Written evidence submitted by the Press
Association
INTRODUCTION
1. The Press Association (PA) is the national
news agency for Great Britain and the Republic of Ireland. It
provides a 24-hour-a-day news service to subscribers, which include
national and regional press, national and regional broadcasters,
online news services, foreign media organisations, and non-media
customers, including commercial organisations, Government departments
and political parties.
2. PA reporters cover major court hearings
in England and Wales, Scotland, Northern Ireland and Ireland.
Dedicated teams of journalists are based at the Central Criminal
Court, the Royal Courts of Justice, and at Parliament. Reporters
are based in London and in major centres across the United Kingdom,
as well as in smaller towns and cities.
3. The organisation also has a major photographic
service, with an archive reaching back over the major events of
the past century.
4. This submission is intended to cover
some, but not all, of the issues raised in the announcement of
this current inquiry made on November 18 2008. Some of the
submissions in this document will, of necessity, touch upon more
than one issue. They are also necessarily brief, given the committee's
preference for a limit on the length of submissions, but the Press
Association will expand its views should the committee wish.
Interaction between the effect of UK libel laws
and press reporting
1. It has always been known that the libel
laws have the effect of restricting what may be reported. Various
defences are available to those who publish material for public
consumption. But the fact is that the balance is weighted against
the publisher and in favour of the claimant. When a publisher
is sued for defamation, the claimant asserts that the publisher
has put before the public material which damages his reputation
in the eyes of right-thinking members of society as a result of
which he or she has suffered damage—the damage is in fact
assumed to have been suffered.
2. But at no point in a defamation case
is the claimant under any obligation to demonstrate the truth
of what he or she asserts. The publisher, editor or writer bears
the burden of having to prove, to the satisfaction of a judge
or jury, that what is being alleged is not merely true, but demonstrably
true. This point was raised recently by the United Nations Committee
on Human Rights[1]
which warned in its report that the practical application of the
libel law as it currently stands in the UK "has served to
discourage critical media reporting on matters of serious public
interest, adversely affecting the ability of scholars and journalists
to publish their work, including through the phenomenon known
as 'libel tourism'".
3. "Libel tourism" has seen foreign
businessmen and millionaires coming to the High Court in London
to sue foreign publishers. The case of an American researcher,
Dr Rachel Ehrenfeld, who was sued in London by a Saudi businessman
and his two sons over a book which was not published in the UK[2]
has led to the states of New York and Illinois passing legislation
to protect writers and publishers from the enforcement of defamation
judgments in other courts unless the courts of those states are
satisfied that the foreign courts accord the same protection for
freedom of speech as New York and US Federal law. The US Federal
legislature is now considering whether to enact similar legislation.
The effect of the legislation in New York and Illinois is to make
foreign judgments against US writers and publishers virtually
unenforceable in the courts of those states.
4. The UN Committee, on page seven of its
conclusions, went on to say at paragraph 25:
"The advent of the internet and the international
distribution of foreign media also create the danger that the
State party's unduly restrictive libel laws will affect freedom
of expression worldwide on matters of valid public interest."
5. It recommended:
"The State party should re-examine its traditional
doctrines of libel law, and consider the utility of a so-called
'public figure' exception, requiring proof by the plaintiff of
actual malice in order to go forward on actions concerning reporting
on public officials and prominent public figures, as well as limiting
the requirement that defendants reimburse a plaintiff's lawyers
(sic) fees and costs regardless of scale, including Conditional
Fee Agreements and so-called 'success fees' especially insofar
as they may have forced defendant publications to settle without
airing valid defences. The ability to resolve cases through enhanced
pleading requirements (eg, requiring a plaintiff to make some
preliminary showing of falsity and absence of ordinary journalistic
standards) might also be considered".
6. The lack of a single publication rule
has a serious effect on internet archives. The Press Association
believes the law should be reformed to introduce a single publication
rule. The current lack of such a rule means that news organisations
which run internet archives expose themselves to limitless liability
for a defamation action, as the limitation period is deemed to
re-start as soon as an article is accessed via the internet. This
dates from the case of Duke of Brunswick v Harmer.[3]
An article which allegedly defamed the Duke was published in the
Weekly Dispatch on September 19 September 1830. The limitation
period for libel at that time was six years. But 17 years
after its publication an agent of the Duke bought a back number
containing the article from the Weekly Dispatch's office. Another
copy was obtained from the British Museum. The Duke sued on those
two publications. The publisher contended that the action was
time barred, relying on the original publication date. But the
court held that delivering a copy of the newspaper to the Duke's
agent constituted a separate publication over which he could sue.
