Memorandum submitted by the Press Association

 

 

Introduction

 

1. The Press Association is the national news agency for Great Britain and the Republic of Ireland. It provides a 24-hour-a-day news service to subscribers, which include national and regional press, national and regional broadcasters, online news services, foreign media organisations, and non-media customers, including commercial organisations, Government departments and political parties.

 

2. PA reporters cover major court hearings in England and Wales, Scotland, Northern Ireland and Ireland. Dedicated teams of journalists are based at the Central Criminal Court, the Royal Courts of Justice, and at Parliament. Reporters are based in London and in major centres across the United Kingdom, as well as in smaller towns and cities.

3. The organisation also has a major photographic service, with an archive reaching back over the major events of the past century.

 

4. This submission is intended to cover some, but not all, of the issues raised in the announcement of this current inquiry made on November 18 2008. Some of the submissions in this document will, of necessity, touch upon more than one issue. They are also necessarily brief, given the committee's preference for a limit on the length of submissions, but the Press Association will expand its views should the committee wish.

 

Interaction between the effect of UK libel laws and press reporting

 

1. It has always been known that the libel laws have the effect of restricting what may be reported. Various defences are available to those who publish material for public consumption. But the fact is that the balance is weighted against the publisher and in favour of the claimant. When a publisher is sued for defamation, the claimant asserts that the publisher has put before the public material which damages his reputation in the eyes of right-thinking members of society as a result of which he or she has suffered damage - the damage is in fact assumed to have been suffered.

 

2. But at no point in a defamation case is the claimant under any obligation to demonstrate the truth of what he or she asserts. The publisher, editor or writer bears the burden of having to prove, to the satisfaction of a judge or jury, that what is being alleged is not merely true, but demonstrably true. This point was raised recently by the United Nations Committee on Human Rights[1] which warned in its report that the practical application of the libel law as it currently stands in the UK "has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as 'libel tourism'."

 

3. "Libel tourism" has seen foreign businessmen and millionaires coming to the High Court in London to sue foreign publishers. The case of an American researcher, Dr Rachel Ehrenfeld, who was sued in London by a Saudi businessman and his two sons over a book which was not published in the UK[2] has led to the states of New York and Illinois passing legislation to protect writers and publishers from the enforcement of defamation judgments in other courts unless the courts of those states are satisfied that the foreign courts accord the same protection for freedom of speech as New York and US Federal law. The US Federal legislature is now considering whether to enact similar legislation. The effect of the legislation in New York and Illinois is to make foreign judgments against US writers and publishers virtually unenforceable in the courts of those states.

 

4. The UN Committee, on page seven of its conclusions, went on to say at paragraph 25:

"The advent of the Internet and the international distribution of foreign media also create the danger that the State party's unduly restrictive libel laws will affect freedom of expression worldwide on matters of valid public interest."

 

5. It recommended:

"The State party should re-examine its traditional doctrines of libel law, and consider the utility of a so-called 'public figure' exception, requiring proof by the plaintiff of actual malice in order to go forward on actions concerning reporting on public officials and prominent public figures, as well as limiting the requirement that defendants reimburse a plaintiff's lawyers (sic) fees and costs regardless of scale, including Conditional Fee Agreements and so-called 'success fees' especially insofar as they may have forced defendant publications to settle without airing valid defences. The ability to resolve cases through enhanced pleading requirements (eg, requiring a plaintiff to make some preliminary showing of falsity and absence of ordinary journalistic standards) might also be considered."

 

6. The lack of a single publication rule has a serious effect on Internet archives. The Press Association believes the law should be reformed to introduce a single publication rule. The current lack of such a rule means that news organisations which run Internet archives expose themselves to limitless liability for a defamation action, as the limitation period is deemed to re-start as soon as an article is accessed via the Internet. This dates from the case of Duke of Brunswick v Harmer[3]. An article which allegedly defamed the Duke was published in the Weekly Dispatch on September 19 September 1830. The limitation period for libel at that time was six years. But 17 years after its publication an agent of the Duke bought a back number containing the article from the Weekly Dispatch's office. Another copy was obtained from the British Museum. The Duke sued on those two publications. The publisher contended that the action was time barred, relying on the original publication date. But the court held that delivering a copy of the newspaper to the Duke's agent constituted a separate publication over which he could sue. The act of defaming someone was complete by the delivery of the copy, and its legal character was not altered "either by the plaintiff's procurement or by the subsequent handing over of the writing to him".

