Memorandum submitted by Jonathan Coad, Swan Turton Solicitors

 

The Law of Libel and Conditional Fee Arrangements

 

 

The Law of Libel, a Free Press and the Preservation of the Rights of the Individual

 

Nobody engaged in the debate about the future regulation of the press (both legal and via the PCC) doubts that a wide degree of liberty for the media is necessary for a healthy democracy. The modern commercial media is, however, immensely more powerful financially than any individual, or indeed most politicians who appear to manifest a considerable degree of wariness of taking any action that might offend it. The law must therefore take account of this (as should the regulatory framework) in providing both redress for the individual and accountability for the media generally.

 

The need for some restriction on press freedom is expressly recognised in Article 10. Sub-paragraph 1 provides that: "everyone has the right to freedom of expression". However, sub-paragraph 2 says that the exercise of these freedoms "may be subject to such ... restrictions ... as ... are necessary in a democratic society." That paragraph specifically cites the protection of the rights of others as a legitimate basis to restrict freedom of expression. In considering this issue, therefore the Culture Media and Sport Committee must very much bear in mind the massive imbalance in power that exists between the corporate media and virtually the whole of the rest of society.

 

When it comes to the law of libel, not only does the Committee need to keep in mind that defamatory words published by the press are ones which are inaccurate, i.e. they mislead the public as a whole, but defamatory words also undermine the reputation of individuals (thereby robbing them of their fundamental common law and Article 8 rights). They are also words which cause individuals to be shunned and avoided by the general public, and which expose them to "hatred, contempt or ridicule". They therefore directly and tangibly affect the lives both of the individuals concerned, their family, friends, colleagues etc.

 

Until 1999, the individual had an absolute right to go to a judge and jury when he or she was accused of wrongdoing by the media to establish that those allegations were incorrect. That right was taken from the individual by the decision of the House of Lords in Reynolds v Times. I believe this is neither legally, constitutionally, nor morally defensible. It is certainly not in the public interest. It means that the price that society pays for free speech is borne by the victim rather than the abuser of that right, thereby transferring the cost from (say) News International to the individuals it chooses to defame for profit.

 

Inextricably tied to this issue is the question of Conditional Fee Arrangements, which have the effect of shifting the balance away from the corporate megaliths that publish newspapers in a way which levels the playing field. Unsurprisingly, newspapers have taken violent exception to them, as they rob them of their huge historic financial and logistical advantage over those they have wronged in their news pages. I will start with the issue of Conditional Fee Arrangements and then address the grave impact on the law of libel of the House of Lords decision in Reynolds.

 

Conditional Fee Arrangements

 

There has been much outrage expressed by and on behalf of the press over the evils of Conditional Fee Arrangements so far as newspapers are concerned. The Committee should not be seduced by them. A mere glance at the statistics establishes beyond question that the press protests far too much on this issue.

 

According to Rebekah Wade in her recent Cudlipp lecture, last year the press garnered 1.8 billion in advertising revenues alone. According to research that I have commissioned, the press turns over annually around 6.5 billion on which it makes a profit of nearly 1 billion. In 2007, 233 defamation proceedings were commenced. On the generous assumption that half of these were against the press, that makes a total of 116. To be generous again to the press, let us say that 50% of those actions were "justified", i.e. they were over allegations that were indeed false and defamatory. For those, the press can only have itself to blame. The remainder then amounts to 58.

 

Let us assume, again generously towards of the press, that 50% of those libel actions are conducted on CFAs. That leaves a total of 29. The cost of these actions to the press (if settled/conducted reasonably by them) can amount to no more than an average of 200,000 each. Let us assume that a mere 25% of those costs are recovered from claimants, then the total cost of CFA claims is under 5 million. Set against Paul Dacre's 1.2 million package, the Fleet Street turnover of 6.5 billion and profit of 1 billion and advertising revenue alone of 1.8 billion, this hardly merits any serious consideration on the part of Parliament to change the law.