The act of defaming someone was complete by the delivery of the
copy, and its legal character was not altered "either by
the plaintiff's procurement or by the subsequent handing over
of the writing to him".
7. In Dow Jones and Co Inc v Yousef Abdul
Latif Jameel[4]
the Court of Appeal declared that the Duke of Brunswick's case
would now be struck out as an abuse of process. The then Master
of the Rolls, Lord Phillips of Worth Matravers, said (at paragraphs
54-56 of the judgment):
"An abuse of process is of concern not merely
to the parties but to the court. It is no longer the role of the
court simply to provide a level playing-field and to referee whatever
game the parties choose to play upon it. The court is concerned
to ensure that judicial and court resources are appropriately
and proportionately used in accordance with the requirements of
justice. …
"There have been two recent developments
which have rendered the court more ready to entertain a submission
that pursuit of a libel action is an abuse of process. The first
is the introduction of the new Civil Procedure Rules. Pursuit
of the overriding objective requires an approach by the court
to litigation that is both more flexible and more pro-active.
The second is the coming into effect of the Human Rights Act.
Section 6 requires the court, as a public authority, to administer
the law in a manner which is compatible with Convention rights,
insofar as it is possible to do so. Keeping a proper balance between
the Article 10 right of freedom of expression and the protection
of individual reputation must, so it seems to us, require the
court to bring to a stop as an abuse of process defamation proceedings
that are not serving the legitimate purpose of protecting the
claimant's reputation, which includes compensating the claimant
only if that reputation has been unlawfully damaged.
"We do not believe that Brunswick v Harmer
could today have survived an application to strike out for abuse
of process. The Duke himself procured the republication to his
agent of an article published many years before for the sole purpose
of bringing legal proceedings that would not be met by a plea
of limitation. If his agent read the article he is unlikely to
have thought the Duke much, if any, the worse for it and, to the
extent that he did, the Duke brought this on his own head. He
acquired a technical cause of action but we would today condemn
the entire exercise as an abuse of process".
8. In December 2002 the Law Commission
called for newspapers and other organisations which run online
archives to be given greater protection against the risk of a
libel action.[5]
It said that while the one-year limitation period for defamation
cases could cause hardship to would-be claimants, as it gave them
little time in which to prepare a case, it was also potentially
unfair to allow claimants to bring actions possibly decades after
the original publication of an article, when it would be extremely
difficult to mount an effective defence. It said: "We agree
with the Court of Appeal that online archives have a social utility,
and it would not be desirable to hinder their development".
9. It went on to suggest that consideration
could be given to adopting the single publication which applies
in the United States. Under this rule, a single edition of a newspaper
or book is considered to be "single publication", no
matter how many copies are distributed, and the limitation period
runs from the first date of publication, even if copies are available
months or years later. Courts in the United States have applied
the rule to website publications, finding in the case of a report
published at a press conference and placed on a website the same
day that the limitation period ran from the time at which the
document was put online.
10. None of the Commission's recommendations
has been implemented.
11. The attitude of the English courts to
material on the internet is a stark contrast with the attitude
to a book, for example, or even to press cuttings in a newspaper's
library. If a book is published which contains defamatory material
about Mr A, he has, under normal circumstances, one year in which
to sue for libel.[6]
If someone reads a copy of that same book three years after its
publication and brings it to Mr A's attention, he cannot then
sue for libel. If, however, the same reference to Mr A were to
be made in an article in an online archive, and were to be accessed
by someone who brought it to Mr A's attention, he could sue for
defamation on the grounds that it is a new publication.
The impact of Conditional Fee Agreements on press
freedom
12. The introduction of the Conditional
Fee Agreement (CFA) regime as part of the government's attempt
to ensure access for justice has had a seriously chilling effect
on press freedom, and the Press Association has had anecdotal
evidence that good stories have not been published because of
the risk of the newspaper being sued by a claimant operating on
a CFA. The Media Lawyers' Association recently prepared, on behalf
of a large group of media organisations, a submission for a consultation
on the CFA regime currently being conducted by the Civil Procedure
Rules Committee which warned that costs in defamation and privacy
cases and other legal actions involving publications were running
out of control. It said the CFA regime should be reformed because
it was having a seriously chilling effect on the media's right
to freedom of expression, and called for cost-capping to be mandatory
in all cases involving publication or the right to freedom of
expression under Article 10 of the European Convention on
Human Rights.
