Press standards, privacy and libel - Culture, Media and Sport Committee Contents


The UK is a country which values the freedom of its press to report and comment on events, public figures and institutions, to be critical of them and to be a platform for dissenting views. These are important freedoms which are not available in all countries. In return, the public expects that members of the UK press will uphold certain standards, be mindful of the rights of those who are written about, and, as far as possible, be accurate in what they report.

The current system of self-regulation of the press, under the auspices of the Press Complaints Commission (PCC), came into force in 1991, following the Calcutt inquiry of 1990. Since then there have been times when events have led the public and politicians to question the integrity of the methods used by the press, and the competence of the PCC as an industry regulator.

Our inquiry was primarily prompted by the persistent libelling by the UK press of the McCann family and others, following the disappearance of their daughter Madeleine in Portugal in May 2007, the limited intervention of the PCC and its failure to launch an inquiry into the industry's failings in the case. We also sought to address concerns that the operation of libel laws in England and Wales and the impact of costs were stifling press freedom in the UK, as well as considering the balance between personal privacy and press freedom.

This Report is the product of the longest, most complex and wide-ranging inquiry this Committee has undertaken. Our aim has been to arrive at recommendations that, if implemented, would help to restore the delicate balances associated with the freedom of the press. Individual proposals we make will have their critics - that is inevitable - but we are convinced that, taken together, our recommendations represent a constructive way forward for a free and healthy UK press in the years to come.

Privacy and breach of confidence

In this section we examine the case brought by Max Mosley against the News of the World, as well as considering other recent case law and the impact of injunctions and super-injunctions on freedom of speech. We also comment on the operation of the Human Rights Act, which incorporates the European Convention on Human Rights in UK law. The European Convention includes both the right to freedom of expression and the right to a private and family life, rights that must be balanced against each other.

That being the case, we make a number of recommendations designed to ensure that the balance between the two Convention rights is appropriate. We do not consider however that it would be right, at this time, to legislate on privacy. We rule out mandatory pre-notification. We recommend however that the PCC should amend its Code to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a 'public interest' test, and should provide guidance for journalists and editors on pre-notifying in the Editors' Codebook. We also recommend that failure to pre-notify should be an aggravating factor in assessing damages. To balance this, we recommend the development of a fast track procedure for a final decision where an interim injunction banning publication of a story has been granted, or where a court refusal has been appealed.

We comment on the recent events surrounding the imposition of a 'super-injunction' obtained by Trafigura, a company trading in oil, base metals and other items, preventing the publication of a report on alleged dumping of toxic waste in the Ivory Coast, and subsequent debate over reporting of Parliamentary Questions relating to that report. We express our concern at the confusion over the level of protection provided to the reporting of Parliamentary proceedings by the Parliamentary Papers Act 1840 and recommend that these important elements of freedom of speech should be put beyond doubt through the enactment of a modern statute.

We also recommend that the Lord Chancellor and the Lord Chief Justice act on concerns regarding injunctions more generally in cases of both breach of privacy and confidence.

Libel and press freedom

In this section we focus on the operation of libel law in England and Wales and its impact on press reporting. We consider important recent cases and developments since the 1996 Defamation Act, including 'responsible journalism', the government's consultation on the issue of 'multiple publication' in the internet age and legislation to abolish criminal libel.

We consider the fairness of the 'burden of proof' being on the defendant, but in relation to individuals conclude that in order to satisfy natural justice the defendant should still be required to provide the proof of his allegations. However, with regard to corporations and defamation, we recommend that the Government should consider reversing the general burden of proof.

We discuss the damage 'libel tourists' have caused to the UK's reputation as a country which protects free speech and freedom of expression, especially in the United States, where a number of states have enacted legislation to protect their citizens from the enforcement of libel settlements made in foreign jurisdictions. We also comment on bills currently before the US Congress which are designed to afford similar protections. We conclude that it is a humiliation for our system that the US legislators should feel the need to take steps to protect freedom of speech from what are seen as unreasonable incursions by our courts. We note that neither the Lord Chancellor nor his officials have sought to discuss the matter with their US counterparts, and urge that such discussions should take place as soon as possible. We further suggest that, in cases where the UK is not the primary domicile or place of business of the claimant or defendant, the claimant should face additional hurdles before being allowed to bring a case.

We consider whether the statute of limitations and the multiple publication rule are fit for purpose in the internet age, and recommend that the Government should introduce a time limitation of one year for defamation cases relating to publication on the internet, subject to the test of when the claimant could reasonably have been aware of the article's existence.

We welcome the Lord Chancellor's establishment of a 'Working Group on Libel' to consider reform of the defamation laws. We also urge the Government to consult further, in particular over placing a broadened defence of 'responsible journalism' on a statutory footing.


