Written evidence submitted by News International
Ltd
1. This response is made on behalf of News
International Ltd, whose subsidiaries publish The Sun, The
Times, News of the World, The Sunday Times, and thelondonpaper.
EXECUTIVE SUMMARY
2. News International welcomes the opportunity
to contribute to the current inquiry into press standards, privacy
and libel. It comes at a critical time when the industry faces
both severe commercial challenges and challenges to press freedom.
3. Last year alone, hundreds of editorial jobs
were cut across the industry as publishing businesses faced with
the challenges of the digital revolution had to cope with the
additional difficulty of rapidly shrinking advertising markets.
4. On top of this, a series of privacy rulings,
culminating in the judgment by Mr Justice Eady in the case of
Mosley vs News Group Newspapers Ltd, have dangerously tipped the
balance away from press freedom.
5. The same publishing businesses that are
finding their reporting freedoms restricted and their commercial
basis endangered have been pushed further towards the edge by
the iniquitous system of Conditional Fee Arrangements—originally
intended to provide access to justice for those who could not
afford it, the system instead has been widely used by wealthy
complainants and lawyers charging exorbitant fees. Newspaper publishers
have often been left with little choice but to settle complaints,
even where they believe they have a strong defence.
6. Against this background, the Press Complaints
Commission has continued to operate a first class service for
the public. The Committee should not recommend any measure that
would undermine self-regulation.
7. As Lord Bingham said in McCartan,
Turkington Breen vs Times Newspapers Ltd, the press are "the
eyes and ears of the public to whom they report". It is essential
to the proper functioning of a democracy that we should maintain
a healthy, commercially viable press.
8. With this in mind, we have made a number
of constructive proposals which we believe address some of the
urgent problems facing the press today.
THE MCCANN
CASE AND
THE PRESS
COMPLAINTS COMMISSION
9. When a child goes missing, the press
and the media play a vital role in helping to raise publicity
and aid the search. The McCanns recognised this and were proactive
in keeping the story at the top of the news agenda. However, the
circumstances of their case were rare, if not unique. The combination
of factors that were relevant to the way the media in general
responded included: that the events took place abroad; that the
local police had issued a blanket ban on media coverage; that
at the same time the local police were leaking information to
the local press; that the case had attracted massive public interest
in this country and was therefore rightly being followed closely
by all of the media, that the hunt for Madeleine went on for so
long and that there was a lengthy time lag before any of the published
stories were challenged.
10. The fact that the McCanns chose to pursue
complaints against the Express Group titles through the courts
does not, in our view, have any bearing either way on the system
of self-regulation. The Editors' Code does not replicate or compete
with the law of libel. It is quite separate and distinct and deals
with accuracy, not "reducing people's reputations in the
eyes of right thinking people".
11. In any case, it is hard to see where
and when the PCC could have intervened. An enormous amount of
factual material was being put out for publication by those involved.
No formal complaint was made to the PCC by the McCanns or any
other party. And, in the circumstances of an ongoing police investigation,
how could the PCC take unrelated action to intervene?
12. News International strongly supports
the system of press self-regulation administered by the PCC. It
has proved itself robust and adaptable. The Code continues to
evolve and the remit of the PCC itself has expanded to meet the
challenges of the digital age.
13. At News International, our commitment
is demonstrated by the in-house training we provide for our journalists.
Not only is the Code of Practice in all our journalists and editors'
contracts, but our titles regularly run training/revision programmes
on a wide number of editorial issues. This ensures that everyone
contributing to our papers is clear about the meaning and intention
of the Code and the wider legal framework within which we operate.
In addition, senior editorial staff check any PCC-related issues
and advise the editors to make any changes in coverage to make
sure we meet code requirements.
14. In spite of this, we acknowledge that
sometimes mistakes are made. But as Lord Nicholls observed in
Reynolds v Times Newspapers Ltd 2001: "Historically
the common law has set much store by the protection of reputation
... There must be exceptions. At times people must be able to
speak and write freely, uninhibited by the prospect of being sued
for damages should they be mistaken or misinformed. In the wider
public interest, protection of reputation must then give way to
a higher priority." In this case the "higher priority"
was trying to find Madeleine or the person responsible for her
abduction. Given what the House of Lords has said about "higher
priorities", in this increasingly fast-paced, highly competitive
media world, self-regulation is the best tool for ensuring that
standards are upheld.
