Pressing Issues by Bill Frain-Bell

The day starts early for Peter Watson and his team at Levy & McRae – or does it ever end? Seemingly not, as we heard of late night shifts at the Daily Record and last minute flights to New York to deal with yet another potential defamation action. Watson, whose team acts for a range of clients including The Daily Record, Herald and Sunday Mail – not to mention ITN, Sky News and Channel 4, is fully aware of the pressures such clients offer them.

Often working from 6.00am to 10.00pm at night the team is on 24-hour call 7 days a week. Their lives are made slightly easier by the laptops which they have glued to themselves from which they can give immediate advice from the potential consequences from running a salacious story in the Record to the ramifications of a news broadcast – both of which can be seen and heard form their laptops.

Their work is divided into three areas. The first is the sharp end of newspapers and news where decisions have to be made, often after only a few minutes of careful consideration. Newspaper editors are not renowned for their love of lawyers and are more often than not determined to run stories. The second area of work deals with complaints relating to press and broadcasting standards. Thirdly is the defence of their clients in defamation actions, which is becoming increasingly more popular in Scotland despite the fact that there is no legal aid available for people wishing to raise a defamation action – something that requires at least £25,000 to fight at Sheriff Court level.

Naturally, given the nature of the job there is always a store of amusing anecdotes. One such example is when, during the allied bombing of Kosovo a Serbian court issued an arrest warrant for the editor of a newspaper for defamation – this being a crime in Serbia. Watson received a curt fax informing him of the court’s decision and demanding an immediate reply, to which his response was, ‘I understand that the RAF are delivering it as I write.’

Following the collapse of the Leeds footballers’ trial we were interested to find out about the amount of power lawyers have over editors. ‘It is the fatal error for lawyers to assume the role of editor or journalist’, said Watson. ‘It is the job of the lawyer to assess the risk of running either an article or broadcasting a story. The most common areas of risk assessment relate to contempt of court and defamation. You have to be pragmatic as it is very easy to simply pull an article. The key to the job is helping to publish and not to pull.’

Nowadays the Internet poses additional problems. Something which may not be defamatory in Scotland, might be in New York and so often a decision might be taken to publish in Scotland and not on the online version.

Editors often decide to ignore the advice of the lawyers and print anyway. In these circumstances Watson told us, ‘You have to back the editor’s decision and back him or her to the hilt, continuing to advise and support.’

These days the courts have recognised the freedom of the press to a much greater extent and the fact that they are entitled to report news which is in the public interest.

So what makes a good media lawyer we asked Watson? ‘You need to have the confidence to make on the spot decisions which requires a certain amount of backbone and the ability not to be swayed. You need to stick to your professional judgement even when those on the receiving end of said judgement are hot and bothered’ (the polite version for what some editors become when faced with legal advice). At this point we were joined by two members of the media, David McKie and Angela McCracken, both associates with the firm.

When asked about the Sun and Ronnie Biggs, Watson was clear, saying, ‘There is no way they would have pulled off such a stunt without the most careful legal advice. The tabloids often use far more lawyers than the broadsheets, given the nature of some of their stories.’ One of Peter Watson’s claims to fame was approving the naming of Jack Straw’s son, following Straw junior’s arrest on drugs offences, despite orders in an English court not to do so. ‘I took the view that English law was not applicable in Scotland and that as a result we should publish. We did however reduce the run of Daily Records to England just in case.’

Editors anxious for a view on a story regularly wake David McKie. ‘Being woken up suddenly in the middle of the night and asked for legal advice by a highly excited adrenalin-fuelled editor is enough to test the mettle of any lawyer’, he told us. ‘The effect of these decisions can have potentially dramatic consequences.’ Angela McCracken added ‘You might be asked if it is ok to have “could kill again” as a headline. Such a headline would suggest guilt and so the headline would need to be changed to “could kill”.’

Experience seems to be everything but it seems worth it…..

reproduced with kind permission from Firm Scotland
June 2001  Volume 2 Issue 3