Michelle Mone | Meet the lawyer who keeps Matt and Alice out of trouble | 4
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From Wondery, I'm Matt Ford. And I'm Alice Levine. And this is British Scandal.

Now, because of the arrest of an anonymous person related to the National Crime Agency investigation into PPE MedPro, we're not able to actually do our scheduled interview. So instead, we're bringing you a fascinating chat with someone who helps us in these kinds of sticky situations. We call her Red Tape Claire. She is the person who tells us what we can't say, what we can say and where to reword our scripts.

She stops us from getting sued, basically. Claire Hoban is a content lawyer with 20 years' experience working across television, film, audio and print. She's worked on shows like Have I Got News For You, Mock The Week and even Breaking News. She joins us next. Claire, you've been content lawyer on so many series of British Scandal, including the latest one on Michelle Moan. So just explain to us, what does a content lawyer actually do? So an editor

editorial content lawyer is somebody that basically looks at content before it goes out, whether that's a film or a television program or a podcast or a radio show. And they'll just look at everything in the editorial and try and work out what are your risks? Could you get sued on any of this and advise you on the content and they might help you to amend scripts or to if it's if it needs an edit, they'll advise you how to do that. And you

you can work in all sorts of realms. You know, you can work on breaking news or live programs right through to programs that have a really long production period that might take months or even years to make.

Do you have a proverbial red pen then? Are you the person that's sort of scribbling red ink over everything? Well, you know, I think there's this kind of preconception that isn't true. A misconception, I should say. There's a misconception about somebody like me, which is that I will just say, you can't do that, you can't do this. But that would be just so boring. So the actual interesting thing for me is about finding ways that you can do it.

in a way that you're not sued. If you just keep saying no, firstly, all your clients leave you because you're just not an enabler. And, you know, word gets around because it's a tiny industry. And, you know, it's not what people want. And it's not intellectually satisfying. You know, it's really challenging finding ways for people to say really difficult things. So you're effectively someone who finds the loopholes.

potentially it's, it's not necessarily the loopholes. What it is, it's like having a kind of working sort of mini encyclopedia in your brain of all the defenses that could apply to everything that you want to say. So if I'm talking to somebody and they want to say something that is defamatory, um,

you know, will kind of bottom out what it is that they want to say and why and what their evidence is. And then I'll immediately be thinking in my head, well, we would defend it like this. We would defend it like that. This is how we would justify it. This is the argument I'd make as to why it's OK. And, you know, and that's what content is. You're constantly just assessing risk, working out how you defend something and then taking a view on whether you then go ahead and, you know, say it or not. And have you ever had to defend something?

That is a natural part of it, because the other thing about content is you can get to a point where it's completely defensible, but you can't stop somebody complaining. If they want to sort of waste their time and complain and they'll end up losing their complaint, it doesn't stop them doing that. I guess another preconception is that your job is about entirely eliminating risk. But surely that's not actually possible. There's always some risk.

Yeah, I think, you know, you are working in a field of risk and it's what makes some lawyers just absolutely not want to work in this field because it's not black and white. It's all about just assessing what's the likelihood of someone complaining, on what grounds would they complain? If they did complain, you know, what...

What's it going to kind of cost them? You know, would they bother to do that? And I think personally, you kind of have to get into the psychology of people as well. You know, what is someone going to get exercised about? Because sometimes if someone brings a complaint, it actually makes them look bad.

really bad. It almost makes them look like they're protesting too much and engaging in sort of reputation management that it really doesn't need to do. So there's a lot of reasons why people complain. And I think it's not about being completely afraid of receiving any complaints at all in life when you make media content. It's about taking manageable risks and putting things out there that, you know, you believe in that you should be broadcasting, you know, whether that's

or a documentary that's making allegations and just being able to feel legally secure that you can say what you want to say because it is defensible. Does your job make it hard for you to consume any sort of radio, telly, film without thinking how on earth was that included? It can be. Like if I watch like a documentary, right,

it's almost impossible for me not to watch it thinking oh yeah I can tell that they've put they've woven in a right of reply there or I can tell that they've edited that there just to do something or oh that felt crowbarred in for balance you know so I'm kind of watching it like that but also when I watch programs like that I just think god I know what will have gone on behind the scenes to get that program out.

