Bulletin: Fall 2011, Volume 17, Number 1

Silha Lecture Highlights Free Speech in the Digital Age

British media lawyer Mark Stephens said a healthy debate about freedom of expression and the First Amendment eventually led notorious WikiLeaks founder Julian Assange to seek him out as his attorney. The two met while participating in a debate: Stephens was at a London club and Assange participated via Skype. Because of Stephens’ First Amendment affinity, he said he and Assange found themselves agreeing on freedom of expression issues that may seem alien to other people in England, but are a daily reality to someone like Assange.

“Julian Assange had a flash of genius,” Stephens said during the 26th Annual Silha Lecture on Oct. 4, 2011 at the University of Minnesota’s Coffman Theater. “He identified that if you go back in time to any newspaper here in Minneapolis or anywhere in the world, they have got a brown paper envelope drop box where you can take an anonymous piece of information, drop it in the letterbox, and the newspaper can deal with it. Julian realized that no longer do journalists get a few dog-eared photocopies; what they get is data.”

Stephens, the head of the International and Media department at the London-based law firm Finers Stephens Innocent, shared his stories of working with Assange, his personal experience as a victim of the British media’s phone hacking scandal, and his thoughts on how data are changing journalism during the lecture, titled “Free Speech and the Digital Challenge Around the Globe.” The lecture, presented as an “observed conversation” with Silha Professor of Media Ethics and Law and Silha Center Director Jane Kirtley, drew an audience of nearly 400 people.

Stephens recounted that Assange traveled to London and called Stephens a few weeks after their debate. “One Sunday, he rang me up and said, ‘Mark, I’ve got a bit of a problem. I wonder if you’d pop round.’ So, I said, ‘Sure! What’s the problem?’ ” The phone call resulted in Assange retaining Stephens as his lawyer to try to keep him from being extradited to Sweden.

Stephens “is ubiquitous in Britain as being the expert on everything pertaining to freedom of the press and freedom of expression,” Kirtley said later. “This isn’t a media scholar looking at [these issues] from afar … This is a guy who has been in the trenches.”

Kirtley introduced Stephens, noting that the Law Society Gazette, a trade magazine for English lawyers, describes him as the “patron solicitor of previously lost causes.” His work focuses on international comparative media law and regulation, and he is also the chairman of the board of governors at the University of East London.

Stephens attempted to demystify the work of Assange and WikiLeaks, which describes itself as a not-for-profit media organization with the goal of bringing “important news and information to the public,” according to its website. Led by Assange, the organization has made headlines in recent years for publishing classified data, some allegedly leaked by U.S. Army Pfc. Bradley Manning. The leaked information included a video shot in Afghanistan through the gun-sights of an American helicopter during a mission in which two Iraqi journalists were killed. Manning also allegedly provided WikiLeaks with hundreds of thousands of classified documents he stole while working for the U.S. government, including diplomatic cables. (For more on the U.S. government’s pursuit of WikiLeaks in response to its release of classified government documents, see “Judges Rebuke Government on Leak Prosecutions” in the Summer 2011 issue of the Silha Bulletin, “Open Government Advocates Criticize Obama’s Prosecution of Leakers” in the Winter/Spring 2011 issue, and “WikiLeaks’ Document Dump Sparks Debate” in the Summer 2010 issue. Silha Center Director Jane Kirtley also discussed “The WikiLeaks Quandary” in the Director’s Note in the Fall 2010 issue of the Silha Bulletin.)

Assange, Stephens said, set out to create the anonymous drop box for the modern age, thinking about what such a drop box would require. Stephens said Assange realized that “it had to be anonymous … The whole point is that you can send data to them, and the information as to who sent that data and where it came from is stripped off, so it cannot be found and cannot be reverse engineered. It allowed people from around the world, particularly from totalitarian regimes, and also people who were in business with the corrupt, to provide information.” Stephens also said that “gradually they realized they needed to be more sophisticated about how they dealt with this information, so they began, I think, dealing with it in much the same way that journalists do. They verified the information, they got comment on it, and started to look at the data and on occasion, manipulate the data to enable it to be ‘crowdsourced’ and accessible.” Kirtley asked Stephens if the public assessment of Assange — that he does not believe there should ever be any government secrets — rings true. Stephens said he did not believe so and that Assange’s views have moderated with time.

“[H]e understands that there is no real desire to get people killed,” Stephens said. Rather, Assange is driven by “a belief that you should receive all shades and colors of opinion and information to be able to make up your mind on issues of moment of the day,” a view that he said could be a “threatening model” for people in the traditional media. Part of the system that Assange is fighting against, Stephens said, is the over-classification of government documents and his belief that governments are keeping too many secrets from their citizens. “Everybody in this room believes that governments should have secrets,” he said. “We all cede a degree of secrecy to the government to enable them to better rule us. That covenant we have with them — we allow them secrets so they can better rule in our interest — is something which is universal. Some governments abuse that, and some don’t. What we have to say is that governments are increasingly using those secrets or over-classifying information to a degree which is unfortunate and unhelpful.”

