Memorandum submitted by Schillings
The law clearly needs to set the right balance between freedom of speech and the rights of individuals. We believe in freedom of expression. However all democracies properly appreciate that there is no such thing as unfettered free speech, and that the right to free speech has to be balanced against laws to protect the rights of the individual.
The United States is usually put forth as a bastion of free speech. However it also has significant limitations on free speech such as the laws regarding 'hate crime' and obscenity.
In the UK, we believe in the right to a private and family life as well as the equally important right to a reputation, as enshrined by the European Convention on Human Rights and the Human Rights Act 1998.
Contrary to the views of various media commentators, including most recently Paul Dacre in his speech to the Society of Editors, we do not believe that the Human Rights Act pitches rights too far in favour of the individual as against the media. It is a balance between the two rights, and in many recent cases it has been confirmed by the courts that the jurisprudence of the European Court of Human Rights requires that neither Article 8 not Article 10 is given any presumptive priority in English law - see e.g. Sedley LJ in Douglas v Hello! Ltd  1 QB 967, 1004, para 135:
"The European Court of Human Rights has always recognised the high importance of free media of communication in a democracy, but its jurisprudence does not - and could not consistently with the Convention itself - give article 10(1) the presumptive priority which is given, for example, to the First Amendment in the jurisprudence of the United States' courts. Everything will ultimately depend on the proper balance between privacy and publicity in the situation facing the court."
We consider that the courts are setting the right balance between Articles 8 and 10. They are in any event following the European jurisprudence on Article 8 (e.g. von Hannover), which is currently more favourable to claimants than English cases. It is wrong for the media to criticise individual judges for applying the Human Rights Act and jurisprudence that they are obliged to follow.
We would also point out that section 12(3) of the Human Rights Act 1998 in fact favours the media - it makes interim (pre-publication) injunctions more difficult to obtain when there is a countervailing Article 10 right, thereby raising the hurdle for obtaining an injunction. The test in Cream Holdings v Banerjee  UKHL 44 applies to such cases, in which it has to be shown that an injunction is "likely" to be continued at trial; in other cases the American Cyanamid test applies: it only has to be shown that there is a 'serious issue to be tried'.
The result is that in reality, it is certainly not the case that in a majority of cases Article 8 rights 'trump' Article 10 rights whether at the pre-publication stage or otherwise.
Practically speaking, those individuals and companies that reluctantly become post-publication claimants in defamation or privacy cases would prefer not to be seeking to repair the damage after it has occurred (a.k.a. shutting the stable door after the horse has bolted). This is particularly the case in confidentiality and privacy cases. It is often said that confidentiality or privacy is like an ice cube on a carpet: once it melts, it is gone forever. This is all the more acute in the era of global internet communication.
For the reasons set out below, we consider that the law as it currently stands entitles the media to publish damaging information first, and then pay the consequences later, if at all. This gives rise to considerable stress for individuals, as well as leading to significant cost concerns and uncertainties in litigation.
We would therefore encourage the DCMS to strive to create a system that seeks to resolve Article 8/Article 10 issues prior to publication wherever possible. The courts are able to order speedy and cost-effective trials on many privacy (and intellectual property) issues. This approach is to be encouraged by the DCMS, which should consider the provision of rules that strike a fairer balance between Article 8 and 10 rights in this regard.
We make three suggestions by which this might be achieved.
1. Notice requirement
We propose that there should be a requirement to give notice in cases where there is a threat of serious infringement of an individual's Article 8 rights.
The incentive to do this could be increased damages or payment of indemnity costs where no such notice is given.
This is a view that appears to be supported by the PCC and the courts in the context of responsible journalism (see respectively the Burrell adjudication and discussion about the Jameel case, below).
In serious cases of threatened infringement of Article 8 rights (including defamation cases) the target should be given notice of the intended publication, so that they may have the opportunity to take action in respect to the allegations or at least provide a response to the media organisation threatening publication.
This approach is to some extent supported by the Press Complaints Commission, who recently stated that a failure to contact the subject of articles may constitute lack of care under clause 1 of the Code. - see Burrell v News of the World. This is also the approach recommended by the courts in Reynolds v Times Newspapers Ltd and Others  UKHL 45 and Jameel v Wall Street Journal  UKHL 44:
Secondly, the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and sources of the information. But one would normally expect that the source or sources were ones which the publisher had good reason to think reliable, that the publisher himself believed the information to be true, and that he had done what he could to check it. We are frequently told that "fact checking" has gone out of fashion with the media. But a publisher who is to avoid the risk of liability if the information cannot later be proved to be true would be well-advised to do it. Part of this is, of course, taking reasonable steps to contact the people named for their comments.
