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17 Dec 2008 : Column 74WH—continued
Mr. Andrew Pelling (Croydon, Central) (Ind):
I congratulate the right hon. Member for Rotherham (Mr. MacShane) on securing the debate. The timing is important because English PEN and Index on Censorship are conducting their own public inquiry into the conduct of libel laws. The Culture, Media and Sport Committee
looked last year into the issue of privacy intrusion and the prospects of being able to deal with it solely through self-regulation in the media. It will also be going on specifically to consider this issue, so the debate is timely.
I should like to make some declarations of interest. I am a client of the excellent Carter-Ruck and I am currently taking recourse to the libel courts regarding issues relating to the media.
It is important that we recognise the vital role that the press plays in underpinning our liberal democracy—the way in which it endeavours to secure open government and to hold those in the public sector to account. In some ways, we need to ask why it is that the news media has to play such an important role—perhaps it is because the strength of the Executive within our political system is so strong that often Parliament is more neutered in that role compared with the media.
As 1960s’ children, many of us have grown up with an awareness of the importance of the national media’s role. In the US, we all remember the role that Woodward and Bernstein played in Watergate. Moreover, I remember the campaigning way in which The Sunday Times ran story after story on how the parents of children who had taken thalidomide had been so badly let down by both the drug companies and Government.
It is often said that the pen is mightier than the sword. Indeed, the pen is very mighty, which is why we have a legal system that ensures that if the media behave irresponsibly, people have recourse to the libel courts. Very often damage is done to families when kiss-and-tell stories or other revelations take place, and that damage is left behind for many years to come. Many people might well be tempted to tell their own story. Perhaps they might be offered money to tell stories, but they may all live to regret it subsequently.
However, we must be cautious about entering into a situation in which libel laws are greatly restricted, particularly when we remember that it is not necessarily Russian billionaires or those who can buy their way into protection who are affected. We just have to think about what happened to Kate and Gerry McCann. Four newspapers thought it appropriate and responsible to suggest that the McCanns had been responsible for the death of Madeleine and the disposal of her body. It is important to remember that it was the courts that brought the libel to an end, and the newspapers had to publish, on their front pages, in an unprecedented way, apologies to Kate and Gerry McCann.
I admit that I was frightened to come to this debate and to express my views about the media. One could be subjected to unbridled retribution by the media if one were to make comments about the appropriateness of libel laws. I hope that those who report my speech will quote me in full when I say that I feel strongly that it is important for Members of Parliament not to be intimidated by the press in speaking out on this issue.
I have had my own personal experience. A style of cut-and-paste journalism led to a report that suggested that when I was unwell, I had managed to work in the City, but not here. Those allegations were false. After several calls with journalists, I finally came upon a very empathetic female journalist from The Daily Telegraph who realised halfway through her interview that she was
dealing with someone who had suffered previously from mental ill health. Unfortunately, very often journalists are looking for the story and not necessarily for the full truth.
We must bear it in mind that it is often particular newspapers from a particular newspaper group that perform the worst. If we look at the number of complaints that go to the Press Complaints Commission, it is clear that one group has far more complaints made against it. We must not cast aspersions across the whole of the media as a result of the behaviour of a very limited number of journalists. I was interested to see that the book “Flat Earth News”—recommended to me by Alastair Campbell in the briefest of chats—referred to a particular newspaper group that acts with unmitigated spite to cripple reputations, and to kill ideas regardless of justice and truth.
I am very mindful of others who wish to speak, so I will bring my remarks to a conclusion after speaking briefly about the operation of conditional fee agreements, which was criticised earlier. CFAs are often wrongly described as a contingency fee agreement. There appears to be the perception that a lawyer in a successful case is entitled to a percentage of the damages won. However, the arrangement does not work in that way. If the case is lost, the lawyer gets nothing. If the case is won, the lawyer is entitled to be paid his basic charges in addition to a success fee, which is a percentage uplift on the basic charges. The winning client is entitled to seek to recover from the losing opponent his reasonable costs, which are assessed by the court if not agreed, and which may include a reasonable success fee and a reasonable after-the-event insurance premium.