Throughout our inquiry we have been mindful of the over-arching concerns about the costs of mounting and defending libel actions, and the 'chilling effect' this may have on press freedom. The evidence we have heard leaves us in no doubt that there are problems which urgently need to be addressed in order to enable defamation litigation costs to be controlled more effectively. We find the suggestion that the problem confronting defendants, including media defendants, who wish to control their costs can be solved by settling cases more promptly to be an extraordinary one. If a defendant is in the right, he should not be forced into a settlement which entails him sacrificing justice on the grounds of cost.

All the evidence which we have received points to the fact that the vast majority of cases brought under a Conditional Fee Agreement (CFA) are won. We therefore see no justification for lawyers to continue to demand 100% success fees which are chargeable to the losing party. We recommend that the recovery of success fees from the losing party should be limited to no more than 10%, leaving the balance to be agreed between solicitor and client. We further recommend that the Government should make After the Event Insurance premiums irrecoverable.

Press standards

In this section we discuss press standards and the level of public confidence in the press, which we explore through two recent cases - Madeleine McCann's disappearance; and the suicides in and around Bridgend in 2008. We also consider the impact of the Guardian's revelations regarding phone-hacking and blagging - the practice of obtaining information through deception.

With regard to the McCanns we conclude that competitive and commercial factors led to an inexcusable lowering of standards in the gathering and publishing of "news" about the case. While the lack of official information clearly made reporting more difficult, we do not accept that it provided an excuse or justification for inaccurate, defamatory reporting. We conclude that in this case self-regulation signally failed.

We reopened oral evidence to consider the allegations contained in the Guardian in July 2009 that the News of the World's parent company had paid over £1m in damages and costs to settle three civil actions relating to phone-hacking. We took these claims very seriously as they cast doubt on assurances we had been given during our 2007 inquiry Privacy and media intrusion that the phone-hacking at News of the World had been limited to one 'rogue reporter', Clive Goodman.

We find that it is likely that the number of victims of illegal phone-hacking will never be known, not least because of the silence of Clive Goodman and Glenn Mulcaire, their confidentiality settlements with the News of the World and the 'collective amnesia' at the newspaper group which we encountered during our inquiry. It is certainly more than the 'handful', however, cited by both the newspaper and the police.

There is no doubt that there were a significant number of people whose voice messages were intercepted, most of whom would have been of little interest to Clive Goodman as the paper's royal editor. The evidence, we find, makes it inconceivable that no-one else at the News of the World, bar Mr Goodman, was aware of the activity. We have, however, not seen any evidence that the then Editor, Andy Coulson, knew, but consider he was right to resign. We find, however, that the newspaper group did not carry out a full and rigorous inquiry, as it assured us and the Press Complaints Commission it had. The circumstances of pay-offs made to Messrs Goodman and Mulcaire, as well as the civil settlements with Gordon Taylor and others, also invite the conclusion that silence was effectively bought.

The readiness of all concerned - News International, the police and the PCC - to leave Mr Goodman as the sole scapegoat without carrying out full investigations is striking. The verdict of the PCC's latest inquiry, announced last November, we consider to be simplistic, surprising and a further failure of self-regulation.

In seeking to discover precisely who knew what among the staff of the News of the World we have questioned a number of present and former executives of News International. Throughout we have repeatedly encountered an unwillingness to provide the detailed information that we sought, claims of ignorance or lack of recall, and deliberate obfuscation. We strongly condemn this behaviour which reinforces the widely held impression that the press generally regard themselves as unaccountable and that News International in particular has sought to conceal the truth about what really occurred.

Self-regulation of the press

Finally we consider the future viability of self-regulation of the press, and set out a considered programme of reform aimed at making regulation of the press in the UK more effective.

We recommend that the PCC should be renamed the Press Complaints and Standards Commission, reflecting its role as a regulator, not just a complaints handling service, and that it should appoint a deputy director for standards. We further recommend that the PCC should have the power to fine its members where it believes that the departure from the Code of Practice is serious enough to warrant a financial penalty, including, in the most serious of cases, suspending the printing of the offending publication for one issue.

In the future the PCC must also be more proactive in its work. If there are reasonable grounds to believe that coverage of a case means that serial breaches of the Code are being made or are likely to take place, then the PCC should not wait until a complaint is received before it investigates and makes contact with the parties involved. We suggest that a convenient test as to whether a proactive inquiry is appropriate might be that three lay members of the Commission had indicated to the Chairman that, in their view, a proactive inquiry would be in the public interest.

We suggest that the membership of the PCC should be rebalanced to give the lay members a two thirds majority, making it absolutely clear that the PCC is not overly influenced by the press, that there should be lay members of the Code Committee and that one of those lay members should be the Code Committee's Chairman.

We recognise that there must be some incentive for newspapers to subscribe to the self-regulatory system, and suggest that the Government should consider whether proposals to reduce the cost burden in defamation cases should only be made available to those publications which provide the public with an alternative route of redress through their membership of the PCC.

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Prepared 24 February 2010