 

7. In Dow Jones and Co Inc v Yousef Abdul Latif Jameel [4] the Court of Appeal declared that the Duke of Brunswick's case would now be struck out as an abuse of process. The then Master of the Rolls, Lord Phillips of Worth Matravers, said (at paragraphs 54-56 of the judgment):

"An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing-field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice. ...

"There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more pro-active. The second is the coming into effect of the Human Rights Act. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, insofar as it is possible to do so. Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.

"We do not believe that Brunswick v Harmer could today have survived an application to strike out for abuse of process. The Duke himself procured the republication to his agent of an article published many years before for the sole purpose of bringing legal proceedings that would not be met by a plea of limitation. If his agent read the article he is unlikely to have thought the Duke much, if any, the worse for it and, to the extent that he did, the Duke brought this on his own head. He acquired a technical cause of action but we would today condemn the entire exercise as an abuse of process."

 

8. In December 2002 the Law Commission called for newspapers and other organisations which run online archives to be given greater protection against the risk of a libel action[5]. It said that while the one-year limitation period for defamation cases could cause hardship to would-be claimants, as it gave them little time in which to prepare a case, it was also potentially unfair to allow claimants to bring actions possibly decades after the original publication of an article, when it would be extremely difficult to mount an effective defence. It said: "We agree with the Court of Appeal that online archives have a social utility, and it would not be desirable to hinder their development."

 

9. It went on to suggest that consideration could be given to adopting the single publication which applies in the United States. Under this rule, a single edition of a newspaper or book is considered to be "single publication", no matter how many copies are distributed, and the limitation period runs from the first date of publication, even if copies are available months or years later. Courts in the United States have applied the rule to website publications, finding in the case of a report published at a press conference and placed on a website the same day that the limitation period ran from the time at which the document was put online.

 

10. None of the Commission's recommendations has been implemented.

 

11. The attitude of the English courts to material on the Internet is a stark contrast with the attitude to a book, for example, or even to press cuttings in a newspaper's library. If a book is published which contains defamatory material about Mr A, he has, under normal circumstances, one year in which to sue for libel[6]. If someone reads a copy of that same book three years after its publication and brings it to Mr A's attention, he cannot then sue for libel. If, however, the same reference to Mr A were to be made in an article in an online archive, and were to be accessed by someone who brought it to Mr A's attention, he could sue for defamation on the grounds that it is a new publication.

 

The impact of Conditional Fee Agreements on press freedom

 

12. The introduction of the Conditional Fee Agreement (CFA) regime as part of the government's attempt to ensure access for justice has had a seriously chilling effect on press freedom, and the Press Association has had anecdotal evidence that good stories have not been published because of the risk of the newspaper being sued by a claimant operating on a CFA. The Media Lawyers' Association recently prepared, on behalf of a large group of media organisations, a submission for a consultation on the CFA regime currently being conducted by the Civil Procedure Rules Committee which warned that costs in defamation and privacy cases and other legal actions involving publications were running out of control. It said the CFA regime should be reformed because it was having a seriously chilling effect on the media's right to freedom of expression, and called for cost-capping to be mandatory in all cases involving publication or the right to freedom of expression under Article 10 of the European Convention on Human Rights.

 

13. It warned that small media publishers could no longer afford to fight libel actions - even in simple cases they could face closure if they lost a case at trial - and said that another effect of the spiralling costs was that investigative or controversial stories were not being published. The cost of claims was also forcing media organisations to settle cases and retract stories where there was no editorial need to do so, it said, adding that claimants who were genuinely worthy of censure were winning libel claims because it was too expensive for the media to fight them, and that costs were also invariably disproportionate to the damages awarded.

