Major British news outlets should relocate their headquarters to the United States.
Doing so would afford them far greater legal protection against idiotic lawsuits like that just commenced by the offshore law firm, Appleby. The firm, known for its service of high-wealth individuals, is now pursuing legal action against the BBC and the Guardian in order to recover files it claims were stolen from its servers and then handed over to media outlets.
Appleby is specifically concerned about files related to the so-called "Paradise Papers." Those papers documented the aggressive tax avoidance schemes of numerous high-wealth individuals around the world.
Appleby's legal claim rests on the basis that "Despite repeated requests, the journalists have failed to provide to us copies of the stolen documents they claim to have seen. For this reason, Appleby is obliged to take legal action in order to ascertain what information has been stolen."
Note the arrogance of that language: "journalists have failed to provide us copies of the stolen documents they claim to have seen."
The BBC was more polite than I would have been, stating on Monday that it "will strongly defend its role and conduct in the Paradise Papers project. Our serious and responsible journalism is resulting in revelations which are clearly of the highest public interest and has revealed matters which would otherwise have remained secret."
And while the Guardian is also pledging to resist the lawsuit, both outlets now face months of extensive and expensive legal proceedings with no clear probability of prevailing.
Were they in the United States, this would not be the case. Protected under the First Amendment, U.S. media outlets have written extensively about the Paradise Papers and notably, are not facing any significant legal action, nor would any such action likely survive a motion to dismiss. Fortunately, here, the media have a right to report and opine on matters of public interest, assuming that journalists themselves did not participate in the theft of information.
Our Founding Fathers and ensuing Supreme Court benches have had the vision to recognize that the margin of more speech, even controversial speech, is immensely valuable when it comes to scrutinizing public figures of influence and power. The U.S. Supreme Court has famously frowned upon imposing prior restraints to the publication of nearly anything, and preferred to err on the side of allowing too much to be published. In its 2001 Bartnicki v. Vopper decision, it established a stringent test for anyone trying to sue or prosecute journalists for publishing information that isn't rightfully theirs. In short, as long as the journalist doesn't personally participate in or advise the theft, and the information has a legitimate public interest, no American court is going to find the journalist liable.
A similar standard was upheld in the famous wiretapping lawsuit brought by former House Speaker John Boehner against former Democratic Congressman Jim McDermott, who had passed along Boehner's illegally recorded phone conversation to the media. McDermott was found liable for the illegal wiretapping, but media outlets publishing the conversation were not.
Still, Appleby's action is typical in Britain. English law offers extensive protections for those who wish to challenge free speech in the name of privacy. And I do mean extensive.
As the BBC notes, Appleby "is also seeking a permanent injunction stopping any further use of the information, and the return of all copies of the documents." This is yet another demand that American courts would just laugh away.
If awarded, that injunction would obviously not bind American media outlets, but it would bind the BBC, the Guardian, and all other British media outlets that have possession of said documents. In doing so, it would thus restrict public knowledge on matters of self-evident public concern: steps taken by powerful interests to obscure their financial arrangements from the public view. It would be at once profoundly undemocratic and absolutely enforceable by English law.
So British media outlets might want to reconsider where they are headquartered. Indeed, rather than having to respond politely to Appleby's they could simply take a leaf out of Anthony McAuliffe's book ...