15. At the end of its last inquiry into
press self regulation in 2007, the Culture, Media & Sport
Select Committee concluded: "We do not believe that there
is a case for a statutory regulator for the press, which would
represent a very dangerous interference with the freedom of the
press. We continue to believe that statutory regulation of the
press is a hallmark of authoritarianism and risks undermining
democracy. We recommend that self regulation should be retained
for the press, while recognising that it must be seen to be effective
if calls for statutory intervention are to be resisted".
16. These conclusions remain valid today.
THE INTERACTION
BETWEEN THE
OPERATION AND
EFFECT OF
UK LIBEL LAWS
AND PRESS
REPORTING
17. English libel law has traditionally
given disproportionate protection to an individual's reputation,
at the expense of the right of the media to be "the eyes
and ears of the public to whom they report" (Lord Bingham).
While the Reynolds, "public interest" and "responsible
journalism" defence has had new life breathed into it following
the decision of the House of Lords in Jameel v Wall Street
Journal Europe (No 2) (HL) 2006, UK law is still heavily weighted
in favour of a claimant. This is because a claimant is presumed
to have an unblemished reputation and the words are presumed to
be false until proven otherwise. In effect, the newspaper is presumed
guilty until it has proven its innocence.
18. Because UK libel laws are so favourable
to claimants, London has become the libel capital of the Western
World and US courts have begun to refuse to enforce UK libel judgments
because they regard UK libel law as an unjust and unconstitutional
restraint on free speech. US courts particularly object to the
UK principle that the burden of proof falls on the defendant (see
above) rather than on the claimant who is seeking monetary compensation.
19. "Libel tourism" is therefore
a serious problem, which is now made possible with electronic
internet publication across borders and actions are brought in
the UK at considerable expense to taxpayers even though there
has been minimal publication in this jurisdiction.
20. The following reforms to our current
libel laws are therefore urgently needed if the UK is not to be
found in breach of the European Convention on Human Rights and
taxpayers are not to be asked to fund the cost of expensive libel
actions over here which involve celebrities outside the jurisdiction
but with a cause of action in the UK, such as Jameel (above) and
Loutchansky (below):
(i) In an age of electronic communications, there
is no effective limitation period (the one year period in which
a claim has to be brought against a publisher of defamatory material)
for articles retained on electronic databases, particularly where
they can be accessed years after they were first placed on a website.
Quite extraordinarily in a modern electronic age the UK courts
are bound by an 1849 judgment, Duke of Brunswick v Harmer,
in which the Duke sent out his manservant to buy a back issue
of a newspaper which he had overlooked some 17 years previously.
By selling a back copy of the newspaper, there was a second publication
of the defamatory article. This gave the Duke a "new cause
of action" and he was able to sue for libel 17 years after
the article had first appeared. Nowadays, anyone accessing a newspaper,
magazine or television website containing archival material can
cause the republication of a defamatory article and thus create
a new cause of action without the publisher having done anything
to actually "cause" that publication.
This anomaly has been pointed out to the Government
but the Ministry of Justice still has not drawn up proposals for
a Single Publication Rule, like they have in the United States,
where there is a rule that the publication of an electronic article
takes place when it is downloaded to a website not when the article
is accessed, what may be years later by a member of the
public. This point has been taken to the European Court of Human
Rights by Times Newspapers Ltd, an NI subsidiary, following its
libel action with Grigori Loutchansky, a Russian oligarch who
had sued over here even though he had been refused entry into
the UK by two Home Secretaries for being a "mafia" boss.
The ECtHR has already declared this application by Times Newspapers
to be "admissible" and prima facie an interference
with free speech under Article 10 of the ECHR in the UK. However,
the UK Government has still done nothing to sort out this unnecessary
and disproportionate restraint on free speech and a final ruling
by the ECtHR is expected next year, 2009.
(ii) Under UK law, libel actions are still for
the most part tried by juries, which is a constitutional right
under s. 69 of the Supreme Court Act 1981. This is an anomaly
because jury trials in personal injury actions were abolished
many years ago and trial by judge alone is the norm in all other
tortious claims. Many claimant lawyers therefore refuse what may
be a perfectly sensible and reasonable offer by a media defendant
to have the question of the "meaning" of an article,
which can lie at the heart of a libel action, referred to independent
and speedy arbitration by a judge or libel silk and two lay assessors
(see Times Newspapers' Fast Track Arbitration Scheme—copy
attached as Appendix 1). Solicitors acting for a wealthy claimant
often insist on their client having a statutory right to put their
case to a jury—at tax payers' expense—many years later
and after huge legal costs may have been run up on both sides.
