House of Commons - Press standards, privacy and libel - Culture, Media and Sport Committee

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

2 Privacy and breach of confidence

Introduction

9. Until 2000, private information could only be protected under English law by recourse to legal remedies such as breach of confidence (see paragraphs 103 to113 below), contempt of court, defamation, malicious falsehood, trespass and nuisance.

10. On several occasions in the past half-century, Parliament considered introducing a general law of privacy. Bills were introduced in 1961[6] and 1969,[7] but neither went beyond a second reading. In 1989, after two private members' bills concerning privacy completed the House of Commons Committee stage, the Government of the day asked Sir David Calcutt QC to conduct an inquiry. Sir David's report, Privacy & Related Matters, recommended that the media should set up a complaints body but warned that, if this did not prove effective, a statutory tribunal should take its place.[8] In 1992, Sir David reviewed the work of the new Press Complaints Commission and concluded that it had failed and a privacy law was required. His proposal was not taken up.[9] Instead, in 1995 the then Secretary of State for National Heritage, Virginia Bottomley MP, announced that the Government would focus on improving self-regulation.[10] Important change came when Parliament passed the Human Rights Act 1998, which came into force in 2000 and, in effect, incorporated the European Convention on Human Rights (ECHR) into UK law.[11]

11. Before we pass on to considering the impact of the Human Rights Act, it should be noted that the approach to privacy law in the UK both before and since 2000 stands in contrast to the approach elsewhere in Europe. In France, for example, the right to privacy is held to be implicit in the constitution,[12] and the French Civil Code has included a specific right to privacy since 1970.[13] Rights to control over personal information have been strictly interpreted by the French courts.[14] In Germany, meanwhile, the Federal Constitutional Court has recognised the citizen's right to personal respect, including a right to control one's own image in private life. A German court held that the publication of photographs of Princess Caroline of Monaco with her children breached her constitutional rights.[15] In Italy recently, too, Prime Minister Silvio Berlusconi has had recourse to privacy laws over the use by Italian and Spanish publications of photographs taken at private parties he held, which were allegedly attended by escort girls.[16]

12. Privacy laws tend to reflect the media cultures in which they operate, and, as we were reminded during our visit to Spain, these can be very different from the UK's. Staff at La Vanguardia told us that their newspaper would publish a story about a footballer having an extra-marital affair, but not a story about a politician having an affair. They explained that this was because the footballer's professional performance might be affected while the politician's would not, and also because readers would not be interested in a politician's affairs. The same news values do not apply in Britain.

The Human Rights Act

13. In passing the Human Rights Act, Parliament did not introduce specific rights for individuals into UK law, but required public authorities, including courts and tribunals, to act in accordance with the rights set out in the European Convention on Human Rights of 1950.[17] Parliamentary sovereignty over Convention rights was retained, since public authorities are protected if an action contravening Convention rights is giving effect to, or trying to give effect to, primary legislation.[18]

14. The Convention guarantees to everyone a right to privacy and a family life through Article 8, and the right to freedom of expression through Article 10.

15. Article 8 states:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

16. Article 10 states:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

17. No one Convention right has priority over another, so when a conflict arises between the Convention rights of the parties in a case, the courts are required to carry out a balancing exercise.

18. The balance was explored by the courts, notably, in the case of Campbell v Mirror Group Newspapers which was decided in 2004.[19] The model Naomi Campbell was photographed leaving a Narcotics Anonymous meeting. The Daily Mirror published the photographs together with (inaccurate) details of Ms Campbell's treatment and history of drug addiction. In the subsequent court case, it was accepted by both sides that Ms Campbell's repeated 'public lies' that she did not have a drug addiction justified reporting evidence to the contrary. Article 8, however, was held to apply to the details of her treatment, as she had a 'reasonable expectation' that these would remain private.

19. The balance was further explored in Douglas v Hello! Ltd. (No. 3) from 2005, in which the House of Lords held that the actors Catherine Zeta-Jones and Michael Douglas had a right to protect private information, specifically photographs of their wedding. In His Royal Highness the Prince of Wales v Associated Newspapers Ltd in 2006,[20] the Court of Appeal found that Article 8 covered a travel journal, written by the Prince of Wales, which had a reasonably wide circulation. The Court rejected the newspaper group's argument that there was a public interest in publishing comments contained in the diaries on the Chinese politicians and officials at the handover dinner in Hong Kong in 1997.

20. Judges have continued to stress the importance of Article 10. In his judgment in Jameel v Wall Street Journal in 2006,[21] Lord Bingham commented:

SECTION 12 OF THE ACT

21. The potential difficulties in balancing the right to privacy and the right to freedom of speech were apparent at the time the Human Rights Bill was before Parliament, and the media and the judiciary both raised concerns about them. The then Lord Chief Justice, Lord Bingham, said during the passage of the Bill:

22. In response to such concerns, Lord Wakeham introduced in the House of Lords an amendment which became section 12 of the Human Rights Act, as follows:

12 (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied -

(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to -

(a) the extent to which -
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code.