Both the level of the success fee and the amount of the premium are also subject to assessment by the court if the costs cannot be agreed. Success fees are typically staggered. If a case is settled before proceedings are issued, the success fee will normally be capped at 25 per cent. It only increases to 100 per cent. if the case looks as though it will progress to trial, where the risks are much higher. The availability of ATE insurance means that if a client loses, the insurance will cover—up to a maximum of the indemnity in the original policy—the newspaper defendant’s cost. It is clear that libel lawyers under CFAs act for many people who are on income support, including individuals who may well have been falsely accused of extremely serious crimes.
There is great danger in how the Government and Parliament act because, in many ways, they always take rights away from those who are in the middle of society. The idea that, somehow, only those who are on income support can have access to CFAs strikes me as being yet another blow against the lower middle class and their ability to access the courts. Complaints are made about the cost of libel courts. Unfortunately, the reality is that the cost of all courts stops many of my constituents having proper access to them to defend their rights, whatever the issue.
Frank Cook (in the Chair): Order. There are 30 minutes left for Back Benchers to speak in the debate and three hon. Members are bidding to make a speech.
10 am
Norman Lamb (North Norfolk) (LD): I congratulate the right hon. Member for Rotherham (Mr. MacShane) on securing the debate, which is on an incredibly important subject. I look forward to hearing the Minister’s response to the extremely important points that were made on the phenomenon of libel tourism. The hon. Member for Croydon, Central (Mr. Pelling) also made some important points on the protection of individuals against irresponsible journalism, and I absolutely accept his concerns.
I apologise for the fact that I must leave before the end of the debate, but I have a long-standing commitment to meet. I warned you of that earlier, Mr. Cook.
I have two reasons for contributing to the debate. First, I have an interest in, and commitment to, the incredibly important principle of freedom of expression. Secondly, I have an interest in serious and responsible investigative journalism. Those two things are essential to the proper functioning of a liberal, democratic society. It is essential that journalists are able to perform that function, to root out wrongdoing, whether it is by Government officials, politicians or private individuals, and to hold Governments to account. As the right hon. Gentleman indicated, it could protect us from harm.
There are widespread concerns among journalists and others that the UK libel laws, combined with the cost of defamation litigation, act as a constraint on, and an impediment to, the effective and legitimate work of investigative journalists. Those concerns have been heightened by the application of libel law to those who contribute to the internet and those who write blogs. I have no interest in people who make wild allegations that are not supported by facts. They do not deserve the protection of the law.
I shall offer one case study—I stress that I do not know all the details or the full story—that illustrates how the threat of defamation proceedings using, primarily but not exclusively, UK libel laws may succeed in closing down legitimate inquiry and reporting. I should also stress that I do not want to use this opportunity to take advantage of the privilege that we enjoy to make fresh allegations against any individual.
The case involves Nadhmi Auchi, whom the right hon. Gentleman mentioned. He is a British citizen—an Iraqi exile—and he is reported to be a multi-billionaire. He was convicted in France in 2003 of fraud in a trial involving the oil company Elf. Importantly, he continues to assert his innocence of the charges—there was a conviction, but he is pursuing routes of appeal against it. He was barred from entering the United States in 2005. My interest in the matter is in his connections to Tony Rezco, who was convicted of fraud, money laundering and bribe-related charges in Illinois, and who is currently in prison pending sentencing. We understand that sentencing has been delayed, and it has been suggested that he should talk to federal prosecutors, especially about allegations against Illinois Governor Blagojevich, which are being investigated. There is political interest in the US because of the connections between Rezko and President-elect Obama. I make no allegation at all relating to the latter.