 

14. An example of the way in which costs can rise alarmingly was given by Paul Dacre, editor-in-chief at Associated Newspapers, in a speech to the Society of Editors' annual conference in November 2008. Mr Dacre outlined the case of Labour MP Martyn Jones, who sued the Mail on Sunday over a claim that he had sworn at a Commons official. He said:

"The Mail on Sunday believed it had rock-solid witnesses and decided to fight the case. In the event, they lost and were ordered to pay 5,000 in damages. The MP's lawyers claimed costs of 388,000 - solicitor's costs of 68,000, plus 100% success fees, barrister's costs of 63,000, plus 100% success fees, VAT and libel insurance of 68,000. Associated's costs were 136,000 making a total of 520,000 costs in a case that awarded damages of just 5,000 in a dispute over a simple matter of fact."

 

15. A further example of the way in which costs can rise at an alarming rate is to be found in the article by Alan Rusbridger published in the January 15 2009 edition of the New York review of Books. Mr Rusbridger details the costs racked up in the case, and pointed out that had the case got to trial, the total costs would have been some 5 million, even though the damages would undoubtedly have been extremely modest by comparison. But it should be noted that there was no suggestion that Carter-Ruck, Tesco's law firm, was operating in this case on a Conditional fee Agreement.

 

16. The Press Association supports all these contentions.

 

Contempt of Court and the Internet

 

17. The Contempt of Court Act 1981 is intended to protect the integrity of the criminal justice system by helping ensure that an accused defendant has a fair trial while limiting the operation of the so-called "strict liability rule" under which the media can be punished for publishing material which creates "a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced".

 

18. One difficulty with the legislation is that it is based on the assumption that potential jurors at a criminal trial will be influenced by what has been published in the print media or broadcast by radio or television stations, and that the allegedly prejudicial effect of that publication will remain with the jurors throughout the proceedings. These is no evidence to support this assumption, as no research has been carried out in this country to investigate what, if any, effect media reporting of trials might have or has had on potential jurors.

 

19. This point was recognised in May 2007 by the then Attorney General, Lord Goldsmith QC, who told the Reform Club Media Group in a speech that the government should conduct research into the effects pre-trial media publicity had on jurors, and should also consider ways in which it could give the public more information in criminal cases in which there was a strong public interest such as terrorism investigations.

 

20. The assumption is that media publicity will have such an effect on jurors or potential jurors that they will be more influenced in reaching a verdict by what they might have read in a newspaper weeks or months before a trial than they will by seeing and examining the evidence and hearing the arguments and submissions of prosecuting and defence counsel. Members of the Committee might care to ask themselves if they believe that this assumption can be applied to the people they know and with whom they deal - and, if it cannot, why it should be applied to all other potential jurors.

 

21. The Court of Appeal has made plain its belief in the robustness of jurors. In R v B[7] - a case involving reporting restrictions on the sentencing hearing for self-confessed terrorist Dhiren Barot, who plotted to set out a radioactive device in central London, among other things - the Court of Appeal said (a paragraphs 31 and 32 of the judgment):

"There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, both when we were in practice at the Bar and judicially, has demonstrated to us time and time again, that juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright; it is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court. No doubt in this case Butterfield J will give appropriate directions, tailor-made to the individual facts in the light of any trial post the sentencing hearing, after hearing submissions from counsel for the defendants. We cannot too strongly emphasise that the jury will follow them, not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair.

"In this case there are at least two safeguards against the risks to which our attention has been directed. There is the responsibility of the media to avoid inappropriate comment which may interfere with the due administration of justice in this case and there is the entire trial process, including the integrity of the jury itself."

 

22. Despite this, courts continue to make orders prohibiting the publication of reports of criminal trials because a defendant faces another trial in the future.