(5) In this section -
"court" includes a tribunal; and
"relief" includes any remedy or order (other than in criminal proceedings).

23. The intention was to set a higher bar for the granting of injunctions that might impact on freedom of expression. While someone applying for an interim injunction in any other type of civil case is only required to show that there is a 'serious issue to be tried', section 12(3) above requires the claimant to have a case 'sufficiently favourable to justify [an injunction] in the circumstances of the case'.[24] This has been interpreted by the courts as meaning that claimants must show that they have a better than 50 per cent chance of success if the matter were to come to trial.

24. During the passage of the bill the then Home Secretary, the Rt Hon Jack Straw MP, was confident that this would provide an adequate safeguard to the press: "[section 12 will] send a powerful signal to the United Kingdom courts that they should be at least as circumspect as judgments of the European Court of Human Rights have been about any action that would give the article 8 rights any supremacy over the freedom of expression rights in article 10. I hope and believe that an amendment along those lines will deal satisfactorily with the concerns of the press."[25]

25. He also felt that section 12 would benefit the self-regulatory system: "[it] provides an important safeguard by emphasising the right to freedom of expression. Our intention is that that should underline the consequent need to preserve self-regulation. That effect is reinforced by highlighting in the amendment the significance of any relevant privacy code, which plainly includes the code operated by the PCC."[26]

SECTION 12 IN PRACTICE

26. We have heard varying opinions on the impact of section 12, both on the balance between Articles 8 and 10 required by the courts and on the use of injunctions. Marcus Partington of the Media Lawyers Association told us:

27. Rod Christie-Miller of Schillings solicitors had reservations about the operation of section 12, but acknowledged the difficulties inherent in the decision to grant an injunction:

28. In written evidence to us Professor Julian Petley, of the Campaign for Press and Broadcasting Freedom, commented that "the ECHR has had a salutary effect in requiring the courts to balance competing claims to the right to privacy and the right to press freedom, with a clear presumption in favour of the latter."[29] The Lord Chancellor, the Rt Hon Jack Straw MP, agreed, telling us that while "they [the media] have concerns about particular decisions in the courts, not least in the Mosley case, section 12, as the Master of the Rolls has spelt out, has worked to their advantage without any question."[30]

29. In oral evidence to us, the then Master of the Rolls explained the difficulties facing judges making decisions on interim injunctions:

30. We have been told, however, that appeals against the refusal to grant or for the lifting of interim injunctions may lead to lengthy delays and enormous costs. In May 2009, Ian Hislop, editor of Private Eye, told us about a case in which he was involved:

31. The case involved Michael Napier, a former president of the Law Society, and the refusal by Mr Justice Eady to grant an injunction, on grounds of confidentiality, about the outcome of professional complaints made against Mr Napier and his firm. The Court of Appeal subsequently refused to overturn the ruling, following which Mr Napier resigned from his position on the Legal Services Board.[33] Private Eye estimated that had it lost, the bill for both side's costs would have been some £400,000; and had the case gone to the House of Lords, it would have been at risk for £600,000. The magazine said it had originally intended to publish two paragraphs on the issue.

32. We understand that the refusal by a court to grant an injunction does not necessarily mean the defendant can publish straightaway: if the claimant appeals the decision, then the Court of Appeal has to hold the ring, pending the outcome of that appeal. That said, it seems to us wrong that once an interim injunction has been either refused or granted in cases involving the Convention right to freedom of expression a final decision should be unduly delayed. Such delay may give an unfair advantage to the applicant for the injunction as newspapers often rely on the currency of their articles. We recommend that the Ministry of Justice should seek to develop a fast-track appeal system where interim injunctions are concerned, in order to minimise the impact of delay on the media and the costs of a case, while at the same time taking account of the entitlement of the individual claimant seeking the protection of the courts.

33. We have heard concerns from a number of witnesses that interim injunctions are frequently applied for out-of-hours, and are therefore heard by duty judges who may lack specialist knowledge. Ian Hislop told us: "I have to say if you go for an injunction in the middle of the night or on a weekend or a Saturday, you get a judge who does not know a great deal about this sort of thing and they give the injunction."[34]

34. Paul Dacre, editor of the Daily Mail, commented, in relation to the News of the World's exposé of Max Mosley:

35. Peter Hill, editor of the Daily Express, had similar concerns: "I can assure you that injunctions are granted on very flimsy grounds often, not always, but by judges who are not necessarily highly qualified in that area."[36]