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So contempt of court, it's basically, it's based on the Contempt of Court Act 1981. And there's a provision in there really that really hasn't changed, which is we care about any kind of content which could cause a substantial risk of serious prejudice to someone's ability to get a fair trial. So what that means in real life is

Once somebody is arrested, at that point, we regard proceedings to be what we call active. And there are other things that can kick in that aren't just arrest. But for the sake of this conversation, arrest is an easy hook to hang this on. So once someone's arrested, we then have to think, is our content at risk of being prejudicial? And there are lots of ways that content can be prejudicial. So, you know, for example, it can be

disclosing someone's criminal past when that information might not be in the public domain. You know, it might be going and speaking to potential witnesses and interfering with their recollection of events so that by the time they then go to court,

what they would have said has been shifted slightly by your interactions with them. Could it be something as sort of grey area as colouring the public's opinion of someone's character generally, not in relation to the case, but in a sort of sense of people's general picture of that person? Yeah, if it veers into the negative...

then, and just remember that that test is a substantial risk of serious prejudice, not any risk, a substantial risk of serious prejudice. So, you know, I think if your content is really sitting quite squarely in line with what is already out there, what is being broadcast, what is factually established, which is widely in the public domain, then your future reporting around that level is

you know, may not be prejudicial. But, you know, once someone's arrested, you have to think what you're publishing a new, what you're publishing a fresh at that point, you know, and a news outlet, like a big news website, they don't go and sort of trawl through all their archives the moment that someone's been arrested and, and kind of delete it from their system, you know, you're not expected to rewrite history. But sometimes they might make that content

you know, less prominent, for example, or they might de-link it from some of the current reporting about the new case. And then the other thing to bear in mind is it's not just this kind of overarching cloud that we have to think about of are we being prejudicial? Sometimes in quite early stages of legal proceedings, in some of those early hearings, a reporting restriction will be made. And what that means is you're then prevented from

saying certain things or talking about certain issues or naming certain people. And then the journalists are all sort of scrabbling around trying to make sure that, you know, none of their reporting breaches that. Or if you've got something like, you know, like a rape trial, for example, there are also like automatic rules that kick in where people have automatic rights to anonymity for life, the

The moment that they say that they've been sexually abused in any way or sexually assaulted in any way, there doesn't even have to be legal proceedings. So there's quite a lot of rules that kick in that aren't just contempt that all roll into that ball of contempt. But the main thing that journalists are thinking is, is my content prejudicial? Could I prejudice a trial? And this is a criminal offence.

So if you're found guilty of contempt, and it's the attorney general that brings the prosecution, if you're found guilty of contempt, you can be personally prosecuted as somebody, let's say, who's got kind of editorial influence and control. So somebody who might be in a senior editorial position.

Those kind of individuals have been prosecuted for contempt before. They won't always just go after, you know, like the broadcaster, like the BBC. They might actually go after individuals within an organisation and say, you were the one making all those decisions. But not Alice and Matt.

Not obviously not useful. I think it's fair to say Matt has a lot of editorial control on the show. And I've always been more of a sort of renter presenter. I kind of am airlifted in. I barely read the scripts in advance. So I think in this instance, you'd be talking about a kind of, not Matt Ford, obviously, specifically, but a Matt Ford figure maybe you'd be talking about. Yeah, I feel like I'm reading your witness statement. Prosecution for contempt. Absolutely.

