Supplementary written evidence from the Department for Culture, Media and Sport

 

1. We welcome the Committee's regular scrutiny of issues around press regulation. We believe this is an important area and it also reminds the press of the responsibility and privilege that is self-regulation.

 

2. The Committee has set out a number of areas that they wish to investigate. We have grouped our responses together where that is more practical.

 

Why the self-regulatory regime was not used in the McCann case, why the Press Complaints Commission (PCC) has not invoked its own inquiry and what changes news organisations themselves have made in the light of the case.

 

Whether the successful action against the Daily Express and others for libel in the McCann case indicates a serious weakness with the self-regulatory regime.

 

3. It is vital to note that while the Editors' Code of Practice offers a layer of protection, it is not the only protection. The Code is complementary to the law. There are various laws protecting different aspects of privacy and inaccuracy, if the inaccuracy is defamatory; for example, the Data Protection Act 1998, the Human Rights Act 1998, and the Regulation of Investigatory Powers Act 2000. Individuals then have the right and the choice to decide whether they wish to pursue a legal option - in some cases, a criminal one - or the self-regulatory option of submitting a complaint to the PCC. The reasons why aggrieved parties might choose between these routes will depend on personal circumstances For example, the desire to secure financial compensation might influence the decision to take the legal action.

 

4. As a general rule, the PCC does not investigate matters if they are sub-judice. This must be right as there is the danger that it could prejudice the outcome of a trial and find itself in contempt of court. However, the PCC must then decide whether to carry out its own inquiry. When matters of privacy are under consideration, an investigation may lead to a further breach of privacy. We understand there have been occasions when the PCC has been asked not to investigate by those involved in a particular story. The PCC must consider all the factors on a case by case basis.

 

5. Changing case law alters the playing field for newspapers. For example, the 2004 von Hannover judgment in the European Court of Human Rights, held that the public does not have a legitimate interest in knowing where a public figure is (in that instance, Princess Caroline of Monaco) and how they behave generally in her private life, even if they appear in places that cannot always be described as secluded, and despite the fact that they are well known to the public.

 

6. The PCC had also been moving in this direction and developing its own 'case law' which concluded that one might sometimes have a reasonable expectation of privacy even in public places.

 

7. Newspapers have had to make changes in how they operate. It is now commonplace to see photographs in which the faces of children have been pixelated so that they cannot be identified, even if those photographs were taken in a public place or at a public event.

 

8. Newspapers and media organisations are aware of the need to police themselves in this regard and have done so on many occasions. News International and Hello magazine, for example, announced that they would not be using paparrazzi photographs of Kate Middleton in their publications. These actions effectively 'killed' the market for these freelance photographers, and meant that Ms Middleton's privacy was protected.

 

9. Generally, we support measures such as the self-regulatory Code of Practice which serve to increase the range of options open to complainants.

 

The interaction between the operation and effect of UK libel laws and press reporting.

 

Whether, in the light of recent court rulings, the balance between press freedom and personal privacy is the right one.

10. The exercise of the right to freedom of expression, which is protected by Article 10 of the European Convention on Human Rights (ECHR), carries with it duties and responsibilities. It is not an absolute right, and can be restricted for a number of reasons set down by law, such as public safety, the prevention of crime, or respect for the rights or reputations of others. Often, the right to freedom of expression may need to be balanced against other rights, like the right to respect for private and family life, home and correspondence, which is protected by Article 8 of the ECHR.

 

11. The balance between these rights is fundamentally a task for the Courts. Even if the Government was to legislate to help clarify the issue, there will always come a point at which the balance has to be drawn and that is properly a decision for the courts. While the Government has not ruled out future legislation on this point, such a law would be very difficult to draft. We are not considering taking legislative action at the moment.

 

12. It is important that the civil law provides people with an effective tool to challenge damage to their reputation resulting from the publication of defamatory material, or unjustified intrusion into their private life. In each case, a balance must be struck between the competing interests of the parties on the basis of the circumstances of the case. The balance of competing rights in individual cases is very much the task of the courts, and Parliament should only intervene if there is clear evidence that the courts are systematically striking the wrong balance. We do not consider that this is the case, and we believe that the current law strikes an appropriate balance between the interests of claimants and defendants.

 

13. In relation to the law on libel, the law currently provides a range of defences to protect defendants against inappropriate allegations of libel. In the case of primary publishers, the Defamation Act 1952 provides the defences of justification (i.e. that the material is true); fair comment, which protects statements of opinion or comment on matters of public interest; absolute privilege, which guarantees immunity from liability in certain situations (e.g. in parliamentary and court proceedings); and qualified privilege, which grants limited protection to statements in the media on public policy grounds provided that certain requirements are met.

 

14. In the case of secondary publishers, the Defamation Act 1996 provides that a defendant will not be liable where he or she is not the author, editor or publisher of the statement complained of; took reasonable care in relation to its publication; and did not know, and had no reason to believe, that what he or she did, caused or contributed to the publication of a defamatory statement.