This makes no sense, when resolving the meaning of an article
in the first month of a libel action could lead to the speedy
settlement of many libel actions. Section 69 of the Supreme Court
Act should therefore be amended so that libel claimants do not
have an automatic prima facie right to jury trial, particularly
where the key issue is one of meaning which should be decided
at the beginning of a case by a judge or preferably by a judge
with two lay assessors under section 70 of the Supreme Court Act.
(iii) Under present High Court rules, it is impossible
to "order" the parties to a libel action to go to binding
arbitration on the meaning of an article even though this is likely
to lead to speedy resolution of many libel claims. Often the key
issue will be whether the article actually accused the Claimant
of "being a terrorist" (a Chase level 1 meaning) or
"there being reasonable grounds to believe that the Claimant
might be a terrorist" (a Chase level 2 meaning) or "that
there might be grounds to investigate the Claimant" (a Chase
level 3 meaning). A provision should therefore be inserted into
the Civil Procedure Rules of the High Court under which parties
could be "ordered", in appropriate cases, to go to binding
arbitration on any sensible issue such as the meaning of an article
or the quantum of damages if an offer of amends has been made.
The parties could agree the form of arbitration but if there was
no agreement the judge could order it to be done by a judge alone
as a preliminary issue or by a libel silk with two lay assessors
to reflect a wider divergence of opinion on the reading of an
article in a borderline case.
THE IMPACT
OF CONDITIONAL
FEE AGREEMENTS
ON PRESS
FREEDOM
21. Conditional Fee Agreements (CFAs) or
"no-win, no-fee" agreements were brought in as an alternative
to civil legal aid and to make justice accessible to the less
well off. However, CFAs allow solicitors and barristers operating
under them to double their fees if they are successful (the uplift
or success fee) and reclaim what may be a huge insurance premium
(ATE cover), even though it will never have been paid, from a
losing defendant. If the claimant does not have insurance and
is impecunious, a media defendant is in a "no win" situation.
It will have to pay a huge amount to defend the action but with
no hope of recovering its costs even if it wins the case; if it
loses, it will not only have to pay its own lawyers but also damages
and on top of that the claimants lawyers' fees with what may be
a 100% uplift and what could be a huge insurance premium. As Lord
Justice Brooke said in Adam Musa King v Telegraph Group Limited
[2004] EWCA (Civ) 613, paragraph 90:
"It is not at all clear whether Parliament
ever turned its mind to the consequences of defamation actions
being conducted under a CFA without any ATE cover, or to the ECHR
considerations that were of such concern to Eady J and Gray J
..."
22. In Callery v Gray (Nos 1 and 2) [2002]
Lord Bingham had already recognised that this new funding regime
"was obviously open to abuse in a number of ways". He
listed "excessive base costs" of claimant lawyers and
"uplifts" bearing no relation to the risk in taking
on an action. In Campbell v MGN Ltd 2005, Lord Hoffmann
identified a further abuse which he referred to as the "blackmail
effect" of CFAs in publication proceedings. Lord Justice
Brooke neatly identified the inequity of CFAs in publication proceedings
as follows: "it cannot be just to submit a defendant in these
cases, where their right to freedom of expression is at stake,
to a costs regime where the costs they will have to pay if they
lose are neither reasonable nor proportionate and they have no
reasonable prospect of recovering their reasonable and proportionate
costs if they win".
23. The Government now appears to be waking
up to the enormity of CFAs in publication proceedings and how
the "blackmail effect" of CFAs can act as an incentive
to buy out of proceedings for commercial reasons to avoid a massive
financial penalty if an action is lost. This is having a profound
effect in free speech cases and any genuine quest for the truth.
It is therefore only a matter of time before a small publishing
company is put out of business because it has had a huge costs
order made against it in a marginal case but the claimant's solicitors
are on a CFA and are entitled to claim a 100% uplift on base hourly
costs of anything up to £550 per hour. [In Campbell v
MGN Ltd, Ms Campbell sued MGN for breach of confidence and
was awarded £3,500 damages and her costs of £1,086,295.47.
She had entered into a CFA for the purpose of her appeal to the
House of Lords. The costs of that two day appeal to the House
of Lords were £594,470 including a success fee of £279,981.35].
24. In 1990 the Government had to introduce
legislation to give the Court of Appeal the power to reduce massive
jury awards in libel actions following the £1.5 million award
of damages in the case of Lord Aldington v Tolstoy Miloslavsky.
It is now up to the Government to rectify the disproportionate
and unreasonable costs that can be run up by claimant lawyers
in CFA driven cases, particularly where the claimant is a wealthy
celebrity without any need to go onto a CFA or claimant solicitors
have "cherry picked" cases which are "sure fire
winners" and involve no risk, simply so that they can double
their own costs with a 100% uplift or "success fee".