13. It warned that small media publishers
could no longer afford to fight libel actions—even in simple
cases they could face closure if they lost a case at trial—and
said that another effect of the spiralling costs was that investigative
or controversial stories were not being published. The cost of
claims was also forcing media organisations to settle cases and
retract stories where there was no editorial need to do so, it
said, adding that claimants who were genuinely worthy of censure
were winning libel claims because it was too expensive for the
media to fight them, and that costs were also invariably disproportionate
to the damages awarded.
14. An example of the way in which costs
can rise alarmingly was given by Paul Dacre, editor-in-chief at
Associated Newspapers, in a speech to the Society of Editors'
annual conference in November 2008. Mr Dacre outlined the case
of Labour MP Martyn Jones, who sued the Mail on Sunday over a
claim that he had sworn at a Commons official. He said:
"The Mail on Sunday believed it had
rock-solid witnesses and decided to fight the case. In the event,
they lost and were ordered to pay £5,000 in damages.
The MP's lawyers claimed costs of £388,000—solicitor's
costs of £68,000, plus 100% success fees, barrister's costs
of £63,000, plus 100% success fees, VAT and libel insurance
of £68,000. Associated's costs were £136,000 making
a total of £520,000 costs in a case that awarded damages
of just £5,000 in a dispute over a simple matter of
fact."
15. A further example of the way in which
costs can rise at an alarming rate is to be found in the article
by Alan Rusbridger published in the January 15 2009 edition
of the New York review of Books. Mr Rusbridger details the costs
racked up in the case, and pointed out that had the case got to
trial, the total costs would have been some £5 million,
even though the damages would undoubtedly have been extremely
modest by comparison. But it should be noted that there was no
suggestion that Carter-Ruck, Tesco's law firm, was operating in
this case on a CFA.
16. The Press Association supports all these
contentions.
Contempt of Court and the internet
17. The Contempt of Court Act 1981 is
intended to protect the integrity of the criminal justice system
by helping ensure that an accused defendant has a fair trial while
limiting the operation of the so-called "strict liability
rule" under which the media can be punished for publishing
material which creates "a substantial risk that the course
of justice in the proceedings in question will be seriously impeded
or prejudiced".
18. One difficulty with the legislation
is that it is based on the assumption that potential jurors at
a criminal trial will be influenced by what has been published
in the print media or broadcast by radio or television stations,
and that the allegedly prejudicial effect of that publication
will remain with the jurors throughout the proceedings. These
is no evidence to support this assumption, as no research has
been carried out in this country to investigate what, if any,
effect media reporting of trials might have or has had on potential
jurors.
19. This point was recognised in May 2007 by
the then Attorney General, Lord Goldsmith QC, who told the Reform
Club Media Group in a speech that the government should conduct
research into the effects pre-trial media publicity had on jurors,
and should also consider ways in which it could give the public
more information in criminal cases in which there was a strong
public interest such as terrorism investigations.
20. The assumption is that media publicity
will have such an effect on jurors or potential jurors that they
will be more influenced in reaching a verdict by what they might
have read in a newspaper weeks or months before a trial than they
will by seeing and examining the evidence and hearing the arguments
and submissions of prosecuting and defence counsel. Members of
the Committee might care to ask themselves if they believe that
this assumption can be applied to the people they know and with
whom they deal—and, if it cannot, why it should be applied
to all other potential jurors.
21. The Court of Appeal has made plain its
belief in the robustness of jurors. In R v B[7]—a
case involving reporting restrictions on the sentencing hearing
for self-confessed terrorist Dhiren Barot, who plotted to set
out a radioactive device in central London, among other things—the
Court of Appeal said (a paragraphs 31 and 32 of the
judgment):
"There is a feature of our trial system
which is sometimes overlooked or taken for granted. The collective
experience of this constitution as well as the previous constitution
of the court, both when we were in practice at the Bar and judicially,
has demonstrated to us time and time again, that juries up and
down the country have a passionate and profound belief in, and
a commitment to, the right of a defendant to be given a fair trial.
They know that it is integral to their responsibility. It is,
when all is said and done, their birthright; it is shared by each
one of them with the defendant. They guard it faithfully. The
integrity of the jury is an essential feature of our trial process.