36. A further concern on which we have received evidence is the apparently growing practice of widely-drawn injunctions being received by newspapers and other publications, binding them, though they have had no opportunity to contest the order. These are unrelated to those regularly granted by the Family Division of the High Court to preserve the anonymity of children and to which the press rarely takes issue. From his experience, Mr Hislop estimated that the courts were issuing new such injunctions about once a fortnight:

Private Eye

37. Any meaningful consideration of the impact of Section 12 on the use of interim injunctions requires a basis of statistics relating to the number of injunctions granted or refused and how many claimants are subsequently successful at trial. It seems that these data do not exist. During our inquiry, the then Master of the Rolls was able to give us limited information,[38] but Bridget Prentice, Parliamentary Under-Secretary of State for Justice, confirmed in response to a written parliamentary question that the High Court only collects figures on the number of applications for injunctions, not the outcome of those applications.[39] Without appropriate data on injunctions we are unable to come to definitive conclusions about the operation of section 12 of the Human Rights Act, nor do we believe that the Ministry of Justice can effectively assess its impact. We recommend that the Lord Chancellor, Lord Chief Justice and the courts should rectify the serious deficiency in gathering data on injunctions and should commission research on the operation of section 12 as soon as possible.

38. We do not overlook the fact that, in Cream Holdings v Bannerjee, the House of Lords held that the effect of section 12(3) of the Human Rights Act was that, in general, no injunction should be granted in proceedings where Article 10 was engaged unless the claimant satisfied the court that he or she was more likely than not to succeed at trial. Although there is little statistical evidence available, we are nevertheless concerned at the anecdotal evidence we have received on this matter. Section 12 of the Human Rights Act is fundamental in protecting the freedom of the press. It is essential that this is recognised by the Courts.

39. It is entirely understandable, as news and gossip spread fast, that parties bringing privacy (and confidence) cases may wish to bind the press in its entirety, not just a single enquiring publication. On the face of it, however, this appears contrary to the intention behind section 12, if the press has not been given proper notice and opportunity to contest an injunction. We recommend, therefore, that the Lord Chancellor and Lord Chief Justice also closely review these practices.

Max Mosley and the News of the World

40. On 30 March 2008, the News of the World revealed that Max Mosley, then president of the Federation Internationale de l'Automobile (FIA), had engaged in a sado-masochistic sex session with a number of women.[40] The front-page headline declared 'F1 Boss has Sick Nazi Orgy with 5 Hookers', and the report, written by chief reporter Neville Thurlbeck, referred to an 'SS-style medical examination', orders being 'barked' in German and 'mock death camp' uniforms.[41]Mr Mosley is the son of Oswald Mosley, founder of the British Union of Fascists. The story had been obtained with the help of one of the women participants in the session, later known as Woman E, who secretly filmed the proceedings using a camera supplied by the News of the World and who was paid £12,000 by the paper.

41. The video was published on the News of the World website and was viewed hundreds of thousands of times. It was removed on 31 March 2008 pending an application by Mr Mosley for an injunction against its continued dissemination, which was heard on 4 April 2008. The video was returned to the website after Mr Justice Eady ruled that it had already been so widely viewed that further viewings could make 'very little practical difference'.[42]

42. On 6 April 2008, the News of the World repeated its allegations, under the headline 'My Nazi Orgy with F1 Boss'. Devoting four pages to an account of the sex session by Woman E, it dismissed assertions by Mr Mosley that there had been no Nazi theme, quoting Woman E as stating that Mr Mosley had specifically 'ordered' the theme.[43]

43. Mr Mosley sued the News of the World for breach of confidence and/or unauthorised disclosure of personal information amounting to a breach of his Article 8 right to privacy under the European Convention on Human Rights. Following a full trial in the High Court, the details of which were widely reported in the press, Mr Justice Eady found that the newspaper had breached Mr Mosley's right to privacy. He also noted that Woman E had committed 'an old fashioned breach of confidence', as well as a violation of the Article 8 rights of all those involved.[44] Mr Mosley asked for exemplary or punitive damages from the News of the World essentially as a deterrent, but the court found that not only was there no power to award such damages, but also that there would, in any event, be insufficient grounds to do so.[45]

44. Mr Mosley's victory did not reverse his failure to obtain an injunction restraining publication of the video taken by Woman E, although it is not now on the News of the World website. We consider the consistency of this ruling with other cases concerning breach of confidence - including Barclays bank and the Guardian in March 2009, and the recent action involving Trafigura, Carter-Ruck solicitors and the Guardian again - see paragraphs 107 to 113 - addressing the issues of prior restraint and injunctions.