 

23. In addition, in at least one case, a court has expressed the view that failing to remove what defence counsel have claimed to be prejudicial material from a newspaper archive would be viewed as a contempt - even though the court has no power to order the removal of such material. Further details cannot be given because the case is covered by reporting restrictions.

 

24. The development of the Internet has left the courts flat-footed in their approach to the information age. Instead of concerning themselves with how they can persuade jurors to avoid material on the Internet, or to ignore it if they see it, they concentrate on trying to stop the flow of information to the public at large. In the recent trial of Peter Tobin for the murder of schoolgirl Vicky Hamilton, the court heard serious concerns voiced by defence counsel Donald Findlay QC, who described the Wikipedia entry on Tobin as being "on the face of it, the most blatant contempt of court I have seen in my entire career". Wikipedia is based in and run from San Francisco. It was the decision of a Wikipedia user that the relevant page should be taken down for the duration of the trial[8] - but the court itself would have had no right to order the removal of the material, and could have done nothing to stop jurors accessing it if they wished except by telling jurors not to do so. In addition, Tobin was convicted in 2007 of the murder of a Polish girl, Angelika Kluk, and it is stretching credibility to believe that jurors at the Vicky Hamilton murder trial would not already have known at least something of Tobin's past. This would be only reasonable, first because the jury has to deal with the whole person of the defendant, and second because the only way of ensuring that they had no knowledge of a defendant would be to pick jurors who were totally isolated from the modern world.

 

25. The State of Victoria in Australia has taken a different route. It recently passed a law which forbids jurors, and members of jury panels, from doing their own research, which includes research on the Internet, into any case on which they are sitting. The penalty for any juror or panel member found to have conducted Internet searches or other investigations is a fine of up to 13,214 Australian dollars - about 5,140. The new law, introduced in the Victoria's Courts Legislation Amendment (Juries and Others Matters) Act 2008, came into effect in September. Victoria Deputy Premier and Attorney-General Rob Hulls said the ban on inquiries by jurors was necessary to ensure that verdicts at trials were reached on the basis of the evidence seen and heard in court, and that there had been retrials in New South Wales as a result of undirected juror investigations.

 

The effect of the European Convention on Human Rights on the courts' view of the tension between personal privacy and press freedom - and the balance between the two

 

26. The attitude of the courts on this issue is largely derived from the decision of the European Court of Human Rights (ECtHR) in the Princess Caroline case[9]. The ECtHR held that Germany failed to give Princess Caroline sufficient protection for her private life because she was unable to obtain a remedy under German law for having been photographed in magazines while engaging in a number of anodyne activities.

 

27. The decision, reached by a Chamber of the Court, stressed the importance of a free press but then went on to tilt the balance away from a free press and towards the personal privacy of Princess Caroline. The court rejected Germany's argument that she was a public figure, and said there was no justification for photographing her while she was doing things such as shopping or riding a bicycle. She was doing these things as a private person, and was not performing any formal function. To some extent, it may be said that the court's reasoning allows any public figure to decide that they do not wish to be pictured (or possibly written about) not merely in situations in which they seek privacy, but also in those in which they might be in public, but might be in a condition about which they would rather the public did not know.

 

28. The reasoning of the ECtHR placed political free speech at the top of the league table in importance - politicians had to expect to be subject to scrutiny because of their position in public life. But it also effectively discounted the idea that people are, or do become, role models for others. Footballers are often seen as role models, particularly by young people, who seek to emulate their skills, and may well view other activities in which they indulge as being normal, possibly even desirable, behaviour for people who achieve such a position. The same applies to many others, including celebrities, whose behaviour is seen as being in some way as exemplary. But the Convention could become a hypocrite's charter for all those apart from politicians who indulge in hypocrisy, dishonesty, or questionable dealings.

 

29. The danger for the UK is that if the courts continue to follow the line of reasoning now being pursued by the ECtHR, it will at some time or other be difficult, if not impossible, for the press to write about anyone who is not a politician or engaged in some form of political activity or discourse. But life is about much more than politics - and the way the balance is swinging so far in favour of personal privacy threatens to rob the media of their ability to reflect and report on many elements of the modern world.