25. Late last year, the Master of the Rolls
announced a "fundamental review of the rules and principles
governing the costs of civil litigation and to make recommendations
in order to promote access to justice at proportionate cost".
This review under Lord Justice Rupert Jackson will obviously include
a major review of CFAs and how they are impacting on various areas
of the law. While they may have worked reasonably well in Road
Traffic Accident cases which revolve around insurance claims and
also in many personal injury cases, they have undoubtedly had
a disastrous effect in publication proceedings and caused costs
awards which are wholly disproportionate to the damages awarded.
While CFAs will remain an integral part of the current costs regime,
we believe that they need fundamental reform in the area of publication
proceedings. News International will be putting the following
reforms to Lord Justice Rupert Jackson's committee:
(i) All costs in publication proceedings must
be "reasonable and proportionate" in order for them
to be recoverable. This means the abolition of Costs Practice
Direction 11.9 which specifically allows them to be unreasonable
when any "uplift" (allowed by a CFA) is added to the
base hourly rate of a specialist lawyer in this field, which might
be as high as £550 per hour thus generating an hourly rate
of £1,100 per hour.
(ii) In all publication proceedings, where there
is an estimate in the Case Allocation Questionnaire that the case
is likely to involve legal costs of over £50,000 or £100,000
there should be an automatic referral of the case to a judge for
the judge to call for detailed cost estimates so that he can impose
a "cost cap" or a "costs budget" ie a maximum
sum recoverable by one side or the other or maximum amounts recoverable
for different stages of the litigation. This would not prevent
a party spending as much as it wanted in fighting a case but simply
restrict it to what it can reasonably and proportionately recover
from the other side.
(iii) There should be no "uplift" or
right to claim an ATE insurance premium ("additional liability")
from a defendant before the defendant has had a reasonable opportunity
to make an offer of amends under section 2 of the Defamation Act
1996. In privacy or confidence cases where there is no right to
make an offer of amends, no uplift or ATE premium should be allowed
until the Defendant has either served a defence or made it quite
clear that the claim is rejected.
(iv) Judges should be given wide discretionary
powers to refuse any uplift or ATE premium where there was prima
facie evidence that the claimant did not need to enter into a
CFA in order to obtain justice.
(v) Just as claimants may have to pay their own
solicitors out of the damages they recover in employment cases
so too in publication proceedings should a judge have the power
to make claimants pay part of their own costs out of any damages
awarded where either the client has not exercised sufficient cost
control over his own lawyers or it would be fair an equitable
for the claimant to have to pay some of his own costs from the
damages awarded.
(vi) The Costs Council should set out base hourly
rates for specialist lawyers in publication proceedings. Those
base rates would be taken as the normal rates and it would be
up to the parties to show why the rates should be exceeded.
THE OBSERVANCE
AND ENFORCEMENT
OF CONTEMPT
OF COURT
LAWS WITH
RESPECT TO
PRESS REPORTING
OF INVESTIGATIONS
AND TRIALS,
PARTICULARLY GIVEN
THE EXPANSION
OF THE
INTERNET
26. The expansion of the internet and electronic
newspaper websites with substantial volumes of archival material
on them will inevitably radically affect the law of contempt.
This is particularly the case where a simple online search under
a key word can bring huge amounts of electronic information to
the attention of someone who might be a juror.
27. The media would not dispute that IF this material
were "displayed" on the face of the newspaper website
as available and contemporaneous material, it would be the sort
of material that could, in many cases constitute a serious contempt
in that it could give rise to a substantial risk of serious prejudice
to someone's trial. However, the prejudicial material will lie
passively in the newspaper's electronic archive until it is accessed
which needs a positive act by a third party. The way therefore
to deal with this problem is for the Judge to give instructions
to the jury to stay away from the internet in general and from
newspaper websites in particular.
28. Indeed, this is not an uncommon problem.
The solution adopted in Queensland and New South Wales, Australia,
has been to make it an offence for jurors to conduct investigations
about the defendant including by means of the internet. In New
South Wales, it is also an offence for jurors to conduct their
own investigations with respect to the trial. While there may
be no certain mechanism to ensure that jurors obey the judge's
instruction not to conduct investigations on the internet or otherwise,
directions along the lines of those suggestedare likely to substantially
if not completely reduce the risk of such conduct.