45. The News of the World's defence in court included the contention that publication of the story had been in the public interest, and that this was a case where Article 10 of the ECHR should trump Article 8. Mr Justice Eady discussed this in his judgment:

46. In oral evidence to us, Tom Crone, legal manager for News Group Newspapers, which includes the News of the World, argued that there had been a public interest in publishing because Mr Mosley had a lead role in Formula One racing and was an international spokesman for the UK automobile associations, the AA and the RAC.[47]

47. In his judgment, Mr Justice Eady said that there might have been a public interest in revealing the Nazi theme of the session, if there had been such a theme:

48. In the absence of any evidence of a Nazi theme, however, the judge concluded that there was no public interest in revealing non-criminal sexual acts, regardless of their 'unconventional' nature, and found, as a matter of law, that Mr Mosley had not committed any illegal acts. He also criticised the manner in which the News of the World's reached its decision to link the sex session with Nazism, saying it was not based on rational analysis of the evidence:

Jameel

49. In his judgment, Mr Justice Eady considered how the News of the World had pursued the story following the publication of its exclusive on 30 March 2008. Mr Thurlbeck, the reporter responsible for both the initial article and the follow-up on 6 April 2008, decided to seek an interview with other women involved, besides Woman E. These women were referred to in court as Women A, B, C and D.

50. On 2 April 2008, Mr Thurlbeck sent an email to Women A and B offering money for an interview. On the following day he emailed again in the following terms:

sic

The judge concluded that this email constituted a 'clear threat' to Women A and B that, if they did not co-operate by giving an interview, their identities would be revealed in the News of the World on the following Sunday.[51]

51. Mr Thurlbeck was cross-examined on this in court, and explained his position thus:

52. He did not accept that the exchanges could be seen as blackmail:

53. The court concluded: 'It seems that Mr Thurlbeck genuinely did not see the point. Yet it is elementary that blackmail can be committed by the threat to do something which would not, in itself, be unlawful.'[54] The editor of the News of the World, Colin Myler, when cross-examined about the email exchange, accepted that Mr Thurlbeck's communications 'could be interpreted as a threat' and, while saying he was 'not so sure' they amounted to blackmail, could not produce a justification for his reporter's methods.[55] Mr Justice Eady, having sought to clarify whether Mr Myler had challenged Mr Thurlbeck over the emails, concluded that Mr Myler's 'non-answer' revealed that: "it would appear that Mr Myler did not consider there was anything at all objectionable about Mr Thurlbeck's approach to the two women, as he did not query it at any stage. This discloses a remarkable state of affairs."[56]

54. By the time Mr Myler appeared before us, Mr Mosley had issued proceedings against the News of the World for libel in relation to the articles of March and April 2008. Mr Myler was therefore reluctant to comment on these matters. However, a hypothetical question was put to him as to whether it would constitute misbehaviour for a journalist to say to somebody involved in a story that there were two ways of writing it and it was up to them which way it was written. Mr Myler replied: "I think it can be construed as misbehaviour but I think a lot of it depends on exactly what is said. I think that is very important, because two people can have different interpretations of what is meant."[57]

55. In oral evidence to us Tom Crone denied that Mr Thurlbeck's behaviour could constitute blackmail, or that Mr Justice Eady considered that it may amount to such.[58] Having examined the judgment, we cannot agree.

56. A culture in which the threats made to Women A and B could be seen as defensible is to be deplored. The fact that News of the World executives still do not fully accept the inappropriateness of what took place is extremely worrying. The 'choice' given to the women by Neville Thurlbeck was in fact no choice at all, given the threat of exposure if they did not co-operate.

57. We found the News of the World editor's attempts to justify the Max Mosley story on 'public interest' grounds wholly unpersuasive, although we have no doubt the public was interested in it.

Is it time to legislate on privacy?

58. The introduction of the Human Rights Act did not end calls for Parliament to enact legislation on privacy. In June 2003, our predecessor Committee considered the issue and concluded:

59. In its response the Government disagreed, saying:

60. We subsequently examined the subject of press intrusion in our 2007 Report Self-regulation of the press.[61] We found that the case had not been made for a law of privacy:

61. The development of a generalised 'respect for privacy' by the courts, as required under the Human Rights Act, has inevitably been piecemeal and is likely to remain so for a considerable time given the low number of privacy cases which go to trial. Almost all cases are settled between parties without trial. Only two have been heard in the High Court since January 2008, one of which was Mr Mosley's and the other was not against a defendant in the media and was settled five days into the trial.[63] The low number of substantive privacy cases is not surprising, given the deterrent effect that the prospect of a public trial can have on claimants who are by definition concerned about privacy. Mark Thomson, then of Carter-Ruck, told us: "I have a number of claims where the client would have won, but given that they [the press] published the article, which was deeply embarrassing, they just did not want to go to court and face the full publicity of an action."[64]

