Conclusions and recommendations
Privacy and breach of confidence
1. 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. (Paragraph 32)
2. 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. (Paragraph 37)
3. 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. (Paragraph 38)
4. 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. (Paragraph 39)
5. 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. (Paragraph 56)
6. 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. (Paragraph 57)
7. 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. (Paragraph 67)
8. 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. (Paragraph 76)
9. 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. (Paragraph 91)
10. 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. (Paragraph 92)
11. 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. (Paragraph
93)
12. 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. (Paragraph
101)
13. 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. (Paragraph
102)
14. 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. (Paragraph 112)
15. 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.
(Paragraph 113)
Libel and Press Freedom
16. We
have received limited evidence on hearings on meaning and the
extent to which they are used. We agree, however, that any measures
to provide more certainty at an earlier stage, and which cut the
enormous costs of libel cases in the UK, should be pursued more
vigorously. We urge the Government, therefore, to look closely
at this aspect of procedure in its present review of the costs
and operation of UK libel laws. (Paragraph 129)
17. We recognise the
difficulties with the whole burden of proof being placed on the
defendant but believe, on balance, that in the interests of natural
justice, defendants should be required to prove the truth of their
allegations. We are concerned, however, to see cases where that
burden becomes overly onerous. We make some recommendations in
this Report regarding the defence of 'responsible journalism'
and the burden of proof on companies suing for defamation, which
may level the playing field and assist publication in the public
interest. We also urge the Government, however, to examine this
aspect of the operation of the UK's libel laws carefully, including
how the courts might better require claimants to make reasonable
disclosures of evidence, without increasing costs even further
through expensive appeals. (Paragraph 135)
18. The Bower case
also highlights concerns which arise when judges exclude evidence
which prevents a jury being presented with a rounded picture,
or too narrow a view of the thrust of an article. This aspect
of the operation of the libel laws also needs examination. (Paragraph
136)
19. Much of the recent
publicity given to concerns of the medical and science community
about the harmful effects of UK libel laws on their ability to
comment has followed the court rulings to date in the Simon Singh
case and media coverage of the cases of the British cardiologist
Peter Wilmshurst and the Danish radiologist Henrik Thomson, who
have faced action from overseas commercial interests. (Paragraph
141)
20. We look forward,
clearly, to the outcome of the important Simon Singh case. Even
from the limited evidence we have received, we believe that the
fears of the medical and science community are well-founded, particularly
in the internet age and with the growth of 'libel tourism'. We
urge the Government, therefore, to take account of these concerns
in a review of the country's libel laws, in particular the issue
of fair comment in academic peer-reviewed publications. (Paragraph
142)
21. We appreciate
the difficulties, and costs, to date in running a Reynolds
defence have meant that it has not often been used in cases which
have actually reached court. Nevertheless, we endorse the development
of a 'responsible journalism' defence by the courts. We particularly
welcome the House of Lords judgment in Jameel which emphasises
the need for flexibility and, in our view, the realistic approach
the courts must bring to consideration of the defence so that
it appropriately protects the media's freedom of expression. However,
we are concerned that the defence remains costly and therefore
inaccessible to publishers with poor financial resources. We will
be making a number of recommendations on costs which we intend
should ensure access to this defence in appropriate cases. (Paragraph
161)
22. We are also concerned
that, partly because of the lack of certainty of a Reynolds
defence, many cases have to be settled before they come to court,
and that as a result there are few opportunities for a body of
case law based on Lord Hoffman's judgment in Jameel to
be developed. Indeed, it may take decades and we are of the view
that the problem is more urgent than that, especially given the
challenges facing smaller regional newspaper groups. (Paragraph
162)
23. The desirability
of affording greater protection to genuinely responsible journalism
begs the question of whether the law should be amended to put
the Reynolds defence, or an expanded version of it, on
a statutory footing, perhaps through an amendment to the 1996
Defamation Act. However, there is a risk of unforeseen consequences.
