Katherine Hooley
“So, what do you do …?” That ubiquitous and seemingly simple question intended to glean insight into one’s life, can carry unexpected weight for a lawyer. We often find ourselves navigating preconceptions about our profession. You might recall Shakespeare’s much-quoted line from Henry VI Part II “let’s kill all the lawyers”, a sentiment amusingly echoed during an encounter with a stranger who inquired if I belonged to the “blood sucking” variety of lawyers!
As a lawyer, we are bound by professional obligations such as client confidentiality. This restriction can significantly limit our ability to discuss specifics of our day to day work and our clients’ identities, making the answer to “What do you do?” even more complex.
I am a Senior Associate at the law firm Carter-Ruck and work in the media law team, which specialises in reputation management, involving (among other areas of law) defamation, privacy, data protection, copyright and harassment law.
We are known for our 40-year history of being at the forefront of the development of law within our practice areas, particularly privacy and reputation, which can be seen with the cases of NT1 & NT2 v Google LLC and a leading Supreme Court decision in PJS v News Group Newspapers Ltd, which, while perhaps not immediately recognisable to laypeople, have been pivotal in shaping privacy law including the ‘Right to be Forgotten’. Only a few weeks ago my colleagues were in the Supreme Court against the Home Office, in what is likely to be a landmark judgment on important issues of defamation law.
Despite our firm’s association with claimant litigation and advisory services, our practice is multifaceted. We represent both Claimants and Defendants.
Our clients are global and include governments, heads of state, Members of both Houses of Parliament, multinational companies, corporate and commercial entities, entrepreneurs, shareholders, directors, private family offices, celebrities, sports personalities, private individuals who find themselves temporarily in the public eye, academics and academic institutions. The scope of work is incredibly varied and ranges from litigation to advisory work (including advising on Parliamentary investigations and complaints) across our different practice areas. We also act for global broadcast and media entities, which involves both pre-publication work and dealing with legal and regulatory complaints post publication. Our recognised international law practice spans human rights issues, international arbitration and sanctions work.
For me, one of the most fulfilling aspects of working at Carter-Ruck is that the client base and work is as broad and diverse as it is interesting and although my mainstay is media law the diversity of our practice presents a variety of opportunities. My recent heavy involvement in a commercial law case centring on an unfair prejudice claim against our client, as well as having the opportunity to work with the International law team on a high-profile international arbitration matter, exemplifies this. Additionally, our internal team structures offer unique benefits when it comes to opportunities for juniors at all levels, even trainees and paralegals, to work closely with Partners, benefitting from their experience and guidance and gaining invaluable experience and responsibility.
Daily life as a media lawyer requires good time management and communication skills. These are key. Any one Associate will be working across multiple matters, with different partners, balancing client expectations and court deadlines. In litigation, deadlines are mostly set by the court, and although extensions can be obtained in certain situations, often they are immovable. On media matters, at pre-publication stage, my schedule can be dictated to some extent by the media’s publication deadlines, which can be unpredictable. We might get an enquiry on a new matter on a Thursday or Friday to which we need to respond within a short timeframe ahead of a weekend publication deadline.
As with all law, the media law landscape is an evolving one and so it is also important to keep up to date with case law. The media law blog Inforrm provides great insight and updates on cases and current issues in the field. Barristers’ chambers like 5RB and Matrix, with which we work closely, also publish regular case updates and host conferences and roundtable events which encourage active discussion on case law and developments within our practice areas. These types of events are invaluable for junior lawyers to forge connections within the profession.
Defamation law cases have traditionally involved individuals challenging print media publications over allegations about them that they contend are untrue, not in the public interest, private and/or confidential and causing harm to their reputation. The legal landscape has had to expand and evolve in response to the internet and the consequential boom of publication of material online (both by traditional media and, increasingly, by the general public). It remains the case (by virtue of them being of interest to the public) that legal complaints often still involve high profile individuals, from celebrities to politicians, about whom something has been published which cases serious harm to their reputation. When these cases go to trial they often attract significant press coverage. The recent “Wagatha Christie” case transcended the media law legal circles and became a topic of national interest and debate. Unusually, I found I was being asked for my professional view by family, friends and even acquaintances on what had by then turned into an almost globally talked about trial. The same was true with the Depp trials.
Ordinarily when litigation is brought, this means the case and key information about it, including the parties’ names and the basis of the claim and any defence, are put on the court record which means that that information becomes publicly available. Any court hearings and the trial are usually held in public, which is consistent with the “open justice” principles we have in this country. However, some of our cases involve private and confidential information, which can require deviation from the usual open justice principles. This can mean that even the identities of the parties are protected (usually through anonymised ciphers), let alone details of the private information itself, as further dissemination of that information is likely to harm the parties and/or undermine the case. This can be the case even if the matters involve high profile individuals and court hearings, although it is up the court to decide what measures it considers proportionate in the circumstances, which will involve it balancing the competing rights of the parties and also what is in the interests of the public.
In recent times, social media has become a source of information and news for many of the population in competition with traditional print media. The democratisation of social media allows anyone to become a commentator or ‘citizen journalist’. However, while trained journalists might be expected to take a course in legal issues journalists face, such as defamation and privacy law and data protection, and the steps they need to take to ensure that their work is responsible and legally defensible and avoids infringing other people’s rights, no such tests apply to the populations of Twitter, Instagram, Facebook and TikTok. The recent Online Safety Act tries to grapple with some of these issues in its creation of new communications offences aimed at those sending false or threatening messages online or encouraging self-harm. In addition, case law enables the law to evolve and adapt as society changes.
AI is the latest frontier, with its impact on various industries, including law, being a topic of much debate. In some industries, the use of generative AI technology looks likely to be game changing, but while its abilities are undoubtedly impressive, it has also already courted controversy. There has been more than one instance where generative AI has won a photography or art prize, which has caused some debate around the threat it poses to those trying to make a livelihood as a creative. As lawyers, in addition to our professional obligations of confidence, we have obligations and duties of honesty. Generative AI’s ability to have “hallucinations” (i.e. create new information that is false, which it can attribute wrongly to a source or insist is correct) makes it necessary to treat the technology with a high degree of caution. I think this is a particular concern for lawyers, where we need to be certain of the veracity of the information we are presenting. There is also the risk that using generative AI could breach duties of confidentiality where the information provided to the platform might be accessible to the platform provider. It raises extremely interesting questions from a media law perspective as well. If hallucinations involve false and defamatory allegations against individuals, which they repeat to multiple users, this raises questions as to whether ChatGPT could be held liable for defamation. One such case has already been brought in Florida by a radio host called Mark Walters whom ChatGPT alleged, falsely, had committed financial crimes. It is very much a case of ‘watch this space’ in the world of ‘AI Law’.
Looking ahead, the fast-changing world in which we inhabit will require an ever changing and evolving legal system. This shifting legal landscape offers lawyers the opportunity to shape and adapt our legal system to keep pace with societal and technological advancements, which is quite something to be a part of. Perhaps I should lead with that next time I am asked ‘What do you do?”…