15. In relation to privacy, a number of remedies are already available for specific types of breach of this right and they allow the courts to strike different balances between competing rights in different circumstances. These include the Protection from Harassment Act 1997 (which protects against conduct causing alarm, harassment or distress); the Regulation of Investigatory Powers Act 2000 (which protects against the improper interception of communications or surveillance); the Data Protection Act 1998 (DPA) (which protects against the abuse of personal information); and common law remedies including malicious falsehood; nuisance; and breach of confidence.

 

16. We have no plans at present for a general review of the law on libel or privacy. However, we will of course consider very carefully any recommendations that the Select Committee put forward. We intend to publish a consultation paper on specific issues relating to defamation and the internet. The focus of the consultation paper will be on aspects of the law that the Law Commission identified in its 2002 scoping study "Defamation and the Internet" as meriting a review. These include the liability of internet service providers for defamatory material posted on their websites, and the operation of the "multiple publication rule" in relation online archives, under which each time defamatory material is accessed in an online archive, the action constitutes 'publication' and it gives rise to a new cause of action. We intend to publish this consultation paper soon.

 

17. Concerns have been expressed to the Select Committee on the subject of "libel tourism". The Select Committee requested any available details about the number of cases where issues of jurisdiction have arisen. Unfortunately HM Courts Service does not hold this information. We can also confirm that no representations have been made to the US Government on this issue.

 

18. The subject of "libel tourism" primarily raises issues relating to the jurisdiction of the courts, and the rules vary according to whether the case is covered by European Community legislation. If the case is covered, Brussels I Regulation applies and has precedence over national law. English courts have no general capacity to refuse jurisdiction or stay proceedings under Brussels I. In defamation cases which involve defendants domiciled in a non-EU jurisdiction, the Brussels I Regulation will not generally apply. This includes the United States, where concerns about "libel tourism" have arisen.

 

19. In those cases the well-established doctrine of forum non conveniens enables the English courts to decline jurisdiction in cases where they consider that it would be more appropriate for a foreign jurisdiction to determine the proceedings. The doctrine of forum non conveniens represents a wide judicial discretion which is exercised in the interests of justice and on the facts of a particular case. A number of factors will be relevant, including the extent of publication in England compared to elsewhere; whether the claimant is resident and carrying on business in England or otherwise connected; whether there is real or likely damage to reputation in England; and the location of witnesses.

 

20. The European Commission has recently published a Green Paper seeking views on the operation of the Brussels I Regulation. This raises the possibility that the grounds of jurisdiction available to all claimants should be contained in that Regulation. This would exclude the current national grounds of jurisdiction currently available to claimants in certain libel proceedings. In the event that this proposal is accepted within the Community, it would mean that the forum non conveniens doctrine as it currently stands under English law would no longer be available in libel proceedings. On this basis, jurisdictional issues in relation to other countries such as the US would be governed by the new European Community provisions.

 

21. The European Commission's proposals will of course be subject to detailed scrutiny and negotiation before any new provisions are agreed. However, this does mean that any detailed review of the operation of the forum non conveniens doctrine (even if this was considered to be necessary) would not be appropriate at present. The Government will of course ensure, through the Scrutiny Committees in both Houses, that Parliament is kept properly informed of developments in relation to the Commission's proposals on Brussels I.

 

What effect the European Convention on Human Rights has had on the courts' views on the right to privacy as against press freedom.

 

22. The ECHR - namely Articles 8 and 10 - has inevitably had an influence on domestic courts' approach to privacy and press freedom, particularly since these Articles were incorporated into UK law under the Human Rights Act 1998 (HRA). However, it is important to note that jurisprudence on the law of confidence was already undergoing a period of development and to consider the impact of the ECHR in this context.

 

23. On the question of the general interrelationship between the decisions of the European Court of Human Rights and the UK court, Lord Hoffman raised some very interesting questions in the Judicial Studies Board Annual Lecture on 19 March 2009, which we are looking at carefully.

 

The observance and enforcement of contempt of court laws with respect to press reporting of investigations and trials, particularly given the expansion of the Internet.

 

24. This section concerns the law of contempt, principally as set out in the Contempt of Court Act 1981, which provides for 'strict liability contempt'. This applies in respect of all publications (including broadcasts) whether off-line or via the Internet, which are addressed to the general public, or a section of it, and which create a substantial risk that the course of public justice will be seriously impeded or prejudiced.

 

25. The 1981 Act also allows for specific discretionary restrictions on reporting the proceedings, under section 4(2) and section 11. In considering whether to impose restrictions of this nature, the Courts have regard to the fact that the general presumption is in favour of open justice and the full and free reporting of public court proceedings. Regard is also had to the qualified right of freedom of expression under article 10 of the ECHR, and the requirement that interference with this right has to be strictly necessary in a democratic society to protect, amongst other things, the rights of individuals and the authority and impartiality of the judiciary.

 

26. As regards strict liability contempt, there is a delicate and on occasion difficult balance to be struck between allowing full and free reporting of developments in ongoing investigations and proceedings, and the protection of public justice. The Courts have developed a range of factors which are applied to the particular issues presented by each case and the general test set out in section 2 of the 1981 Act, applied in the light of these factors, allows the court flexibility in determining where the balance lies on any particular occasion.