It could be maintained that Reynolds/Jameel applied more
flexibly is sufficient and we are concerned that codifying the
defence and the 'public interest' in law may in itself introduce
rigidities or make for less accurate reporting. However it is
our opinion that there is potential for a statutory responsible
journalism defence to protect serious, investigative journalism
and the important work undertaken by NGOs. We recommend that the
Government launches a detailed consultation over potentially putting
such a defence, currently available in common law, on a statutory
footing. We welcome consultations already launched by the Ministry
of Justice in the field of media law. Such a further exercise
will provide an opportunity to gain more clarity and show the
Government is serious about protecting responsible journalism
and investigations by the media, authors and NGOs in the public
interest. (Paragraph 163)
24. We hope that Government
measures to reduce costs and to speed up libel litigation will
help address the mismatch in resources between wealthy corporations
and impecunious defendants, along with our recommendations to
widen and strengthen the application of the responsible journalism
defence. Given the reaffirmation by the House of Lords in Jameel
of the rights of companies to sue in defamation, the law could
only be changed by statute, if Parliament felt it desirable to
address potential abuses of libel laws by big corporations. One
possible way of addressing the issue might be to introduce a new
category of tort entitled "corporate defamation" which
would require a corporation to prove actual damage to its business
before an action could be brought. Alternatively, corporations
could be forced to rely on the existing tort of malicious falsehood
where damage needs to be shown and malice or recklessness proved.
We also consider that it would be fairer to reverse the general
burden of proof in such cases. Given the seriousness of this issue,
we recommend that the Government examines closely the law as it
now stands, looking also at how it operates in Australia, and
consults widely on the possibility and desirability of introducing
such changes in the UK through an amendment to the Defamation
Act 1996. (Paragraph 178)
25. Whatever the constitutional
situation, or diplomatic niceties, we believe that it is more
than an embarrassment to our system that legislators in the US
should feel the need to take retaliatory steps to protect freedom
of speech from what they view as unreasonable attack by judgments
in UK courts. The Bills presented in Congress, allowing for triple
damages, were reminiscent of the 1970 Racketeer Influenced and
Corrupt Organisations Act, which was originally aimed at tackling
organised crime. As such, they clearly demonstrated the depth
of hostility to how UK courts are treating 'libel tourism'. It
is very regrettable, therefore, that the Government has not sought
to discuss the situation with their US counterparts in Washington,
or influential states such as New York and California. We urge
it to do so as soon as possible. (Paragraph 205)
26. We welcome the
Lord Chancellor's establishment of the Working Group on Libel
and the inclusion of 'libel tourism' in its remit. We also agree
with him that it is important to have an evidence base for decision-making.
During the course of our inquiry we asked for information on the
number of cases challenged on the grounds of jurisdiction and
the success rate of such challenges. We have been provided with
no such information and it was not clear who would be responsible
for collecting it. Without reliable data it is difficult to see
how the Government can monitor the implementation of Rule 6.36
of the Civil Procedure Rules. (Paragraph 207)
27. We recommend that
the Ministry of Justice and the Courts Service should as a priority
agree a basis for the collection of statistics relating to jurisdictional
matters, including claims admitted and denied, successful and
unsuccessful appeals made to High Court judges and cases handled
by an individual judge. We further recommend that such information
be collated for the period since the House of Lords judgment in
the Berezovsky case in May 2000 and is published to inform
debate and policy options in this area of growing concern. (Paragraph
208)
28. In cases where
neither party is domiciled nor has a place of business is the
UK, we believe the claimant should face additional hurdles before
jurisdiction is accepted by our courts. On balance, we believe
there is sufficient evidence to show that the reputation of the
UK is being damaged by overly flexible jurisdictional rules and
their application by individual High Court judges, as exemplified
by Mr Justice Eady in the Mardas and New York Times case.