Juries follow the directions which the judge will give them to
focus exclusively on the evidence and to ignore anything they
may have heard or read out of court. No doubt in this case Butterfield
J will give appropriate directions, tailor-made to the individual
facts in the light of any trial post the sentencing hearing, after
hearing submissions from counsel for the defendants. We cannot
too strongly emphasise that the jury will follow them, not only
because they will loyally abide by the directions of law which
they will be given by the judge, but also because the directions
themselves will appeal directly to their own instinctive and fundamental
belief in the need for the trial process to be fair.
"In this case there are at least two safeguards
against the risks to which our attention has been directed. There
is the responsibility of the media to avoid inappropriate comment
which may interfere with the due administration of justice in
this case and there is the entire trial process, including the
integrity of the jury itself."
22. Despite this, courts continue to make
orders prohibiting the publication of reports of criminal trials
because a defendant faces another trial in the future.
23. In addition, in at least one case, a
court has expressed the view that failing to remove what defence
counsel have claimed to be prejudicial material from a newspaper
archive would be viewed as a contempt—even though the court
has no power to order the removal of such material. Further details
cannot be given because the case is covered by reporting restrictions.
24. The development of the internet has
left the courts flat-footed in their approach to the information
age. Instead of concerning themselves with how they can persuade
jurors to avoid material on the internet, or to ignore it if they
see it, they concentrate on trying to stop the flow of information
to the public at large. In the recent trial of Peter Tobin for
the murder of schoolgirl Vicky Hamilton, the court heard serious
concerns voiced by defence counsel Donald Findlay QC, who described
the Wikipedia entry on Tobin as being "on the face of it,
the most blatant contempt of court I have seen in my entire career".
Wikipedia is based in and run from San Francisco. It was the decision
of a Wikipedia user that the relevant page should be taken down
for the duration of the trial[8]—but
the court itself would have had no right to order the removal
of the material, and could have done nothing to stop jurors accessing
it if they wished except by telling jurors not to do so. In addition,
Tobin was convicted in 2007 of the murder of a Polish girl,
Angelika Kluk, and it is stretching credibility to believe that
jurors at the Vicky Hamilton murder trial would not already have
known at least something of Tobin's past. This would be only reasonable,
first because the jury has to deal with the whole person of the
defendant, and second because the only way of ensuring that they
had no knowledge of a defendant would be to pick jurors who were
totally isolated from the modern world.
25. The State of Victoria in Australia has
taken a different route. It recently passed a law which forbids
jurors, and members of jury panels, from doing their own research,
which includes research on the internet, into any case on which
they are sitting. The penalty for any juror or panel member found
to have conducted internet searches or other investigations is
a fine of up to 13,214 Australian dollars—about £5,140.
The new law, introduced in the Victoria's Courts Legislation Amendment
(Juries and Others Matters) Act 2008, came into effect in September.
Victoria Deputy Premier and Attorney-General Rob Hulls said the
ban on inquiries by jurors was necessary to ensure that verdicts
at trials were reached on the basis of the evidence seen and heard
in court, and that there had been retrials in New South Wales
as a result of undirected juror investigations.
The effect of the European Convention on Human
Rights on the courts' view of the tension between personal privacy
and press freedom—and the balance between the two
26. The attitude of the courts on this issue
is largely derived from the decision of the European Court of
Human Rights (ECtHR) in the Princess Caroline case.[9]
The ECtHR held that Germany failed to give Princess Caroline sufficient
protection for her private life because she was unable to obtain
a remedy under German law for having been photographed in magazines
while engaging in a number of anodyne activities.
27. The decision, reached by a Chamber of
the Court, stressed the importance of a free press but then went
on to tilt the balance away from a free press and towards the
personal privacy of Princess Caroline. The court rejected Germany's
argument that she was a public figure, and said there was no justification
for photographing her while she was doing things such as shopping
or riding a bicycle. She was doing these things as a private person,
and was not performing any formal function. To some extent, it
may be said that the court's reasoning allows any public figure
to decide that they do not wish to be pictured (or possibly written
about) not merely in situations in which they seek privacy, but
also in those in which they might be in public, but might be in
a condition about which they would rather the public did not know.
28. The reasoning of the ECtHR placed political
free speech at the top of the league table in importance—politicians
had to expect to be subject to scrutiny because of their position
in public life. But it also effectively discounted the idea that
people are, or do become, role models for others. Footballers
are often seen as role models, particularly by young people, who
seek to emulate their skills, and may well view other activities
in which they indulge as being normal, possibly even desirable,
behaviour for people who achieve such a position. The same applies
to many others, including celebrities, whose behaviour is seen
as being in some way as exemplary. But the Convention could become
a hypocrite's charter for all those apart from politicians who
indulge in hypocrisy, dishonesty, or questionable dealings.