62. The high costs of litigation combined with the legal uncertainty, owing to the small amount of case law, undoubtedly discourages the media from contesting privacy cases. Sean O'Neill of The Times told us that in many cases a newspaper lawyer would ask: "We think we would win on public interest, but this privacy law is so uncertain, we don't know where we are going, and is this the one on which we want to make our stand?"[65]While critical of the operation of the current law on privacy, media witnesses were divided on the need for legislation on privacy. Many thought that it would do more harm than good. Paul Dacre said: "unequivocally I would not be in favour of a Privacy Act. I believe it would have a very deleterious effect, a chilling effect, on the press and the media in general."[66]

63. Alan Rusbridger, whose newspaper has not been sued to date for breach of privacy, favoured a wait-and-see approach: "I am much more worried about libel than privacy, and I think what is happening is that judges are being required to balance Article 8 against Articles 10 […] and they have not had very good cases yet and I think probably we have to give it a bit more time, because I do not think there has been a good case where someone has tried to gag a newspaper with a really good public interest defence."[67]

64. However, Ian Hislop felt that the time had come for Parliament to take action:

65. Tom Crone, the News of the World's lawyer, also expressed his unhappiness with the result of court judgments: "we are very unhappy with the way privacy law has gone as a result of judgments."[69] The Media Lawyers Association also supported legislation to ensure clarity:

66. The Lord Chancellor suggested to us that law in this area would become clearer in time:

67. The Human Rights Act has only been in force for nine years and inevitably the number of judgments involving freedom of expression and privacy is limited. We agree with the Lord Chancellor that law relating to privacy will become clearer as more cases are decided by the courts. On balance we recognise that this may take some considerable time. We note, however, that the media industry itself is not united on the desirability, or otherwise, of privacy legislation, or how it might be drafted. Given the infinitely different circumstances which can arise in different cases, and the obligations of the Human Rights Act, judges would inevitably still exercise wide discretion. We conclude, therefore, that for now matters relating to privacy should continue to be determined according to common law, and the flexibility that permits, rather than set down in statute.

MR JUSTICE EADY AND PRIVACY LAW

68. In November 2008, Paul Dacre made a speech to the Society of Editors in which he accused one judge, Mr Justice Eady, of 'introducing a privacy law by the back door'.[72] Mr Dacre subsequently said in oral evidence to us:

69. Ian Hislop also expressed concern that one or two judges might be developing privacy law. He admitted that there had been cases when Mr Justice Eady found in Private Eye's favour, but added: "on balance, it would be better if it was not just him and one other judge making all the law".[74] Roy Greenslade however pointed out that judges are compelled to make decisions on a case by case basis under consistent rules: "It would be said by anyone defending the idea of a statutory control that judges themselves would take everything on a case by case interest. Indeed, that is what Mr Justice Eady - much maligned - does on every occasion; he treats everything on a case by case basis and so that would seem to fall in line."[75]

70. Jeremy Clarke-Williams of Russell Jones and Walker strongly defended the judge to us:

Mosley

71. We discussed these matters both with the Lord Chancellor, who has a constitutional duty to defend the independence of the judiciary, and with the then Master of the Rolls, Sir Anthony Clarke. The Lord Chancellor told us that he did not feel it would have been appropriate for him to intervene to defend Mr Justice Eady because the criticism was insignificant:

72. Sir Anthony Clarke told us that the allegation that Mr Justice Eady was developing a privacy law concerned him because it was simply wrong and showed poor knowledge of court judgments:

73. In Parliament the Joint Committee on Human Rights has already rejected Mr Dacre's allegations outright. In its Annual Report 2007-2008 the Committee commented:

News of the World

74. Mr Justice Eady has not responded directly in public to the attacks on him, but in a speech to the Intellectual Property Lawyers Association in February 2009 he posited the argument that the application of Article 8 was now so clear that it was inevitable that the media would take out their 'frustration' on first-instance judges rather than pursue a hopeless appeal. He concluded: "I think it simply has to be recognized as an inevitable consequence of adopting the balancing approach and the "intense focus" on the particular facts of the case."[80]

75. The record, in any case, does not sustain the view that Mr Justice Eady has a dominant role in determining privacy law. The leading cases on privacy, Campbell and Douglas, both reached their conclusions in the House of Lords, as would be expected in judgments of such significance. In the cases involving privacy issues where the decision made by the High Court has been appealed to the Court of Appeal, Mr Justice Eady has either not been involved, or his decisions have been almost entirely upheld.[81] As discussed at paragraph 37 above, statistics on many types of injunction are currently not collected. It is noteworthy, however, that the limited information we do have on injunctions shows that, of a total of six contested applications for privacy injunctions, Mr Justice Eady heard three, refusing two and granting one, while the other three applications, heard by different judges, were all granted.[82]

76. We have received no evidence in this inquiry that the judgments of Mr Justice Eady in the area of privacy have departed from following the principles set out by the House of Lords and the European Court of Human Rights. While witnesses have criticised some of the judge's individual decisions, they have praised others. If he, or indeed any other High Court judge, departed from these principles, we would expect the matter to be successfully appealed to a higher court. The focus on this one judge regarding the development of privacy law, however, is misplaced and risks distracting from the ongoing national debate on the relationship between freedom of speech and the individual's right to privacy.