(Paragraph 214)
29. We recommend that
the Ministry of Justice and the Civil Justice Council consider
how the Civil Procedure Rules could be amended to introduce additional
hurdles for claimants in cases where the UK is not the primary
domicile or place of business of the claimant or defendant. We
believe that the courts should be directed to rule that claimants
should take their case to the most appropriate jurisdiction (ie
the primary domicile or place of business of the claimant or defendant
or where the most cases of libel are alleged to have been carried
out). (Paragraph 215)
30. It is clear that
a balance must be struck between allowing individuals to protect
their reputations and ensuring that newspapers and other organisations
are not forced to remove from the internet legitimate articles
merely because the passage of time means that it would be difficult
and costly to defend them. We welcome the Lord Chancellor's consultation
and look forward to his conclusions. As a general consideration,
we believe it would be perverse if any recommendations increased
the uncertainty faced by publishers under the UK's already restrictive
libel laws. (Paragraph 229)
31. In order to balance
these competing concerns, we recommend that the Government should
introduce a one year limitation period on actions brought in respect
of publications on the internet. The limitation period should
be capable of being extended if the claimant can satisfy the courts
that he or she could not reasonably have been aware of the existence
of the publication. After the expiry of the one year limitation
period, and subject to any extension, the claimant could be debarred
from recovering damages in respect of the publication. The claimant
would, however, be entitled to obtain a court order to correct
a defamatory statement. Correction of false statements is the
primary reason for bringing a defamation claim. Our proposal would
enable newspapers to be financially protected in some degree from
claims against which the passage of time may make establishing
a defence difficult. (Paragraph 230)
32. We have also received
evidence that electronic archives should be protected by 'qualified
privilege'. This issue is explored by the consultation, with a
one year limitation period suggested, unless the publisher has
not amended or flagged the online version in response to a complaint.
We agree. This would take into account views expressed by the
ECtHR in Times Newspapers v UK, regarding the increasing
importance of online archives for education and research in modern
times. (Paragraph 231)
33. The offence of
criminal libel is untenable in a modern, democratic society. We
therefore welcome the Government's decision, 27 years after it
was advocated by the Law Commission, to repeal the law of criminal
libel. We hope this will encourage other legislatures, including
the Scottish Parliament, to demonstrate their own commitment to
freedom of expression by doing the same. (Paragraph 235)
Costs
34. 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
the media, 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. (Paragraph
262)
35. We are aware that
machinery exists for defendants to protect their position as to
costs by making a payment into court. It does not appear to us
that this machinery effectively protects a defendant, who genuinely
attempts to settle a claim at an early stage, against a determined
and deep-pocketed litigant. This is another issue which needs
to be addressed by the Ministry of Justice. (Paragraph 263)
36. Mandatory universal
costs capping, if implemented in isolation, is too crude an instrument
to introduce greater discipline while preserving flexibility and
access to justice. We therefore welcome the costs budgeting pilot
which has the potential to impose greater discipline on those
incurring costs. Without such discipline, no cost control methods
are likely to succeed. We also welcome Lord Justice Jackson's
proposal that there should be a more interventionist approach
to controlling costs by the courts. Nevertheless, we recommend
that costs capping should remain as a remedy to be used in those
cases where parties cannot agree a way to make costs budgeting
work. (Paragraph 274)
37. The offer of amends
procedure was intended to provide a simple and effective way of
acknowledging a mistake, and putting it right at minimal cost
to both parties by means of an apology, payment of moderate compensation
and suitable costs. Whatever the rights and wrongs of the individual
case, headline figures for costs such as those incurred by the
Guardian in the Tesco case simply undermine Parliament's
purpose in introducing the offer of amends procedure. (Paragraph
279)
38. Within the context
of more active case management by the courts, we can see merit
in the proposal that there should be some limitation on the maximum
hourly rates that can be recovered from the losing party in defamation
proceedings. This should have a significant impact on costs across
the board. While we note the difficulties identified by the Advisory
Committee on Civil Costs, we agree with the Ministry of Justice
that it should reconsider this issue now that Lord Justice Jackson's
final report has been published. (Paragraph 285)
39. Although some
have suggested that CFAs should be means-tested, in practice,
given the high costs involved, this would be likely to result
in access to justice being limited to the extremely poor and the
super rich. The complexities involved also do not lend themselves
to a simple or proportionate solution. We therefore do not support
the introduction of means-testing for CFAs. (Paragraph 292)
40. We welcome steps
taken so far to limit recoverability of After The Event insurance
premiums in publication proceedings. However, we agree with Lord
Justice Jackson that ATE premiums should become wholly irrecoverable.
The fact that it is possible for insurance companies to offer
ATE insurance at no cost to the policy holder, whether they win
or lose their case, is extraordinary and discredits the principle
on which ATE insurance is based. We recommend that the Ministry
of Justice should implement his recommendations in this respect.
(Paragraph 306)
41. All the evidence
we have heard leads us to conclude that costs in CFA cases are
too high. We also believe that CFA cases are rarely lost, thereby
undermining the reasons for the introduction of the present scheme.