And would it get me off the hook is the question, Claire? You know what it might do? It might be that if you thought, you know what, it was never in my orbit that I ever thought that Matt would have got this wrong or said this, so I just never stopped him from doing it. You know, that could be a potential. I just think he's infallible. I just would never have imagined he'd ever make an error. I trusted him not to do anything of this kind. But you can end up with a prison sentence. Yeah.

you could end up with a fine. A trial could be discontinued because you've done something that's prejudicial. And that's happened several times in the past. You know, trials of Premier League footballers and things like that, where something prejudicial has gone out in a tabloid and they just can't get a fair trial anymore. So they discontinue the trial. And then you could even be sort of landed with what they call a third party cost order, where you have to pay the costs of the collapsed trial, which is a lot.

Wow. Matt, that's a lot to think about for you. Is there an argument, Claire, that contempt of court laws in some ways shut down free speech because it means that there can be no scrutiny over what the courts or institutions are doing? Do you know, I actually have quite strong views about contempt because...

I think that it's so important that someone's ability to have a fair trial isn't ruined and that a juror goes into that trial and is able to look at that defendant neutrally. But it's not just about the defendant's right, because if a trial collapses because someone can't get a fair trial,

If they have done it, the victim loses their right to get justice as well. So for me, contempt laws are absolutely, they have their place and they're really important. And if you contrast us with the US, who really don't have any contempt rules like we do, and they can just go absolutely crazy analysing people and saying that they're guilty before a trial in a way that we never could.

I just don't see how some... It's just trial by media there. And we just don't have that in the same way. And I think that's a good thing. Bringing the conversation back around to British Scandal. Obviously, British Scandal has an element of creativity people will know and love in our credits, although we can't know exactly what was said. All our dramatizations are based on historical research. Right.

Where is the line with creativity about a real life character and this kind of strange hybrid, which is that we are an entertainment show, but we are also doing lots of research and this is based on real stories? Yeah. So the kind of considerations that you're kind of mentioning there are the ones that really apply to all kinds of factual drama.

And your starting point is always that you look to see what you've included in your kind of drama, which is based on real events and based on fact. And then you look at what your departures are. So you look at the things that you've included that aren't based on fact. And largely, you know, if you have kind of scripted sort of glue that is holding those facts together,

That is not really a problem because, you know, it's obvious to a listener that you weren't in someone's bedroom when they were having a particular conversation or they were having a particular emotion. But you can fictionalise that. There'd be other legal implications, wouldn't there, if we were actually there? Well, yeah, exactly. Secret filming might be one of them, but secret recording.

But no, you can, it's the glue that binds the key events together that can be fictionalized. And that's really, that's not an issue. And it's also about managing audience expectations. So, you know, listeners of the show, they're going to know, they have an expectation already. They know that you're fictionalizing things, you're adding some humor, you know, that you are recreating certain conversations and,

that you're adding like some editorial flair to it and your own sort of spin on something. But fundamentally, it's based on fact and it's factually accurate. Obviously, we can infer from people's character and based on our historical research what people might have said, what King Charles might have said to Camilla behind closed scenes based on what we know about them. But nevertheless, if you're fictionalising something and that person says, hang on, I never said that.

It's immensely frustrating for them, but do they necessarily have any legal basis to challenge it? Not really, because it's always going to boil down to what did you have them saying? So you can fictionalise what someone said and they might say, I didn't like the fact you had me saying that and I wouldn't have said that. But the question you have to keep coming back to is,

Is it actually defamatory? Could they actually bring a complaint? And there's a lot of hurdles that they would have to jump through to show that it actually caused their reputation like serious harm. So a lot of this glue, a lot of this fictionalized stuff that is used in dramas and you can take like The Crown or whatever else, you know, there's stuff that's just created.

But it's not, you know, is it defamatory? And the answer is usually no, not really. Someone might not like it, but that's not enough. That's not enough to bring a libel action.