 

The real objection on the part of the press to CFAs is this: for those of us who have been engaged challenging transgressions in the print press for many years, before the introduction of CFAs the Claimant was almost invariably in a David and Goliath situation. Not only does the David and Goliath phenomenon mean that the resources for battle (if there is no CFA) are wildly disproportionate which inevitably tells in the outcome, but also in almost all cases, whereas the newspaper can well afford to lose a libel trial, the Claimant cannot.

 

This has an enormous impact on libel litigation, placing inordinate pressure on the Claimant either not to seek to correct any libel published about them at all, or if they do have the courage/means to take up arms then to settle or abandon the claim. This logistical imbalance is blatantly capitalised upon by the press when litigation is undertaken on a normal fee-paying basis.

 

The real objection then on the part of the press to CFAs is that they level the playing field between the immensely powerful press and the ordinary citizen - or even the occasional celebrity whose resources are still a tiny fraction of (say) Associated Newspapers. For this reason, they should be commended and no tampering with them should be undertaken in response to the siren cries of the press of "foul".

 

The Interests of the Individual are sacrificed to those of Big Business

 

The press frequently complains about the supposed iniquities of the UK law of libel. Complaint is made about the outrageous proposition that immensely powerful commercial organisations such as newspapers are obliged, in limited circumstances only, to prove on the balance of probabilities the truth of factual allegations, published for profit, which infringe the Article 8 rights of the individual - Article 8 now accepted by the ECHR as including a right to reputation.

 

After millions of pounds had been invested by News International to try to change our law of libel to favour its corporate aspirations as against the rights of the individual, in a 1999 case (Reynolds v Times) a defence was introduced into the UK law of libel by the House of Lords which fundamentally undermined the ancient common law (now also Article 8) right of an individual not to be robbed falsely of his reputation - especially not for profit.

 

This judicially created defence provides that a newspaper can refuse to correct and avoid liability for false and defamatory publications where it can show that in publishing material as issued it acted 'responsibly'. Remarkably, once the press has elected to rely on that defence the Claimant automatically and irredeemably loses the right to establish in a UK court that the allegations that have been published against them are untrue. This is because once the media defendant elects to rely on that defence the court ceases to have any regard for whether the allegations in question are true or false - merely whether they were published "responsibly". The general public is also thereby robbed of its Article 10 right to learn that the allegations in question are untrue - a serious issue if they are made against a public figure such as an MP.

 

The Reynolds Effect on the Rights of the Individual

 

One of the remarkable effects of this defence when deployed in a libel action emerges by consideration of the only two possible outcomes of such a claim. An individual who has been falsely accused of wrongdoing will either obtain a finding that the allegations were published irresponsibly, but will get no finding that they are untrue; or - remarkably - even if the allegations are wholly untrue they may lose the action and be ruined by six figure fees. The one thing which the claimant will not get is a finding that the allegations made against then are false.

 

Appended to my report is an article which I wrote for the Entertainment law Review in 2007 entitled Reynolds - What about Truth and What about Human Rights? (Appendix 1), which sets out in greater detail the full effects of the Reynolds Defence. I commend that article to the Committee in its consideration about the correct balance for the law of libel. However, in summary, so far as far as the rights of the individual are concerned the Reynolds Defence does two things:

 

1. It absolves the press of the obligation to correct false and defamatory allegations about matters of public interest that it has made against an individual; and

 

2. It absolves the press of its responsibility to make restitution to those individuals that it has defamed for profit.

 

The Correction of False Statements

 

As I explain in the article, it is very difficult to conceive of a public interest for either. As to the first, where something that has been published which is untrue concerning a matter of public interest, it is impossible to conceive how it can be in the public interest that such misinformation should not be corrected.

 

In fact, this also flies in the face both of the PCC and NUJ Codes which specifically state that false information published by the press should be corrected. Here is the relevant section of the PCC Code:

 

"1. Accuracy

 

(i) Newspapers and periodicals should take care not to publish inaccurate, misleading or distorted material including pictures.

