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Memorandum submitted by Society of Editors
Response to the inquiry into press standards, privacy and libel
The Society of Editors has more than 400 members in national, regional and local newspapers, broadcasting and digital media, media law and journalism education. Its members come from a wide variety of working backgrounds and have a wide range of opinions. The society supports and endorses the newspaper industry's response to the committee, along with submissions from other media organisations, and would add the following:
1- The success of the PCC system The Society of Editors has no formal role in either the PCC or the Editors' Code Commitee but membership of both is drawn from the society's membership. The society's view is that any regulation of newspapers must be balanced carefully against the crucial need for editorial freedom and freedom of expression. Membership of the society implies support for the PCC system and particularly the Code of Practice. Indeed we provide a wallet-sized version of the Code that can carried by journalists at all times in order to demonstrate its value and importance. Without doubt the PCC system has made a substantial contribution to the behaviour of newspapers. This is widely recognised across politics and increasing usage of the system by the public reflects its acceptability and reputation. Too often it is dismissed as a self serving system of self regulation. The reality is that as it has developed it has shown its independence from the industry that created it and continues to pay for it. In essence, while it is financed by the industry, regulation is administered by a body that has a significant majority of lay members while having the advantage of editor members to provide expert opinion and to maintain credibility in the process among editors and journalists. The society and its members support and take part in a great deal of behind the scenes work by the PCC to maintain standards, advise editors of requests from the public, review policies and discuss issues raised by the public. All of this helps both the media and the public.
2 - Special cases The PCC deals with thousands of cases each year. Newspapers carry many hundreds of thousands of stories each year that provoke no complaint. It would be wrong to undermine a system that is clearly working by reference to the tiny number of cases each year that raise special issues. They should be considered individually and precisely on the unprecedented matters that they raise. The PCC, and indeed the industry, have demonstrated their ability to review, adapt and respond to such issues. Above all, the PCC system is dynamic and is always able to react to new situations and changing public perceptions.
3 - Fines and compensation The case for fines and compensation has not been made. The PCC system would be destroyed and the huge advantages of voluntary compliance lost. Any legal or quasi legal system deals with the consequences of bad behaviour but does not necessarily deter or change such behaviour. There is substantial evidence that the behaviour and indeed the culture of newspapers has been changed dramatically by the voluntary system of compliance with the Code and publication of adjudications. Arguments that the PCC has no teeth simply miss the point that the majority of the work of the PCC is complaints resolution to the satisfaction of all concerned. It is extremely successful in this. It should also be remembered that governments and private organisations invest heavily in public relations teams in order to keep bad news out of the papers. When an adverse adjudication is published by the PCC newspapers voluntarily report bad news about themselves and their competitors may also carry reports. That is potentially costly and damaging to the credibility of any news organisation. Adverse adjudicatons are powerful deterrents to be avoided.
4 - CFAs and Freedom of Expression The media has explained to the MoJ that the CFA system requires urgent reform to address the freedom of expression problems which it has created for all sectors of the media. It has produced a chilling effect upon publication and 'ransom' effect in litigation, forcing settlement rather than defence of legal actions, because of the potential litigation costs- high base costs, success fees uplifts and ATE insurance premiums. In meetings and speeches the Secretary of State has recognised our concerns. Media organisations have put forward a number of proposals for reform that would deal with the worst problems but which do not require primary legislation. These points, which could be implemented simply by making changes to the Costs Practice Directions, could be carried into effect relatively quickly. While we all recognise the importance of access to justice, there is no justice in a system in which media companies, however rich they may appear, face disproportionate costs. That applies to the largest national organisation as much as the smallest regional or local newspaper. In the case of the regional press, the reality is that not all media organisations are major national or multi national operations. In the regional media each centre tends to be treated as a stand alone operation. Privately owned publishers tend to be small to medium sized local enterprises. There is no justice and no public interest in damaging the ability of the media to report on behalf of the public or in a disincentive to investigate and publish informaton that the public has a right to know. There is no justice in a system that means editors will settle actions even when they have a complete defence simply because they cannot risk the level of costs that they may need to commit in advance and most of which will be irrecoverable. Costs of £10,000 to £20,000 represent substantial sums in regional newspaper budgets. Costs of £100,000 could cover salaries of a weekly paper reporting team for a year. The editors of medium to large regional daily newspapers and indeed national newspapers have to think carefully about embarking on stories that could threaten their budgets at that level even if they were able to provide a full and solid defence. CFAs are a dramatic and dangerous threat to freedom of expression. They seriously inhibit the kind of reporting that government ministers continually demand of the media. It is a reasonable request that because of well-intentioned legislation that has become inappropriate in practice, editors frequently have to refuse. That is unacceptable. When the Secretary of State met our Parliamentary and Legal Committee we stressed that reform could not await the outcome of the scoping study, any subsequent research and any government action which might eventually result. CFAs