UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 275-xi

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

CULTURE, MEDIA AND SPORT COMMITTEE

 

 

PRESS STANDARDS, PRIVACY AND LIBEL

 

 

Tuesday 2 June 2009

MR MARK STEPHENS and MS CHARMIAN GOOCH

BARBARA FOLLETT MP

Evidence heard in Public Questions 1017 - 1112

 

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Oral Evidence

Taken before the Culture, Media and Sport Committee

on Tuesday 2 June 2009

Members present

Mr John Whittingdale, in the Chair

Mr Nigel Evans

Paul Farrelly

Mr Mike Hall

Mr Adrian Sanders

Helen Southworth

________________

Memorandum submitted by Global Witness

 

Examination of Witnesses

Witnesses: Mr Mark Stephens, Partner, Intellectual Property & Media, Finer Stephens Innocent LLP, and Ms Charmian Gooch, Director, Global Witness, gave evidence.

Chairman: Good morning. This is the final session of the Committee's inquiry into press standards, privacy and libel. I would like to welcome as our witnesses in the first part Mark Stephens, a Partner of Finer Stephens Innocent, and Charmian Gooch of Global Witness.

Q1017 Paul Farrelly: This has been a long haul to the final session, but I think the key question to kick off on is: in what way do you think UK libel laws have had a "chilling effect" on the work that you do?

Ms Gooch: In terms of Global Witness they have a severe effect on how we are able to gather evidence, particularly overseas from witnesses. We do believe that the sort of constraints in terms of responsible reporting and information-gathering are reasonable, and that as an organisation we will always endeavour to spend a lot of time gathering data, verifying, cross-referencing and checking. The problem we often encounter is that, if we are working in countries with despotic regimes where there is a military that is often in control in remote areas, it is very dangerous to even speak to individuals or officials who are trying to give information, and it is impossible to identify them; and therefore, in terms of bringing them into court, can be very difficult. I cannot talk on behalf of other NGOs - Mark Stephens can in terms of NGOs that he has represented - but anecdotally I know of numerous instances where organisations have held back from naming and shaming and putting detail into reports because of fears of particularly libel tourism, because of the very high conditional fee arrangements, and because of the very high costs that get awarded in the UK, disproportionate to the rest of Europe, and that is having a chilling impact. In our case, we endeavour not to be chilled by that, but we knowingly take risks as a result, and therefore have put in place very, very detailed and stringent processes internally to try and minimise risk. The costs involved are increased because we do due diligence and involve lawyers, often from the outset well before the report is even written or planned, and that is a big additional cost.

Q1018 Paul Farrelly: Does minimising risk actually come down at the end of the day to leaving out some well-known names which governments, that you seek to influence, know very well?

Ms Gooch: Global Witness endeavours to always name names where they need to be named, and has run risks as a result. Very occasionally we will step back from that. For example, there is a dictator that I cannot name - we have very well-founded allegations of a very large bank account full of money that he has looted from resource sales. We cannot yet stand that up; therefore we are holding back from that for the time being. That would be an example. There are other times when we will effectively take the risk because we believe it is in the public interest not to be chilled down and for naming and shaming to take place.

Q1019 Paul Farrelly: You can name anyone you like here if you use privilege responsibly.

Ms Gooch: Yes, but it is an ongoing piece of research and investigation.

Mr Stephens: If I could help you, Mr Farrelly: one of the things we are seeing through our doors are NGOs coming in who are concerned that they are going to be sued. To give you a scale of the problem: we have now seen a consultation between NGOs, of about seven meetings now, a core group of about 30 organisations, which tells you that a lot of them are really concerned. Only last week there was a major London law firm that put on a training programme for NGOs in libel and privacy and it is becoming increasingly an issue for them, because they cannot get insurance. The risk profile is such that, even if they had the funding to be able to afford it, they could not do so. As a consequence, with threats coming not only against the NGO and the individual authors of reports but also against the trustees and donors of these organisations, what we are seeing is many organisations, who are not taking as bold a stance as Global Witness, inviting the lawyers to take a red pen to take a much more cautious approach to the removal of names; and of course that denudes the public interest of information which is essential when making decisions about society and the way in which we, for example, fund certain countries and such like.

Ms Gooch: May I just also add to my previous answer. I do not wish to tempt fate but, thus far, we have not yet been successfully sued but one cannot predict the future. We have spent a lot of time fighting off very serious threats. I was involved in one a few years ago where we had six different parties making very serious threats against individual staff, against the Global Witness Charitable Trust, the Global Witness Foundation in the US, Global Witness in four different jurisdictions. That went on for over a year and you can imagine the organisational time, effort, staff time, energy and costs involved. That in effect does have a chilling effect because that is time that we could not spend campaigning.

Q1020 Chairman: Would they employ UK-based libel lawyers to pursue?

Ms Gooch: It varies. Each situation is different. In that instance they started to do so and then switched to another jurisdiction. In other threats we have had, yes, they do. There was an attempt to injunct some information we had put up on a website about a public official - a public official who is the son of the President of Congo-Brazzaville, his name is Denis Christel Sassou-Nguesso; and there Schillings the UK-based law firm, whom I note have been in to give evidence -----

Q1021 Chairman: Indeed, their name has cropped up a few times in the course of the Inquiry.

Ms Gooch: In fact, I am very interested and little bit concerned to see that the Committee has heard a lot of evidence from claimant lawyers, but remarkably little from defence lawyers. I think Mark Stephens is probably one of the few defence lawyers that you have heard. I would ask that you take that into account when you weigh up the evidence from the claimant lawyers. In the case of Schillings, they pursued an aggressive and inaccurate process against us which led to one of their lawyers having to make a public apology in court because of basically making threats that could lead to the directors of Global Witness being put in prison, which they then later retracted and said that they had been unaware of some of the issues and some of the finer points of company law in Hong Kong, which is somewhat hard to believe for a law firm that prides itself and promotes itself as a leading corporate law firm. In that case that was an issue over privacy; and an issue about: how do you balance public interest and privacy? Judge Burton found in our favour and found that the use of oil revenue to fund a private lifestyle - hundreds of thousands of dollars of luxury goods - was in fact an issue that did need and did warrant having credit card statements put up on the internet so that people could scrutinise them.

Q1022 Paul Farrelly: Before we move on, in your experience what sort of people benefit from this chilling umbrella? Are they people like arms dealers, for instance?

Mr Stephens: Yes, they are certainly arms dealers; they tend to be the rich, the powerful; some very large companies who are exploiting natural resources - for example, illegal logging and mining in predominantly Third World and emerging markets. So we see those sorts of people benefiting, as well as people who are receiving corrupt payments and that kind of thing. It is very high level public interest. If you can rate public interest as a graded scale then it would certainly come up the very highest end.

Q1023 Chairman: You mentioned privacy law, which is one of the main areas this Committee has been examining. Are you finding that with the extension of privacy law through a series of judgments that people are now seeking to prevent you carrying out your work by threats of privacy law rather than libel action?

Ms Gooch: Yes, that injunction was two years ago - that attempt to injunct and get the information taken down - and that was by an individual who was domiciled overseas; had no presence in the UK; I believe had absolutely no intention of ever paying. There was 50,000 of costs; two years on, we have yet to see those costs despite a court order. In a sense, here we have a public official involved in corruption overseas, who was very happy to use the British courts to try and chill down and stop legitimate comment and information; and yet when that same court makes an order of costs against him (this is the son of the President) has absolutely no intention of paying. I would also question very much whether Schillings ever seriously thought that he would pay up.

Q1024 Chairman: Did Schillings get paid?

Ms Gooch: One would assume so!

Mr Stephens: It would be difficult to believe they would never get paid. In relation to that particular case, it does seem wrong that somebody can come here from abroad and begin proceedings.

Q1025 Chairman: Where do you think he should have taken action then?

Mr Stephens: Certainly preferably not Congo-Brazzaville. The issue I think is there was ongoing litigation in Hong Kong, for example, which has perfectly decent jurisdiction.

Q1026 Chairman: Your organisation is based in London?

Ms Gooch: My organisation is.

Q1027 Chairman: In a sense, taking action in a London court does not seem so inappropriate?