(ii) Whenever it is recognised that a significant inaccuracy, misleading statement or distorted report has been published, it should be corrected promptly and with due prominence."

 

Here is the relevant section of the NUJ Code:

 

"[A journalist shall do her/his] utmost to correct harmful inaccuracies."

 

It is difficult to see why in fashioning this defence the Courts have decided to free the press from an obligation which it had voluntarily shouldered - doubtless for clear public interest reasons.

 


Restitution for the Wronged

 

As to the second purpose of the Defence, given the number of libel claims which were issued in 2007, how can it seriously be advanced as a societal necessity (which is what is required by Article 8 for that human right to be abrogated) for the press to be free to publish false and defamatory information for profit with no accountability whatsoever to the subject of that false information?

 

Someone does always have to pay for the press's transgressions. I once asked a newspaper lawyer who said that the rationale for Reynolds was that newspapers had to be allowed to make mistakes. That was of course not the correct proposition - the effect of Reynolds is to allow the press to make mistakes without taking responsibility for them. When I asked her what happens to the rights of the individual when the Reynolds defence is deployed she had no answer. The inconvenient truth is that the effect of Reynolds is to enable the press to pass the cost of those transgressions on to the victim.

 

The Reynolds Defence amounts to a Refusal by the Press to take Responsibility for its Actions

 

As I explain above, Article 10 carries with it an obligation on the part of those who exercise the right of freedom of expression to bear the responsibility that goes with it. The effect of the decision in Reynolds is to transfer that responsibility from the commercial publisher to the individual.

 

One of the reasons that it is such a remarkable aspiration for the press to expect others to pay for its mistakes is because of its unrelenting criticism of those who will not bear responsibility for their own actions. Here is a comment by the respected journalist Geoff Randall in the Daily Telegraph:

 

"The flight from ... responsibility has become a stampede to self-exculpation. Accountability is increasingly traded for the soft option of victim status. "It's my fault" is vanishing from contemporary discourse; in its place comes an expectation that someone else will pay."

 

Here again the decision of the House of Lords in Reynolds flies in the face of the principles which the press itself espouses.

 

The Reynolds Effect on Society

 

You will often read the advocates of yet greater press freedom complain that restrictions imposed by the law of libel and the use of CFAs have a "chilling effect" on freedom of expression. They will not usually own up to the fact that a press which is properly regulated neither legally nor by an effective independent body has a seriously chilling effect on the rights of individuals. The chilling effects of Reynolds on society are as follows:

 

It deprives the public of the safeguard of judicial scrutiny of the truth of defamatory allegations published by the media;

 

It deprives society of the right to learn when important individuals have been falsely accused of wrongdoing; and

 

It deprives society of the benefit of a financial disincentive to the press of making false allegations.

 

One of the chilling aspects of Reynolds is that once the decision has been taken by the publisher to deploy that defence, it automatically has these two effects. Firstly, the courts have rejected the right of the Claimant to establish that the allegations are false. Secondly, the media defendant has the power to bring about this "Reynolds effect" irrespective of whether or not it has actually acted responsibly.

 

Two Cases to Illustrate the Dangers - the Army Officer and the MP

 

The full iniquity and danger of this defence were recently illustrated by two cases concerning matters of high public interest where the media defendants relied on the Reynolds Defence in an attempt to avoid the issue of whether the allegations at issue were true being determined by the court.

 

In a case brought by Colonel Campbell James against The Guardian newspaper, Colonel Campbell James was falsely accused by The Guardian of being involved in the Abu Ghraib abuses. The paper thereby also falsely accused the British Army of being involved in those abuses. The paper was quickly provided not only with irrefutable evidence that Colonel Campbell James was not at Abu Ghraib at the time, he was not even in Iraq. However, contrary to the clear terms of both the PCC and the NUJ Codes, the paper refused to correct the story for a period of months citing the Reynolds Defence.

