Summary
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.
Costs
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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