are bound to have a chilling effect on journalism that is in the public interest although it is clearly difficult to provide direct detailed evidence of this. Tony Jaffa is a solicitor who represents many regional newspapers. He says his experience is that the CFA system fails to discourage weak claims and the regime allows claimants and their lawyers to hold publishers to ransom because both claimants and publishers know that publishers incur risks of huge costs that are probably irrecoverable even if they defend an action successfully. It means that regional publishers may have to make financial commitments that they cannot afford. At our meeting with the Secretary of State for Justice we mentioned several cases that were particularly disturbing. They included a national newspaper involved in a legal dispute concerning someone who had been convicted under the Terrorism Act and a regional newspaper that had been involved in a long running dispute in which the costs bore no relation to the claimant's original case. In essence the claimant accepted £3,000, the newspaper's London lawyers costs were less than £3,000 but the plaintiff's lawyers are demanding more than £25,000. In the latter part of 2008 the SoE received evidence of three more CFA cases in which a regional newspaper has faced huge bills. Case 1 A weekly newspaper was sued by three senior officers of a borough council. They used a London solicitor on a CFA. The issue concerned electoral law after postal votes were not counted in a close-fought borough election. The paper won substantially at the High Court and the council officers (actually the council, which backed the officers) were ordered to pay 80 per cent of costs and the paper 20 per cent of theirs. Two of the three took it appeal. One dropped out because he was convicted of criminal charges. The other won on appeal, even though he had not been named in the article. The costs order was turned around and the paper had to pay 80 per cent of costs. Costs of £700,000 were doubled under the CFA to £1,400,000. With the paper's costs the bill came to £2 million, even though damages awarded were £25,000. Case 2 A teacher was sacked in 2005 for gross sexual misconduct and sued the paper for reporting the story after obtaining a 'private' letter. The case was thrown out at the preliminary stage but the paper's costs still came to £15,000 which the litigant could not pay, leaving the paper to foot the bill. The paper recovered £5,000, which was all he owned. Case 3 A paper visited the home of the CEO of an Icelandic bank. He was not there but a reporter spoke to his wife. It was claimed that the paper invaded the family's privacy by arriving at their home unannounced and lawyers demanded an apology and costs with the threat of a privacy action. The paper carried a page one apology. The
apology concerned a point of accuracy, over whether the family received threats
or death threats. While the paper maintained it was told death threats it
agreed to apologise as they subsequently proved to be threats. Journalism would be severely restricted if reporters had to make appointments before questioning people in the public eye. And the action of complainant's solicitors in this case is hardly in keeping with the PCC system. Why should editors cooperate with the PCC if lawyers then use negotiated apologies as the basis for a legal action?
The level of costs such as in these examples are not sustainable even in large media organisations, let alone small weekly newspapers. They clearly have a significant and dangerous chilling effect on journalism that is clearly in the public interest. 5. Contempt of Court Traditional media, including their websites, are assiduous in complying with the law. Breaches are rare. The law of contempt is a major part of media law training and news organisations take great care in maintaining systems to ensure compliance. The society has had discussions with the Ministry of Justice and senior judges and lawyers regarding the working of the law of contempt. The growth of the internet raises major issues for both the media and the administration of justice. Clearly the UK media is put at a disadvantage against overseas media when it is not able to report cases in full while detailed reports are available on the internet. There is sometimes a problem in this regard concerning different jurisdictions within the UK. It is also a problem for the administration of justice in that the public may feel that the lack of reporting by traditional media suggest that cases may be covered up and the law is therefore brought into disrepute. The society has consistently called for review of the current law supported by Ministry of Justice sponsored research into the effect on jury decisions of media publicity and the availability of detailed information on the internet. The society is also working with the MoJ to establish a central database of court orders that will help the media comply with reporting restrictions.
6 - Privacy Law The society is concerned that assurances about the importance of freedom of expression have been undermined by the application and interpretation of the Human Rights Act. Any legal restrictions on the media must be considered with proper regard for the value of editorial freedom and freedom of expression in a democratic society. It is right that the committee should look at all of the restrictions on a free media together. While legislation regarding libel and the development of privacy law by judges might be well intentioned, together they can have a seriously damaging influence on media freedom, especially when they are misused.
7. Conclusion The committee asks if the balance between media freedom and personal privacy is correct. It is clear that the intentions expressed in Parliament when it approved the Human Rights Act have not been followed. The media accepts that there must be a balance but it has moved too far in the wrong direction if the media is to be allowed to play its full and vital part in a free and democratic society. The problem is compounded by the application of other parts of the law so that the effect on the freedom of the media is exacerbated by a combinaton of all of the factors that the committee is researching. Each can cause difficulty, the whole can create a serious chilling effect on journalism in the public interest. Furthermore, while there is imbalance the wider public right to freedom of expression is also undermined. This was surely never the intention of human rights conventions nor of the UK Parliament. The society would be happy to expand on any of these points and to give oral evidence to the committee.
Yours sincerely,
Bob Satchwell Executive Director
January 2009
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