Ms Gooch: What I think should have happened - and a recommendation or an ask I would make to the Committee to consider - is that claimants who have an overseas domicile should be required to put a significant cash deposit down, because otherwise I think the chances of any proper justice being done on this is very slim.

Q1028 Chairman: You would not question the appropriateness of their taking action in the UK court - just that you did not get any money?

Ms Gooch: No, I question the basis on the fact that they attempted to injunct on privacy when in fact this was a public interest issue. Congo-Brazzaville as a country has received millions of pounds of UK money. Congo-Brazzaville has made promises to the international community, including the UK, about reforms to receive that money and to forgive debt; and this is actually part of a larger concern that we have as an organisation, that millions, in fact billions of pounds of resources - such as oil, diamonds, timber and other resources - the revenue from those are being looted out; they are being handled by banks; and basically banks are facilitating a state looting. For governments that are serious about the claim that they want to make poverty history and have supported the Millennium Development Goals, for them not to tackle this massive abuse, and what in effect is corruption and the facilitation of corruption, is a long-term problem. This information that we put up on the website was connected to that work.

Q1029 Chairman: I entirely understand that, and that presumably is why the UK court decided not to grant an injunction. You seemed to suggest earlier that you did not think it was right that they went to the UK courts; actually I do not see which other courts they would have gone to other than Congo, which obviously from your point of view would have been rather less satisfactory.

Mr Stephens: Chairman, there are two issues arising here: one is in relation to Global Witness, which is an English and American organisation; and there are also issues in relation to cases, for example, with Human Rights Watch, which is an American organisation, which was sued here by a Rwandan wanted for genocide. There is no obvious connection with the courts of this country in those kinds of cases. It does seem to me, as I am sure the Committee is by now acutely aware, the British courts do have this very expansive notion of which cases they will and will not take.

Q1030 Chairman: Can I just explore that a little further then. The cases that have been drawn to our attention are where the definition of "publication" has been stretched to the limit to get into the UK courts - in other words, 20 copies of a book. An organisation like Human Rights Watch presumably their reports are pretty widely circulated in this country; so to that extent the views they are expressing would be widely known here?

Mr Stephens: They would; they are available more widely; but let us just take the print suggestion. One of the proposals that was put forward in the written submissions was that we should treat as de minimis, and therefore not as a publication within the jurisdiction, where there is, say, less than a thousand print publications within a jurisdiction. That has two effects: one is that a thousand is a fairly minimal number in terms of dealing with somebody's reputation; it is likely to have had a much more significant circulation in another jurisdiction, which would be perhaps more appropriate to sue in; and as a consequence of that we are not cluttering our courts up with small pettifogging claims, rather than the bigger claims which are more appropriately dealt with within the jurisdiction of this court. It was for that reason I felt it was a good idea to try and draw some kind of arbitrary line in the sand, and a thousand seemed to be roughly where the courts were going, saying things below that would be an abuse of process, and numbers of publications above that were clearly a substantial tort within the jurisdiction of this court.

Q1031 Chairman: Have you attempted to challenge the jurisdictional issue when action has been taken?

Mr Stephens: Yes, we have. Whenever that comes up we do that. The problem, of course, is that it is hugely expensive. A challenge to the jurisdiction is a full day in court, usually with barristers; invariably the other side will have a Queen's Counsel; and that is going to be in the order of 50,000-80,000 in terms of legal costs to fight with the evidence and everything in advance. That in terms of an organisation, an NGO, is two researchers for a year. When you are faced with the choice between paying lawyers and two researchers to get good reports out and proper public information, it seems to me we should not be paying the lawyers. Perhaps that may not be in my best financial interests in the long-run, but I think in society's interest it is the right thing to do.

Q1032 Chairman: Did you ever succeed in a jurisdictional issue?

Mr Stephens: Yes, we have. There have been a number of cases where we have managed to throw it out; but what happened was that the law then changed against us. Sir Charles Grey, who is now a High Court judge, came up with the rather clever idea of saying, "Well, we will only sue in relation to the publication in the UK and the person's reputation in the UK, or within the jurisdiction of the court"; and that sort of artificially circumscribes the tort. If you are then asking the court to say, "Where is the most appropriate place for this case to be tried?" - if it is about an English reputation in relation to an English circulation, it is clearly London, even if that circulation is but 27 copies, for example.

Q1033 Paul Farrelly: The Schillings lawyer who apologised in court, did anyone refer him to the Law Society for a disciplinary proceeding?

Ms Gooch: We did not. Perhaps we should have done, and perhaps we still should.

Q1034 Paul Farrelly: I used to be a practising journalist and the burden of proof is all one way. Have you ever in your experience come across libel lawyers who actually do not bother to go through the proper procedures to check whether their clients are lying or not, and therefore are recklessly making threats?

Mr Stephens: One of the things that concerned me, particularly in the Denis Christel case, given that the allegations were about receipt of corrupt money by skimming the national oil wealth, I was concerned that the lawyers in that particular case were being paid with corrupt money - which as all lawyers know they should have, and may have to my knowledge, reported to NCIS. That is, I think, a matter of enormous importance. Perhaps one of the ways of stopping people representing these corrupt people is to check the money supply. I have reported people, acting for people over the years, and I have never been told, "Don't act". All that seems to happen is that the police, if they do anything, are just watching from afar.

Q1035 Paul Farrelly: Is it not usually in law that responsible lawyers will make sure that they do not believe their clients, if it is criminal law, are indeed guilty and criminals and therefore should not represent them?

Mr Stephens: No, we are employed to do the best job we can for whoever comes along. Whether they be guilty or innocent, that is not the point. The point really is that there needs to be in place systems which ensure that organisations which are peculiarly vulnerable, like NGOs, like charities, are not able to be bullied and pushed around in the playground of our libel courts by the rich and the powerful. One of the ways of doing that, I think, is if you are going to sue an NGO then I think you have to show, one, there is no public interest in what you are doing; so if you are using bra cams and tittle-tattle-type reports, which I cannot see anyone ever would, then in those circumstances you would not have a public interest; but if it is a public interest then it ought to be debated and the information ought to be out there, and they ought not to be allowed to have injunctions to prevent that kind of thing coming out.

Q1036 Chairman: Can I just ask you one question which is slightly away from our remit which was put to me in the last 24 hours. Criminal libel remains on the UK statute, although virtually never used. It was suggested to me the fact that the UK still has it gives cover to other countries which pay less attention to the law to maintain it and then use it to basically lock up anybody who says something they do not like. Is that a view that you would echo?

Mr Stephens: It is, Chairman. In fact I can speak with some knowledge on this. I defended, I think, the last criminal libel in this country.

Q1037 Chairman: Which was?

Mr Stephens: It was in relation to Scallyway magazine some time ago. I also took proceedings to defend blasphemy to the European Court of Human Rights in a case about a film called Visions of Ecstasy. I think both of those laws are being used when you go to the Third World. I am very often asked to be a trial observer or, indeed, to go and monitor the human rights standards of other countries, and invariably, particularly in the Commonwealth, it is said back to me, "Yes, but you've got criminal libel - why shouldn't we?" This is a particular problem in Southeast Asia. I think the quicker we do away with these laws - which we all know have fallen into disservitude and are not likely to be resurrected - we are able then to stand up and encourage others to make reforms. I think those would be very, very welcome changes.

Q1038 Chairman: Thank you. That exactly bears out what was suggested to me.

Ms Gooch: If I might just add to that. Global Witness has been on the receiving end of this in Cambodia where, over the years, we have detailed the way in which the entire state revenue has been captured by the Prime Minister and his family and cohorts around him. As a result the Global Witness named staff cannot enter the country and are subject to threats of criminal defamation.

Q1039 Mr Hall: In your evidence to the Committee you said you have never lost a libel case.

Mr Stephens: That is her - not me!

Q1040 Mr Hall: That is quite an interesting record. We have looked at the concept of the Reynolds defence and the Jameel defence which says if you publish an article that is defamatory and untrue but you have researched it and it is presented professionally and it is in the public interest then you have got a defence in law. Have you ever had to use that defence?

