Focus on Rights

Striving at least to be democratic
For Andrew Gilligan, formerly of the BBC, the rousing assertion made a long time ago by a respected judge across the Atlantic that "Sunlight is the most powerful of all disinfectants", (Brandeis J.), has a bitter sting in its tail.

The sequence of events commencing from May, 2003 when during a Radio 4 broadcast, Gilligan alleged that the British government had 'sexed up' its September 2002 dossier resulting in a claim that Saddam Hussein could deploy weapons of mass destruction within forty five minutes, offers some interesting points of contrast for this country as far as media responsibility and government accountability is concerned.

In issue was a claim that was at the heart of persuading a reluctant British public that its government had no choice but to wage war on Iraq immediately, given the dangers of a putative strike that might be launched by Hussein on the West. This is a claim now found to be demonstrably false.

What Gilligan did was to broadcast that the British government 'probably knew' at that time, that this claim of a forty five minute strike capacity was not true but used it nonetheless in its dossier. His report set into motion, a train of events that included tragically, the suicide of Dr David Kelly, the government scientist whose 'whistle blowing' conversations with Gilligan, formed the basis of the latter's report. Britain is now undergoing a process of intense soul searching following the Hutton Report which castigated the BBC roundly for its defective editorial system' and for the failure of the BBC governors to investigate Gilligan's report more closely, while clearing the Blair government of all blame. Since the release of the Hutton Report, the two men at the helm of the state broadcaster have resigned, as has Gilligan.

In turn, this has led to a savaging of the Hutton Report and of Lord Hutton himself, (now positioned as an avowedly pro-establishment law lord). The lack of censure by Lord Hutton of the deliberate and callous leakage of Dr Kelly's name as the source of Gilligan's report by the government, despite Dr Kelly owning up to the conversations that he had with the journalist only on the strict condition that his anonymity would be protected, has cast the law lord's Report in a very poor light.

Apart from the political fallout, other implications arising from the Gilligan broadcast are astoundingly negative in their impact on the manner in which the Government may be talked about or written about where issues of tremendous public interest are involved. However, in a context where the British law has been far more severe than its American counterpart in censuring a journalist who takes a chance in communicating something in the "public interest", the truth of which he or she is somewhat unsure, the tone in which these debates are proceeding are perhaps, not surprising.

One of the most recent cases in this regard, involved not a broadcast but a publication of equally high political importance, (with some common features to the Gilligan report), wherein an edition of the 'Sunday Times' newspaper circulating in the United Kingdom, published an article relating to the resignation of Albert Reynolds (formerly the Irish Prime Minister), after his coalition government collapsed.

The former Prime Minister claimed that passages in the impugned article meant and were understood to mean that he had deliberately and dishonestly lied to the Irish Parliament by suppressing information which he possessed about the suitability for promotion of the Irish Attorney General, whose appointment to the Presidency of the High Court of Ireland he had been promoting. He further alleged that the article had the effect of making him guilty of deliberately and dishonestly withholding that information from his cabinet colleagues and lying about when the information came into his possession.

The 'Sunday Times' maintained that liability would lie only if the writer of the impugned article knew that the disputed statements made in it were not true, or if he made the statements recklessly, not caring whether it was true or false or if he was actuated by personal spite or improper motive. This was specially true, the Times argued, in respect of political information, defined broadly as "information, opinion and arguments concerning government and political matters that affect the people"

On the other hand, Mr. Reynolds' contention was that liability may also arise if, in the opinion of the court and having regard to the source of the information, the status of the informant and the circumstances of the case, it was not in the public interest for the newspaper to have published as it did.

The Court of Appeal and the House of Lords both agreed that the contention of the newspaper could not succeed in its attempt to give a blanket privilege for political speech. The manner in which the law lords reasoned is interesting when applied to the Gilligan episode. Several factors were identified as being relevant in deciding whether a right to know existed in a specific case, where an incorrect or allegedly incorrect statement of fact is in issue. The right to know was defined as a test far stricter than ensuring merely that the matter is of public concern.

Factors identified in this regard included the seriousness of the allegation, the nature of the information and the extent to which the subject matter was of public concern, the source of the information, the steps taken to verify the information, the status of the information, the urgency of the matter, whether comment was sought from the plaintiff, the tone of the article and the circumstances of the publication, including the timing.

At the core of concerns centered round the Hutton Report, is also the caution (as acknowledged by Lord Hutton himself), that it was impossible to have known exactly what Dr Kelly had actually talked about during his meetings with Gilligan, which may not have been borne out by the latter's notes. In sum, the conclusions of the Report that Gilligan had exaggerated his allegation that the government had deliberately misled the British public on Saddam Hussein's strike capacity, cannot be said to rest on particularly firm foundations. In that context, applying the Reynolds rationale, it would have been interesting to evaluate the Gilligan broadcast, if it had been brought to court.

In the short term, while the Hutton Report has saved the Blair government from immediate retribution regarding the lamentably shortsighted if not subverted manner in which it presented the case for war against Iraq, recent opinion polls have indicated a marked negativity on the part of the British public as far as Blair's credibility is concerned. On the other hand, the BBC has also been compelled to initiate internal processes of discipline towards enforcing higher standards of care upon the broadcaster.

While we can hope that the government as well as the BBC will emerge not only palpably sadder but also hopefully wiser from this whole sordid saga, the public demand for accountability from both institutions by the British people contrasts with the apathy with which we, for example, would be inclined to view similar happenings in this country. To that end, the evolving debates in Britain contain important lessons for Sri Lanka that illustrate the demands of a system striving at least, to be democratic.

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