Who Are The True Defenders Of Free Speech And Who Are Its Real Foes?

When in 1991 I qualified I into a well-known claimant media practice I was fortunate enough to find on my desk on the first day that I arrived a file containing a libel action being brought against London Weekend Television (by whom my new firm had just been instructed).

LWT was being sued by a corrupt local politician who was using his Freemasonry connections to nobble planning committees and secure planning permission on land which otherwise would not have any chance of being granted planning permission, and by that means dishonestly making very large sums of money.

Shortly after I took the file over, the ill-drafted defence that I inherited was struck out, and the prospects of defending the action looked bleak, our predecessor lawyers having recommended a very substantial offer of damages to this corrupt individual. We appealed against the strike-out application, which gave me a period of nearly a year to work on what was then called the "justification" defence (now called "truth") and make it good, during which time I worked as much as an investigative reporter as a lawyer.

Armed with the fruit of my research we applied to amend, on the eve of the first day of trial, with several pages of a new justification defence - a hearing which was vigorously contested. All our amendments were, however, granted in full, and a few weeks later the claimant served a unilateral notice of discontinuance. I was told that LWT had never been in a libel action where their costs had been reimbursed, and so had to create a new accounting process to permit this. I went on to build a defendant practice on that success.

So it was that, despite starting my career at a leading claimant firm, I have been fortunate enough to have had a rich mix of claimant and defendant work; and in particular it has been my privilege to protect high-quality investigative journalism. I hope that this allows me to consider media law issues with the benefit of seeing the perspective of both sides. There was then, as there is now, an almost complete divide between claimant and defendant lawyers, especially when it comes to Fleet Street. I believe that it is, however, a relatively new phenomenon that what we used to call defendant lawyers have now taken to calling themselves Free Speech Lawyers ("FSL"). Having seen a website for American attorneys claiming that moral high ground, I suspect it is one of those phenomena which has invaded us from the other side of the Atlantic.

What is free speech?

It begs the question then, what is a FSL? To answer this, we must decide what is the true nature of free speech. The only place where I can think of to look to answer that question is Article 10 of the European Convention on Human Rights, which reads as follows: "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...