A failure to give notice can constitute a denial of the right to access to justice as enshrined by Article 6 of the European Convention on Human Rights (and the Human Rights Act 1998).
Journalists are generally avoiding the giving of notice and have admitted to doing so. The News of the World admitted in the Burrell case above that they did not give Mr Burrell notice because they were concerned that he might have obtained an "unmeritorious" injunction. Colin Myler also admitted the same in the course of the Mosley v News Group Newspapers privacy trial.
There is a significant commercial incentive for the media to publish information that they know would give rise to a successful injunction application. The likelihood is that in most cases, the decision to publish will result in the media organisation not being sued by the subject, because the information has already been published. Madonna's current case against Associated Newspapers in respect of the unauthorised publication of wedding photographs is an appropriate example of a newspaper refusing to notify the subject (a copyright and privacy claim).
Further, the Court of Appeal (in Douglas v Hello! Ltd) has recognised that because damages awards in privacy cases are very modest, this does not represent a disincentive against publication of infringing material:
The sum is also small in the sense that it could not represent any real deterrent to a newspaper or magazine, with a large circulation, contemplating the publication of photographs which infringed an individual's privacy. Accordingly, particularly in the light of the state of competition in the newspaper and magazine industry, the refusal of an interlocutory injunction in a case such as this represents a strong potential disincentive to respect for aspects of private life, which the Convention intends should be respected.
We are not suggesting necessarily that damages should be increased but we would urge the DCMS to vocalise that the lack of a notice requirement encourages the publication of infringing material and is not to be condoned.
Another option is indeed to allow increased damages (and in particular remove the limit on defamation damages effected by the comparison which is drawn as of right with personal injury cases). Further still, it is open to the DCMS to recommend that legislation should be brought in to allow for exemplary damages in such cases. Exemplary damages are not currently available in privacy cases - see e.g. Douglas v Hello! (above) and Mosley v News Group Newspapers (2008) EMLR 20 (at ).
The media regularly complain that costs in media cases are out of kilter with the damages. But it is rarely acknowledged that damages have been capped.
Damages are not the main motivator for many Article 8 complainants. As was observed by Eady J in Cox v MGN and Others  EWHC 1235 (QB):
The amount of financial compensation was not the Claimants' only or main concern; they were seeking undertakings from all four Defendants and, above all, delivery up and destruction of the photographic digital images to make further publication impossible.
Accordingly the judge considered it to be over simplistic to say that the amount of costs claimed in the case was disproportionately high (approximately £140,000) in comparison to the damages received (£50,000).
2. Abolition of the rule in Bonnard v Perryman in libel cases
Under the law as it currently stands, it is not possible to obtain a pre-publication (or 'interim') injunction in defamation cases, unless it can be shown that the allegations intended to be published are 'demonstrably false'; put another way, it has to be shown by the applicant that no defence to the claim has any prospect of succeeding. This rule ought to be amended by statute. It has now been accepted by the European Court of Human Rights that the right to reputation is one of the rights protected under Article 8 of the Convention, and English law provides for a flexible test for obtaining pre-publication injunctive relief in cases where infringements of Article 8 rights are threatened.
As above, Section 12 of the Human Rights Act 1998 protects the media by raising the bar for injunctive relief to be granted in freedom of expression cases, since it requires the claimant to prove that an injunction would be likely to be granted at trial. The same provision ought to apply to defamation cases, and in particular the Cream Holdings test ought to be confirmed as applying to defamation cases as one of the rights protected under Article 8. We submit that the cases of Greene v Associated Newspapers  EWCA Civ 1462 was wrongly decided, and is in conflict with subsequent jurisprudence from the European Court of Human Rights (see Cumpana and Mazare v Romania (2005) 41 EHRR 2005 - above).
There is no sense in having a rigid rule that applies to defamation (reputation) rights pre-publication, namely that an injunction can only be granted if there is no arguable defence, but allowing for a flexible rule with regard to other Article 8 rights that, as per Cream Holdings, which generally allows for those rights will be protected at the pre-publication stage if it appears that the applicant is more likely than not to succeed at trial.
The historical reason for the rule in Bonnard v Perryman has been that damage to reputation can be 'repaired' by a jury's award of damages at trial through the 'vindication' that a claimant obtains on a successful outcome of a defamation case. Today this justification is virtually obsolete for the following reasons:
(a) Damages in defamation cases have been significantly reduced from the levels when Bonnard v Perryman was decided. The award of substantial damages is an important aspect of vindication.
(b) Litigants are strongly encouraged to resolve disputes prior to trial, and there are numerous procedural disincentives against pursuing a claim to trial. The Offer of Amends regime provides defendants with the opportunity to reduce damages by substantial amounts (often 50%) if an offer to make amends is accepted.