Ms Gooch: First of all, can I just say that it feels like tempting fate to have made that submission. We have been very lucky, we have had a lot of help from a range of very good lawyers in various jurisdictions, and we basically ensure that our published reports are a matter of record and can stand. We have not yet been successfully sued. We have spent a lot of time over the years fighting off cases going into court, getting to very, very close stages of that, and received a range of threats. We basically looked at Reynolds and employ it across the organisation. In a curious way, we have actually strengthened our practices as a result of these threats and attacks. The problem for Global Witness and the problem that all other investigative and campaigning organisations face - whether it is Global Witness looking at an arms trader or a corrupt despotic president in an oil-rich country like Equatorial Guinea or Congo-Brazzaville, or an organisation based in the UK investigating real serious domestic abuses, for example, in childrens' homes, maybe in terms of medicines, maybe in terms of farming practices, maybe in terms of a whole range of care of the elderly - there are all sorts of issues where there is an increased threat because of libel and privacy. There is a real difference: with-profit media and not-for-profit campaigning organisations both have to live under the media law but they are both occupying quite different spaces within that. There is a lot of very responsible journalism, and I know of a lot of investigative reporters who spend months and months working on cases; there are less of them than ever before, because the financial state of the media industry is pretty parlous at the moment, and a lot of investigative units within media organisations are being either cut down or closed down; that means that NGOs are increasingly filling that space. The challenge we have in this is that this is long-term work; it involves often years of work; it involves attacking and trying to change vested interests. So it is not just the publication of a damning and very good investigative article; it is trying to create a long-term change in behaviour, and that can mean the loss of millions and millions of pounds to a company or an individual. That means, therefore, that these companies and individuals will often respond in a different way to a not-for-profit organisation that has put a report out, than in the way they would respond to the media. I think that is one of the challenges that organisations face. To come back to your point about Reynolds - I have just tried to frame this difference - that is why trying to incorporate Reynolds and an awareness of Reynolds in all the stages of the research, and thinking about a report, briefing document or a press release, every single point of publication is crucial. I would be happy to talk a bit more about that but do not want to take up the Committee's time.

Mr Stephens: The point I have a concern about is this: in terms of Reynolds I have yet to find an NGO that does not have a good Reynolds defence which would win at trial. I have yet to have to say to somebody, "This journalism, or this reporting, is not responsible". The problem is the cost of fighting it.

Q1041 Mr Hall: How much is the cost of a Reynolds defence?

Mr Stephens: The cost of a Reynolds defence is somewhere between 100,000 and 200,000, plus of course the risk of losing. You have got an adverse cost risk as well on top of that. That is the sort of sum of money which NGOs just cannot afford to spend. Although they have a very good defence - and invariably that is the advice we are given - they are not able to deploy it.

Ms Gooch: Also the costs of actually implementing that Reynolds work are high. For example, a report we published about Cambodia called Country For Sale in February of this year, we libel-checked and worked with a lawyer on 87 letters to various individuals and companies named in that report, including the Prime Minister of Cambodia; and that takes time and money. Global Witness and other organisations are very lucky to be supported and helped by Advocates for Aid which is a pro bono group of lawyers across the UK; but not-for-profits should not have to rely on pro bono work and assistance as and when for this kind of activity. The problem about that is it is the costs of fighting a Reynolds defence and the costs of potentially losing, because they are so out of kilter with the rest of Europe.

Q1042 Mr Hall: The 87 letters for the report on Cambodia, that is the sort of research and groundwork that you do so that if you do end up in court you have got the Reynolds defence to rely upon. That is an additional cost to your organisation?

Ms Gooch: Yes. In those cases, those letters will be chased up on. In some cases it may be a warlord in the jungle in which case it is rather hard to get the letters to them; but in other cases we would have to courier letters and do follow-up letters. In our recent report on banks called Undue Diligence again we sent a lot of letters to various banks, and actually some responded by threatening to sue just as a response of getting that enquiry letter. Other banks were unable to respond because banking secrecy laws meant that they could not respond, and therefore we were not able to engage in a dialogue: but wherever we do get responses we will put those and incorporate those into the materials and into the report to give that voice back.

Q1043 Mr Hall: If we were to put the Reynolds defence on a statutory basis would that help non-governmental organisations, or would it not make any difference?

Mr Stephens: I do not think it would make any significant difference. I think putting things on a statutory basis has a tendency to enable judges to erode the effect over a period of time. We have seen the effect of a Reynolds defence in the hands of a judiciary who were hostile to it. Unfortunately, following Jameel, that has been opened up again. I think we have to find ourselves in a position where judges can use their good sense in allowing some latitude, particularly to NGOs. Putting it on a statutory basis I think would be unhelpful in this particular case. We are seeing cases where NGOs, for example Index on Censorship, commissioned a piece about libel tourism; and as part of that process a Reynolds letter was sent out to somebody named as a libel tourist; their lawyers, Carter-Ruck, immediately threatened to sue. That is the reaction that NGOs are getting from their attempts to be even more responsible.

Q1044 Mr Hall: You said it was your internal procedures which have got you to the position where, so far, you have defended against libel actions. You have already given us quite a lot of detail about what those internal procedures are. Is there anything else you do in those internal procedures you would like to put on the record?

Ms Gooch: A good question. All our staff are trained in libel and defamation. We have a range of procedures that will depend on the campaign, the subjects being investigated, and the level of risk. Broadly, for example, say we are leaked documents, or we obtain documents, we would always, first of all, consult a lawyer and just look at: what are the issues around these documents; how can they be used? Quite often in our reports we have information that, for various reasons, we cannot put into the report - whether it is to protect the identity of an individual in terms of usually their personal safety; and we will try, through the whole process of research and then through the process of report writing, to continually look at where the risks are and look at making sure we can basically show: how do we know that fact; and how do we cross-reference?

Q1045 Mr Hall: One of the other cornerstones of the Reynolds defence is "in the public interest". How would you define what is in the public interest?

Ms Gooch: I think that is a huge question! I would say, I think that libel and privacy laws need to better reflect the importance of public interest, whilst not losing the balance of what is proper and private. To a certain extent the courts are deciding what is in the public interest, I am sure. Mark, you will have some comments here in a moment. Increasingly I think public interest is a bit like universal human rights: there is a global public interest - whether it is the fact that we are an interconnected society, and it is not just about what is happening in a small country somewhere overseas where there does not appear to be a UK connection, that we are inter-connected; and often it might be revenue flows; it might be taxpayers' money; or it might just be plain, simple abuses of human rights but there is a public interest. That is the one I think needs strengthening.

Mr Stephens: I think that public interest is, within the context of Reynolds and Jameel, pretty clear now. We are not seeing deserving cases fail on the public interest test. We are seeing them fail on the tripwires that go through the indicia towards responsible reporting and that I think is the problem area rather than the public interest. I think everyone is pretty clear that the public interest is not a problem.

Q1046 Paul Farrelly: Our reports are based on evidence. It will be "on the one hand" and other people will say "on the other hand". Most of the people we have questioned, be it defence lawyers or the media, have said, "Actually, yes, if you put a Reynolds-type defence on the statute it would be helpful", but you have said it will not be helpful. Could I just pursue this a little bit further with you. Reynolds and Jameel is terribly narrow; it protects you basically if you have pursued matters in good faith but got them wrong. There is a wider defence that might broaden it where you might say you have got certain details wrong, but actually the broad thrust of what you are saying is correct. We had the Tesco v Guardian case pursued by Tesco by a lady called Lucy Neville-Rolfe CMG who has just submitted a note to us, where the Guardian tried to get to the bottom of what tax they were avoiding. Tesco quite clearly were being evasive and refusing to play ball except to say, "We're going to sue". Let us not just restrict it to Reynolds and Jameel, but actually in those circumstances an "in good faith" defence on statute would not be helpful to organisations that you represent, to organisations like Global Witness, to serious investigative newspapers who are not interested in tittle-tattle but are interested in pursuing things in the public interest?

