Greenslade Sells The Pass

The Guardian’s Roy Greenslade is one of only a few journalists prepared to at least discuss the misbehaviour and shortcomings within his profession openly, and that is to his great credit. He does, though, have a tendency to side with the media establishment when they come under attack, as witness his judgment that the idea the press held back on John Whittingdale to bend him to their will was a mere conspiracy theory.

Roy Greenslade ((c) Guardian)

It was not, of course, and Whitto got hit with more dirt that had very obviously been held in reserve once Byline Media got the story of him and his sex worker friend out there. Now, once again, Greenslade is siding with the larger part of the press that is railing against the potential commencement of Section 40 of the Crime and Courts Act 2013.

He takes readers back to October 11 and the House of Lords. “On that day, four peers - led by Baroness (Sheila) Hollins, a crossbencher - tabled amendments to the investigatory powers bill aimed at bringing in section 40 by a new route (pejoratively, the back door). It would have the effect of making newspapers pay costs for both parties in phone-hacking claims”. Actually, it was to get the minister to commence a previously agreed measure.

But do go on. Greenslade goes on to tell readers “here’s the disturbing implication should the amendment be passed … Imagine this scenario. A person who makes a legal complaint about a story argues that the details could only have been obtained by a journalist hacking into his/her phone … The editor, inevitably, would seek to protect the reporter’s source. In so doing, however, it would be impossible to prove whether hacking was or was not involved … In the ensuing legal action, under the section 40 provision, the newspaper’s publisher would be liable for the costs of the claimant as well as its own. It could prove commercially disastrous for some publishers”.

Stop right there. The complainant would not need the newspaper to disclose anything. Whether they were hacked can be gleaned from their phone records. If anyone other than the customer calls their voicemail, it’s an attempt to hack and is accepted by the courts as such - which is why no-one does it any more. It is a criminal, not a civil, offence.

There would be no need for a legal complaint. Moreover, if there was a legal complaint about a story, whether or not hacking had been involved would not make the story defamatory. Perhaps Greenslade means that the paper had used hacking to stand the story up - something the Screws used to do. But again, proving that hacking had been used would be a separate matter, and the subject of criminal, not civil, action.

All that is left is actions for damages as a result of phone hacking. But if it had already been demonstrated that hacking had taken place, there would be no case for contesting a claim for damages - the only time any argument could take place would be over the amount of damages awarded, as the Mirror group is now doing. If publishers wanted to put hacking victims through a trial, they could hardly play the victim convincingly.

All of which is why Roy Greenslade has sold the pass when he claims that what would be a subset of Section 40 of the Crime and Courts Act 2013 “surely does threaten the freedom of the press”, although it might curb potential lawbreaking.

And we hear so little of the victims of press misbehaviour. I wonder why that should be.