Written evidence submitted by Society
of Editors
The Society of Editors (SoE) has more than 400
members in national, regional and local newspapers, broadcasting
and digital media, media law and journalism education. Its members
come from a wide variety of working backgrounds and have a wide
range of opinions. The Society supports and endorses the newspaper
industry's response to the committee, along with submissions from
other media organisations, and would add the following:
1. THE SUCCESS
OF THE
PCC SYSTEM
The SoE has no formal role in either the PCC
or the Editors' Code Commitee but membership of both is drawn
from the Society's membership. The Society's view is that any
regulation of newspapers must be balanced carefully against the
crucial need for editorial freedom and freedom of expression.
Membership of the Society implies support for the PCC system and
particularly the Code of Practice. Indeed we provide a wallet-sized
version of the Code that can carried by journalists at all times
in order to demonstrate its value and importance.
Without doubt the PCC system has made a substantial
contribution to the behaviour of newspapers. This is widely recognised
across politics and increasing usage of the system by the public
reflects its acceptability and reputation.
Too often it is dismissed as a self serving
system of self regulation. The reality is that as it has developed
it has shown its independence from the industry that created it
and continues to pay for it. In essence, while it is financed
by the industry, regulation is administered by a body that has
a significant majority of lay members while having the advantage
of editor members to provide expert opinion and to maintain credibility
in the process among editors and journalists.
The Society and its members support and take
part in a great deal of behind the scenes work by the PCC to maintain
standards, advise editors of requests from the public, review
policies and discuss issues raised by the public. All of this
helps both the media and the public.
2. SPECIAL CASES
The PCC deals with thousands of cases each year.
Newspapers carry many hundreds of thousands of stories each year
that provoke no complaint. It would be wrong to undermine a system
that is clearly working by reference to the tiny number of cases
each year that raise special issues. They should be considered
individually and precisely on the unprecedented matters that they
raise. The PCC, and indeed the industry, have demonstrated their
ability to review, adapt and respond to such issues. Above all,
the PCC system is dynamic and is always able to react to new situations
and changing public perceptions.
3. FINES AND
COMPENSATION
The case for fines and compensation has not
been made. The PCC system would be destroyed and the huge advantages
of voluntary compliance lost.
Any legal or quasi legal system deals with the consequences
of bad behaviour but does not necessarily deter or change such
behaviour. There is substantial evidence that the behaviour and
indeed the culture of newspapers has been changed dramatically
by the voluntary system of compliance with the Code and publication
of adjudications.
Arguments that the PCC has no teeth simply miss
the point that the majority of the work of the PCC is complaints
resolution to the satisfaction of all concerned. It is extremely
successful in this. It should also be remembered that governments
and private organisations invest heavily in public relations teams
in order to keep bad news out of the papers. When an adverse adjudication
is published by the PCC newspapers voluntarily report bad news
about themselves and their competitors may also carry reports.
That is potentially costly and damaging to the credibility of
any news organisation. Adverse adjudicatons are powerful deterrents
to be avoided.
4. CFAS AND
FREEDOM OF
EXPRESSION
The media has explained to the MoJ that the
CFA system requires urgent reform to address the freedom of expression
problems which it has created for all sectors of the media. It
has produced a chilling effect upon publication and "ransom"
effect in litigation, forcing settlement rather than defence of
legal actions, because of the potential litigation costs- high
base costs, success fees uplifts and ATE insurance premiums. In
meetings and speeches the Secretary of State has recognised our
concerns.
Media organisations have put forward a number of
proposals for reform that would deal with the worst problems but
which do not require primary legislation. These points, which
could be implemented simply by making changes to the Costs Practice
Directions, could be carried into effect relatively quickly. While
we all recognise the importance of access to justice, there is
no justice in a system in which media companies, however rich
they may appear, face disproportionate costs. That applies to
the largest national organisation as much as the smallest regional
or local newspaper.
In the case of the regional press, the reality
is that not all media organisations are major national or multi
national operations. In the regional media each centre tends to
be treated as a stand alone operation. Privately owned publishers
tend to be small to medium sized local enterprises.
There is no justice and no public interest in
damaging the ability of the media to report on behalf of the public
or in a disincentive to investigate and publish informaton that
the public has a right to know.
There is no justice in a system that means editors
will settle actions even when they have a complete defence simply
because they cannot risk the level of costs that they may need
to commit in advance and most of which will be irrecoverable.
Costs of £10,000 to £20,000 represent substantial sums
in regional newspaper budgets. Costs of £100,000 could cover
salaries of a weekly paper reporting team for a year. The editors
of medium to large regional daily newspapers and indeed national
newspapers have to think carefully about embarking on stories
that could threaten their budgets at that level even if they were
able to provide a full and solid defence.
CFAs are a dramatic and dangerous threat to
freedom of expression. They seriously inhibit the kind of reporting
that government ministers continually demand of the media. It
is a reasonable request that because of well-intentioned legislation
that has become inappropriate in practice, editors frequently
have to refuse. That is unacceptable.
