Phone “hacking” and libel: any connection?

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The schadenfreude enjoyed by so many of us watching the News Corp flail about, unsuccessful at containing the voicemail “hacking” scandal, is fun, of course. As many commentators have pointed out, the scandal has all the requisite elements of good drama:  hubris, arrogance, success, then comeuppance, shame, setback.

But I’ve never been a reflexive Murdoch hater, as so many media academics are. I recall attending one conference about media “diversity,” at which a speaker raged at Murdoch and Murdoch’s customers for preferring News Corp outlets over other outlets. I could guess the speaker wished that audiences preferred the same news outlets he did.  I found the rage at Murdoch to be disingenuous at a “media diversity” conference. If nothing else, Murdoch has subsidized all sorts of money-losing media outlets (NY Post, for one), outlets that provide a “diversity” of expression, even if what is expressed is objectionable, or wrong, or right-wing, or tabloid. But isn’t that the point of “diversity”—-to allow competing views? My question today though is not whether or not News Corp is “good” or “bad” for media diversity.

I am curious about the differences in libel law in the US and the UK. I understand it is much easier to sue for libel in the UK than in the US. The case law on libel in the US (e.g,. Sullivan v. NY Times) has set a very high barrier for a successful libel suit. In the US, the plaintiff must prove that the journalist knew the information was false and published it anyway in order to harm the subject’s reputation. Proving such intentionality is very difficult. In the UK, if I understand it correctly, the burden of proof is on the journalist to prove the information was not false.

So, could this libel tradition in the UK, which requires journalists to defend libel suits by proving the information is not false, have fostered this culture of voicemail “hacking”? Could journalists, needing to “prove” the accuracy of their reports, and needing to find more and more exclusive information in order to compete with other news outlets, use voicemail hacking as a strategy for deflecting potential libel suits?

But what if a subject sued for libel, claiming the information based on the voicemails was false;  how could the journalist present illegally obtained voicemails as a defense? Wouldn’t that expose the journalist to legal jeopardy as well? This leads me to wonder if the motivation for using hacked voicemails was also to use them as leverage to prevent potential lawsuits. Sue us, and we’ll expose evidence of your affair (or whatever). This would be a kind of mutual deterrence: sue us and we’ll use the nuclear option, we’ll all go down.

Do US journalists’ lower risk of libel suits then mean that there is less *necessity* for this type of illegal information gathering? Or has the practice just not been exposed here yet?

I would be interested in hearing what media law experts might say about this. One of the potential bad outcomes of this scandal would be more restrictive press laws in the UK. If punitive libel laws actually helped foster this form of bad behavior, increased restrictions would not prevent future abuses but may indeed worsen them.

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