Compulsory pre-notification

77. Mr Mosley used his appearance before us to make a case for legislation requiring editors and journalists to give people about whom they write, not just the opportunity to comment, but also notice of their intention to publish, so that such people would have time, if appropriate, to seek injunctions preventing publication. He has also issued proceedings against the UK Government in the European Court of Human Rights seeking a ruling that the Government's failure to enact such a legal requirement constitutes a breach of his Article 8 rights.

78. In his evidence to us, Mr Mosley spoke of the damage done to his reputation by a revelation which was ultimately found to be an unlawful breach of his privacy:

79. He also described the 'appalling' impact on his family:

80. Mr Mosley described as unjust a position where newspapers can cause irreparable damage of this kind, and derive commercial benefit from doing so, when they know there is a risk that, much later, the courts will find they have acted unlawfully. He suggested: 'they [the newspapers] should be obliged, in cases where they know that the person is going to object to that publication and there is a substantial chance that he will go to court and could get an injunction, that they should notify him.'[85]

81. Mr Mosley argued that such a requirement would not impinge on the right to freedom of expression, and he felt that a High Court judge was a more suitable person than the editor of a newspaper to make a decision as to whether a story was in the public interest:

The Observer

The Independen

82. In his own case, Mr Mosley stated that he would certainly have sought an injunction if he had had advance notification of the News of the World's intention to publish. Mr Myler told us that he and his colleagues at the newspaper were conscious of this: "we knew that probably Mr Mosley would get an injunction, and I felt very strongly that this was a story that actually should not be stopped because of an injunction."[87]

83. Rod Christie-Miller, of Schillings solicitors, agreed in evidence to us that pre-notification was a problem area. He suggested that editors were able to be extremely calculating in considering whether to pre-notify the subject of a story, and that this led to an abuse of power:

84. Paul Dacre, editor of the Daily Mail, dismissed such an approach in evidence to us as "kamikaze journalism".[89] But evidence of such practices is to be found in diaries published by Piers Morgan, the former editor of the Daily Mirror, which state that he would deliberately publish stories without notifying the subject because he knew that otherwise the person involved would get an injunction.[90]

85. Equally, we heard evidence of editors or journalists who have taken the decision to give notice of an intention to publish, usually with a view to soliciting comments and reaction, only for an injunction to be immediately served or the threat of one to be raised.[91] Ian Hislop described his frustration at making inquiries of the subject of a story only to immediately receive a lawyer's letter threatening action.[92] Alan Rusbridger spoke of fighting a costly legal battle over an injunction while the delay in publication played into the hands of the claimant:

86. Nick Davies explained to us the dilemma faced by journalists:

87. If compulsory pre-notification were introduced, others besides newspapers would be affected. Global Witness, a non-governmental organisation investigating profiteering and human rights abuses resulting from exploitation of natural resources, told us that they feared a compulsory pre-notification requirement could put their staff and sources in danger.[95]

88. Mark Stephens, a lawyer who represents human rights organisations, suggested to us that, to protect vital investigative work, there would have to be a public interest exception.[96] But such an exception, allowing editors not to give notice where there was a pressing public interest, would be difficult to define and to operate, as several witnesses told us. Professor Roy Greenslade put it this way:

89. We have also heard evidence that pre-notification does not necessarily prevent inaccurate reporting. Gerry McCann told us that pre-notification had not prevented inaccurate stories being published about him and his wife in the UK press: "In terms of advance notice, I would often hear Clarence [Mitchell, the couple's media adviser] on the phone to journalists expressly telling them that the information they had was rubbish. It would not stop it being published."[98]

90. Newspaper editors insisted to us that in the great majority of cases journalists contact the people they are writing about. Paul Dacre said that in '99 times out of 100'[99] the Daily Mail would contact the subject of a story, and Peter Hill, editor of the Daily Express, said:

100

91. Clearly pre-notification, in the form of giving opportunity to comment, is the norm across the industry. Nevertheless we were surprised to learn that the PCC does not provide any guidance on pre-notification. Giving subjects of articles the opportunity to comment is often crucial to fair and balanced reporting, and there needs to be explicit provision in the PCC Code itself.

92. We recommend that the PCC should amend the 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.

93. We have concluded that a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a "public interest" exception. Instead we believe that it would be appropriate to encourage editors and journalists to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of Article 8. We therefore recommend that the Ministry of Justice should amend the Civil Procedure Rules to make failure to pre-notify an aggravating factor in assessing damages in a breach of Article 8. We further suggest that amendment to the Rules should stipulate that no entitlement to aggravated damages arises in cases where there is a public interest in the release of that private information.