 

The issues at stake were succinctly set out by Mr Justice Eady:

 

"One of the unique features of this case, apart from the obvious implications for the Claimant's reputation, is the security risk created by the article. It is common knowledge that there was widespread outrage in the Arab world when these abuses were revealed in the media. It requires little imagination to envisage the risk imposed to the Claimant and his family once he became "publicly linked" with the behaviour of those American troops. It need not be a matter for imagination, however, since there is solid evidence to that effect before the court.

 

Despite this, the offer of amends was not forthcoming until ... more or less three months after the article."

 

Eventually, the newspaper published a grudging apology. This was the conclusion of Eady J:

 

"It could not have hurt The Guardian to acknowledge promptly on the basis of uncontroversial facts that the Claimant had nothing to do with the Abu Ghraib abuses and was not even in Iraq when they took place. For some reason The Guardian felt unable to take those basic steps. It was not simply a matter of good journalistic practice; it was a matter of elementary human decency."

 

The reason that the paper stood its ground was that the Reynolds Defence permitted it to do so, which is also used as a licence to abrogate its PCC/NUJ Code obligations. It is surely no more than "elementary human decency" that an individual should be permitted access to the judicial system to enable him/her to establish that they have been falsely accused of wrongdoing by the mass media.

 

The second case concerned Shahid Malik, an MP who was a Minister at the Department of Overseas Development. Mr Malik was both black and the first Muslim to be appointed as a government minister. The source of the allegations in a local newspaper was a defeated electoral opponent who, was also of a different political party, race and religion. There were indications that the newspapers defence was being funded in part by the British National Party.

 

Mr Malik asserted that the article meant that he had organised and directed gangs of Asian thugs to disrupt the voting at a local election; that he had threatened and intimidated voters thereby committing serious criminal offences; that he had exhorted and put improper pressure on voters to vote according to ethnic or religious affiliations thereby knowingly fuelling unrest and causing tension and racial divisions within the community; and that he was a racist and dangerous extremist who was unfit to hold public office. On any analysis the allegations were extremely serious.

 

One of the defences relied on by the newspaper was the Reynolds Defence which would have had the effect of robbing both Mr Malik, his voters and society generally of the right to establish whether these very serious allegations made against him by the community press were or were not true. It is very difficult to conceive how it can possibly be in the public interest that such very serious and potentially career-ending allegations against an elected member should, at the unilateral behest of the publisher, not be tested in a court of law.

 

If the Committee is minded to make any recommendation concerning the law of libel then it should be that this defence be abolished by statute, so that the courts recover the power both to clear the innocent individual of such serious and ruinous allegations, and to inform the public that they are untrue.

 

Conclusion

 

The Committee must decide whether it wants a press which (like the rest of us) is accountable for its actions and operates within the law, or whether it should grant the press further licence to mislead the public and infringe the right of individuals for profit without either effective legal or regulatory accountability. No such press would serve any other interest than its own - and certainly not the public interest.

 

In this sense, the issue of whether the press should remain properly accountable under the law, and also effectively regulated, very much overlaps. The dreadful wrongs committed by the press against the McCanns shows that the current system of press regulation has comprehensively failed, and it was only the law that came to their rescue. The existence of the Reynolds Defence however, means that even the law cannot now be relied on by the innocent victims of circulation wars - not least because had it been engaged by those who libelled the McCanns then their right to be vindicated by a court of the myriad false allegations made against them would automatically have been lost.

 

At present, the press is permitted by the law to defame individuals on matters of public interest (i.e. publish damaging allegations about them which are untrue) and then not only claim that it is "responsible" not to correct those allegations, but also refuse to compensate those whose lives are blighted by them. It is also trying to rob the individual of the right to challenge false and defamatory publications (or invasions of their privacy) via a funding mechanism that achieves equality of arms. It should not be permitted to do either.

 

 

February 2009