Memorandum submitted by Terence Ewing
I would like to add some further observations to those previously submitted to the Committee.
In cases where a newspaper publishes material that is both offensive and defamatory, there doesn't appear to be any proper remedy at the moment so far as the criminal law is concerned.
Prosecutions for Criminal Libel are rare and difficult, as it has to be proved that the material is both defamatory and wasn't published for the public benefit. The provisions of the Law of Libel Act 1845 are cumbersome and out of date.
Prosecutions under the Public Order Act 1986 would also prove equally difficult, as would one using the Malicious Communications Act 1988, for the reason that the articles aren't communicated directly to any specified person.
I would suggest that a new statutory offence be created, that was easy to apply by prosecutors such as the CPS in situations that warranted a criminal prosecution of a newspaper, its editor and any journalists concerned.
The offence would be punishable by up to 5 and 10 years imprisonment respectively at the Crown Court and six months at the Magistrates' Court and triable either summarily or on Indictment at the election of the accused or in the same circumstances as other offences triable either way.
I would therefore suggest an offence along the following lines:
Publication of false material or communications by newspapers and media publications
1(1)--It shall be an offence for any person to publish in a newspaper or other media publication information knowing the contents to be false or untrue or misleading, with the intention of causing the subject of the publication alarm harassment or distress.
(2)--It shall be an offence for any person to publish in a newspaper or other media publication information knowing the contents to be false or untrue or misleading, likely to cause the subject of the publication alarm harassment or distress.
(3)--It shall be a defence for any person charged with such offences to prove that he published the information as a result of material and data wither oral or in writing which he had reasonable cause to believe and could have ascertained with reasonable diligence whether it was true or false.
(4)--For the avoidance of doubt "newspapers and media publication" includes newspapers registered under the Newspaper Libel and Registration Act 1881 and broadcasting organisations.
"Person" shall include a body corporate, an editor, or journalist or author.
"False or untrue or misleading" means publication of information as a statement of fact made directly or indirectly by suggestion or innuendo.
(5)--An offence under section 1(1) shall be punishable on Indictment with imprisonment for 10 years and summarily with imprisonment for 6 months.
(6)--An offence under section 1(2) shall be punishable on Indictment with imprisonment for 5 years and summarily with imprisonment for 6 months.
It could be included in any Bill either by itself or within a Privacy or Defamation Bill covering setting up a Press and Media Authority to replace the Press Complaints Commission.