Law Publishing, Editorial Freedom, Standards and Ethics

I would not have thought that in the relatively safe and narrow information publishing world with which I am familiar, I would ever encounter special interest, external interference and attempts to limit editorial freedom, other than, obviously, in giving and receiving training controls, rules and processes for the job and for other obviously legitimate and legally-compliant reasons. I have experienced it though, not for the first time, but most recently in my capacity as the editor of an information and communications periodical. It should be stressed that the publication in question does not overtly or primarily cover legal matters but certainly touches on them frequently and consistently and could not function without addressing them.

In the role, I commission and select its content, liaise with authors, prepare, curate and compile the copy, deciding on the context in which it is presented. The periodical is backed, though not funded by a representative body with a complex committee structure, but it is stated on the publication that the views represented in it do not necessarily reflect the views of the body itself. I am fully aware of the difficulties and challenges that there are in publishing with and for entities of this nature, among them that, for them, “the message” is often the very raison d’être and it is perceived to be key to underpinning loyal subscription revenues. In that context, it is not surprising that petty politics and politicians, including those bureaucrats with personal agendas and interests, and shadowy conspirators who like to play at politics in the course of their work or private lives, are held in low esteem. I was surprised, nevertheless, to come under pressure to suppress submitted editorial content which might go against “the party line”. This was when I was advised, “I’m sure you’ll agree that the [publication] should project a consistent message on […..]”. Unsurprisingly, I did not agree and, fast-forwarding to the end of the story, I resisted and published as originally intended, delivering a broader range of informed opinion and additional facts. As a life member of the National Union of Journalists (NUJ), the most significant body representing Irish and British media practitioners, which itself is affiliated to such other bodies as the International Federation of Journalists, the Federation of Entertainment Unions and the Campaign for Press and Broadcasting Freedom, I take these matters seriously. NUJ members adhere to a long-established code of conduct, which is framed within the context of a substantial and evolving corpus of national and international law, and is not dissimilar to others of its kind around the world, the relevant clauses for present purposes of which state:

“A journalist:

1. At all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed.
2. Strives to ensure that information disseminated is honestly conveyed, accurate and fair.
3. Does her/his utmost to correct harmful inaccuracies.
4. Differentiates between fact and opinion.
5. […….……]
6. […………]
7. […………]
8. Resists threats or any other inducements to influence, distort or suppress information and takes no unfair personal advantage of information gained in the course of her/his duties before the information is public knowledge.
9. Produces no material likely to lead to hatred or discrimination on the grounds of a person’s age, gender, race, colour, creed, legal status, disability, marital status, or sexual orientation.
10. [………..]
11. [………..]
12. Avoids plagiarism.”

It is interesting and important, and in the context of the European Parliament’s report which calls for a new law to protect journalists and independent journalism in Europe, to see arguments which challenge the role and integrity of the editor, in seeking to maintain ethical standards, as in cases of the rights of authors to express themselves freely and, of course, to respect their moral rights under copyright law. Likewise, there are valid arguments in favour of not suppressing certain manifestly false information, opinion and lies for various worthy reasons.

A question might be, however, as to what this has to do with legal and professional information publishing, in its most familiar guises, primarily those of respected tomes, periodicals and their electronic derivatives; words used in the code, such as “honesty”, “accuracy” and “fairness”, should, however, be clues. In my view, as the distinctions as among traditional publishing, public/press relations (PR), third-party content purporting to be derived from in-house expertise, blogging, “advertorial” writing, social media, online influencing and more, are blurred, and in a world of alleged and actual fake news, “non-literal commentary” and PR-style “alternative facts”, the law is not immune and should be protected from many of these media. Some lawyers themselves, apart from lying tactically, perhaps regrettably, do not always rely on properly adduced, fact-based evidence and precedent, and carry with them into their work and writing, their biases, prejudices, bigotry and politics, as, for example, the US Supreme Court shows. As such, we see a constant diminution in trust and confidence. One might only speculate as to the effects of Amazon entering the legal services market and look forward to the prospective benefits of the UK’s Online Harms Bill having effect in its jurisdictions and beyond.

In her insightful article, Editing Legal Resources, Alisa Lazear sets out the basic issues for the task in hand; I would endorse all she writes but go further than questions of linguistic clarity and market segment focus. My own experience and training as a legal editor are such that I can be reasonably certain to find an error of some description on any one page of typescript submitted by any legal author, however esteemed and expert. It might be a wrong citation or statutory reference, the use of an outdated legal word or phrase, the innocent ignorance of a particularly new statutory amendment, an imprecise footnote or countless other examples that could be mentioned. There can be several types and layers of editing and scrutiny for legal content, such as peer review, copy editing, legal editing and rewriting and proof reading, each with its own skills and purposes. In my opinion, the importance of high-quality editing by people of unshakable integrity and uncompromising principle cannot be understated. However, in reality, they often don’t stand a chance, in the face of such phenomena as professional firms paying to have their content published in ostensibly independent media and, for example, potentially where open access provision is supported by third-party funding. “Who pays the piper…” can be a consequence.

We have reached a point at which, for example, we find a US Republican senator, Mike Lee, a lawyer, expressing his opinion that fact-checking is a form of censorship; one in which a British member of parliament and former Conservative Party leader, Iain Duncan Smith, founder of the Centre for Social Justice, can complain of “giving in to the scientific advisers”, regarding Covid-19 prevention policy and, thereby, the making of protective laws. More than ever, there is a need for ethical, well-trained and committed people of principle to be the fact-checkers and guardians of truth, even in legal content, to scour texts for inaccuracy, poor quality and dishonesty. Its metaphors need to be examined or possibly excised, when they serve to disguise, confuse or confound or to hide ignorance of detail; after all, we are not dealing with poetry, mysticism, therapy and feelings. The distinctions between fact and fiction need to be clear, with the latter having no place in law publishing, wherein expressions of opinion have to be evidentially, jurisprudentially and unemotionally informed. Being “on message” is usually not to be trusted or is, as likely, simply a pack of lies. Let the competent editors get on with their jobs and observe their ethical standards. As for others, the incompetent, inexpert and unethical ones, often, but hardly exclusively in popular, especially English media, well, that’s another matter.

All this assumes, of course, that whether it is by having suitable personnel in post, or through the use of freelancers, or by off -shoring some or all these processes, the legal publishers are investing at all in editorial scrutiny and standards and indeed that their future viability is sustainable. Regrettably, much of this cannot be guaranteed; some of them seem to be too busy arguing about allegedly cutting corners and costs in product development. However, the consequent shutdown of operations at ROSS Intelligence offers, without personal judgment on it, a strong indication of the power of money, market dominance and size in information and related sectors, as a matter separate from respective merits in the case in question.