Written evidence submitted by The Campaign
for Press and Broadcasting Freedom (CPBF)
The CPBF was established in 1979. It is the
leading independent membership organisation dealing with questions
of freedom, diversity and accountability in the UK media. It is
membership-based, drawing its support from individuals, trade
unions and community-based organisations. Since it was established,
it has consistently developed policies designed to encourage a
more pluralistic media in the UK and has regularly intervened
in the public and political debate over the future of press regulation
in the United Kingdom.
1. The Committee has sought views on a large
number of interesting questions. However, the CPBF would like
to concentrate mainly on responding to those pertaining to the
European Convention on Human Rights and its impact upon both privacy
and press freedom. However, our answers to these questions will
also lead us to respond briefly to the questions posed by the
Committee about the role of the PCC in certain recent high-profile
cases.
2. Although the Human Rights Act 1998 (HRA)
was trumpeted by the government as "bringing rights home",
the plain and simple fact is that free speech as a right never
had a home in Britain until given one by Article 10 of the
European Convention on Human Rights (ECHR), which the HRA finally
introduced into British law. Of course, Article 10 is by
no means absolute; under certain circumstances prescribed by Article
10(2) governments may introduce restrictions on freedom of expression;
furthermore, occasions may arise when Article 10 has to be
balanced against other rights, in particular Article 8 which,
under certain circumstances, establishes a limited right to privacy
from media intrusion. However, not only has Convention jurisprudence
established that when such balancing acts take place, there is
a clear presumption in favour of Article 10, but when the HRA
was debated in Parliament, a clause was inserted By Lord Wakeham,
then chairman of the Press Complaints Commission, which laid down
that in any case brought against the media, the court must have
particular regard to the importance of the right to freedom of
expression, and, in the case of "journalistic, literary or
artistic material", to 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". The clause also laid down that the court
must also have particular regard to "any relevant privacy
code", which would of course include the Press Complaints
Commission's Code of Practice.
2.1 It is therefore immediately obvious
that neither the ECHR nor the HRA establishes a right to privacy
in the manner suggested by many newspapers and by editors such
as Paul Dacre. However, it is precisely because they do fear that
it establishes such a right (and also because they loathe anything
contaminated by "Europe") that most British newspapers
have, from the very start, expressed such resolute hostility to
the Act—although rarely have they been as honest about their
motives as Dacre, preferring instead to invent and propagate myths
about the HRA being a charter for terrorists, hijackers and freeloaders.
In so doing, they have played the central role in creating the
bizarre situation in which, apparently, the majority of the inhabitants
of a democracy have come to believe that "human rights"
are dirty words. Indeed, as early as early as 1999, the anti-human
rights clamour from most of the national press had become so deafening
that a bemused Hugo Young felt moved to write in the Guardian:
"Unembarrassed by the fact that the Human Rights Bill is
a general law, applying to every citizen in his or her relationship
with state authority, [newspapers] demand that the press be treated
differently … They propose that the press, alone
among institutions with public functions, should stand above international
human rights law". Indeed, one might go further and ask whether
newspapers which are fundamentally hostile to a measure which
for the first time in British history has established a statutory
right to freedom of expression, deserve seriously to be considered
members of the "Fourth Estate" as the term is generally
understood.
2.2 In answer to the Committee's question,
we would therefore argue 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.
3. Lord Wakeham's amendment to the HRA was
particularly important in that it is one of those much-needed
measures which has helped to introduce a long-overdue public interest
defence into cases involving the media. Again, this aspect of
the HRA, like Article 10, serves only to enhance the protection
offered by the law to serious journalism. And thanks to the Law
Lords in the cases of Reynolds and Jameel, we now have a comprehensive
and authoritative account of what actually constitutes the public
interest as far as media content is concerned. (In comparison,
the account given of the public interest in the PCC Code is scrappy
and superficial).