Super-injunctions

94. On 12 October 2009, one of the members of our Committee, Paul Farrelly MP, tabled a number of Parliamentary questions, one of which concerned an injunction obtained by Trafigura, a company trading in oil, base metals and other items, preventing the publication of a report on the alleged dumping of toxic waste in the Ivory Coast. Trafigura's solicitors, Carter-Ruck, on learning of Mr Farrelly's question, informed the Guardian that it would be a breach of the injunction if the newspaper reported the question, but agreed to seek instructions from Trafigura on a variation of the order. The Guardian promptly published, initially online and then on the front page of its 13 October 2009 issue, the fact that it was unable to report a tabled Parliamentary question. The internal report Trafigura wanted to suppress was already widely available on the internet.

95. The injunction which both Carter-Ruck and Guardian lawyers believed prevented the reporting of Parliamentary proceedings was a so-called 'super-injunction'. This is a court order which requires that, when an injunction is in place, its very existence may not be disclosed or published. The order in the Trafigura case was granted on 11 September, 2009 by a vacation duty judge, Mr Justice Maddison, at a private hearing of which the Guardian had just a few hours' notice. It also applied to other 'persons unknown' and anyone who became aware of its existence. The injunction was drafted by Carter-Ruck and in this case a third level of secrecy was granted in that Trafigura and subsidiary's identities as claimants were replaced by the random initials 'RJW' and 'SJW'. The case never went to a full hearing, because the tabling of Parliamentary questions is protected by parliamentary privilege and due to the publicity which followed, not least on the internet, Trafigura and Carter-Ruck withdrew the injunction. The Guardian estimated, however, that it would have cost at least £300,000 to go to a hearing, at a time it was making redundancies.

96. It appears that the injunction and secondary court order were not specifically drafted with the aim of preventing the reporting of Parliamentary discussion, and as a result confusion has arisen over whether the injuncted matter could, indeed, be reported when it was referred to in Parliament.

97. The Lord Chief Justice, Lord Judge, took the unusual step of issuing a press release, stating:

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We warmly welcome his comments.

98. Section 3 of the Parliamentary Papers Act 1840 provides that 'any extract from or abstract of' a 'report, paper, votes, or proceedings' of Parliament is immune from civil and criminal liability if published in good faith and 'without malice'. The right of the press to report matters in parliament is also codified in statute in Schedule 1 of the Defamation Act 1996. This confers 'qualified privilege', which is again subject to the tests of the report being 'fair and accurate, and published without malice' and generally in the public interest. This clearly covers written questions such as that concerning Trafigura. In a debate on libel in Westminster Hall on 21 October 2009, Bridget Prentice, the Parliamentary Under-Secretary of State for Justice, confirmed that section 3 of the 1840 Act remained in force, and therefore that the Guardian was free to report the text of the question.

99. However, the Minister's assurances were subsequently challenged in a submission to us from Carter-Ruck.[102] While the firm accepted that Article 9 of the Bill of Rights provides that no court order could restrain debate in Parliament, it remained adamant that reporting of the question by the Guardian, which is subject to common law and statute rather than the Bill of Rights, was restrained under the injunction. Carter-Ruck told us:

Guardian

bona fide

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100. The Trafigura affair is not the first occasion on which the clarity of the existing law has been called into question. In 1999, the Joint Committee on Parliamentary Privilege recommended: "that the statutory protection [afforded to the media by the Parliamentary Papers Act 1840] would be more transparent and accessible if it were included in a modern statute, whose language and style would be easier to understand than the 1840 Act. We recommend that the 1840 Act, as amended, should be replaced with a modern statute."[104]

101. The free and fair reporting of proceedings in Parliament is a cornerstone of a democracy. In the UK, publication of fair extracts of reports of proceedings in Parliament made without malice are protected by the Parliamentary Papers Act 1840. They cannot be fettered by a court order. However, the confusion over this issue has caused us the very gravest concern that this freedom is being undermined. We therefore repeat previous recommendations from the Committee on Parliamentary Privilege that the Ministry of Justice replace the Parliamentary Papers Act 1840 with a clear and comprehensible modern statute.

