might be repercussions for his US media ownership. The sources were identified on the journalists’ computers, which were handed to the police team that had been invited to take up residence at News International’s offices. This led to the prosecution of dozens of journalists and their sources, some of whom had not been paid but were in government employ (all of these were sacked, whether or not the prosecution succeeded), and many who had divulged information of public importance, such as the dispatch by the Ministry of Defence of soldiers into battle without adequate equipment.

  The sources were subjected to dawn raids and the heartache of waiting several years for trials. The mass betrayal of sources was not against the law, of course – there is nothing but a proprietor’s own integrity to stop him or her from flouting the c
ode of conduct that all papers purport to uphold. (‘Journalists have a moral obligation to protect confidential sources of information.’) But Murdoch’s conduct, in throwing his journalists’ sources (as well as his journalists) to the wolves, was unconscionable. I said so in an article I was commissioned to write by the news editor of The Times – the very fact that I was invited shows the depth of moral outrage among journalists at Murdoch’s serious papers.5

  Taking American First Amendment values to courts outside America was easy enough when it meant defending worthwhile investigative journalism, but more difficult when it came to investigative journalism interleaved with naked women. This had been Hugh Hefner’s trick with Playboy magazine to confound the censors, and it was copied by Penthouse founder Bob Guccione – the journalism in his magazine was harder, but so were the photos. Those were the days of sexual repression, when porn was seen as liberating by early feminists: its enemies were supporters of Fred Nile and Mary Whitehouse. By the late seventies I had become, through my textbook Obscenity and Old Bailey cases, a world expert on censorship, and was dispatched to liberate a country more sexually backward than Australia – New Zealand. It had its own Mary Whitehouse equivalent, named Patricia Bartlett, with whom I did battle on several occasions before New Zealand’s Indecent Publications Board. The Kiwis took these cases very seriously and came down with guidelines precisely detailing what could be shown in magazines – at one point, I complained that they were splitting pubic hairs, but nobody laughed. I defended some trashy magazines, but I also acted for Bettina Arndt’s Forum and the publishers of banned works of literature, and in 1979 won a judgment that liberalised the customs rules, permitting entry to New Zealand of one Australian novel which had been prohibited, named Puberty Blues.

  My successes with New Zealand customs brought a call to strategise an attack on Canadian customs, which despite the propinquity to the US had banned some editions of Penthouse because they had references to cunnilingus. The Canadian Customs Department had by law to give reasons for its decision, and incautiously stated in a letter to the publishers, ‘Canadians are not in favour of oral sex.’ This struck me as such an absurd statement – by then it was 1980 – that I advised my clients simply to take out full-page adverts in Canadian newspapers quoting it, and inviting Canadians to disagree. Some newspapers accepted the advertisement, and the government began to look ridiculous. Canadian television then staged a great debate between its defender of decency – the attorney-general and political tough guy Roy McMurtry – and Bob Guccione. Their interlocutor pointed out that both these macho men were wearing the same brand of cowboy boots to debate whether Canadian women were in favour of oral sex, and the interview became surreal. Bob and Roy saw eye to eye, as well as toe to toe, and the ban was never imposed again. Ridicule turned out to be much better advice than to challenge the ban in court, where po-faced judges would probably have upheld it.

  From the mid-seventies onwards, I was ‘crossing the pond’ quite regularly to work on media law cases with American lawyers. It renewed my fascination with the land of the free, or at least the land that was then more free than Australia or the UK. There was a particular thrill about just being in America, even if it was only to watch on television from a hotel room the Jimmy Carter nomination acceptance speech when he quoted Bob Dylan (‘America is busy being born, not busy dying’) or Obama walking out, with that bottle of Fiji Water, into Chicago’s Grant Park on his election night to proclaim ‘Yes, we did.’ I got on well with American lawyers – they liked my accent (one female lawyer wrote that it was ‘almost entrancing’), but were reassured when they were told I was really Australian (and presumably would be less stuffy than a real Brit). I admired their commitment to their clients and their width of vision and learning from a constitution that set out fundamental principles.