I think actually in that series, Matt, we did say that then Prince Charles wanted to be Camilla's tamper. Oh, no, we're fine with that, actually. That's just fact. Yeah, great. OK, we're off the hook. Brilliant. Great. When it's true, you can say it. And, you know, and people sometimes are shocked, you know, when I say, no, of course you can say that. I'm thinking as well of like David Cameron and a pig as well. I remember that story. And, you know, being a lawyer and saying, yeah, you can report that if you want.

My word. So what is it about the crown then? That's had a lot of attention and lots of outrage. What is it that they do that has stopped the monarchy from suing them? Well, I think they just, you know, when it comes to the important stuff, it's pretty accurate. And any departures, they're carefully considered. But, you know, you do think, well...

the monarchy should be held to account, whether you do that as a drama, whether you do that in a documentary. They're not beyond reproach.

And that you can almost view them slightly differently than you might your bog standard, you know, family or even a high profile family. Not to throw writers or producers or presenters, God forbid, under the bus. But is there something that comes up in your work time and time again? You're like, not this again. When will people learn? Stop including that, please. So many things. LAUGHTER

I mean, what happens is as well, you know. Claire's reversed over. She's taken the bus and she's just like treated it like a speed bump. This is all the rest of the team here. Go on. No, I mean, you know, the same issues come up for people again and again. And, you know, the longer I work with people, the more I kind of train them up and they're like,

they're like lawyers themselves by the time I finish with them. It's funny you say that because producer Chika on British Scandal, she's like, Claire won't like that. She's not going to like that. So you've done exactly that. Your voice is basically coming out of Chika's mouth. Yes. Oh, that's amazing. But the most,

important thing is that, you know, if you have a content lawyer, you mustn't see them as someone who's intimidating or someone who you can't have difficult conversations with or tell them things that you want to include. You need to feel really comfortable talking to them and that you're on the same, you're all on the same level.

But I suppose my main, my biggest bugbear in general across, you know, all the years that I've worked in content, and I think this comes down to more hardcore current affairs, is sometimes when you work in current affairs, there are times where they don't tell their lawyer all of what they should tell them. And by holding back,

Your advice as a lawyer is only ever as good as the information that you're given. You know, and I don't go off and do the research. It's production that do. I might ask lots of difficult questions and ask them to get information. But if you hold back from your lawyer, then your program is just as good as the information that you gave your lawyer. So it's about having that relationship and having trust and.

and not having people sort of think, do you know what? I've been doing this for 30 years. There's nothing you can tell me. There's nothing you can teach me. I know everything. And I think that is actually the times where I see people really screw up. Hey, I'm Ryan Reynolds. At Mint Mobile, we like to do the opposite of what big wireless does. They charge you a lot. We charge you a little. So naturally, when they announced they'd be raising their prices due to inflation, we decided to deflate our prices due to not hating you.

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OK, so thinking about how we tell the stories of real people, if I was to pitch you a show based on the story of Alice Levine, would I be able to infer that her dad actually didn't write a porno? Well, could you infer? Look, it's all about whether you would say something outright or whether you suggest it, it doesn't matter. It's the meaning's the same, isn't it?

So you have to think, is what I want to say, is that something I can defend? Or is something that I want to infer or suggest something that I can defend? Such a good point, Claire. Such a good point. I have a question actually on this topic, because weirdly, I'm actually working on a very similar project. It's actually on the life and work of Matt Ford. The first sort of chapter, if you like, is about Matt's ex-girlfriends before he met his lovely wife. Now, if I wanted to say that they described him as a liar and a cheat, would that be possible? Yeah.

Well, if they have a good reason why he's a liar. They do. A few examples, like if he cheated on them and they can prove that he did or they found out that he was sending text messages to somebody and they've got the whole text message stream. Sounds about right. All that kind of stuff. And so they've got a body of evidence against Matt. Then you could make whatever allegation you want to make as long as you can prove it.