When the Secretary of State met our Parliamentary
and Legal Committee we stressed that reform could not await the
outcome of the scoping study, any subsequent research and any
government action which might eventually result. CFAs are bound
to have a chilling effect on journalism that is in the public
interest although it is clearly difficult to provide direct detailed
evidence of this. Tony Jaffa is a solicitor who represents many
regional newspapers. He says his experience is that the CFA system
fails to discourage weak claims and the regime allows claimants
and their lawyers to hold publishers to ransom because both claimants
and publishers know that publishers incur risks of huge costs
that are probably irrecoverable even if they defend an action
successfully. It means that regional publishers may have to make
financial commitments that they cannot afford.
At our meeting with the Secretary of State for
Justice we mentioned several cases that were particularly disturbing.
They included a national newspaper involved in a legal dispute
concerning someone who had been convicted under the Terrorism
Act and a regional newspaper that had been involved in a long
running dispute in which the costs bore no relation to the claimant's
original case. In essence the claimant accepted £3,000, the
newspaper's London lawyers costs were less than £3,000 but
the plaintiff's lawyers are demanding more than £25,000.
In the latter part of 2008 the SoE received
evidence of three more CFA cases in which a regional newspaper
has faced huge bills.
CASE 1
A weekly newspaper was sued by three senior
officers of a borough council. They used a London solicitor on
a CFA. The issue concerned electoral law after postal votes were
not counted in a close-fought borough election. The paper won
substantially at the High Court and the council officers (actually
the council, which backed the officers) were ordered to pay 80%
of costs and the paper 20% of theirs. Two of the three took it
appeal. One dropped out because he was convicted of criminal charges.
The other won on appeal, even though he had not been named in
the article. The costs order was turned around and the paper had
to pay 80% of costs. Costs of £700,000 were doubled under
the CFA to £1,400,000. With the paper's costs the bill came
to £2 million, even though damages awarded were £25,000.
CASE 2
A teacher was sacked in 2005 for gross sexual
misconduct and sued the paper for reporting the story after obtaining
a "private" letter. The case was thrown out at the preliminary
stage but the paper's costs still came to £15,000 which the
litigant could not pay, leaving the paper to foot the bill. The
paper recovered £5,000, which was all he owned.
CASE 3
A paper visited the home of the CEO of an Icelandic
bank. He was not there but a reporter spoke to his wife. It was
claimed that the paper invaded the family's privacy by arriving
at their home unannounced and lawyers demanded an apology and
costs with the threat of a privacy action.
The paper carried a page one apology. The apology
concerned a point of accuracy, over whether the family received
threats or death threats. While the paper maintained it was told
death threats it agreed to apologise as they subsequently proved
to be threats. After the limited apology, lawyers claimed the
statement was defamatory as the paper knew it to be a lie, because
it had apologised. The lawyers' letter also referred to a claim
for breach of privacy, "for which damages are payable".
Journalism would be severely restricted if reporters
had to make appointments before questioning people in the public
eye. And the action of complainant's solicitors in this case is
hardly in keeping with the PCC system. Why should editors cooperate
with the PCC if lawyers then use negotiated apologies as the basis
for a legal action?
The level of costs such as in these examples
are not sustainable even in large media organisations, let alone
small weekly newspapers. They clearly have a significant and dangerous
chilling effect on journalism that is clearly in the public interest.
5. CONTEMPT OF
COURT
Traditional media, including their websites,
are assiduous in complying with the law. Breaches are rare. The
law of contempt is a major part of media law training and news
organisations take great care in maintaining systems to ensure
compliance.
The Society has had discussions with the Ministry
of Justice and senior judges and lawyers regarding the working
of the law of contempt. The growth of the internet raises major
issues for both the media and the administration of justice. Clearly
the UK media is put at a disadvantage against overseas media when
it is not able to report cases in full while detailed reports
are available on the internet. There is sometimes a problem in
this regard concerning different jurisdictions within the UK.
It is also a problem for the administration
of justice in that the public may feel that the lack of reporting
by traditional media suggest that cases may be covered up and
the law is therefore brought into disrepute.
The Society has consistently called for review
of the current law supported by Ministry of Justice sponsored
research into the effect on jury decisions of media publicity
and the availability of detailed information on the internet.
The Society is also working with the Ministry of Justice to establish
a central database of court orders that will help the media comply
with reporting restrictions.
6. PRIVACY LAW
The Society is concerned that assurances about
the importance of freedom of expression have been undermined by
the application and interpretation of the Human Rights Act.
Any legal restrictions on the media must be considered
with proper regard for the value of editorial freedom and freedom
of expression in a democratic society.
It is right that the committee should look at
all of the restrictions on a free media together. While legislation
regarding libel and the development of privacy law by judges might
be well intentioned, together they can have a seriously damaging
influence on media freedom, especially when they are misused.
7. CONCLUSION
The Committee asks if the balance between media
freedom and personal privacy is correct. It is clear that the
intentions expressed in Parliament when it approved the Human
Rights Act have not been followed. The media accepts that there
must be a balance but it has moved too far in the wrong direction
if the media is to be allowed to play its full and vital part
in a free and democratic society. The problem is compounded by
the application of other parts of the law so that the effect on
the freedom of the media is exacerbated by a combinaton of all
of the factors that the committee is researching. Each can cause
difficulty, the whole can create a serious chilling effect on
journalism in the public interest.
Furthermore, while there is imbalance the wider
public right to freedom of expression is also undermined. This
was surely never the intention of human rights conventions nor
of the UK Parliament.
The Society would be happy to expand on any
of these points and to give oral evidence to the committee.
January 2009
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