29. It is well known and has been commented
upon by judges (for example in Ex parte Telegraph [1993]
1 WLR 987) that "... a court should credit the jury with
the will and ability to abide by the judge's direction to decide
the case only on the evidence before them"). Research suggests
that jurors are impressed with the solemnity of their task and
endeavour to abide by the judge's directions. It is reasonable
to assume that most jurors would not engage in conduct which they
have been expressly told by the Judge they must not do.
30. In September 2001, Lord Osborne delivered
an opinion in the High Court of Judiciary in the case of William
BEGGS. He was being prosecuted for murder and assault. An attempt
was made to commit various newspapers for contempt on the basis
that their online archives contained accessible material which
was seriously prejudicial to the accused. After hearing argument,
the judge ruled inter alia that there was no contravention of
the strict liability rule because the test in section 2(2) was
not breached. He found that "... the availability of the
material as part of an archive, as opposed to part of a current
publication, renders it less likely that it may come to the attention
of a juror than would be the case if it formed part of a contemporaneous
publication" (para 24 of the Opinion).
31. Further, in December 2002, the Law Commission
published its Scoping Study No 2 which was primarily concerned
with defamation and the internet. In a self-contained section
of the study (Part Five), the Commission dealt briefly with the
decision in BEGGS and the significance for online publishers.
The Commission concluded that this was not a priority for law
reform and that the risks to publishers were overstated. It did
not deal in any detail with the construction of section 2 of the
1981 Contempt of Court Act, but, crucially, it did "accept
that it is not practically possible to monitor all criminal
trials in the country and subsequently to remove from internet
archives any potentially prejudicial material" (para
5.25). The Commission added that it "is clear that jurors
cannot be prevented from using the internet to search for detrimental
material on criminal defendants" (para 5.26). It felt that
"much of the prejudicial effect of such material" could
be removed by an appropriate judicial direction to try the case
on the evidence.
32. Research is surely necessary in this
area. Currently, proper academic research about a jury room deliberation
is precluded by section 8 of the Contempt of Court Act (1981).
This needs to be amended to allow proper and detailed research
as to what in practice is prejudicial to juries.
33. The reality, which courts and the legislators
have eventually to recognise, is that in cases where the defendant
(or a witness) have matters in their past which have been widely
publicised there is nothing which can be done (short of incarcerating
the jury for the whole trial) to prevent electronically inquisitive
jury members discovering that material. The available publication
"pool" from which information can be fished out goes
far beyond UK newspapers and broadcasters.
THE BALANCE
BETWEEN PRESS
FREEDOM AND
PERSONAL PRIVACY
34. News International believes that successive
High Court privacy case judgments, culminating in the recent Max
Mosley judgment, are creating precedents that undermine the freedom
of the press and are diverging from public policy determined by
Parliament.
35. The Human Rights Act requires that a fair
balance be struck between European Convention Article 8 (Privacy)
and Article 10 (Freedom of Expression) and that the right of free
speech should only be interfered with where there is a "pressing
social need". However, in just a few years, UK privacy case
law has skewed that balance so far in favour of Article 8 that,
post-Mosley, morality no longer has any place in the Court's decision-making.
36. As Mr Justice Eady decreed in his judgment
on the Max Mosley case: "It is not for journalists to undermine
human rights, or for judges to refuse to enforce them, merely
on grounds of taste or moral disapproval". This means that
commonly held moral values no longer weigh in favour of free speech
and publication. Consequently, determining what is in the public
interest or is a "higher priority" to the protection
of someone's reputation or privacy is extremely difficult to discern
and is far too dependent on the subjective views of a High Court
judge.
37. News International believes that the
public has a right to expect fit and proper standards of behaviour,
both professionally and privately, from those in public life,
whether through election or otherwise. The public has a right
to know when the behaviour of public figures, particularly those
elected to office, is hypocritical or is such that it is likely
to bring disrepute on the organisations or people they represent.
Public accountability is an essential part of that process.
38. The law being applied by Mr Justice
Eady has never been debated in the UK parliament and a draconian
privacy regime is being introduced by the back door by one person.
This is a thoroughly unsatisfactory state of affairs.
39. The law in this area should be developed
in line with public policy determined by Parliament but this is
not happening. Last year, section 78 of the Criminal Justice and
Immigration Act 2007 brought some degree of consistency to the
"public interest" defence for media defendants in civil
and criminal actions brought under the Data Protection Act 1998
for misuse of personal information—an area of law which
is analogous and closely related to the law of privacy. Parliament
accepted, after specialist advice from Antony White QC, a leading
silk on privacy and Data Protection, that the "public interest"
defences under sections 32 and 55 of the DPA should be brought
into line so that any media defendant which "reasonably
believed that it was acting in the public interest" should
have an absolute defence. This statute based objective test
as to what is in the public interest is not however being followed
by the judges where the defence only works if the media defendant
actually proves to the satisfaction of the judge that what was
published "was in the public interest"—a much
more subjective test wholly reliant on the particular views of
an individual judge. Proving that the media defendant had a "reasonable
belief" that it was in the public interest is therefore a
much more objective test and is much more easily evaluated prior
to publication.