Excellent. If they could prove it, then you could absolutely repeat it. Yeah. And if I just to return to the initial pitch about Alice Living's life story, could I say that in order to defame Alice,

let's say someone called Matt Ford, she would raise in an interview things that sound like questions, but nevertheless, having the question included leaves an impression that actually, based on the conversation we've just heard, I have a sound legal case against her. And in that case, would you like to work for me, please? LAUGHTER

Well, in lineball, you always think about the overall meaning. So it's all about what does something mean? And you take what was said and you also look at the content as a whole. So if we end up coming out of this podcast and actually all sides are balanced and there's kind of Bain and, you know, Antidote and there's just stillness.

and then the sting is diluted by something else that's said. It depends where you end up getting to. It might be quite hard to bring a claim because it would be quite hard to argue that there's been harm because someone's kind of not come away thinking something just really bad about you because actually it all came out in the wash and it balanced out and you've got a chance to defend yourself.

So it really depends on what the overall meaning of this podcast is. So it will become crucial how the podcast is actually edited. And the title, I guess, if it was called He's a Bad Bad Man, then, you know, that might have an impact. Yeah. And you could just say some stock sentences during this podcast that could end up being really defamatory. And then they could just be edited in at various times.

Claire, that's a fantastic idea. Thank you. Obviously, it would be it would feel like a conflict of interest for you to represent Matt in that case, because if I'm your favourite and you dislike him, it is hard. So I can see how you can't kind of come down on either side there. It'll just be whoever pays me most, to be honest. Noted. OK. OK. It's a bidding war. OK, that's fine. I'll talk to you later. This is to kind of go back to where we were. It's just a little shorty. OK.

In the three and a half years that we've been doing British Scandal, I think we've had a disproportionate amount of characters who are lawyers. How do you feel about the representation of lawyers in British Scandal? You know, I don't know what to say about that, really, because, you know, you get every kind of person being a lawyer, don't you?

you know, you get some real characters and you get some lawyers caught up in lots of wrongdoing and you get other lawyers that are kind of manipulated by their clients in some way. Um,

And then you get, you know, just lovely people like me, you know, that don't feature. There's a whole like spectrum of kind of lawyers. So I just think lawyers as a kind of body, it's full of lots of different people that get up to lots of different things. But if you look at any scandal, any kind of wrongdoing,

There's going to be lawyers woven into that somewhere. Oh, yeah, you're in the bedrock. I mean, we couldn't do this show without lawyers in both senses, in our fictionalised world and literally to put the episode out. I mean, if it wasn't for scandals, how would you pay the rent, Claire? Exactly. I don't know how I would. Yeah, it's true. It's just sustaining me. Claire, thank you for this phenomenal interview and for all your years of keeping Alice, me, our producers...

Our pain masters keeping us all out of jail. Thank you very much. You're very welcome. Huge thanks to Claire Hoban for joining us. Alice, next week, you're back behind the wheel. What do you have for us? Yes, petrifying for everybody as I can't drive. Matt, I want you to close your eyes and picture grass courts.

Pims, queues of people, strawberries, new balls. Chuck in a five-a-side goal and that's basically my garden. Well, I've seen the grounds that you live in and they are lush and they are impressive, but we're actually taking to the tennis courts for a sporting scandal this time. Oh, OK.

We will be going to the world-famous Wimbledon Championship where we're going to tell the story of a teen protégé turned sex-mad superstar who would eventually end up in prison just miles from Wimbledon itself. This is the story of the man they call Boom Boom. It's Boris Becker. Claire, that'll be an exciting one for you. I know, Matt. I've been across this for six months. Of course you have. Silly me.

From Wondery and Samizdat Audio, this is the fourth and final episode in our series, Michelle Moan. British Scandal is hosted by me, Matt Ford. And me, Alice Levine. British Scandal is a production of Wondery and Samizdat Audio. For Samizdat, our producer is Chika Ayres. Our senior producer is Jo Sykes. For Wondery, our series producer is Theodora Leloudis and our managing producer is Rachel Sibley.

Executive producers for Wondery are Estelle Doyle, Chris Bourne, Morgan Jones and Marshall Louis.

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