29. The danger for the UK is that if the
courts continue to follow the line of reasoning now being pursued
by the ECtHR, it will at some time or other be difficult, if not
impossible, for the press to write about anyone who is not a politician
or engaged in some form of political activity or discourse. But
life is about much more than politics—and the way the balance
is swinging so far in favour of personal privacy threatens to
rob the media of their ability to reflect and report on many elements
of the modern world.
30. A stark example of the way in which
the balance is moving against the press, and against freedom of
expression can be seen in the decision by Mr Justice Stephens
in the Queen's Bench Division of the High Court in Northern Ireland
to make permanent an injunction banning the Sunday Life newspaper
in Belfast from publishing any unpixellated picture of Kenneth
Callaghan, who was convicted of the rape and murder in October
1987 of 21-year-old Carol Goudie.[10]
He broke into her house before she arrived home from work, attacked
her when she got home, then placed a cushion cover over her head—to
disguise the fact that she was not the girlfriend who had recently
ended their relationship—and raped Ms Goudie as she lay
dying or when she was in fact dead.
31. Sunday Life has been running a campaign
to raise public awareness of the fact that people convicted of
serious offences and sentenced to life terms are being released
on to the streets of Northern Ireland.
32. In his order Mr Justice Stephens also
banned the newspaper from giving a number of details about Callaghan.
But he also acceded to an application from the Northern Ireland
Office to issue a blanket ban on Independent News and Media, publisher
of Sunday Life and of the Belfast Telegraph, from publishing a
photograph of any current serving prisoner who is attending or
has attended its Prisoner Assessment Unit in Belfast without first
giving the Northern Ireland Office 48 hours' notice of its
intention. The order amounts to a blanket ban on any newspaper
publishing any picture of a prisoner who is at the assessment
centre without the consent of the Northern Ireland Office.
Should financial penalties for libel or invasion
or privacy, applied either by the courts or by a self-regulatory
body, be exemplary rather than compensatory?
33. No. The Press Complaints Commission
does not impose financial penalties, and the Press Association
would not support its having the ability to do so. It is important
to remember that the press in this country consists not merely
of national newspapers, but also of more than 1,200 regional
and local newspapers, many of which are already facing serious
problems because of shrinking markets and the current economic
situation. Adding the risk of exemplary penalties for invasion
of privacy will merely ensure that they will reduce coverage,
or stop coverage completely, of any story which could lead to
a complaint that they have invaded someone's privacy.
34. There is no need to impose exemplary
penalties for defamation or alleged invasion of privacy. An action
for defamation is aimed at vindicating the claimant's reputation,
and the damages awarded are considered to be sufficient compensation.
Many might argue that such damages over-compensate, given the
levels of compensation normally paid in relation to serious physical
injury suffered in a road accident, for example. The costs which
normally accompany any libel action are already seriously disproportionate,
and can be grossly inflated by the addition of a "success
fee" if the winning claimant's solicitor is on a CFA. Adding
an exemplary element to such damages would simply produce an even
greater chilling effect on the freedom of the press, and its ability
and willingness to report the stories which are of greatest public
importance and interest, as these are also the ones which carry
the greatest risk of provoking a defamation action.
January 2009
1 See: Human Rights Committee, 93rd Session, Geneva,
July 7-25, 2008. Back
2
Neutral Citation Number: [2005] EWHC 1156 (QB). In total,
some 23 copies of the book were sold into the UK via the
internet. The first chapter of the book was available on the internet. Back
3
(1849) 14 QB 185 Back
4
[2005] QB 946; [2005] EMLR 16; The Times, February 14,
2005; The Independent, February 10, 2005 Back
5
Law Commission, Defamation and the Internet, Scoping Study No
2, December 2002 Back
6
The limitation period may be extended at the court's discretion. Back
7
(2007) EMLR 5: (2007) HRLR 1: (2007) UKHRR 577: Times,
November 6, 2006 Back
8
The Wikipedia entry on Peter Tobin, with a discussion on why the
page was taken down for a time is at http://en.wikipedia.org/wiki/Peter_Tobin
Back
9
2004, Application no. 59320/00; [2004] EMLR 21 ECHR Back
10
The judgment is available online at http://www.courtsni.gov.uk/NR/rdonlyres/E9B5FD23-CA51-43BC-AD4B-D8BC2CEC48F2/0/j_j_STE7313Final.htm Back
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