3.1 In his speech to the Society of Editors
conference, 9 November 2008, Paul Dacre addressed this question
by arguing that "if mass-circulation newspapers, which, of
course, also devote considerable space to reporting and analysis
of public affairs, don't have the freedom to write about scandal,
I doubt whether they will retain their mass circulations with
the obvious worrying implications for the democratic process … If
the News of the World can't carry such stories as the Mosley
orgy, then it, and its political reportage and analysis, will
eventually probably die". This is an approach which was also
taken by Lord Woolf in 2002 in the appeal court judgement
in the case involving the footballer Gary Flitcroft, and by Baroness
Hale when the Naomi Campbell case reached the House of Lords in
2004. However, it is not one which has generally found favour
with the judiciary, and in our view it is seriously flawed.
3.2 Firstly, we would seriously question
the extent to which papers such as the News of the World and
other such tabloids, which are the main offenders in the matter
of invasion of privacy, do actually carry serious political reportage
and analysis. Second, whilst it may indeed be the case that the
middle-market tabloids the Express and the Mail,
who are also offenders in this area, carry a certain amount of
political reportage and analysis, it is our view that this so
coloured by those papers' editorial lines that it is all too frequently
quite impossible to tell fact from comment (and indeed from fiction);
it thus not at all clear to us that this can be considered as
serious journalism. Newspapers such as The Times and Guardian
quite clearly do contain a great deal of serious journalism, which
thus may avail itself of the public interest defence if necessary,
and this manages to survive without being "subsidised"
by scandal-mongering elsewhere in the paper. If popular British
newspapers wish to turn themselves into entertainment-based, celebrity-driven
scandal sheets then that is entirely their decision, but they
cannot then expect the legal protection now offered to serious
journalism which operates in the public interest—into which
category no reasonable person would claim for one moment that
the Max Mosley story falls. Nor, incidentally, can we see any
reason why newspapers which fulfil no serious public purposes
should be exempt from VAT.
3.3 In answer to the Committee's question,
therefore, we would firmly argue that in the light of recent
court rulings, the balance between press freedom and personal
privacy is the right one.
4. An excellent example of certain newspapers'
inability to distinguish fact from comment is in fact provided
by their coverage of human rights issues. Thus, after the Max
Mosley case, News of the World editor Colin Myler complained
vociferously that "our press is less free today after another
judgement based on privacy laws emanating from Europe. How those
very general laws should work in practice has never been debated
in the UK parliament. English judges are left to apply those laws
to individual cases here using guidance from judges in Strasbourg
who are unfriendly to freedom of expression. The result is that
our media are being strangled by stealth". It has also long
been customary for certain newspapers to refer to judges as "dictators
in wigs". This is a particular speciality of the Mail,
and it was thus not surprising to find Paul Dacre repeatedly taking
this line in his above-mentioned speech. For example, he argued
that "this law [privacy] is not coming from Parliament—no,
that would smack of democracy—but from the arrogant and
amoral judgements—words I use very deliberately—of
one man". This was the unfortunate Justice Eady, described
by Dacre as possessing "awesome powers" which enable
him to "bring in a privacy law by the back door" and
"with a stroke of his pen". He was also echoed in these
sentiments by Graham Dudman, managing editor of the Sun,
who told the Today programme: "Parliament has not
made these decisions, one man has". This is quite simply
juridical and constitutional illiteracy. Journalism courses accredited
by the National Council for the Training of Journalists spend
a great deal of time teaching the fundamentals of law and public
administration to their students, and it is frankly extraordinary
to find editors of national newspapers spouting arrant nonsense
which would disgrace a first year student on such a course.
