Memorandum submitted by Which?
Dear Ms Macdonald
Re: Press standards, privacy and libel
1. As you will know Which? is the business name of the Consumers' Association.
2. Today, Which? is the largest consumer body in the UK, with over 650,000 members and history spanning 50 years. We are a registered charity and are completely independent. We do not receive any funding from government and do not accept advertising. The vast majority of our income comes from subscriptions to our products and services, with these profits funding our campaigning activity and informing the public on consumer issues.
3. At Which?, we're known for testing household products like washing machines and digital cameras. But that's not all we do. Confronting important consumer issues is also a key part of our work. Tackling everything from mis-selling to the quality of hospital food, our commitment to providing unbiased advice to consumers is still at the heart of everything we do. Our mission is to make individuals as powerful as the organisations they have to deal with in their daily lives.
Press standards, privacy and libel
4. We have recently had sight of the Select Committee Announcement from the Culture, Media and Sport Committee dated 18 November 2008 (No. 67) inviting submissions from interested parties.
5. Like many other non-governmental organisations with comparatively modest means (in comparison to the national and multi-national corporations whose products and services we review and comment on), libel risks in light of the current conditional fee agreement regime can and do have a significant impact on the way in which we formulate and report our campaigns, publicise important consumer issues and report our research both in print in Which? magazine and online at www.which.co.uk.
6. It is for this reason that we are writing to you so that we can endorse the submission to you by our pre-publication editorial legal advisers, Foot Anstey solicitors, dated 7 January 2009 (copy enclosed for ease of reference). Foot Anstey have agreed that we can refer to their submission and endorse it as we think appropriate from Which?'s perspective.
7. We would particularly like to endorse paragraphs 2 to 19 (Q.1, Q.2, Q.3 and Q.4) of Foot Anstey's submission. The reasons for our endorsement of Foot Anstey's views are set out below:
i) We firmly believe that the Press Complaints Commission ( the 'PCC') is an effective regulatory body and our editorial standards are firmly in keeping with the rules and spirit of the Editors' Code of Practice which we take very seriously.
Several complaints have been made to the PCC in recent months about articles published by Which?. Although we are pleased to note that the PCC has not upheld these complaints, they serve as a useful example of the value of the PCC in its current form. In several of these cases, the complainant, the company of which he/she is associated, and their products and/or services are not mentioned in the article which is the subject of the complaint. Nevertheless, the PCC has sought to investigate the complaint from these interested third parties free of charge and without requiring compliance with a complicated complaints procedure. This is clearly a significant benefit to the readership of a large proportion of newspapers, magazines and periodicals in the UK.
Our concern is that, if the self-regulatory regime is put on a statutory footing or is given some sort of quasi-judicial status, there is a real danger that the procedure will simply turn into a quasi-court used as part of a claimant's strategy when bringing libel claims against publishers with a resulting increase in costs and erosion of the right to freedom of expression.
Such a move is also likely to exclude those potential complainants who do not have an obvious connection with the published material which we think would be a great disservice to the readership of newspapers, magazines and periodicals in the UK. In short, Which? believes that the current system meets the interests of consumers, in a way which a statutory based body could not.
ii) We also firmly endorse Foot Anstey's position in paragraphs 3 to 19 of their response because of the very serious impact that the current libel costs regime can have on our own editorial decision making process in so far as the tone and content of some of the material that we publish is concerned.
Which? has a well deserved reputation spanning the last 50 years for robust research and reporting. Obviously, and especially in light of our groundbreaking campaigning work, there will be times when we have to push our own internal editorial boundaries. The very serious and inequitable cost risks created by the libel CFA regime mean that there will be times where we will be forced to consider either refraining from publishing certain material or settling a claim even in circumstances where it would otherwise be defensible as a matter of law.
Clearly, this is against the wider public interest and erodes Which?'s right to freedom of expression. It also has a potentially significant impact on our reputation and, more generally, creates a 'justice vacuum' for Which? and other publisher defendants in a similar position. While we accept the need for access to justice that can be afforded by a CFA regime, our firm view is that this should not be at the expense of the defendant's access to justice or their right to freedom of expression. We believe that this is an issue that needs to be considered by Parliament because such a situation is undoubtedly contrary to the interests of consumers nationwide.
8. Please do contact me or David Marshall if you require further clarification about the issues raised in this letter.