40. News International therefore believes
that the Government should look for a suitable opportunity to
introduce an amendment that would bring judge-made law in this
area into line with public policy. We enclose a copy of the latest
opinion we have from Antony White QC making out this case (Appendix
2).
41. Until some uniformity is brought to
this area of law and there is some degree of legal certainty over
a "public interest" defence for the media in Article
10 cases, English judges will continue to apply the law in individual
cases here in a subjective way with one eye on the latest cases
coming out of the European Court of Human Rights in Strasbourg.
Unfortunately the ECtHR cases are fact specific with the Princess
Caroline of Monaco case skewing the law heavily in favour of privacy
rights while earlier judgments had favoured the right of free
speech except where there was a pressing social need.
42. News International believes it cannot
be right that a principle so fundamental to the healthy functioning
of a democratic society is left to be interpreted by one person.
The right of privacy must be carefully circumscribed so that where
appropriate a "higher priority" or what is "reasonably"
believed to be in the public interest provides a sensible defence.
43. If this does not happen, investigative
journalism will be the victim of a law which will fundamentally
undermine the Fourth Estate and the vital role it plays in a healthy
democracy. We will end up with a judge-made law which is heavily
reliant on judicial hindsight "to protect the legal but immoral
behaviour of the better classes behind closed doors" as one
American law professor has put it.
44. A society that allows its media to lose
the right, even by default, to investigate and report on the doings
of those in power is a society on the slide to censorship and
secrecy.
PRESS SELF-REGULATION
AND FINANCIAL
PENALTIES
45. The current system of self-regulation
administered by the Press Complaints Commission delivers a service
which is fast and costs the complainant nothing. Its procedures
and rulings, and the Code to which it works, are all set out in
non-technical language. No expert knowledge is required in order
to make a complaint. With its emphasis on resolution, the PCC
succeeds in dealing with the majority of complaints rapidly and
to the satisfaction of the complainant. Further, Editors hate
having to publish adverse findings of the PCC so there is a strong
incentive on the part of a newspaper to try to resolve matters
prior to a complaint going to adjudication.
46. Over recent years the PCC has been increasingly
pro-active in warning newspapers about what might constitute a
breach of the Code of Practice. The PCC sends out regular warnings
to the Press when it receives letters or emails from members of
the public or their solicitors asking for the press or the paparazzi
to desist from approaching them or trying to take photographs.
High profile celebrities like Kate Middleton, and other less well
known members of the public like the victims and daughters of
the man who was convicted of rape in Sheffield last November,
have taken advantage of the system and the press have been advised
by the PCC not to approach the person or persons further without
it giving rise to a harassment complaint.
47. These are the positive benefits of the
current system, which has evolved over the last 15 years. If it
were to be "toughened" in order to make it "more
attractive to those seeking redress", we can only imagine
that this would mean the introduction of financial penalties.
48. But as has been argued before, and as
the Culture, Media and Sport Select Committee accepted in the
conclusions to its last inquiry into this area, the introduction
of financial penalties would "risk changing the nature of
the organisation and might need statutory backing to make the
power enforceable".
49. Once financial penalties are introduced,
the system will inevitably become more legalistic and have to
be compliant with legal principles.
50. Currently, the only serious overlap
between the PCC Code of Practice and the law is Clause 3 of the
Code of Practice which concerns "Privacy". In the past
and while there was no enforceable law of privacy, the PCC was
the only means of redress. Sara Cox, the DJ, is perhaps the best
known PCC complainant who, having complained to the PCC in 2001
and through it having negotiated a favourable apology from the
People newspaper for publishing photographs of her naked on honeymoon,
then instructed her lawyers to sue Mirror Group Newspapers for
breach of privacy and financial compensation. What is interesting
about that case was that within a week the People agreed to publish
an apology to her but it took up to two years for the lawyers
to agree the damages of £50,000 in a final out of court settlement.
51. A body that was able to impose fines
would bear little resemblance to today's PCC. Its work would be
slowed down by the involvement of lawyers on all sides and it
would find that newspapers would be less likely to admit mistakes
and offer ways of resolving complaints.