Mr Stephens: I can see the argument on both sides, Mr Farrelly, and I think for those that perhaps are less used to discussing policy they might well say, "Ah, yes, that's a great idea, grab that and put it in your back pocket"; but I think you have to think and analyse what is likely to happen. What will happen is that the claimant's lawyers at the libel bar will attempt to erode that defence by chipping at it and eroding it slowly but surely, and that is what I am concerned about. Whereas if it is left in the common law where it is at the moment the judiciary have the ability to resist that erosion over a period of time. I see no evidence that Reynolds and Jameel in its current incarnation is going to be a long-term problem. I see that there are much more -----

Q1047 Mr Farrelly: I am talking about a wider reincarnation.

Mr Stephens: If you could redefine it in a much broader context then I may be with you. It is difficult to talk in hypotheticals. I perceive there to be much more fundamental problems which would have more dramatic effects, particularly for the NGO community: for example, the presumption of falsity; the irrebuttable presumption of damage. The irrebuttable presumption of damage means that you have got to presume that there is a money damage to somebody if something is written that is defamatory. That seems to me to be wrong. In no other area of tort - if we slip over on a pavement, for example, we have to prove that it was the local authority that was at fault or whoever else. It seems to me in relation to that abolishing the presumption of falsity and abolishing the irrebuttable presumption of damage are fundamental reforms which would have an amazingly profound impact for NGOs. NGOs, as I think Ms Gooch has made absolutely clear, find it very, very difficult to bring witnesses in, for example; often leaked information. So why should you presume everything that they have gone to enormous trouble over, often from sensitive sources, is wrong. I think that is just a major problem and a flaw with our law.

Q1048 Helen Southworth: Can I move us on to a discussion of corporations and their right to sue, and the implications of that from both perspectives really: from the fact, as we have had witnesses tell us, corporations employ large numbers of people and they have a responsibility to protect their employment; but also the ability that corporations have to take action. Do you have an opinion as to how the current legislation works, and how it could perhaps be better framed?

Mr Stephens: I have a very strong opinion about it for the practical experience, which is that in the Jameel case that went to the House of Lords on the way, it will be remembered that the two claimants were Mohammed Jameel personally and the Abdul Latif Jameel company. The Abdul Latif Jameel company is a second-hand motorcar dealership based in Saudi Arabia and has nothing to do with this country at all; yet what happened was that they each got damages of an equal amount; and what appears to be happening is that for every company that sues an individual sues and that they are given roughly the same amount; so what happens is the damages double-up. Even if you got it wrong about a corporation it does seem to me it is wrong to enable a corporation to sue. It is wrong in principle because damages for libel are about hurt feelings. A corporation is like a piece of paper; it is a piece of paper lodged at the Companies Registry; it has no ability to feel hurt feelings. Individuals within the company do and they should have the right to sue; but we have abolished the right to sue for government, local authorities and for emanations of the state like British Coal used to be, for example; and it seems to me the next logical step. We have seen it in both Australia where it is taken on board; there have been no real difficulties in that jurisdiction. Indeed, I took this particular point to the European Court in the Jameel case because only two of the five Law Lords found in our favour in this point, and I think it is an area which is right for reform. I would strongly urge the Committee to put that forward as one of its recommendations.

Q1049 Helen Southworth: What about the impact on non-governmental organisations?

Ms Gooch: I think it is fairly common knowledge that companies, particularly large companies, frequently employ very aggressive threatening legal tactics to try and chill down and shut NGOs up from valid public interest campaigns and comment. I have a serious problem with that. Clearly if an organisation is responsibly researching and writing reports and it is raising matters of public interest then to be on the receiving end of an aggressive legal campaign is not really the appropriate response.

Q1050 Helen Southworth: Is this something that you see should be managed by a limit on damages, or by removing the right to sue?

Ms Gooch: I would say both. Mark, you might have different views?

Mr Stephens: I would say removing the right to sue is really what it is about. We are seeing at the moment a real problem with a company called Trafigura who have retained lawyers to attack Green Peace International predominantly, but also media organisations who are reporting about the alleged toxic dumping in Africa of waste. They are doing this in a number of ways. Letters are being sent; they are suing the lawyers, Leigh Day, who are taking claims; I understand that Leigh Day are representing 16 people who died, 100,000 people who needed medical attention, including miscarriages, respiratory problems and organ failure, and there is a class of about 30,000 Ivorians who have suffered as a result of this toxic dump. It seems to me that it is wholly inappropriate for a very wealthy company to try and chill down discussion about toxic dumping through this kind of aggressive behaviour. For example, there are threats to individuals at Green Peace International; and there are also threats, for example, to the BBC. If the BBC want to get a balanced story and hear from Trafigura, on the one hand, and also someone from Green Peace International or a scientific expert, the threats to the BBC are being communicated back via the producers who are saying to the people from Green Peace, "But of course you can't mention this, this, this, this and this because otherwise we might get into a defamation wrangle with Trafigura". That seems to me just plain wrong. Let us have an open debate about it.

Q1051 Helen Southworth: Can you give us some sort of guidance as to what sort of impact that is actually having. You have given us two examples: are those two isolated examples?

Mr Stephens: No, they are not isolated in any way. A lot of malfeasance by the rich and powerful is undertaken through offshore companies, for example, BVI jurisdiction, bearer share corporations; we are seeing those being used in litigation. So I think that this is a wider problem. If somebody wishes to sue for libel they should come out from behind the paper-thin veil of a corporation. That is what happens in Australia. They have had no problems whatsoever with the way in which this has moved forward. In fact, it enables people to actually identify a human being. The reality is that defamation is about compensating hurt feelings of an individual. It is not about hurt feelings of a company, because companies do not have feelings.

Q1052 Chairman: But companies employ people. If I, for instance, was to make a claim that a particular manufacturer was including rat in its beef burgers, or, for instance, that a shampoo product actually was carcinogenic when there was no evidence, that might actually cause devastation to that company and put a large number of people out of work. Should that company not have some recourse if it is quite plainly a falsehood?

Mr Stephens: That can get you into the realms of, if you like, a trade libel. It seems to me, if you can show specific damage, specific loss, then perhaps you would think about it. The suggestion you have given - rat in a burger - it does seem to me that somebody at the company would be responsible for rat in a burger or ensuring quality. That individual is the person who is in truth being attacked. By hiding behind the company that is not really what it is about. I think we should actually have the individual up to have an account, because there may be truth or there may not be truth but the important thing is to know who is responsible and to be accountable.

Q1053 Paul Farrelly: I have read about the toxic dumping case but could you spell the name of the company?

Mr Stephens: T-R-A-F-I-G-U-R-A.

Q1054 Paul Farrelly: Could you name the lawyers who are representing them?

Mr Stephens: Carter-Ruck in this country; and there is a Dutch firm called Houtoff who are also representing them.

Q1055 Mr Sanders: Would the introduction of a "public figure" defence, or additional hurdles for a public figure claimant, help protect the work of Global Witness?

Ms Gooch: In terms of better identification of public officials, yes, it would; in that it is in the public interest to be able to question the role of public officials, their involvement in whether it is facilitating corrupt payments or other issues.

Q1056 Mr Sanders: Would the introduction of a mandatory requirement of prior notification cause you any concern?

Ms Gooch: It would be disastrous. It would make it almost impossible to carry out the sort of detailed, long-term research that leads to detailed reports which are in the public interest. For media with a daily print schedule 24-hour notification on an article naming an individual I could see that is something that could be looked at. In terms of a not-for-profit organisation spending, in some cases, two to three years researching a report - in the case of the Cambodia report there were 87 letters to companies and individuals - the thought of trying to contact and just the practicality of trying to contact 87 people, individuals and companies 24 hours ahead of publication, apart from leading to a raft of injunctions, it would be physically impossible. Another example I could give was an issue that we felt was very much in the public interest. It pertained to who really owned a crucial gas pipeline from central Europe through the Ukraine and Russia. That gas pipeline has been supplying a major amount of gas into Europe; Europe relies on this gas. It was the one at the centre of disputes between Russia and the Ukraine earlier this year which led to countries being left without gas during the height of the winter. Following two to three years of research we were able to identify and name an individual called Dimitri Firtash that he appeared to be the beneficial owner. He then subsequently about a week later, following the publication of the report, named himself, but that is an unusual example. The practicality of trying to contact individuals and companies ahead of publication I cannot see how we could continue to publish.