However it is vital to the maintenance of press standards that
access to justice for those who have been defamed is preserved.
We do not agree with the Ministry of Justice that the maximum
level of success fees should be capped at 10%, nor do we believe
that success fees should become wholly irrecoverable from the
losing party. However we would support the recoverability of such
fees from the losing party being limited to 10% of costs leaving
the balance to be agreed between solicitor and client. This would
address the key issue and seems to us to provide a reasonable
balance, protecting access to justice, adequately compensating
solicitors for the risks taken, giving claimants and their lawyers,
in particular, a strong incentive to control costs and ensuring
that costs to a losing party are proportionate. (Paragraph 307)
42. This is by no
means the first time that attempts have been made to control the
costs of civil litigation. The Government must ensure that this
time measures are effective. Equally, it will be important that
the impact of such measures in practice is systematically monitored
so that any necessary adjustments can be made. (Paragraph 308)
43. Lawyers must also play their part. Just
as the press must be accountable for what it writes, lawyers must
be accountable for the way in which cases are run, and that includes
costs. The current costs system, especially the operation of CFAs,
offers little incentive for either lawyers or their clients to
control costs, rather the contrary. It also leads to claims being
settled where they lack merit. We hope that the combined effect
of our recommendations, the Ministry of Justice consultations
and the conclusions of Lord Justice Jackson, will provide the
impetus for a fairer and more balanced approach to costs in publication
proceedings. (Paragraph 309)
Press standards
44. There
is still a great deal of good, responsible journalism in the British
press. However, the picture painted for us of corners being cut
and of fewer journalists struggling to do more work is cause for
concern. If the press is to command the trust and respect of the
public, the public needs to know that the press is committed to
high standards even in difficult times. (Paragraph 324)
45. While we have
no absolute proof of the link between financial pressures and
declining press standards, we are concerned at the evidence we
have heard that one may be contributing to the other. Such a state
of affairs is in no-one's interest. If press standards decline,
then public confidence in the press is likely to be diminished
even further, leading to declining sales and worsening still further
the finances of the industry. (Paragraph 325)
46. Misleading headlines
can cause harm and are poor journalism, but we recognise the difficulty
the courts must face in drawing distinctions between messages
conveyed in headlines and in articles and weighing their relative
impact. We feel the PCC, for its part, could more do to address
the problem of headlines than offer brief guidance in its Editors'
Codebook. We recommend that the PCC Code itself should be amended
to include a clause making clear that headlines must accurately
reflect the content of the articles they accompany. (Paragraph
332)
47. Of course, it
is impossible to say for certain that untrue articles were written
in the McCann case as a result of pressure from editors and news
desks. It is, however, clear that the press acted as a pack, ceaselessly
hunting out fresh angles where new information was scarce. Portugal
was also a foreign jurisdiction, where contempt of court laws
were unclear, and no consideration was given to how reporting
might prejudice any future trial. It is our belief that competitive
and commercial factors contributed to abysmal standards in the
gathering and publishing of news about the McCann case. (Paragraph
351)
48. That public demand
for such news was exceptionally high is no excuse for such a lowering
of standards. Nor could the efforts of the McCanns to attract
publicity for their campaign to find their daughter conceivably
justify or excuse the publication of inaccurate articles about
them. (Paragraph 352)
49. 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. Further, when newspapers are
obliged to rely on anonymous sources and second-hand information,
they owe it to their readers to make very clear that they are
doing so, just as they owe it to their readers clearly to distinguish
speculation from fact. (Paragraph 353)
50. The PCC Code of
Conduct states in paragraph 1a that 'the Press must take care
not to publish inaccurate, misleading or distorted information,
including pictures'. In paragraph 1c, it states that 'the Press,
while free to be partisan, must distinguish clearly between comment,
conjecture and fact.' We believe it was obvious as early as May
2007 that a number of newspapers were ignoring these requirements,
yet the PCC remained silent. That silence continued even though
the coverage remained a matter of public concern through the summer
and autumn of that year. It was only in March 2008, after the
Express Group settled in the McCanns' libel case, that the PCC
spoke out. By then, as we have seen, hundreds of false and damaging
articles about the McCanns and others had been published across