102. These events involving Trafigura occurred after the conclusion of our oral evidence sessions. In a debate in Westminster Hall on 21 October 2009, Bridget Prentice MP, the Parliamentary Under-Secretary of State for Justice, said that the Ministry of Justice was examining the use of super-injunctions outside the areas of fraud and child protection with the judiciary and lawyers from major newspapers.[105] Notwithstanding the controversy already, Carter-Ruck had also sought to persuade the Speaker of the House of Commons that this debate should not proceed as the case was sub judice under the House's own rules. The Speaker, however, exercised his absolute discretion and allowed the debate. We welcome the Speaker's determination to defend freedom of speech in Parliament, as well as the comments by the Lord Chief Justice on the Trafigura affair, and strongly urge that a way is found to limit the use of super-injunctions as far as is possible and to make clear that they are not intended to fetter the fundamental rights of the press to report the proceedings of Parliament. Given the importance of these issues, we hope that a clear statement regarding the way forward is made before the end of this Parliament.

Breach of confidence

103. The Human Rights Act has not superseded the law of confidence. The ECHR is designed to protect individuals, so corporate entities, public authorities and other organisations still rely on the law of confidence to protect private information.

104. Breach of confidence was developed by the courts following the publication of private etchings and pictures, made by Queen Victoria and Prince Albert of their family and friends, and disseminated within a small group.[106] The original components of an action, in which the burden of proof is on the claimant, were that the information in question was secret or confidential, that it was acquired in circumstances giving rise to a duty of confidence; and that it had been or would be used to the detriment of the confider.[107] Over time, however, the definition of confidential information has broadened.

105. The law on breach of confidence was considered by the House of Lords in 1990, in the case of the publication by Sunday newspapers of excerpts from 'Spycatcher', the memoirs of former MI5 employee Peter Wright. The Government of the day sought an injunction restraining publication of the book. In his judgment Lord Goff stated, as a general principle, that:

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106. The law requires the publisher to consider not only where the information has come from but also whether the information itself is in fact private. For instance, the owner of a personal diary dropped in the street and picked up by a passer-by has a reasonable expectation of privacy. However, in the case of 'Spycatcher' the memoirs had been published abroad and were also widely available in the United Kingdom, and Lord Goff noted that a claimant could no longer sue for breach of confidence when the information was so widely disseminated that it could no longer be said to be confidential. The application for an injunction failed.

107. In March 2009, Barclays Bank obtained an injunction requiring the removal from the Guardian's website of seven leaked memoranda showing that Barclays had set up companies to take advantage of tax loopholes. The interim injunction was made over the phone by Mr Justice Ousely at 2.30am on the morning of Tuesday, 17th March, 2009 and was upheld after an immediate, two-day hearing by Mr Justice Blake in the High Court. The Guardian was also barred from publicising their whereabouts on the internet, and the absurdity was heightened when the peer Lord Oakeshott used Parliamentary privilege to reveal the where the sites could be found.[109] In that case, unlike Trafigura, however, Barclays' lawyers did not argue that the media was prevented from reporting the proceedings of Parliament.

108. A publication that is sued for breach of confidence has a defence if it can show that publication of private or confidential information was in the public interest.[110] In such cases the judge must strike a balance between the claimant's right to confidence and the public interest the defendant claims will be served by publication.[111]

109. When he appeared before us, Alan Rusbridger, editor of the Guardian, argued that publication of the memoranda was a clear matter of public interest:

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110. In the Barclays case, the judge decided that the bank's right to confidentiality outweighed the Guardian's claim of public interest. Alan Rusbridger told us that he did not feel the need to appeal the case as, despite the fact that the court ruled against the Guardian, the information was in fact freely available on the internet:

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111. It is noteworthy, nonetheless, that the Barclays and Trafigura decisions over breach of confidence contrast with those of Mr Justice Eady's regarding privacy and removal of the Mosley video, although in each the information was widely available on the internet. In the Barclays and Trafigura cases, the 'public interest' arguments also appear to us stronger. It is understandable, therefore, that the media and the public are confused about the approach of different courts with respect to issuing injunctions.

112. The evidence we have heard shows the impact of the internet on the leaking of information has fundamentally altered the dissemination of information, and consequently breaches of confidence.

113. In particular, the Trafigura and Barclays cases raise issues over the use of injunctions for breach of confidence by companies which do not have Article 8 rights to defend, the ease with which they appear to be granted and the consistency of practice in the court system.

6 Right of Privacy Bill [Bill 35 (1960-61)] Back

7 Right of Privacy Bill [Bill 25 (1969-70)] Back

8 Report of the Committee into Privacy and Related Matters, Cm 1102 Back

9 Review of Press Regulation, Cm 2135 Back

10 Cm 2918 Back

11 Human Rights Act 1998 Back

12 Décision 94-352 du Conseil Constitutionnel, 18 January 1995. Back

13 Article 9 The Civil Code Back

14 See generally J Bell, S Boyron and S Whittaker, Principles of French Law (OUP, 1998), pp 354-391 Back

15 German Federal Constitutional Court, 1999 Back

16 "Berlusconi fury over naked photos", BBC news online, 5 June 2009 news.bbc.co.uk Back

17 Human Rights Act 1998, Section 6 (1) Back