Q1057 Chairman: The 87 people you named -----

Ms Gooch: It is not unusual.

Q1058 Chairman: Indeed, but the suggestion is not necessarily that you have to tell them 24 hours ahead that the book is going to come out. You have to give them an opportunity at some point to respond to the allegations which you are making about them. Presumably you did that anyway?

Ms Gooch: Through Reynolds there is a long process of putting questions and incorporating responses in a published document, but you are not necessarily identifying when that document is going to be published. As we have seen with the case of putting the credit card statements up of the son of the President of Congo-Brazzaville, immediately an injunction will be slapped on you. and NGOs commonly find this.

Mr Stephens: I think one is concerned that the Mosley tail is going to wag the dog on this one. I understand the justifiable concern that the Committee must have over the events of Max Mosley, but it was a hard case. What we do not want to do is to make bad law. One of the concerns I have for NGOs is that they have very often legitimate private information which is clearly in the public interest and ought to be published. The case of Denis Christel Sassou, which Ms Gooch has referred to, is a prime case in point, which if notified in advance he would have obtained an injunction, which he tried to do in any event afterwards, to stop the publication. If you have spent three years putting an enormous amount of resources, taxpayers' money, donors' money into creating a report and then are prevented at the last moment from actually publishing it when it is enormously in the public interest, or the additional hurdle is put into place which is effectively 100,000/200,000 worth of costs in terms of "We're going to have to fight this all the way to trial to find out whether we should be able to publish this", that is a hurdle which is going to mean that a lot of reports do not get published.

Q1059 Chairman: But he failed to get an injunction post-publication, and therefore presumably he would have failed to have got an injunction pre-publication?

Mr Stephens: I am not sure that that follows, because the reason he did not get one post-publication was that it had already been read into the record of Parliament, the Hill and various other places, and it was also considered to be in the public interest. I think the approach of a judge is going to be once the confidence, the privacy, has gone there is nothing we can do, there is no remedy; so what we need to do is preserve something until trial. What that does not bring into the balance - because it assumes infinite resources on either side which is a judge's luxury - unfortunately, with the situation that NGOs find themselves in, they do not have that luxury; they do not have the money to employ lawyers or to fight. Ultimately that means they will just fold and these people will have information which will be not published.

Q1060 Chairman: It comes back to the question of public interest. In the case of Mosley there was a very big debate about whether or not there was any public interest at all in exposing what he got up to in his private life: but the kind of work you are doing, it seems to me, is so plainly, if you are correct in what you are saying, it is in the public interest that that information is made known, therefore you should find it relatively easy to persuade a judge that you should be allowed to proceed?

Mr Stephens: I do not think that is the way that the analysis will go. The analysis will almost certainly go: "Let's hold the ring until a trial", and the judge will not look at the ability of an NGO to fight. Of course, that means that the proceedings will collapse; the NGO will have an adverse cost consequence against them. If you are thinking of going down this route - and I can understand why the Committee might well be thinking, Chairman, of going down this route - I think there has to be an exception: that you do not have to give prior notification where there is a public interest. I think we all understand that Mosley was not a public interest case, however deluded some of your witnesses may have been when they thought that there was.

Q1061 Chairman: Would you therefore be less concerned if a prior notification recommendation was made with a specific proviso that if it was plainly in the public interest or there were good reasons not to prior notify then you should not have to do so?

Mr Stephens: That caveat I think would cover the legitimate interests of non-governmental organisations.

Q1062 Paul Farrelly: You have mentioned the Mosley tail wagging the dog: for serious newspapers the issue is not privacy it is how confidence is applied. There was a case recently again involving the Guardian where not only was an injunction granted but also it went to court and lost the case; where it was ordered to remove documents from its website that were basically leaked by a whistleblower - there was no allegation that money had changed hands - which alleged that Barclays was not only systematically engaged in encouraging tax avoidance and evasion but also paying huge bonuses in the City culture. If something is in the public domain and is also clearly in the public interest, that the Guardian can not only not prevent an injunction but actually lose the case, does that not mean that all the efforts we have made to protect whistleblowers who might be of use to organisations like Global Witness, does it mean our law is an ass really?

Mr Stephens: Certainly I think it is one of the occasions our law is an ass. I think it is one of the things where we are out of balance and out of kilter. One has to also think, what are organisations going to do to prevent this kind of problem? The answer is, and one of the things that concerns me, unless there is some fairly fundamental reform, I am already seeing this with people entering into discussions with me about the new libel laws in America, but also in relation to their approach to privacy, I can see people moving their publications and their servers to corporations based in the United States behind, if you like, the firewall of Dr Erin Feld's legislation. That, I think, is a very unhealthy situation. We are two friendly nations; we ought to be avoiding this jurisprudential diplomatic incident; and we should be bringing ourselves as close as we possibly can without perhaps adopting one another's regimes.

Q1063 Mr Evans: How many times have you not been paid costs despite winning a case?

Mr Stephens: In relation to Global Witness on the one occasion; in relation to others mostly they have been done pro bono and so the costs issue does not arise.

Q1064 Mr Evans: Have you ever used a conditional fee agreement to fund your defence and limit your liability?

Mr Stephens: As far as I am aware there is only one lawyer that has done a defendant's case on a CFA. No right-thinking lawyer, unless they were doing it for altruistic reasons, would do it on a commercial basis on a CFA - the statistics just do not work in your favour. We know that approximately 90% of cases are won by claimants. Professor Eric Barendt did some research a few years ago so we know that 90% or so cases are won by claimants, either with an apology and/or their lawyers' fees being paid whether or not it gets to trial. That 10% that is left for the defendants is not enough to warrant taking a sensible risk on it; and that is a real problem that we have because there is a serious imbalance at the moment between claimants and defendants. One of the things we are seeing is, if you like, what the Americans call "greenmailing"; blackmailing, if you like, through the use of high legal fees. The defendant NGO has to kowtow; and I fear that we will see false vindications being given.

Q1065 Chairman: Given the extremely impressive record of defending actions of Global Witness, why would your firm not consider taking a case to Global Witness on a conditional fee agreement?

Mr Stephens: Partly because the evidence that you have to bring is enormously expensive. You are going to have to go and take evidence in all parts of the world, where Global Witness works in Cambodia, in Africa, all of those sorts of places. It is just going to be ridiculously expensive for a law firm to pay out of pocket for its lawyers to go and proof the witnesses in those jurisdictions. In those circumstances it becomes impossible for us, from a financial perspective, to put the investment in that is necessary.

Ms Gooch: Could I also add, I think there is a serious problem with the level of fees being chalked up by some of these firms. It is very counter to freedom of speech and public interest and that for me would be one reason not to want to be part of a system that actually we are criticising. I think that would be quite hypocritical.

Q1066 Chairman: Yes, but a lot of your evidence this morning has been about the impact on NGOs of legal costs, and your example of two researchers or employing a lawyer to fight an action. If CFAs were available to you, despite your qualms, surely it must be in your interest to take advantage of it?

Ms Gooch: If CFAs in the UK were more in line with CFAs across the rest of Europe that would be a different matter.

Q1067 Paul Farrelly: It is not risk free as a lawyer taking on pro bono work, am I correct in saying, because actually at the end of the day if you are found to have promoted a case you could be found liable for the costs? I put this question to Ian Hislop who said, "We won a case but actually the charlatan who brought it, with the aid of the charlatans who helped him, left us stranded for hundreds of thousands of pounds which we could not recover". Is there a case perhaps in libel which raises matters of public interest to say actually if lawyers have encouraged a case to be brought because it is a gravy train, or can be, that if their client cannot stand costs then the reverse pro bono should work, and there should be a mechanism for claiming the costs back from the lawyers themselves; and that might make them more careful about the clients they act for?

Mr Stephens: Yes, I think there is the risk that a lawyer could be liable. I think the problem is always one of proof; because once you start entering and trespassing into that area you are trespassing into issues of client confidentiality and it becomes impossible particularly for the other side to know what was going on. So ultimately it is a question of proof and it is a question of regulation. At the moment the incentives are so high to bring proceedings and the chances of losing so low that everybody is quite happy to mint the money; and that is why presumably 16 or so claimant lawyers have been before you and extolled the virtues of our wonderful libel system.

