Memorandum submitted by DCMS
1. The Committee regularly looks at the issues around press regulation and we welcome that. We believe this is a hugely important area and one that benefits enormously from this type of Parliamentary scrutiny, as it serves to air issues of concern. It also reminds the press of the huge responsibility and privilege that is self-regulation. They need to show how preciously they guard that privilege by taking the responsibility seriously. This regular scrutiny by Parliament is one of the opportunities they have to demonstrate that they are doing so.
2. The Committee has set out a number of areas they wish to investigate. We have set out some points we wish to make in response to these topics, sometimes grouped 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; the desire to secure financial compensation might influence the decision to take the legal action, for example.
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. This decision is made more tricky when matters of privacy are under consideration, as an investigation may lead to a further breach of privacy. And we understand there have been occasions when the PCC has been asked by those involved in a particular story not to investigate. The PCC must consider all the factors on a case by case basis.
5. This is a dynamic area and changing case law does change the playing field for newspapers. For example, the 2004 von Hannover judgment in the European Court of Human Rights, changed the understanding of the circumstances in which one might have a reasonable expectation of privacy. The Court ruled 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 she behaves generally in her private life, even if she appears in places that cannot always be described as secluded, and despite the fact that she is well known to the public.
6. But 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 work and 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 there are examples of times they have done so. 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 Government firmly supports the right to freedom of expression, which is protected by Article 10 of the European Convention on Human Rights (ECHR). Of course, the exercise of this right carries with it duties and responsibilities, and may therefore be subject to restrictions provided by law, for example in the interests of public safety, or for the prevention of crime, or to respect the rights or reputations of others. A balance may need to be struck between the right to freedom of expression and the right to respect for private and family life, home and correspondence, which is protected by Article 8 of the ECHR. Neither right is absolute, and each is subject to restrictions to protect the rights of others.
11. It is important that people have an effective right to redress through the civil law where their reputation has been damaged as the result of the publication of defamatory material, or where there has been an unjustified intrusion into their private life. In each individual case that arises, a balance must be struck between the competing interests of the parties on the basis of the circumstances of the case. These circumstances will of course vary from case to case. The balance of competing rights in individual cases is quintessentially 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.
12. 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 on public policy grounds to statements in the media provided that certain requirements are met.
13. In the case of secondary publishers, the Defamation Act 1996 also 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.
14. In relation to privacy, a number of remedies are already available for specific types of breach of the right to privacy, which allow the courts to strike different balances of 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) and the Freedom of Information Act 2000 (which protect against the dissemination and abuse of personal information); and common law remedies including malicious falsehood; nuisance; and breach of confidence.
15. The Government does not consider that any further statutory provisions are appropriate at present in relation to the law of libel or the law on privacy.
What effect the European Convention on Human Rights has had on the courts' views on the right to privacy as against press freedom.
16. The Government's views in relation to the role of the courts and the current legal framework are set out above. It is not possible for the Government to comment on the effect the ECHR may have had on the courts' views in this area as this would be a matter for the judiciary.
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.
17. 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.
18. 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.
19. 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.
20. The Internet and the ease with which user-generated information can be published on various sites which is prohibited to the mainstream media has genuinely 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.
21. However, it is important not to overestimate the impact of 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.
22. In any event, the current law applies equally to the Internet and we do not think the existence of the Internet or other new forms of communication undermines the need for the law or the justification for its continuance.
23. 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.
24. 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.
25. 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.
26. 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.
27. In relation to the law on libel, in the 1990s concerns were widely expressed that the level of libel awards was disproportionate in comparison to personal injury awards. Following the 1997 judgment in John v Mirror Group Newspapers Ltd, the judge is allowed to indicate to the jury in libel proceedings the level of damages 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.
28. The Government believes that Conditional Fee Agreements (CFAs) play a role 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. The existing CFA arrangements in England and Wales are compatible with the European Convention on Human Rights. However, we recognise that the cost control mechanisms administered by the courts may not be working as effectively as they could, and are aware of the difficulties faced by the media as a result of disproportionate costs particularly in defamation cases.
29. In line with the Government's commitment to achieving reasonable and proportionate cost controls in all cases funded through CFAs, we are considering a number of measures to help address disproportionate costs in defamation cases. Any changes to the existing arrangements would of course be subject to consultation with the relevant parties. This should help deal with the concerns around disproportionate costs in defamation cases.
30. There is always room for improvement in matters requiring judgement and subjective opinion, and we have indicated above where we think change is appropriate. But given the advent of fast-moving technology, it is important that the industry continues to monitor its performance critically. For its part, the Government aims to work alongside the industry to help ensure that it has the tools and the time to do so. Our Digital Britain programme, for example, 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. An interim report will be published early in 2009 with the final report late in the spring.
 http://www.official-documents.gov.uk/document/cm67/6784/6784.pdf - Government response to the Select Committee report into 'compensation culture' 2006