52. We believe this would be to the detriment
of the vast majority of complainants. We believe that the PCC
and its complaints procedure work well.
January 2009
APPENDIX 1
FAST TRACK ARBITRATION RULES FOR RESOLUTION
OF "MEANING" OR "QUANTUM" DISPUTES IN LIBEL
ACTIONS
The following rules shall apply to any arbitration
where the parties voluntarily agree to refer either:
Referring such a dispute to voluntary arbitration
under this "Fast Track" procedure.has the following
benefits:
(a) the arbitrator's fees and those of any assessors
will be paid by the newspaper,
(b) it will enable any dispute to be resolved
in a matter of days with an agreed apology appearing in the paper
or the publication of a fair and accurate report of the arbitrator's
findings,
(c) it enables the Claimant to resolve this kind
of dispute without incurring substantial High Court legal costs
or the risk of having to pay the newspaper's legal costs, and
(d) it enables the Claimant (where appropriate)
to be awarded up to £10,000 in damages to vindicate his/her
reputation and compensate him/her for the hurt and suffering of
the original article and up to a further £S,000 in legal
costs.
Any such arbitration will be conducted on the
following basis and the rules below will form a binding contract
between the parties.
A. "MEANING
DISPUTES"
1. The Claimant shall select a chaiiuian
from a list of Queen's Counsel experienced in libel actions drawn
up by the newspaper. The chairman so selected shall then in turn
select two is assessors (one male and one female) to help him/her
determine the meaning of the article in question. Either the Claimant
or newspaper may object to the Chairman's selection of intended
lay assessors. The newspaper shall pay any costs or fees of the
panel so chosen.
2. As soon as the panel has been appointed, the
Claimant shall submit four copies of the complete article with
the words complained of underlined in red. In an accompanying
Statement of Meaning the Claimant shall submit what in his/her
opinion the article means. The Claimant can submit more than one
meaning but should list only those meanings which are damaging
AND inaccurate. The Claimant should also list any facts which
are relevant to the question of meaning and how the article might
be understood to be damaging by those with additional knowledge
to that which is contained in the article.
3. The chairman shall then send the newspaper
a copy of the Claimant's submissions and invite the newspaper
to comment on those meanings and state clearly and precisely what
meanings the newspaper meant to convey to the average reader.
The Claimant shall then be sent a copy of the newspaper's submission
and invited to reply to it.
4. The question of meaning shall be determined
through written submissions. However, the panel shall retain an
absolute discretion to order an oral hearing if thought appropriate.
If an oral hearing is ordered either party may be asked to give
evidence under oath as to any relevant facts or matters.
5. Having received the Claimant's and newspaper's
submissions, the Chairman and his two assessors shall decide which
of the meanings submitted by the parties the words actually bear.
Their decision on meaning shall be final and binding.
6. Where the panel's finding on meaning
is in favour of the Claimant, the newspaper shall make an immediate
"offer of amends" to the Claimant. This shall include
a suitable correction/clarification and sufficient apology and
where appropriate an offer of damages. If the Claimant finds the
newspaper's "offer of amends" unsatisfactory either
on the wording or placing of a suitable correction/clarification
and sufficient apology or on quantum of any damages, the Claimant
shall invite the chairman of the panel to give a formal ruling
on the adequacy of the newspaper's suggested correction and apology
and/or refer the question of damages to be determined by arbitration.
7. The newspaper shall be under a binding
obligation to publish any agreed correction, clarification or
apology as soon as possible after the panel's adjudication on
meaning. If no correction, clarification or apology can be agreed
between the parties, the newspaper shall publish a fair and accurate
report of the chairman's ruling on the newspaper's offer of amends.
B. "QUANTUM
DISPUTES"
1. Quantum disputes may be referred to arbitration
either where the newspaper admits the defamatory meanings) attributed
to the article by the Claimant or where a meaning dispute has
been resolved in the Claimant's favour.
2. If no chairman of a panel has been appointed,
the Claimant shall select a single arbitrator from the attached
list of Queen's Counsel who shall act as a sole arbitrator. The
newspaper shall pay any costs or fees of the arbitrator.
3. The maximum sum under the heading of
general damages that the arbitrator may award shall be £10,000.
Any sums so awarded shall reflect the pain and suffering and loss
of reputation experienced by the Claimant. There shall be no appeal
from the findings of the arbitrator.
4. The arbitrator shall where appropriate
award the Claimant a sum in respect of his/her legal costs/out
of pocket expenses but this shall not exceed £5,000. The
arbitrator shall not be empowered to award any costs against the
Claimant but may indicate if the Claimant's solicitors should
forgo any costs.