  This was the difference, before the UK adopted its Human Rights Act, between the two legal systems: English common law was malleable, its rules always having exceptions which judges could seize upon and twist to comport with their own subjective prejudices. US legal principles – especially those derived from the constitution – were absolute. Its First Amendment struck down laws restricting freedom of expression, and the cases I worked on were usually on the side of free speech. The exception, however, became famous: it was a libel action brought in Columbus, Ohio, against its most disgusting resident – Larry Flynt, proprietor of Hustler magazine. It had published a particularly obnoxious cartoon about Kathy Keeton, Bob Guccione’s partner, and she sued. I was in charge of collecting evidence that Flynt was malicious, which was not difficult to prove, and I listened in awe to our lead counsel, one of those amazing US trial orators, stoking the jury up to award record damages – enough to drive Hustler out of town. (‘Make yours a verdict that will force Mr Flynt to say “Goodbye Columbus”.’) It was a trial that went our way, but as usual when American juries award massive libel damages, they were reduced to nothing on appeal – the First Amendment is very (perhaps overly) protective of the right to say almost anything. Except, as the US courts say, a false shout of ‘Fire’ in a crowded theatre. The problem today is that fake incendiary utterances, made in empty theatres, get tweeted to millions.

  As the t-shirt says, I love NY. The experimental theatre was better than in London, there were revivals of my favourite Broadway musicals, and there was – always and forever – the Met. My son loved seeing the crazy polar bears in the Central Park Zoo – in his autistic imagination his real father is Steve Martin and I am actually a polar bear who disappears at night into the freezer; or, when I am in the Caribbean, I am in fact with my climate-challenged family in the North Pole. In the days before Craig Markham – a friend from Wollongong who is now one of the world’s swankiest hoteliers – opened his hostelries near NYU, I chose to stay at the raffish Elysée, where Tennessee Williams and Harold Robbins had worked on their drafts. When Kathy came along it would be the Algonquin, where her heroine Dorothy Parker once punned across the round table.

  I did a lot of work in the nineties for Dow Jones – the American Lawyer profiled me as ‘Dow Jones’s man about the Commonwealth’ – in cases in which I defended its journalists from intemperate governments in countries where speech was not free. The editorials in the pre-Murdoch Wall Street Journal were generally conservative, but the paper and others in the Dow Jones stable prided themselves on objective reporting and in particular on standing up for free speech principles whenever their journalists were endangered. I went to court in Singapore to defend Barry Wain, the Australian editor of the Wall Street Journal Asia, for the crime of publishing a polite criticism of its courts (it is contempt to suggest in Singapore that its judges have in any way gone wrong). In Malaysia, I teamed up with its best advocate, Muhammad Shafee, to engage in legal jousts with the bullying Dr Mahathir, when he tried to expel our journalists. When he lost, unlike Lee and Mugabe, he accepted the verdict – but then sacked the judges who delivered it.

  By the turn of the century the media was into the internet age, and one great legal issue was where to sue the proprietor of a publication that was available on the web. Was it where the alleged defamation was put on the server (usually in the country where the publisher was established) or where it was downloaded (which could mean liability for the publisher in many countries)?

  My American colleagues and I discussed this a lot – Dow Jones’s US lawyers were Bob Sack, a brilliant exponent of defamation law, and now a Federal Court judge, and Stuart Karle, the in-house counsel dedicated to the company’s free-speech mission. We wanted the paper to be judged by the standards of the First Amendment. We looked for a test case in a court outside the US, which we hoped would decide that internet downloading from a US site of a US newspaper article should be judged by the standards of US law. I gave them the worst advice I have ever delivered: ‘Let’s have the test case in Australia. They have a really progressive High Court.’

  The case we took to my really progressive High Court soon came up, in the for
m of an article in Barron’s, a serious Dow Jones financial magazine, about one Joe Gutnik, a Melbourne identity known for his generosity to synagogues and Jewish charities of extreme orthodoxy, and most prominently for his ownership of a local Melbourne AFL club. He was trying to move into the New York stock market, and Barron’s subjected him to a piece of US-style investigative journalism which he had never experienced from the constrained Australian press. Although the magazine sold just two print copies in Victoria, the article had been downloaded by his Melbourne stockbrokers and members of his synagogue, and he brought an action for defamation in the Supreme Court of Victoria.

  We objected that this court had no jurisdiction over an American publication which had been electronically extracted by Australians from a server in New Jersey. We called a lot of technical evidence which, to be simplistic, showed that downloading electronic messages involved a searcher sending electronic impulses from Melbourne to the New Jersey server, where they captured the article in its electronic form and brought it back to Victoria for reassembling on the searcher’s computer. So it was as if Gutnik had sent a servant to America to buy a copy of the paper and bring it back: the actual ‘publication’, i.e. the handover of the information, technically took place in New Jersey, so the decision as to whether it defamed Joe should be taken by New Jersey law.