4.1 The HRA strode in straight through the
front door of Parliament, and is a quite decidedly British piece
of legislation. As the Chief Justice Lord Woolf has made perfectly
clear, UK law now includes the Human Rights Act, and judges are
simply ensuring that the laws made by Parliament are upheld. Parliament
makes the law, the Executive ensures that it is carried out under
law, and the judiciary interprets and applies the law. By enacting
the Human Rights Act, Parliament required the courts to interpret
and apply both statute law and common law compatibly with the
rights and freedoms protected by the European Convention. To argue
that the courts are exceeding their authority in this matter,
or that we are seeing a "wholesale erosion of Parliamentary
sovereignty", simply beggars belief. In the real world and
not that of Dacre's fevered imaginings, the Act simply requires
the courts to interpret legislation in a way compatible with Convention
rights. The courts thus develop law in line with the Convention.
In the case of legislation which they deem incompatible with Convention
rights, all they can do is to issue a declaration of incompatibility
and leave it up to Parliament to amend the legislation accordingly.
4.2 These are such obvious and fundamental
points that they should not need stressing. However, the waters
have been so thoroughly muddied by Dacre, Coulson and their ilk
that we think it worth reproducing part of a letter to The
Times, 11 November 2008, signed by the QCs Desmond Browne,
Andrew Caldecott, Adrienne Page and Richard Rampton in which they
state that: "The suggestion that Mr Justice Eady is conducting
a one-man mission to create a law of privacy, thereby circumventing
the function of Parliament, does not bear proper examination.
Firstly, the Judge was applying the law as Parliament intended.
The Human Rights Act requires the English courts to recognise
European Convention rights, including the right to respect for
private and family life. Indeed, Parliament expressly made it
unlawful for a court to act in a way which is incompatible with
a Convention right. The task of the Court is to resolve the tension
between personal privacy and freedom of expression, an area where
there are no absolutes. In weighing these rights the public interest
will always ensure that the corrupt and crooked will not "sleep
easily in their beds". Mr Dacre may well prefer an era when
freedom of expression did not have to take account of privacy
rights, but Parliament has decided the contrary. Secondly, the
decisions of Mr Justice Eady (like those of the many trial judges
who have decided privacy cases) are subject to three levels of
review: the Court of Appeal, the House of Lords and ultimately
the European Court of Human Rights. In the cases cited by Mr Dacre,
the Judge was doing no more than applying the law, as he was bound
to do, developed by the House of Lords in the Naomi Campbell
case and the European Court of Human Rights in the case of Princess
Caroline".
4.3 There are yet further factual flaws
in Dacre's attack on Justice Eady. Firstly, he does not have a
"virtual monopoly" on privacy cases; for example, he
was not involved in the Naomi Campbell, JK Rowling or Prince
of Wales cases, all of which have contributed to the development
of privacy law. Second, in the case of Lowe v Associated Newspapers
(2006), Justice Eady actually strengthened the defence of fair
comment which is available in defamation cases: ironically this
involved a paper of which Dacre is Editor-in-Chief. Third, he
has strongly promoted the statutory offer of amends procedure,
which has been very widely adopted by media defendants as a means
to settle libel complaints speedily and economically.
4.4 Given the increasing frequency with
which newspapers, and especially the Mail, mount personal
attacks on named judges, we strongly recommend the ending of
the convention by which judges do not respond publicly to such
attacks, and urge senior members of the judiciary to make official
judicial responses to these attacks in future.
5. In the light of Dacre's animus against
the judiciary, we wonder whether he would like to see a return
to the situation of the late 1980s when juries, revolted by the
sensationalist antics of the popular press, awarded massive damages
against offending newspapers. This finally resulted in juries
being given judicial guidance about the size of the damages to
be awarded in particular cases, and in the Court of Appeal acquiring
the power to substitute its own awards in place of those which
it considered excessive. We seem to remember these measures being
strongly supported by the press—the selfsame press which
now complains about the "excessive" power of judges.
5.1 Whatever the case, however, and in answer
to the Committee's question, we would strongly argue that financial
penalties for libel or invasion of privacy applied either by the
courts or a self-regulatory body, should be exemplary rather than
compensatory. We would also argue that the courts or a self-regulatory
body should be empowered to ensure that the award of any such
damages be carried with due prominence in the offending newspaper(s).