There have been reports that a company related to Mr. Auchi registered a loan of $3.5 million to Tony Rezko on 23 May 2005. That and other alleged connections are obviously of great interest to investigative journalists
and others. More to the point, it is legitimate to investigate such a matter, given that Mr. Auchi is a prominent British citizen with political connections in this country and overseas. As I said, it is not appropriate to go into more detail, but it is alleged that Mr. Auchi and his lawyers, Carter-Ruck, have been making strenuous efforts to close down public debate. Of course, it is absolutely legitimate for any citizen to demand accurate and rigorous investigation and reporting. The question is whether UK libel laws have the disproportionate effect of discouraging legitimate reporting. Many believe that they do.
On 28 June, Private Eye reported Mr. Auchi’s instructions to Carter-Ruck. The article states:
“Carter-Ruck’s first target was a series of revelatory articles”—
“printed in the Observer in 2003, which American bloggers and journalists were starting to notice.”
Later, however, the article states:
“You will search in vain now, however, to find most of the Observer’s reports.”
Those reports were from five years ago. It has been reported in the US that Carter-Ruck has been writing to US and British newspapers and websites demanding removal of the material that it deems defamatory of its client. Many are concerned about the fact that creating a link on a blog to a newspaper article, which may have been available for several years to anyone searching the internet, can result in action being threatened or taken. Is that legitimate? Alternatively, should a blogger be able to rely on the journalistic integrity of reliable news sources when a story has already been published and when it has existed for several years?
What steps should be taken? A doctrine arising from Reynolds v. Times Newspapers Ltd and others, 1999, seeks to protect serious investigative journalists. Guidance given during that case, as I understand it, included 10 principles that investigative journalists should follow. However, subsequent cases appear not to have applied the principles as intended by the Reynolds guidance, and the protection offered to serious, investigative journalists has not been as great as had been anticipated following the judgment.
Jameel and others v. The Wall Street Journal Europe Sprl, which was heard in the House of Lords, reasserted the importance of the principles enshrined in the Reynolds judgment, and there is some evidence that courts’ interpretation of the principles appears to have improved since. However, the question is whether those principles should be enshrined in statute to give them greater force and clarity. Is there also a case for looking at the burden of proof? I make no judgment about what ultimately should happen. I suggest that this is an appropriate area for consideration by a royal commission.
This is a legitimate area that needs consideration. As the right hon. Gentleman said, it is a long time since libel laws have been looked at and further consideration is long overdue.
10.10 am
Michael Gove (Surrey Heath) (Con):
I congratulate the right hon. Member for Rotherham (Mr. MacShane) on securing the debate and the hon. Members for
Croydon, Central (Mr. Pelling) and for North Norfolk (Norman Lamb) on their speeches, both of which contained much good sense.
I draw attention to my declaration in the Register of Members’ Interests. As a journalist, I write for The Times and have been an executive of that newspaper as news editor. I am committed to the principle of free expression and the freedom of the press. That is not only a consequence of my professional career and vocation, but because I believe that it is only through an effective free press that the exercise and abuse of power can be monitored effectively.
While this country has the police, the courts and a system designed to track down and punish those who do wrong, the press has historically played an invaluable role in bringing such people to the attention of the courts and the police. Sometimes the press is needed to draw our attention to the failure of the authorities in the pursuit of wrongdoing, extremism or other activities that threaten the public interest. Only this week, The Times pointed out that someone who has connections to Islamist extremism that might concern us all has been employed as an adviser to the Metropolitan police’s Muslim contact unit.
Not just newspapers, but other institutions that exercise a journalistic or quasi-journalistic function have exposed extremism in public life. Think-tanks such as Policy Exchange, which I used to chair, and the Centre for Social Cohesion have pointed out the extent of extremist influence—particularly but not exclusively Islamist extremist influence—in British public life. Because of the international nature of the extremist threat, there are examples of the press being more effective than states or international institutions in exposing such dangers. An example is the work of Claudia Rosett at The Wall Street Journal in exposing the failure of the UN effectively to police sanctions against Saddam Hussein. In all those areas, free expression and a free press have been vital in exposing abuses.