Ms Gooch: I think it also facilitates individuals, many of whom are nothing better than thugs and criminals, coming through the UK to wash their reputation at no risk.

Q1068 Paul Farrelly: You have not been successfully sued - does that mean, when you have got things wrong but in good faith and honestly made a mistake, you have been able to use the offer of amendments procedure?

Ms Gooch: Every time somebody says that phrase "you haven't yet been successfully sued" I do really feel we are tempting fate here! Global Witness, if it gets something wrong, it will change the fact; it will sort the problem out. There has only been once instance and it was not a factual error, it was an issue around translation; otherwise we have not yet had to do that. We do stand by our reports. It is actually a problem for Global Witness, in that the publication rule means that at any point a report is downloaded it is considered published. We would really like to see a one-year date on that, a cut-off point on that; because very often individuals involved in various dubious trading practices will re-visit a report if they are named in a report and will come back to it every couple of years or every year or so when they are trying to get a big financial deal off the ground, and the various investors are doing the due diligence on that individual. We are very often then put under pressure to take someone's name out of a report and obviously the reports have to stand as a matter of record; they cannot be edited to an individual's whim. But if we were to get something wrong, we would be the first people to correct it.

Q1069 Paul Farrelly: In the Guardian v Tesco case the offer of amendments did not work because Tesco was a persistent litigant determined clearly to drive the costs up as far as possible. It was a very rich organisation and was not interested in the money - which is my opinion from the evidence I have read. In your opinion, does the offer of amendments procedure work? How could it be made more robust either in statute or in judges' approaches to cases?

Mr Stephens: I think it does work. I have yet to find an NGO who has got it wrong. The last NGO that I found had got it wrong was Greenpeace, where it got a bit of science wrong over the Brent Spa. So that tells you it was quite a long time ago. That was just a piece of analysis that the oil was not quite as polluted with unpleasant chemicals as perhaps they thought. It was still beyond danger levels so it was a marginal call anyway. I am concerned about large organisations. I think your analysis of Tesco is absolutely spot on. I was told about the way in which they were behaving in Thailand where they were taking criminal libel proceedings - coming back to the Chairman's question about criminal libel - and they were suing for multi-million dollar claims, and that is again a matter of some real concern.

Q1070 Paul Farrelly: Some big corporations might feel terribly meddlesome sticking their nose in where it does not belong. Some people might cast aspirations about whether certain non-government organisations are really fronts for one outfit or another. Can you tell me why you go through all this and why you set the organisation up with your partners all those years ago? What is your motivation?

Ms Gooch: The three of us, that is, Simon Taylor, Patrick Alley and myself, saw very clear areas where environmental destruction was funding abuses of human rights and there just did not seem to be anybody working on that crossover point. The impact that we could see on individuals and countries trying to pull themselves out of conflict was just dire. The first campaign that we worked on was in Cambodia where illegal logging was going on and exports into Thailand. Everybody knew it was going on. The American Government knew it was going on. Everybody was being very cosy about it. The impact for people in Cambodia was very much that the war was continuing to be funded, landmines were being re-laid in areas that had been cleared and people who were just trying to reconstruct their lives did not have a chance of doing so. It seems important to get information out about corruption, about resources and about their role in the conflict and stability. Part of what we try to do is to encourage others to do the same.

Q1071 Paul Farrelly: I remember one organisation that used to be litigious who, under a new head, Nicky Oppenheimer, actually grasped the issue of diamonds and used it positively in a sort of Marks & Spencer "We boobed" type of way saying, "Our diamonds are conflict free". How much more effective do you think we could be if corporations did not have the UK-style libel laws to threaten you and stop the publication of things that are in the public interest?

Ms Gooch: The example you have just given is a very interesting one because that particular company, De Beers, was considered to be very highly litigious. On this issue we targeted them because they had such a major role in the diamond trade at the time. Around 70-80% of all diamonds sold were linked to De Beers. It seemed sensible and practical that if there was a focus on their behaviour and they had to change then they would take the rest of the industry with them. The result of all of that has been a government to government process called the Kimberley Process, which is not yet working properly, there are major problems with it. The government is not stepping up to the bar enough on problem issues. The problem is that often it is companies but also people who are involved in them, whether it is presidents of countries who are facilitated by companies. I think that the challenge, really, is changing some of the underlying corporate practices and companies are really reluctant to let some of those go.

Chairman: May I thank you both very much for your evidence this morning.


Witness: Barbara Follett MP, Minister for Creative Industries, Department of Culture, Media and Sport, gave evidence.

Q1072 Chairman: For the final session this morning can I welcome the Minister for Creative Industries from the Department of Culture, Media and Sport, Barbara Follett. We were speculating as to whether or not the press could fall under the definition of the creative industries, which might have some bearing on our inquiry!

Barbara Follett: I will resist that one, Chairman!

Q1073 Mr Sanders: How does the Government support the freedom of the press whilst ensuring that press standards are maintained?

Barbara Follett: Mainly by not interfering in their regulation in any way at all. The press is bound by the law just as we all are bound by the law. What my Department does is to monitor any new legislation coming in from Europe to make sure that as a government we are not inadvertently placing specific restrictions or demands on the press and other media that do not apply in the wider population. I have been a practising politician now for 50 years. The first half of that time was spent in apartheid South Africa where the press was most definitely not free. I know the difference that it makes to have a free press and freedom of expression. I and my Department are very committed to maintaining that freedom.

Q1074 Mr Sanders: Does your Department have contact with the Press Complaints Commission? How do you communicate with them?

Barbara Follett: We do not have formal conduits of contact but we have a great deal of informal contact, particularly when answering letters from people who are dissatisfied, say, with something the Press Complaints Commission has done or with something that has appeared in a local or national newspaper. We quite often refer it back to them. So although there is no formal conduit, there is a great deal of informal contact.

Q1075 Mr Sanders: So if you are getting complaints about the failure of the regulatory system, is self-revelation of the British press working, or has the time come for a statutory regime?

Barbara Follett: Let me answer the second part of that first. At one point I was almost willing to give my life up to make sure that the press was free and it was not governed by lawyers. I believe that the best way of governing anything is for that governing to be internalised, to be something that you do yourself. I think the system of self-regulation works. It has worked better since 1991 when we got in the Press Complaints Commission. Obviously there are times when it could work perhaps more tightly. I really value what this Committee does on an almost annual basis to get us to stand back as a government and as the press and look at where we are and where we are going.

Q1076 Mr Hall: We have heard evidence from Gerry McCann who successfully sued the Express Group for a reported 550,000. In his evidence to the Committee, when he was asked why he did not go through the press complaints procedure, he told us he had been advised both by his lawyers and by the PCC that that would not be the most effective way. Had he gone to the PCC the Express may well have been censored, but that would have been about it.

Barbara Follett: I listened to Mr McCann's evidence as it was given to this Committee and read it with great interest. What he wanted was the Express to stop doing what it was doing and in that case the best recourse is to the law. We have a whole series of laws in this country which do defend the individual and he used those laws. The Press Complaints Commission is very effective in getting something changed or an apology into the press. Here is one area where I personally feel more attention should be paid to, although I welcome the attention the Press Complaints Committee has given to it over the past four years, which is where the apologies are situated in the newspaper and the size of type that they are situated in. From my own personal experience, the offence can be on page two in large type and the apology basically somewhere around the ads in very small type, and that is something which I would like to see changed. The McCanns went to the law. You have two things available to you in the British system and he chose the second.

Q1077 Mr Hall: He also said in evidence to us that he was deterred from going to the PCC because it is so aligned to the newspaper industry and the editors actually serve on the PCC. Even though the Editor of the Express Group was in conflict with the PCC, that was one of the reasons given by Gerry McCann for not going down that route. What is your view about the fact that it is so aligned with the newspaper industry that this self-regulation can appear to be less than credible?

