Further memorandum from Terence Ewing


Further to my recent submissions, I would also wish to add some comments concerning Mr. Moseley's proposals that journalists be required to contact the subject of any articles beforehand.


I fully support these proposals, and wish to add that in my view, journalists should also be required to contact the subject at least seven days and possibly fourteen days beforehand.


This would give time for the subject to be able to contact the editor by letter or though legal representatives, in order to put the newspaper concerned on full notice that the allegations are denied, and that any subsequent publication would be at the newspaper's risk of legal proceedings ensuing.


This may also prove to be very important should the paper concerned wish to raise the issue of "qualified privilege" and "professional journalism" known as the Reynolds defence in any subsequent defamation proceedings, which might also have relevance if the issue of malice was also raised


In addition, this would also give the subject concerned, the opportunity of applying to the High Court for an injunction restraining publication until the paper had appeared before the court to justify publishing its story.


Clearly, wealthy individuals who have stand by legal teams that have access to contact High Court Judges over the telephone at weekends are at a distinct advantage over ordinary persons who don't have such immediate access to these select facilities.


An ordinary person who may be contacted by a Sunday newspaper journalist, say late on a Friday evening, when the courts are closed until the following Monday, will not be able to do anything to prevent a damaging publication.


However, someone with other financial means may well be able to instruct solicitors who can contact a Judge over the course of the following Saturday, and thus obtain an Injunction over the telephone preventing publication on the Sunday.


This would appear to be a very unequal playing field, and a total denial of "access to justice" for the ordinary person in the street.


If a sufficient time were available to such persons of say even seven days, they would be able to prepare an affidavit and summons and appear before a High Court Judge to explain the position, say at the earliest the following Monday.


An Injunction would then be obtained, and the newspaper invited to appear to justify their case for publication.


In these types of cases, it might also be desirable for evidence to be given on affidavit, so that either parties would know that if they file any false evidence, they can be prosecuted for perjury.


This would then protect both the subject and the newspaper, as each side would be under a clear duty to give full and frank disclosure, and know that it were to be proved that false evidence had been tendered, they would be liable to prosecution if it could be proved.


In addition, the newspaper's legal team would be professional barristers and solicitors who would be subject to their own professional code of conduct and be under a duty not to mislead the court.


This wouldn't prejudice the newspaper, because if they were able to justify on oath the reasons for such a publication, then the Injunction obtained by the subject would be discharged.


It would also assist in promoting "professional journalism", because editors and journalists would then know that they might be required to justify before publication on oath the grounds on which publication was justified, thus clearly concentrating minds, with the beneficial result that deliberately false stories would then be far less common.


This is of course important in a case like that of Kate and Jerry McCann, where libelous statements were published in a number of newspapers in a totally reckless manner, with no care for the falsity or truth of what was being published, by both the journalists and editors alike.


This is an example of totally irresponsible journalism, and no doubt the newspaper editors concerned took the view that they wouldn't be called to account and could get away with it.


I suspect, although I don't know for certain, that the actions were settled out of court, as otherwise, the journalists concerned would have had to have submitted Witness Statements and have given evidence on oath in court.


This might have led to them being investigated by the police for perverting the course of justice and perjury.


It would seem that they got cold feet therefore, and felt that the risks were too great to bluff it out, as it is amazing how minds are concentrated when there might be the threat of prison gates clanging behind them.


The case of Mr. Moseley is again another example of the editor probably knowing full well that his source was lying and wasn't reliable and adopting a "publish and be damned" attitude to please his readers and promote circulation figures for Mr. Murdock.


This seems to be the attitude of many of the major tabloids and also broadsheets as well, as they all know that the Press Complaints Commission is a laughing stock, and that all it can do will be to give a slap on the wrist to its "buddy pals" in the press.


In the case of Mr. Moseley, this is well illustrated by the bad looser speeches given by the editor of the News of the World on the steps of the Royal Courts of Justice after the case.


It is to be noted that so far as I am aware, the News of the World didn't appeal against Mr. Justice Eady's judgment, so if they were so concerned about it, the question has to be asked, why not? It seems an example of do as I say but not as I do.


Regarding the reliability of the source witness, it is to be recalled that the star witness suddenly had cold feet when at the doors of the court, and claimed that giving evidence would cause massive mental stress.


However, it is to be noted that she clearly wasn't suffering from such stress when she gave her material to the newspaper in the first place, and took the clandestine video recordings etc. No stress there, but cool and calculating breach of trust.


In addition, she seemed to have had a remarkable recovery a few days afterwards, as she had regained her composure sufficiently to be able to issue a public statement of apology to Mr. Moseley.


Perhaps the real reason why the News of the World didn't ever produce her in the court was because they knew all along that she was a total liar, and would have been torn to shreds in court.


Clearly, the editor was more concerned with a damage limitation exercise here, as the coverage of the case had already caused massive damage to the newspaper's reputation.


In such a case, if Mr. Moseley had had the opportunity of obtaining an Injunction beforehand, all of these issues could have been canvassed and if the Judge had thought that the witness was unreliable and was a total liar, then the Injunction would have been granted.


Newspapers may well say that such proposals would be a "chilling effect" on their right of "freedom of expression" under article 10 of the Human Rights Act 1998 to publish stories they deem in the "public interest".


However, as the recently decided cases, including that of Mr. Moseley have demonstrated, there has to be a balancing act between the article 10 rights of the newspaper and the article 8 rights of the subject.


Each case must be judged on its own merits, and in some cases, such as Lord Browne of Madingley, the balancing act was found to be in favour of publication, when it was discovered that he had allegedly misused his position as a director to promote his partner.


Therefore, in all of the circumstances I would suggest that these proposals are both proportionate and in compliance with both article 8 and article 10 of the Human Rights Act 1998.


It must also be remembered that article 8 of the Human Rights Act 1998 is there to protect individuals from unwarranted invasions of privacy concerning their private lives and correspondence.


It is of course an open question as to whether such measures would be appropriate to large companies, or organizations or even politicians and persons in public life. Different considerations may apply here, but even so, article 8 may still give right to unwarranted invasions of privacy.


An example might be the recent revelations concerning MP's expenses, as several of the MP's concerned have stated that the details about them are inaccurate, with possibly actionable content.


On the whole however, I fully agree with Mr. Moseley concerning the devastating damage that can be caused to an ordinary person by prior publication, perpetrated in a reckless manner by an unprofessional editor.


It is clear therefore from recent cases that the press are totally out of control, treat the Press Complaints Commission and any libel awards awarded against them by the courts with total contempt and consider themselves above the law.


Therefore, clear sanctions are now called for, and they have shown that they cannot be trusted to put their own house in order, and have no one to blame but themselves if Parliament now takes action, as I would submit it has a public duty to do so.


May 2009