The right hon. Member for Rotherham pointed out that it is of particular concern to all of us who are attached to the freedom of the press that individuals who have been alleged to have links to extremism have used British courts to close down the investigation or publication of allegations that are in the public interest. He mentioned the examples of Khalid bin Mahfouz and Mohammed Sawalha, a British resident who tries to close down legitimate investigation into extremism on the internet.
As the right hon. Gentleman and the hon. Member for North Norfolk pointed out, there is in effect a public interest defence in law for the sort of investigative journalism that I am sure we would all applaud. The Reynolds defence offers journalists and newspapers a form of qualified privilege. That is qualitatively different from the sort of privilege enjoyed in courts and by Members of Parliament because it allows newspapers the comfort that it is legitimate for them to publish allegations provided that the process followed demonstrates that the journalism they are engaged in is of high seriousness, that appropriate steps have been taken to ensure that the allegations are in the public interest and that they are being properly investigated. They do not
subsequently have to prove justification to the same threshold required in other cases.
A problem with the Reynolds defence is that instead of being an aid to free expression, according to some it has become an obstacle to free expression. The guidance that the courts originally gave newspapers to help them publish material in the public interest has become another set of hurdles that they have to clear. The hon. Member for North Norfolk pointed out that Jameel and others v. Wall Street Journal Europe Sprl made it perfectly clear that the Reynolds defence should help, not hinder, free expression.
There has been only sporadic implementation of that defence and a misunderstanding of it in many courts. That is why at the very least it is worth exploring whether we can enshrine the principles of the Reynolds defence in statute. That would send a clear signal from Parliament to the courts that the Reynolds defence is in effect as a public interest defence that allows the publication of material that should be part of public debate, particularly when serious issues such as extremism and terrorism need to be investigated.
Dr. Evan Harris (Oxford, West and Abingdon) (LD): The hon. Gentleman has set out some components of the Reynolds defence. I believe that part of that approach of responsible journalism is to report the denial of the allegations by the accused. That is not a requirement, but I am interested to hear his view on the matter.
Michael Gove: The hon. Gentleman is right that broadly 10 principles are outlined in the Reynolds defence, one of which is the strong suggestion that an effort should be made to secure the response of the individual against whom allegations are made. It is a basic principle of good journalism that the other person’s case should be heard.
I would not wish to erect those 10 principles into 10 absolute hurdles. Discretion should be exercised in the courts and any change to the law should acknowledge that. The important points are whether the material that is published is in the public interest, whether the case is urgent and important enough to justify publication and whether overall the journalists, the newspaper or the blog can demonstrate that they have done everything in their power to ascertain the truth and importance of the allegations that are published.
On costs, the point has been made that conditional fee agreements can raise profound questions of a chilling effect on publication. Indeed, Lord Hoffman has pointed out that freedom of expression may be seriously inhibited by conditional fee agreements. The hon. Member for Croydon, Central has pointed out that they can be helpful to individuals without resources who have been defamed. I do not wish to see the end of them, but it is important that an effort is made not to perpetuate the chilling effect on publication in the ongoing review into the costs of civil judgment. In particular, small and independent newspapers, think-tanks, research groups and other organisations that are vital components of a free and rigorous culture of debate and accountability must be protected in any structure that we create.
Finally, it has been pointed out that internet publication can lead to links being created to articles that were published and brought into the public domain four or five years previously because they remain on an internet
archive. That may be done to substantiate a point that is being made afresh. An individual who creates such a link to material that is already in the public domain can be sued. At the very least, it is questionable whether we should allow the courts to pursue an individual who in all innocence creates a link to an article that has not been the subject of a defamation action. That individual may be sued because of the desire of another to pick off a weak link who he considers to be rich pickings and a suitably unprotected victim. In those circumstances, it would be appropriate for the court to ask, “Why did you not go for the big boys first?”
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