a large number of titles. This was an important test of the industry's
ability to regulate itself, and it failed that test. (Paragraph
364)
51. While we understand
Mr Dacre's regret that the McCanns did not make a formal complaint
to the PCC, we do not believe that justifies the PCC's failure
to take more forceful action than it did. Under its Articles of
Association, the PCC has the power to launch an inquiry in the
absence of a complaint; such provisions were in our view made
for important cases such as this. Nor does the McCanns' decision
to sue for libel justify inaction: they did not sue until early
in 2008. (Paragraph 365)
52. The newspaper
industry's assertion that the McCann case is a one-off event shows
that it is in denial about the scale and gravity of what went
wrong, and about the need to learn from those mistakes. (Paragraph
373)
53. In any other industry
suffering such a collective breakdown - as for example in the
banking sector now - any regulator worth its salt would have instigated
an enquiry. The press, indeed, would have been clamouring for
it to do so. It is an indictment on the PCC's record, that it
signally failed to do so. (Paragraph 374)
54. The industry's
words and actions suggest a desire to bury the affair without
confronting its serious implications - a kind of avoidance which
newspapers would criticise mercilessly, and rightly, if it occurred
in any other part of society. The PCC, by failing to take firm
action, let slip an opportunity to prevent or at least mitigate
some of the most damaging aspects of this episode, and in doing
so lent credence to the view that it lacks teeth and is slow to
challenge the newspaper industry. (Paragraph 375)
55. We have sympathy
with the views of PAPYRUS but consider that a complete ban on
the reporting of the method of suicide would have a negative impact
on the freedom of the press. For reasons which we detail below,
we do not believe that the guidance contained in the PCC Code
on suicide reporting should be altered, but rather that the PCC
needs to enforce compliance with the Code as it stands. (Paragraph
380)
56. We recommend that
the PCC should not wait for people who find themselves suddenly
thrust into the media glare in traumatic circumstances to come
to it, but should take more steps to ensure that such people are
aware of its services. This could perhaps most easily be achieved
through dedicated and compulsory training of coroners and police
family liaison officers about ways in which the PCC can help and
through providing them with standard leaflets which can be offered
to those with whom they come into contact. (Paragraph 392)
57. The coverage of
suicide in the media is one of the most sensitive areas that falls
into the PCC's remit. We note the good work the PCC did in Bridgend
from May 2008, although we believe the PCC should have acted sooner
and more proactively. (Paragraph 395)
58. The PCC Code provides
suitable guidance on suicide reporting, but in our view the PCC
should be tougher in ensuring that journalists abide by it. The
experience of Bridgend shows the damage that can be caused if
irresponsible reporting is allowed to continue unchecked; the
PCC needs to monitor the conduct of the journalists and the standard
of coverage in such cases. (Paragraph 396)
59. During our inquiry,
regarding the reporting of personal tragedies, we also asked how
the press - local newspapers, in particular - moderated their
websites, when asking readers to comment on stories. Certain comments
of which we have been made aware have been sick and obscene.
The PCC told us, though, that it did not consider this a
major issue. (Paragraph 397)
60. The Editor's Codebook
refers to complaints about newspaper websites, making clear that
editors are responsible for "any user-generated material
that they have decided to leave online, having been made aware
of it, or received a complaint." We believe this does not
go far enough, with respect to moderating comment on stories about
personal tragedies, in particular. The Codebook should be amended
to include a specific responsibility to moderate websites and
take down offensive comments, without the need for a prior complaint.
We also believe the PCC should be proactive in monitoring adherence,
which could easily be done by periodic sampling of newspaper websites,
to maintain standards. (Paragraph 398)
61. It is likely that
the number of victims of illegal phone-hacking by Glenn Mulcaire
will never be known. Nevertheless, there is no doubt that there
were a significant number of people whose voice messages were
intercepted, most of whom would appear to have been of little
interest to the Royal correspondent of the News of the World.
This adds weight to suspicions that it was not just Clive Goodman
who knew about these activities. (Paragraph 423)
62. We have seen no
evidence that Andy Coulson knew that phone-hacking was taking
place. However, that such hacking took place reveals a serious
management failure for which as editor he bore ultimate responsibility,
and we believe that he was correct to accept this and resign.
(Paragraph 439)
63. Evidence we have
seen makes it inconceivable that no-one else at the News of
the World, bar Clive Goodman, knew about the phone-hacking.