5. Either party shall be entitled to make
written submissions on the issue of damages and the Claimant's
general reputation. The Rules of Evidence shall not apply but
the arbitrator shall have an absolute discretion to admit or exclude
any evidence. This shall normally include the article concerned
and the inter-solicitor correspondence.
6. The arbitrator shall have the widest
discretion permitted by law to ensure the just and expeditious
determination of the dispute and all questions relating to it.
APPENDIX 2
SECTION ON PUBLIC INTEREST FOR NEWS INTERNATIONAL
SUBMISSION TO THE DCMS COMMITTEE ON LIBEL AND PRIVACY AND SELF-REGULATION
The development in English law of a cause of
action for misuse of private information following the decision
of the House of Lords in Campbell v MGN Ltd [2004] 2 AC
457 has led to a dramatic increase in the number and complexity
of "privacy" claims against media defendants. It may
well be the case that prior to the decision in Campbell
the law in this country provided insufficient protection to those
who complained of unjustifiable invasion of their privacy through
unauthorised publication of private information. However, the
pendulum has now swung too far in the other direction—the
law is developing in such a way as to make it extremely difficult
for a media defendant to succeed in a privacy claim. importantly,
the law has developed in a way which is inconsistent with public
policy in this area `discernible from recent legislation, and
an important part of the legal analysis in Campbell, has
been overlooked in the later decisions.
It is very important that the law in this area should
be developed by the courts in conformity with the public policy
determined by Parliament and reflected in recent legislation dealing
with misuse of personal information. If the courts develop the
law in a way which is inconsistent with that public policy the
democratic process is undermined and public confidence in the
law is eroded. Yet that is precisely what has happened in recent
court judgments in this area. The public policy determined by
Parliament is clearly discernible in a recent, and very recently
amended, enactment which sets the limits of civil and criminal
liability for media defendants in relation to the misuse of personal
information. The statute in question is the Data Protection Act
1998, as recently amended by section 78 of the Criminal justice
and Immigration Act 2007. Under sections 32 and 55 of the Data
protection Act 1998 there is a defence available against both
civil and criminal liability for the unauthorised publication
of personal data in circumstances in which the media defendant
reasonably believes that it is acting in the public interest.
However, in the closely related judge-made area
of law in which liability may arise for unauthorised publication
of personal information, there is at present no defence if the
media defendant reasonably believes that publication is in the
public interest, but only if the judge rules that it actually
is in the public interest. This emerges very clearly from
the recent judgment of Eady J. In the case of Mosley v News
group Newspapers Ltd [2008] EWHC 1777 (QB), at paragraphs
135, 137 and 171.
This is anomalous. Both the Data Protection
Act 1998 (which implements in domestic law the EC Data protection
Directive) and the judge-made developing law of privacy, are founded
upon the balance to be struck between the rights of privacy and
free expression enshrined in Articles 8 and 10 of the Convention.
It cannot be right for the balance between those Articles to be
struck in one way by Parliament in sections 32 and 55 of the 1998
Act as amended, and in a different and inconsistent way in the
developing law of privacy.
In Campbell at paragraph 32 Lord Nicholls
explained that it was common ground that Ms Campbell's claim under
the Data Protection Act 1998 should be decided in the same way
as her claim for invasion of privacy. This appears to have been
overlooked in the later development of the cause of action established
in the Campbell case—as explained above, under the
1998 Act a media defendant will not be liable if it acted in the
reasonable belief that the publication of the personal data was
in the public interest, whereas in a privacy claim it will only
avoid liability if the judge decides that publication actually
was in the public interest. A genuine, reasonably held belief
is sufficient under the statute but not at common law.
When Parliament enacted the Data Protection
Act 1998 it took into account the need to balance the public interest
in the protection of privacy with the public interest in a free
and robust press. It recognised that investigative journalism
is necessarily an urgent endeavour and that on occasions mistakes
may be made. A standard of genuine, reasonable belief that an
article is in the public interest was therefore considered appropriate.
This is-particularly clear from the Hansard debates relating to
the provision which became section 32 of the Act. The balance
was reconfirmed when section 55 of the 1998 Act was amended in
2007.
It is of real practical importance to the media
that journalists are judged by the standards of genuineness. and
reasonableness when preparing and publishing articles which may
contribute to debate in a democratic society, and not by the rarely
achievable standard of judicial hindsight.
The developing common law has taken a wrong
turning. The Government should look for a suitable opportunity
to introduce an amendment that would bring judge-made law in this
area into line with public policy. It should be done as soon as
possible.
| 