Barbara Follett: I come back to the point that I made earlier, which is that if you are going to maintain the freedom that is done by the press they have to recognise the wrong, they have to correct it. I am glad that the Press Complaints Commission has changed the balance of professionals and lay members on the Commission. Previously it was 50:50 and now it is 66:33 and I think that is healthy. I would expect - and I think this does occur - that if a complaint is made against a particular newspaper, in this case the Express, then the editor of that paper, if he/she was on the Commission, would recuse themselves at that point and it would be dealt with by his/her peers.

Q1078 Mr Hall: If the PCC ruled against a particular newspaper, do you think that should then disqualify the editor of the newspaper from serving on the PCC?

Barbara Follett: It would really depend on the case. If it could be proved that that editor had knowingly and willingly flouted the code - and I think it would be quite difficult to prove that because I believe that most editors ever since 1991 do pay attention to the code - then I think there might be a case for the Press Complaints Commission looking at doing that.

Q1079 Mr Evans: Minister, you said that sometimes they will splash a story which they may even know to be inaccurate simply to get the circulation and yet the apology that comes several days later is hardly noticed because it is so small. Would you like to see legislation put in place that says that when a newspaper gets it wrong the apology should be of equal prominence, on the same page where the original splash was and roughly the same size to make sure that everybody knows that what they did originally was wrong?

Barbara Follett: Can I correct something first? What I said is that the apology is generally far smaller and far more remote in relation to the story. I did not say that they knew it to be inaccurate. Saying sorry is something that is done towards the back of the paper in quite small type. I do not know if it is necessary to legislate. What we should do - and I know the Press Complaints Commission have looked at this and have been much more proactive about it in the last four years - is to get them to realise that that is the way to build trust with their audiences and with people. I do not know if you always need a law for that. I am not ruling a law out. When the Secretary of State for Justice gave evidence to this Committee he said he does not rule it out but it is only when the balance goes badly off. We have got a system that is quite complex and quite well balanced and I am proud of that system. It has its successes and it has its failures. What we have to do is to try and get the system to work. It would be a failure if we had to put in a statutory measure.

Q1080 Paul Farrelly: One of the complaints that we have heard is that people generally do not know how appointments to the PCC are made. This has been a long inquiry and I am not sure I am any the wiser. How do you think the PCC could make itself more transparent in the way it appoints people?

Barbara Follett: There is some work to be done here, you are quite right. Over the past eight years or so they have made some attempts. I think under Sir Christopher Meyer they brought in a roadshow, which at first I thought was rather odd, but it does seem to have helped to bring the PCC to people's attention. They should put more on their websites and more in newsletters. Transparency does not just mean being passively transparent, you have to be actively attempting to inform. So I think there is some room there for improvement and work to be done.

Q1081 Chairman: Can I take advantage of this morning's session? Part of the issue that we have been looking at is the effect of massive media exposure on people who come from backgrounds where they have never had any real experience of dealing with the media. We looked particularly, for instance, at the relatives of those who committed suicide in Bridgend. I would like to focus on an example that has happened in the last 24 hours and that is Susan Boyle. You will be aware that there is a lot of concern about the way in which suddenly she was thrust into the media spotlight and the effect that it had on her. This is going slightly beyond the remit of our present inquiry but it is directly within your responsibilities as a minister. Do you think that the broadcasters had a duty of care towards her and did they fulfil it?

Barbara Follett: This is a very difficult judgment. It is obviously something that Ofcom will be looking at with ITV. I must confess that knowing I was coming in front of this Committee lead me for the first time to watch Britain's Got Talent and I got quite hooked.

Q1082 Chairman: You have been missing out!

Barbara Follett: I have indeed. I watched the Friday night and the Saturday night episodes. You could see the strain that Miss Boyle was under, but then other contestants were too. It is fair to say that throughout her life she had sought this kind of activity by entering talent competitions and things like that. I am old enough to remember, and possibly one or two others on this Committee are, something called Opportunity Knocks and there they had a clapometer, not phone-ins or anything like that. The difference between Opportunity Knocks and Britain's Got Talent is the new media. I first heard of Susan Boyle when I was in the United States through YouTube. YouTube had brought her to the attention of the American public and the American networks. What you do just in this room within 24 minutes can get around the world, and that is the difference, your duty of care is greater. There is obviously concern about Miss Boyle and obviously Ofcom will be in conversation with the producers of Britain's Got Talent about it.

Q1083 Chairman: Is it your understanding that the Broadcasting Code does cover the requirement on companies to protect people they are employing or promoting?

Barbara Follett: Yes. It is particularly clear in the case of children or minors. It is more difficult in the case of an adult because we also protect freedom of choice. Miss Boyle obviously did choose, but she did not choose the effects, she was not aware of the effects. To some extent I think she has been a victim of the changes that your Committee has discussed. All of you will remember Evelyn Waugh's book Scoop and the daily beast, the newspaper. The trouble is that the beast, which is the 24-hour news cycle, has got much, much bigger over the past 20 years. The appetite of that beast is almost insatiable, yet the food is much the same as it was when I first became aware of newspapers in the 1950s. So they are having to possibly chase after that food in a slightly more proactive way than they would before and that can cause problems.

Q1084 Chairman: You have said to us that you watched the Friday and Saturday nights. Can I therefore just take advantage of this and ask whether you felt uncomfortable about Holly Steel, the 12-year old girl on Friday night and the fact that she clearly experienced such intense misery in front of eight million people?

Barbara Follett: Yes, I did, particularly as I have a granddaughter of much the same age who probably would have done much the same thing. Again, Holly and her parents chose to do this. Holly obviously got a great deal of satisfaction out of it. It is a very difficult call. Again, I am sure that Ofcom will be in conversation with the producers of the show about this and about future appearances.

Q1085 Chairman: Is it your understanding that Ofcom is intending to look at taking Holly Steel out ---

Barbara Follett: No, it is not my understanding. Given all of the interest, the continuing interest today, that probably will happen.

Q1086 Chairman: Do you think they should?

Barbara Follett: I certainly think they should have informal conversations and then find out exactly what happened.

Q1087 Mr Evans: Just to clarify on Susan Boyle, post to her being admitted to the Priory and the coverage of that, you are fairly uncomfortable reading those stories, are you?

Barbara Follett: Yes. You do not want anything that is basically meant to be fun, aspirational and interesting to turn into something that is very difficult for one or two of the contestants. Why I hope that the producers and Ofcom will have a conversation about it is that you just have to look at measures and ways and preparing people. Like me, you are MPs. Nobody really prepares us for the shock of office, and it is a shock and we know that and the shock of sudden exposure is difficult.

Q1088 Mr Evans: Do you think there should be some sort of limits put on what somebody termed 'abuse television' regarding some of the remarks that the judges make on some of the contestants or do you think it is fair game, people should know what to expect and the fact that they are going to be humiliated in public is tough?

Barbara Follett: People go into that show knowing what it is about. I think most of us are subject to fairly ritual humiliation within this place and you learn how to deal with it. As it is part of the game and part of the show I find it hard to judge, but I think you would certainly have to prepare your contestants for it and say, "Are you up for this?".

Q1089 Chairman: Do you not find it at least curious that here we are discussing whether or not Ofcom is going to step in and talk to the broadcasters about their responsibilities to ordinary people who are thrust into the media spotlight and therefore there are no specific rules and statutory requirements, whereas with the press, who are equally culpable, there is no ability for you to have that conversation at all? Indeed, there does not appear to be any particular concern expressed about the actions of the press in this case.

Barbara Follett: There is a concern. I think there is concern from the general public and probably concern at higher levels as well. We have put a barrier between government and press regulation for very good reasons. As I said earlier, I have seen and lived in a society where that barrier does not exist. What you risk when you lift that barrier is interference and occasionally short-term advantage or popularity or restricting something for other means. We have to be intensely careful. We have to monitor all the time what we are doing. I like the fact that there is that barrier.

Q1090 Paul Farrelly: We have got Ofcom and Britain's Got Talent, we have got the FSA and all sorts of committees of the good and the worthy examining the systemic failure of the banking system, yet in the McCann case, which many would say was a systemic failure of the press, no one has been demoted, sacked or disciplined. What sort of regulator does not try and encourage an industry to try and learn from its mistakes and promote better standards? What sort of regulator is the PCC?