 

30. A stark example of the way in which the balance is moving against the press, and against freedom of expression can be seen in the decision by Mr Justice Stephens in the Queen's Bench Division of the High Court in Northern Ireland to make permanent an injunction banning the Sunday Life newspaper in Belfast from publishing any unpixellated picture of Kenneth Callaghan, who was convicted of the rape and murder in October 1987 of 21-year-old Carol Goudie[10]. He broke into her house before she arrived home from work, attacked her when she got home, then placed a cushion cover over her head - to disguise the fact that she was not the girlfriend who had recently ended their relationship - and raped Ms Goudie as she lay dying or when she was in fact dead.

 

31. Sunday Life has been running a campaign to raise public awareness of the fact that people convicted of serious offences and sentenced to life terms are being released on to the streets of Northern Ireland.

 

32. In his order Mr Justice Stephens also banned the newspaper from giving a number of details about Callaghan. But he also acceded to an application from the Northern Ireland Office to issue a blanket ban on Independent News and Media, publisher of Sunday Life and of the Belfast Telegraph, from publishing a photograph of any current serving prisoner who is attending or has attended its Prisoner Assessment Unit in Belfast without first giving the Northern Ireland Office 48 hours' notice of its intention. The order amounts to a blanket ban on any newspaper publishing any picture of a prisoner who is at the assessment centre without the consent of the Northern Ireland Office.

 

Should financial penalties for libel or invasion or privacy, applied either by the courts or by a self-regulatory body, be exemplary rather than compensatory?

 

33. No. The Press Complaints Commission does not impose financial penalties, and the Press Association would not support its having the ability to do so. It is important to remember that the press in this country consists not merely of national newspapers, but also of more than 1,200 regional and local newspapers, many of which are already facing serious problems because of shrinking markets and the current economic situation. Adding the risk of exemplary penalties for invasion of privacy will merely ensure that they will reduce coverage, or stop coverage completely, of any story which could lead to a complaint that they have invaded someone's privacy.

 

34. There is no need to impose exemplary penalties for defamation or alleged invasion of privacy. An action for defamation is aimed at vindicating the claimant's reputation, and the damages awarded are considered to be sufficient compensation. Many might argue that such damages over-compensate, given the levels of compensation normally paid in relation to serious physical injury suffered in a road accident, for example. The costs which normally accompany any libel action are already seriously disproportionate, and can be grossly inflated by the addition of a "success fee" if the winning claimant's solicitor is on a Conditional Fee Agreement. Adding an exemplary element to such damages would simply produce an even greater chilling effect on the freedom of the press, and its ability and willingness to report the stories which are of greatest public importance and interest, as these are also the ones which carry the greatest risk of provoking a defamation action.

 

January 2009



[1] See: Human Rights Committee, 93rd Session, Geneva, July 7-25, 2008.

[2] Neutral Citation Number: [2005] EWHC 1156 (QB). In total, some 23 copies of the book were sold into the UK via the Internet. The first chapter of the book was available on the Internet.

[3] (1849) 14 QB 185

[4] [2005] QB 946; [2005] EMLR 16; The Times, February 14, 2005; The Independent, February 10, 2005

[5] Law Commission, Defamation and the Internet, Scoping Study No 2, December 2002

[6] The limitation period may be extended at the court's discretion.

[7] (2007) EMLR 5 : (2007) HRLR 1 : (2007) UKHRR 577 : Times, November 6, 2006

[8] The Wikipedia entry on Peter Tobin, with a discussion on why the page was taken down for a time is at http://en.wikipedia.org/wiki/Peter_Tobin

[9] 2004, Application no. 59320/00; [2004] EMLR 21 ECHR

[10] The judgment is available online at http://www.courtsni.gov.uk/NR/rdonlyres/E9B5FD23-CA51-43BC-AD4B-D8BC2CEC48F2/0/j_j_STE7313Final.htm