Stephens also spoke about the phone hacking scandal that engulfed the United Kingdom this summer, which revealed that reporters and investigators working for British-tabloid News of the World hacked into the voice mail accounts of politicians, celebrities and private citizens to get scoops for their stories, an illegal activity punishable under the law of England and Wales. The scandal led to the July closure of News of the World, a public outcry, and widespread police investigations looking into the frequency of the practice amongst the British press. (For more coverage of the phone hacking scandal, see “Not Just a ‘Rogue Reporter’: ‘Phone Hacking’ Scandal Spreads Far and Wide,” in the Summer 2011 issue of the Silha Bulletin). Several days before the lecture, Stephens said, he found out that his phone had been hacked, probably because he has many high-profile clients. He described how intrusive this practice is by giving the example of one of his clients, a well-known singer, who had been affected. She was pregnant and on tour, and wanted to wait until she was back home to tell her parents about the pregnancy in person. British journalists published a story about the pregnancy with information gathered from hacking into her voice mail and her doctor’s voice mail, Stephens said. The story “denied the ability to say to her parents face-to-face … that she was pregnant with her first child. That’s a deeply human desire and wish, and [the hacking] is grossly intrusive and highly inappropriate behavior,” he said.

Stephens said that he does not think the scandal will extend to the American media, because American journalists were caught doing something similar in 1998. (For more information, see “America’s Phone Hacking Scandal” in the sidebar on this page.) The fact that it is illegal in England did little to curb the practice among the British press, he said. In England and Wales, “it has always been illegal to do this, and it’s been made more illegal in recent times in the sense that we’ve enacted specific legislation … But I think that it had become so normal in some of the tabloid newspapers [in England]. I think you have to understand that if you think about [the United States], it has got a strong, vibrant, independent press, but many of the newspapers are virtual monopolies or quasi-duopolies in geographic locations, so you get much less competition. The competition in the UK is positively fetid. You’ve got seven tabloid newspapers vying for pretty much the same market, and there is enormous pressure on the editors on circulation and they push that down to journalists … They have to come up with stories every week.”

Stephens also expressed concern that an investigation taking place in Britain, led by Lord Justice Brian Leveson, Court of Appeal judge and head of the Sentencing Council for England and Wales, could lead to media “reforms” that could harm the ability of British investigative journalists to do legitimate journalism. “I think it’s a very poignant concern,” he said. “You’ve got a judge who knows just about zero about the media, and he’s surrounded himself with a panel of experts to assist him, but the problem is that not any one of those experts has worked in the tabloid media and [they] don’t really know what goes on in a tabloid newsroom. I have real concerns that he will make recommendations which the government will feel compelled to turn into legislation, which will inhibit proper, thorough investigative journalism, and that is going to be a real issue for us going forward in the U.K.” The inquiry began in September and the judge is expected to complete his report within 12 months.

Stephens also fielded questions from Kirtley about the increasing use of “super-injunctions” in England, which are injunctions that prevent the press from reporting on an issue, but then also prevent the press from reporting that an injunction exists. Stephens said social media sites such as Twitter are making the enforcement of British privacy injunctions difficult because anonymous users are revealing the information the injunctions are seeking to keep quiet. Although the information becomes public, the traditional press remains “gagged” under these injunctions. Stephens pointed to the case of British soccer star Ryan Giggs as an example of the futility of the super-injunctions. “One guy who plays for Manchester United, who is married, who had slept with a model and a television presenter, and he’d also slept with his sister-in-law … and he got an injunction to prevent his wife knowing about it,” Stephens said. “But … Ryan Giggs’ name is posted all over Twitter feeds. Because the injunction is obtained in London it doesn’t have any impact on Twitter, so they carry on publishing way.”

Finally, Kirtley asked Stephens whether new media and the information age mean that “privacy is dead.” “I think the whole concept of privacy has really changed,” he said. “Everything is now discoverable or available online or in some other way. I think that is something that we have to understand — that there is a greater degree of exposure, a greater degree of scrutiny.” The French have developed a concept, he said, called the “right to be forgotten,” which is now being enacted to apply across all of the countries of the European Union. “The idea is: You may have done something which was noteworthy and got you national publicity, but after a period of time, the collective memory forgets, and as a result, you should be entitled to have that collective memory forget permanently. It’s quite interesting — an attempt to put the toothpaste back in the tube.” But he said he does not think it will work. “As soon as you’ve got archives, information is out there, and that will be the problem of the future.” (For more on the development of the “right to be forgotten”, see “Amid Skepticism, Uncertainty, Culture Clash, EU Eyes Online ‘Right to be Forgotten’,” on page 17 of this issue of the Silha Bulletin.)

The lecture is available on the Silha Center website at silha.umn.edu. Silha Center activities, including the annual lecture, are made possible by a generous endowment from the late Otto Silha and his wife, Helen.

– Emily Johns
Silha Research Assistant