It is unlikely, for instance, that Ross Hindley (later Hall) did
not know the source of the material he was transcribing and was
not acting on instruction from superiors. We cannot believe that
the newspaper's newsroom was so out of control for this to be
the case. (Paragraph 440)
64. The idea that
Clive Goodman was a "rogue reporter" acting alone is
also directly contradicted by the Judge who presided at the Goodman
and Mulcaire trial. In his summing up, Mr Justice Gross, the presiding
judge, said of Glenn Mulcaire: "As to Counts 16 to 20 [relating
to the phone-hacking of Max Clifford, Simon Hughes MP, Andrew
Skylett, Elle Macpherson and Gordon Taylor], you had not dealt
with Goodman but with others at News International." (Paragraph
441)
65. Despite this,
there was no further investigation of who those "others"
might be and we are concerned at the readiness of all of those
involved: News International, the police and the PCC to leave
Mr Goodman as the sole scapegoat without carrying out a full investigation
at the time. The newspaper's enquiries were far from 'full' or
'rigorous', as we - and the PCC - had been assured. Throughout
our inquiry, too, we have been struck by the collective amnesia
afflicting witnesses from the News of the World. (Paragraph
442)
66. The News of
the World and its parent companies did not initially volunteer
the existence of pay-offs to Clive Goodman and Glenn Mulcaire,
and their evidence has been contradictory. We do not know the
amounts, or terms, but we are left with a strong impression that
silence has been bought. (Paragraph 449)
67. The newspaper's
approach in this instance also differed markedly, we note, from
that adopted towards sports reporter Matt Driscoll, to whom a
tribunal awarded nearly £800,000 - possibly the biggest amount
in the industry to date - in November 2009 for unfair dismissal
after persistent bullying by then editor Andy Coulson. The newspaper
strongly resisted that particular claim. (Paragraph 450)
68. Gordon Taylor
was cited in one of the charges over which Glenn Mulcaire was
convicted in 2007. In the civil action, however, the News of
the World nonetheless initially resisted the claim, and on
a false basis. We consider there was nothing to prevent the newspaper
group drafting its confidentiality agreement to allow the PCC
and this Committee to be informed of these events, so as to avoid,
at the very least, the appearance of having misled us both. We
also believe that confidentiality in the Taylor case, and the
size of the settlement and sealing of the files, reflected a desire
to avoid further embarrassing publicity to the News of the
World. (Paragraph 455)
69. We recommend that
Section 1 of the Regulation of Investigatory Powers Act is amended
to cover all hacking of phone messages. (Paragraph 466)
70. In 2006 the Metropolitan
Police made a considered choice, based on available resources,
not to investigate either the holding contract between Greg Miskiw
and Glenn Mulcaire, or the 'for Neville' email. We have been told
that choice was endorsed by the CPS. Nevertheless it is our view
that the decision was a wrong one. The email was a strong indication
both of additional lawbreaking and of the possible involvement
of others. These matters merited thorough police investigation,
and the first steps to be taken seem to us to have been obvious.
The Metropolitan Police's reasons for not doing so seem to us
to be inadequate. (Paragraph 467)
71. We accept that
in 2007 the PCC acted in good faith to follow up the implications
of the convictions of Clive Goodman and Glenn Mulcaire. The Guardian's
fresh revelations in July 2009, however, provided good reason
for the PCC to be more assertive in its enquiries, rather than
accepting submissions from the News of the World one again
at face value. This Committee has not done so and we find the
conclusions in the PCC's November report simplistic and surprising.
It has certainly not fully, or forensically, considered all the
evidence to this inquiry. (Paragraph 472)
72. We have been surprised
by the confusion and obfuscation in the Information Commissioner's
Office about the format of the information it holds, and to whom
that information has been released. Given our interest in the
ledgers, and the visit of our Chairman to the offices of the Information
Commissioner to inspect them, we would have expected to be told
that the information was available in an electronic format. As
such, it could easily have been redacted to give more information
about suspect activities than appeared in 2006 in What price
privacy now?. (Paragraph 484)
73. The question of
whether there should be custodial sentences for breaches of section
55 of the Data Protection Act is not a new one. We recommended
in our 2007 report Self-regulation of the press that custodial
sentences be used as a deterrent and were disappointed at the
Government's rejection of our recommendation. However, we welcome
the current Ministry of Justice consultation on the introduction
of sentences and hope that a subsequent change in the
law is imminent. (Paragraph 490)
74. We recognise the
value of the work of the Office of the Information Commissioner
in investigating the activities of Steven Whittamore and his associates.