5.2 As the Campaign for Press and Broadcasting
Freedom we firmly believe in the "publish and be damned"
principle—in other words, newspapers should be free to publish
what they will, but also free to take the consequences. The consequences,
however, have to be meaningful ones. In our view, given the enormity
of the offences committed by various newspapers, the awards of
£60,000 to Max Mosley, and, in the McCann and McCann-related
cases, of £550,000 to the McCanns themselves, of £375,000 to
the so-called "Tapas Seven", and of £800,000 to
Robert Murat, Michaela Walzuch and Sergey Malinka, were nothing
less than derisory. Given the incomes of the papers in question,
and, more particularly, given the increases in sales which
these stories generated, these damages (and the associated
costs) were little more than pinpricks and were no doubt simply
laughed off by the editors concerned. Significantly, the News
of the World 's response to its defeat at the hands of Mosley
was to run a full page advertisement in the Press Gazette featuring
a woman in a basque over which was superimposed the word "Domination".
The advertisement was headed "Mosley's not the only one getting
a spanking" and boasted that "we've been beating our
rivals for 165 years".
5.3 At the very least, then, damages should
be fixed at a level which ensures that no paper can actually profit
from running a story which is later shown to have broken the law.
This means that damages have to be computed, in part, in terms
of sales figures and associated advertising revenue. But this
ensures merely that newspapers cannot profit from their crimes.
Computing the exemplary aspects of damages is considerably more
difficult, but, when doing so, it should be borne in mind that
(a) popular newspapers routinely insist that those breaking the
law should be publicly "named and shamed", and that
their sentences should be primarily punitive and retributive;
and (b) that the vast majority of the British press vociferously
supported the "sequestration" of the assets of those
unions which broke industrial relations law in the 1980s. Admittedly
the British press routinely acts as though its endless strictures
apply to everything except newspapers, but in our view what's
sauce for the goose ….
6. At 5.1 above there is mention of a "self-regulatory
body", and this is clearly a reference to the PCC. However,
we have not the slightest doubt that the PCC as presently constituted
would never dream of levying financial penalties on newspapers
which infringed its Code and/or the law. As we have argued in
earlier submissions to this Committee, were the PCC to become
a regulator with real teeth, the newspaper industry would simply
cease forthwith to finance it. Indeed, one of the most striking
things about both the McCann, McCann-related and Mosley cases
has been the almost complete invisibility of the PCC—an
invisibility which springs from the fact that none of those who
were libelled or whose privacy was infringed thought the PCC remotely
worth bothering with, a judgement with which we would heartily
concur. Even so, one might have expected the PCC to institute
some kind of retrospective enquiry or inquest into the McCann
and McCann-related cases which, between them, involved every
single popular national daily newspaper published in Britain.
But no. Absolute silence.
6.1 Furthermore, the Executive Editor of
the News of the World, Neil Wallis, sits on the PCC Code
of Practice Committee, and this is chaired by Paul Dacre. This
illustrates all too clearly why the PCC is part of the problem
and not part of the solution when it comes to the questions raised
by this Committee. The PCC cannot act effectively on these matters—even
if it wanted or knew how to—because it is financially and
organisationally beholden to the very newspapers which repeatedly
insist on infringing the law, abusing the judiciary and trashing
the European Convention on Human Rights and the Human Rights Act
1998. Thus since the PCC is congenitally incapable of constructing
and enforcing a satisfactory code on privacy, and governments
are far too terrified of being monstered by the press even to
contemplate formulating a privacy law, the only option is to allow
the courts to do so in ways which are fully compatible with the
ECHR and HRA and which thus give adequate protection to freedom
of expression. We thus conclude in answer to the Committee's
questions that news organisations have made no changes whatsoever
in the light of the McCann and McCann-related cases, and that
the successful libel actions against the Express and other
papers arising out of these cases indicate a near-fatal weakness
with the self-regulatory regime of the PCC.
January 2009
|