(c) Settlements are often entered into by the media for, they say, commercial reasons rather than to provide any genuine vindication to the claimant. Apologies are often published with minimal prominence and claimants can find difficulty publicising the fact that they have obtained a 'victory' in respect of false allegations. Trial results tend to make news; settlements often do not.
(d) Perhaps most importantly of all, out of court settlements do not generally provide for a process by which an independent adjudicator can conclude, after examination of the evidence, that published allegations are false. Certainly, there is a difference between a media organisation accepting that allegations are false (say in a statement in open court) and a decision by a judge or jury after a trial process that includes detailed cross examination and other testing of the evidence.
3. Speedy Trials in Injunction Cases
If the media are concerned about a story being 'killed' when pre-publication injunctions are granted, then the DCMS ought to consider rules that encourage litigants and the courts to work towards speedy trials to resolve whether publication should be allowed in defamation (and privacy) cases where an interim injunction has been granted.
We submit that in many cases, a trial could be arranged to take place within a month or two of the initial injunction being granted. In many cases, the process could be even quicker.
Such speedy trials would protect freedom of speech, reduce the costs of litigation and promote certainty. In appropriate cases they could also provide the media with the opportunity to fully argue the case for publication in sufficient time for a story to still be newsworthy once the trial process has been completed.
Specific Questions from the Consultation
Below we express views on the specific questions asked in the consultation, except insofar as they have been answered above.
1. 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;
2. 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;
We take these questions together. We do not intend to comment on the PCC and the McCann's issue specifically, but will say that the starting point is that our self-regulatory authorities (in particular the PCC) do not adequately protect Article 8 or reputational rights.
The PCC is seriously inadequate since it cannot:
- make findings of fact or declarations of falsity of allegations;
- make a monetary award of compensation in appropriate cases;
- compel witnesses or order disclosure
- deal effectively with pre-publication disputes.
There is also a general public perception that the Press Complaints Commission is too favourable to the media; accordingly there is a lack of public confidence in using this route to resolve serious complaints against the media. It is therefore important to consider how the law protects the rights of individuals in pre-publication cases (see above).
3. The interaction between the operation and effect of UK libel laws and press reporting;
We answer this in the main submission set out above.
4. The impact of conditional fee agreements on press freedom, and whether self-regulation needs to be toughened to make it more attractive to those seeking redress;
We are broadly in support of the proposal reached after the Theobalds Park consultation - see our attached letter to the Ministry of Justice that sets out our views on this issue.
5. 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;
Our general point is that the contempt of court rules which apply in this jurisdiction can be enforced against outsiders to the jurisdiction, and ought to be enforced in cases with an international element where there had been a breach of a Section 11 Order overseas. Failing to do so in the age of the Internet renders the Order useless, when the information is being published online in another jurisdiction but is clearly available in this jurisdiction.
We have acted for a blackmailed individual who had received the benefit of a reporting restrictions order under Section 11 of the Contempt of Court Act 1981. The details of the case are confidential but if it would be of assistance to the Committee we would be happy to disclose further details on a 'not for publication' basis.
6. What effect the European Convention on Human Rights has had on the courts' views on the right to privacy as against press freedom;
The media claim that the European Convention and Strasbourg jurisprudence have eroded the right to freedom of expression. Complaints are regularly made, for example, that the public interest defence is a 'fig leaf' defence. However, in the cases in which such a public interest defence has been raised by the media and has failed, such as in Mosley, the public interest argument was a weak one. There could have been no public interest justification for the disclosure of Mr Mosley's private sex life to millions of people on the basis of public interest. Numerous further cases have been decided in which no public interest exist. A classic example is cases involving the publication of photographs of naked people on honeymoon or on holiday. The media regularly carries such stories, without a hint of legitimate public interest. They cannot complain when successful legal action is taken over them.
7. 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;
We have discussed above our views on increasing damages in media cases. We advocate rather for the giving of proper notice, with a failure to do so leading to increased damages.
8. Whether, in the light of recent court rulings, the balance between press freedom and personal privacy is the right one.
See main submissions above.
 Paul Dacre speech: http://www.societyofeditors.co.uk/userfiles/file/PaulDacreSpeech91108.doc
 As cited with approval in Campbell v MGN Ltd  2 AC 457 at 
 By which incidentally we would include rights to preserve reputation, including the right not to be defamed. We refer to the ECHR case of Cumpana and Mazare v Romania (2005) 41 EHRR 200 at 91 in which it was concerned that the right to reputation is protected under Article 8 of the Convention.
 At para. 149
 See selected extract from the transcript of Mr Myler's evidence, attached in Annex 1
 Douglas v Hello! Ltd  EMLR 609 at 
 And an earlier case coming to the same conclusion - Coys v Autocherish (2004) EMLR 25