Barbara Follett: The PCC cannot impose fines unlike Ofcom and other regulatory bodies, but it is there to get the industry to internalise. You cannot be disciplined if you do not internalise it. Doctors take a Hippocratic Oath. Doctors are prevented from practising for a while. The PCC does not have that ability. I think we interfere with this delicate system at our peril, as I keep saying. We have to make sure through committees like this - and your Committee has been invaluable in holding up this mirror - that people are aware. Public opinion is also something which newspapers have to take into account. In this country at the moment there is a distrust of many newspapers and I think that could be the price that they are paying for perhaps not doing as much fact checking as they did in the past. I have to declare an ex-interest here. My husband was a journalist. He was trained by Thompson's. This was the mantra they all had to write down: "Facts are sacred, opinion is free". When you had Mr Greenslade here he talked about the balance in newspapers being much more towards facts and now much more towards opinion and celebrity. I think that is part of the reason. You go looking for facts in a newspaper. In a newspaper, unlike the electronic media, you are looking for facts that are interpreted within a certain parameter. You will know the political and moral parameters for various newspapers, but you are looking for facts you can trust and when that trust is broken the connection with the public begins to break down.

Q1091 Paul Farrelly: You do not have to interfere by means of statute, you can actually interfere by saying you should call yourself a regulator. In no other sphere of life, after the McCann case, if they were a regulator, would there not have been some inquiry into how we can better proceed in the future to raise standards and yet the Press Complaints Commission did nothing? Leading figures in the ministry as well as other commentators can say, "Come on, get your act together." It was shameful.

Barbara Follett: That happened in 1990 when the old Press Council was reformed into the Press Complaints Commission and the Editors' Code came into practice. When you look at that code, it is a very tight code and a very good code. I still think that this system is a good one backed up by the barrage of laws that you have got. We have got those laws as well and we can use those laws. So we have got the two working together.

Q1092 Paul Farrelly: Christopher Meyer came before the Committee and said nothing is broke and therefore nothing needs fixing. Would you share that analysis? Take the McCann case, for example.

Barbara Follett: That was repeated by the Secretary of State for Justice as well that nothing is broke. I think nothing's broke, but there are a couple of cracks and I think it would be wise if they had to look at them and to repair them.

Q1093 Paul Farrelly: What are the two cracks?

Barbara Follett: It is going back to the facts are sacred. I know that you have also taken evidence about how the 24-hour news cycle and the cuts in journalism make it more difficult to fact check, but I do think it is essential because it is accuracy and truth on which we should base our trust. That freedom which we prize is the freedom to be truthful.

Q1094 Paul Farrelly: What is the second crack?

Barbara Follett: I am not sure that there is a second crack. I think you just get cracks around that where you are not being sufficiently rigorous. You need rigour. I am not sure you need a law to bring in rigour. You need changes of practice and management practice.

Q1095 Mr Evans: Are you worried that investigative journalism and the freedom of the British press are being "chilled" by litigation or the threat of litigation?

Barbara Follett: Not particularly because that is another one of our checks and balances in our very complex system. I think the chilling effect you are referring to is the conditional fee arrangements. One of the things that did worry me was that only people of quite substantial wealth could actually risk taking court action because it is so expensive.

Q1096 Mr Evans: Can the CFAs get round it then?

Barbara Follett: They help to.

Q1097 Mr Evans: We have heard from some newspapers and magazines that they feel that the threat of the costs are so big sometimes that it is dampening down some of the stories that might otherwise appear.

Barbara Follett: There are ways of saying things. I do not know if they damp down the stories that appear. They probably damp down some of the more excessive points. There are ways of saying things. If an editor - and this is one of the glories of our system - feels that it is in the public interest and what he or she is about to say is accurate and true then surely no court of law can rule against them.

Q1098 Mr Evans: What about prior identification, do you believe that is something that should be made available?

Barbara Follett: Yes. I do think it should be slightly longer than the occasional 30 minutes or perhaps two and a half hours.

Q1099 Mr Evans: You mean being phoned on a Saturday afternoon?

Barbara Follett: Preferably a Saturday afternoon or a Sunday, yes.

Q1100 Chairman: When you say yes, do you mean that you think there should be a requirement for prior notification?

Barbara Follett: I think it is something that good practice should dictate. For example, as MPs of whatever party, if we are going to mention each other in the Chamber, politeness dictates that we say, "John, I am about to stand up and say something."

Q1101 Chairman: Like the dreaded call from the Daily Telegraph!

Barbara Follett: Yes. The Daily Telegraph gave six hours' notice to me and perhaps slightly less to others and more to others. I do think prior notification is right because it is about the rigour of checking facts because your facts could be wrong.

Q1102 Chairman: You will be aware that there has been a formal request or campaign to this Committee, particularly from Max Mosley and Schillings and others, that we should look to make it a legal requirement that newspapers do notify someone that they are about to splash them all over the front page. Is that something you have sympathy with?

Barbara Follett: Not to put it into statute but to put it into the code. I think it would be something worth considering.

Q1103 Paul Farrelly: Jack Straw has issued a very sensible document looking at conditional fee agreements. Has DCMS put a submission in?

Barbara Follett: Which document was this?

Q1104 Paul Farrelly: On conditional fee arrangements. He said that had been a particular problem.

Barbara Follett: Yes, it has. I know certainly my officials have had a great deal to do in talking to them. He has a consultation which might have just closed or is about to close on this and certainly my officials have been working with his on that.

Q1105 Paul Farrelly: Have you put a submission in on that?

Barbara Follett: I would have to ask my officials.

Q1106 Paul Farrelly: Could you let us know?

Barbara Follett: Yes.

Q1107 Paul Farrelly: Jack said that another area of concern the Department is going to launch a consultation into is single publication to try and make sure that the libel laws here --

Barbara Follett: Libel tourism.

Q1108 Paul Farrelly: --- march with the times and the Internet. What is your view on that?

Barbara Follett: I welcome the consultation because there is a great deal of anger, particularly in the United States, because the burden of proof rests differently in our system to the United States' system. They feel quite strongly about this. I am pleased the United States is about to pass a law.

Q1109 Paul Farrelly: When I was a journalist in the days before the Internet you got a year of grace. You published and then you waited for a year before the Russian oligarch sued you and then you breathed a sigh of relief on day 366. With the Internet now you do not because every time it appears it is a fresh publication. What is your view on making sure we march with the times and do not, while we are trying to reform parliament, keep with the Duke of Brunswick in making sure that publication is on the day it is published, not every single time it appears on the Internet?

Barbara Follett: I am not quite sure what you mean by that. Forgive me.

Q1110 Paul Farrelly: I may have published something 15 years ago. Before the Internet people would have a year to sue me. These days what I have published 15 years ago may be lurking online in some archive and then 15 years later someone could dig it up and say, "I'm going to sue you".

Barbara Follett: I think there has to be a statute of limitations somewhere on this, but I am not, as you can tell, very well informed in this area.

Q1111 Chairman: Finally, Minister, you have already indicated that you see part of the problems in the press in terms of no longer spending so much time on fact checking, et cetera, essentially stemming from the enormous financial difficulties which are now affecting the media. That is the subject of our next inquiry, particularly the effect on local newspapers and radio and television. Do you see that as perhaps the biggest challenge that is now affecting all of these different areas, about the quality of the media, et cetera?

Barbara Follett: The very nature of newspapers, the press, as we know them, is an enormous concern to me and to my Secretary of State who recently held a meeting about the local media because local media is essential. It is the way people know about council meetings, court cases, road closures, those small things which make up local life and they are very much under threat. National newspapers too. I know of some that are losing 50 million a year. That is not sustainable. I do not know where the future lies. I am very interested in you holding an inquiry on that. We are at a crossroads of enormous change. I have five children. The two elder ones in their forties read newspapers. The other three who are in their thirties do not. As for my grandchildren, they say, "Oh, granny, you can get that on the Internet. Why are you bothering to buy it?" Well, because I like holding it! That is not an explanation for them. I want to retain what is best from our newspapers and at their best they are wonderful. I want to make sure that that local news as well is preserved. The business models, new ways, we need them.

Q1112 Chairman: That is what our next inquiry will seek to try to find out. May I thank you very much.

Barbara Follett: Thank you all.