The Office can take much of the credit for the fact that such
illegal blagging, described to us in 2007 as being widespread
across the newspaper industry, is now rare. However we are disappointed
that the then Information Commissioner did not feel he had the
resources to identify and inform all those who were or could have
been the victim of illegal blags, and that he did not at the time
make the case that he should be given such resources. (Paragraph
491)
75. The articles in
the Guardian have been criticised for lack of clarity,
in distinguishing between phone-hacking by Glenn Mulcaire and
blagging and other data protection offences uncovered by Operation
Motorman. It has also been asserted, by the News of the World
and the police among others, that they contained no 'new evidence'.
The real question, however, is 'new' to whom? Assistant Commissioner
Yates admitted to us that his assertion was, in fact, a circular
argument. The Guardian's original revelations relied on
unused and unpublicised evidence available to the police. And
revelation of facts not already in the public domain is the very
definition of 'news'. (Paragraph 492)
76. The Guardian
articles did contain new information, in particular, concerning
the payments to Gordon Taylor and others and the 'for Neville'
email. This inquiry has subsequently revealed more facts, including
the pay-offs made to Clive Goodman and Glenn Mulcaire and that
they tapped the phones of the princes themselves. They also highlighted
the fact that a culture undoubtedly did exist in the newsroom
of News of the World and other newspapers at the time which
at best turned a blind eye to illegal activities such as phone-hacking
and blagging and at worst actively condoned it. We condemn this
without reservation and believe that it has done substantial damage
to the newspaper industry as a whole. (Paragraph 493)
77. We are encouraged
by the assurances that we have received that such practices are
now regarded as wholly unacceptable and will not be tolerated.
We have seen no evidence to suggest that activities of this kind
are still taking place and trust that this is indeed the case.
However, we call on the Information Commissioner, the PCC and
the industry to remain vigilant and to take swift and firm action
should any evidence emerge of such practices recurring. (Paragraph
494)
78. 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. (Paragraph
495)
Self-regulation of the Press
79. We
remain of the view that self-regulation of the press is greatly
preferable to statutory regulation, and should continue. However
for confidence to be maintained, the industry regulator must actually
effectively regulate, not just mediate. The powers of the PCC
must be enhanced, as it is toothless compared to other regulators.
(Paragraph 531)
80. We are concerned
at Sir Christopher Meyer's dismissal in such a cavalier way of
Max Mosley's lack of faith in the efficacy of the Press Complaints
Commission. The judgment in Mosley v News Group Newspapers
makes detailed criticisms of the News of the World. We
would expect the head of the Press Complaints Commission to have
been, at the very least, concerned at the evidence given and the
findings made in the Mosley judgment. (Paragraph 538)
81. It is right that
a complainant cannot both use the courts and pursue a PCC complaint
at the same time, even if this means that some choose to bypass
the PCC in favour of the courts. Indeed, if complainants were
allowed to pursue an issue in both the courts and through the
PCC it would both create an unfair burden on the newspaper industry
and potentially prejudice a court judgment. Nevertheless, in cases
where there have been clear and systematic failings by the press,
the PCC should not use court proceedings as a reason not to launch
its own inquiry. If the PCC were seen as more balanced and effective,
then it is more likely that people will wish to use its services.
(Paragraph 539)
82. We acknowledge
that the PCC itself has attempted to address the issue of ensuring
that it is seen to be independent, increasing the number of lay
members of the PCC to 10 as against seven industry members. However,
we believe that more needs to be done to enhance the credibility
of the PCC to the outside world. We recommend 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. We further recommend that there
should be lay members on the Code Committee, and that one of those
lay members should be Chairman of that Committee. In addition
to editors of newspapers and magazines, practising journalists
should be invited to serve on the PCC's Committees. (Paragraph
542)
83. If the appointment
and subsequent activities of the press members of the PCC are
not transparent, then its activities will be little understood
by the public. As a matter of best practice, information on all
appointments to the PCC, as well as any rotation or dismissal
of members, should be made available via the PCC's website as
soon they occur and contained within the PCC's Annual Report.