 

27. The Internet and the ease with which user-generated information can be published on various sites has introduced a new dimension to the application of the laws on contempt. Although it has long been possible for people to have access to otherwise restricted sources of information, the Internet exacerbates this situation.

 

28. However, it is important not to overestimate the impact of the non-mainstream media. The exposure of information in the mainstream media remains a means of causing particular prejudice to proceedings, because so many of us are exposed to it and, in most high-profile cases, concerns are more likely to arise about the activities of mainstream media organisations.

 

29. In any event, the current law applies equally to the Internet and we do not think that the existence of the Internet or other new forms of communication undermines the need for the law or the justification for its continuance.

 

30. We keep the law in this area under review. The balance to be stuck between freedom of speech, including the legitimate right of the public to know about developments in high profile cases, on the one hand, and the protection of justice and the right to a fair trial on the other, requires ongoing assessment to be made of the effectiveness of the contempt laws. It may be possible to gauge their effectiveness by the fact that cases in which proceedings have been stayed (that is, stopped) in recent years as a result of prejudicial publicity are rare, although there are examples where proceedings have been temporarily halted or otherwise affected.

 

31. Although we acknowledge the inevitable tensions which this balancing act creates in a free society, we consider that the contempt laws are an effective tool in protecting court proceedings.

 

Whether financial penalties for libel or invasion of privacy, applied either by the courts or by a self-regulatory body, might be exemplary rather than compensatory.

 

32. The Government is firmly of the view that the availability of exemplary damages in civil proceedings, including proceedings for libel or invasion of privacy, should not be extended by statute beyond the limited instances in which they are currently available under the common law (namely in the case of oppressive, arbitrary or unconstitutional action by a public servant and where the tortfeasor's conduct was calculated to make a profit which might well exceed the compensation payable to the claimant), and it does not intend any further statutory extension of exemplary damages.

 

33. In general terms the purpose of the civil law on damages is to provide compensation for loss, and not to punish. The function of exemplary damages is more appropriate to the criminal law, and their availability in civil proceedings blurs the distinctions between the civil and criminal law.

 

34. In relation to the law on libel, there were concerns that the level of libel awards was disproportionate in comparison to personal injury awards in the 1990s. Following the 1997 judgment in John v Mirror Group Newspapers Ltd, the judge may provide an indication, to the jury in libel proceedings, of the level of damages that he or she feels is appropriate. The judge is also able to draw attention to the conventional compensatory scales of award in personal injury cases. These provisions have helped to ensure greater proportionality in the level of awards. Introducing exemplary damages would undermine this position and would potentially lead to inflation in the level of awards, which would renew concerns in this area.

 

The impact of Conditional Fee Agreements on press freedom.

 

35. The Government believes that Conditional Fee Agreements (CFAs) play a role[1] in giving people access to a remedy to help them clear their name if they have been defamed, and rebuild their reputation; or deal with gross invasions of privacy. Given the power of the media, it is right that people should have a remedy when defamed, and because of the high level of costs inherent in bringing a claim, it is likely that those with modest means will continue to rely on CFAs. However, we are aware of the difficulties faced by the media, particularly local and regional media organisations, as a result of the high levels of legal costs in defamation and some other publication-related proceedings, and of the potential for this to have a chilling effect.

 

36. The Government has consulted on measures designed to place more effective controls on these costs. Copies of the consultation paper have been provided to the Committee and are available on the Ministry of Justice website at www.justice.gsi.gov.uk. The consultation paper sought views on the following measures:

 

Limiting the recoverable hourly rates by setting either maximum or fixed recoverable rates;

Introducing mandatory or mandatory consideration of cost capping orders;

Linking recoverability of after the event insurance premiums to notification and introducing a period post notification during which if the defendant makes an offer of amends or admits liability, the insurance premium is not recoverable;

Requiring the courts, when conducting costs assessments, to consider the proportionality of total costs.

 

37. These proposals would help deal with the threat of excessive hourly rates and base rates; limit the recoverability of after the event insurance premiums in cases which settle early; and enable the court to assess different cost elements together to ensure that the costs are proportionate and reasonable.

 

38. The consultation period closed on 6 May. The responses are being considered and the Ministry of Justice is seeking to implement measures as soon as possible.

 

CONCLUSION

 

39. There is always room for improvement in matters requiring judgement and subjective opinion, and we have indicated above where we think change is appropriate. Given the advent of fast-moving technology, it is important that the industry continues to monitor its performance critically. The Government aims to work alongside the industry to help ensure that it has the tools and the time to do so. For example, our Digital Britain programme is about building a plan to secure the UK's position as a world leader in innovation, investment and quality in the digital and communications industries. It will build on the significant cross-Government work to date and bring together existing expertise to develop a strategic and coherent plan to support the sectors and provide a catalyst for growth.

 

July 2009



[1] http://www.official-documents.gov.uk/document/cm67/6784/6784.pdf - Government response to the Select Committee report into 'compensation culture' 2006