(Paragraph 543)
84. The failure of
the PCC to prevent or at least limit the irresponsible reporting
that surrounded the McCann and Bridgend cases has undermined the
credibility of press self-regulation. In future the Commission
must be more proactive. If there are grounds to believe that serial
breaches of the Code are occurring or are likely to occur, the
PCC must not wait for a complaint before taking action. That action
may involve making contact with those involved, issuing a public
warning or initiating an inquiry. We recommend that such action
should be mandatory once three or more members of the Commission
have indicated to the Chairman that they believe it would be in
the public interest. (Paragraph 552)
85. Whatever the true
reasons for Peter Hill's resignation from the PCC, we believe
that the fact that the Express Group did not pay subscriptions
into the self-regulatory system for a prolonged period is deplorable,
even though the PCC continued to issue judgements on articles
in Express Group papers. (Paragraph 556)
86. Even the temporary
absence of contributions from such a major newspaper group exposed
a weakness in the very principle of the self-regulatory system.
We accept that this was an exceptional case. Nevertheless, it
illustrates the need to ensure that the PCC is reliably resourced
by the industry to carry out its functions. (Paragraph 557)
87. We have concluded
that there must be some incentive for newspapers to subscribe
to the self-regulatory system. Without such an incentive for publications
to join and remain in the PCC, the system is too precarious. We
recommend that the Government 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. (Paragraph
558)
88. We welcome Peter
Hill's decision to include adherence to the PCC Code in the contract
of journalists who work at the Daily Express. We are disappointed
that our previous recommendation on this matter was not acted
on across the industry. We therefore recommend that the PCC should
mandate the inclusion of a clause requiring respect for the Code
in staff contracts of journalists of all subscribing publications.
(Paragraph 560)
89. Controversy over
the PCC's complaints activity arises in part from the manner in
which the PCC presents its complaints statistics in its annual
and biannual reports, and we recommend that the PCC should conduct
a review of this matter with a view to ensuring maximum clarity.
(Paragraph 568)
90. In particular,
contacts from members of the public which are not followed up
with the appropriate documentation should not be considered as
true complaints. Including them in headline complaints totals
(quoted frequently by both the PCC and its critics) is unhelpful
to the public and we recommend that a different formula be found
for presenting them in the statistical sections of PCC publications.
(Paragraph 569)
91. The printing of
corrections and apologies should be consistent and needs to reflect
the prominence of the first reference to the original article.
Corrections and apologies should be printed on either an earlier,
or the same, page as that first reference, although they need
not be the same size. Newspapers should notify the PCC in advance
of the proposed location and size of a correction or apology;
if the PCC indicates that the requirement for 'due prominence'
has not been fulfilled and the paper takes no remedial action,
then this non-compliance should be noted as part of the published
text of the correction or apology. We recommend that this should
be written into clause one of the PCC Code. (Paragraph 573)
92. In order to command
public confidence that its rulings are taken seriously by the
press, we believe that, in cases where a serious breach of the
Code has occurred, the PCC should have the ability to impose a
financial penalty. The industry may see giving the PCC the power
to fine as an attack on the self-regulatory system. The reverse
is true. We believe that this power would enhance the PCC's credibility
and public support. We do not accept the argument that this would
require statutory backing, if the industry is sincere about effective
self-regulation it can establish the necessary regime independently.
In the most serious of cases, the PCC should have the ultimate
power to order the suspension of printing of the offending publication
for one issue. This would not only represent a major financial
penalty, but would be a very visible demonstration of the severity
of the transgression. (Paragraph 575)
93. It is vital that
both the press and the public understand that the PCC is more
than a complaints handling body, and that it has responsibility
for upholding press standards generally. To this end, we recommend
that the PCC should be renamed the Press Complaints and Standards
Commission. Further, in order to equip it more fully to discharge
this remit, we recommend that the PCC should appoint a deputy
director for standards. It may be desirable for the person appointed
to have direct experience of the newspaper industry; we recommend
that this should be permitted. (Paragraph 576)
94. The freedom of
the press is vital to a healthy democracy; however, with such
freedom come responsibilities. The PCC has the burden of responsibility
of ensuring the public has confidence in the press and its regulation
and it still has some way to go on this. (Paragraph 577)
95. 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. (Paragraph
578)
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