Examination of Witnesses (Question Numbers
20-39)
MR NICK
ARMSTRONG, MR
TONY JAFFA,
MR KEITH
MATHIESON AND
MR MARCUS
PARTINGTON
24 FEBRUARY 2009
Q20 Chairman: When you say "there
is a danger", has it happened?
Mr Partington: Yes.
Q21 Chairman: People have taken out
actions for material which was written years ago?
Mr Mathieson: Yes, we have all
had experience in several cases. What it means is that the limitation
period which Parliament has said should apply to newspapers does
not apply to on-line newspapers, and that seems to me to be inconsistent
and it is a very simple change to the law which is required to
implement the change.
Mr Partington: What actually happens
in truth is that people will complain about something that is
published on-line, and because of the difficulty of defending
it, because it is years later, the natural instinct is to just
remove it whether it is true or not; which I think we all lose
out on in that sense because the public loses information, and
accessed information, which could well be true; but it is safer
and easier for media organisations to just say, "Okay, I'll
take that down", because they might not be in a position
to defend it, so we all lose out, I think.
Q22 Alan Keen: The people administering
the sites—there is the editing aspect of it; if they take
stuff off they are getting liability, are they not, for editing
the site rather than just letting other people put stuff on? Does
that apply?
Mr Partington: There is defence
under section 1 of the Defamation Act about whether you are an
innocent publisher of material. That was designed to protect ISPs.
For any media organisation, if they put archive material up there
they will be regarded as the publisher of it and therefore they
will be liable.
Mr Mathieson: That will include
third party content too in all probability under the law as it
is currently applied.
Q23 Alan Keen: Is the ISP provider
in the same position as a newspaper? I am not talking now about
newspapers on-line; I am talking about websites. Does the internet
service provider become liable in the same way as a newspaper
becomes liable for publishing letters, or is there a distinction
there?
Mr Mathieson: No, there is a distinction.
Section 1 of the Defamation Act refers to publishers, authors
and editors as having liability for defamation. If you not a publisher,
authority or editor then you will have the benefit of the defence
under section 1 of the Defamation Act if somebody tries to sue
you for libel. An ISP will normally escape liability because it
is not an author, editor or publisher; but generally, as soon
as the ISP is notified of the defamatory material, it has to act
to take the material off-line, otherwise its continuing act in
keeping it on-line may expose it.
Q24 Alan Keen: What is the difference
between a site that is recognised, it has got a heading that says,
"I am the local newspaper [something] publishing news",
and those sites which somebody else administers, not the internet
service provider but someone has a site and lets other people
put blogs on there? How is that liability?
Mr Mathieson: There may not be
much difference legally if the person, as you describe it administers
the site, acts as an editor and decides what goes on the site,
or enables material to go on there, then it may well be liable
for defamation.
Q25 Paul Farrelly: I remember in
my time when the threats duly came from a Russian billionaire
that they were going to sue me—you counted down the days
until the year was up, but with the internet things have moved
on. Mr Mathieson, can I just be precise about the simple change
in the law you were referring to, to bring the law up into the
internet age as Parliament intended. Would that be to restrict
the ability to sue for 12 months from the first date of publication
on the internet?
Mr Mathieson: Yes.
Q26 Paul Farrelly: That would be
the simple change?
Mr Mathieson: Yes.
Q27 Janet Anderson: I wonder if we
could turn to the Human Rights Act, and the balance between Article
8 and Article 10. Of course Article 10 is concerned with the rights
of freedom of expression; and Article 8 respect for private family
life, and I think is largely interpreted to cover reputation now.
I just wonder if I could ask each of you: what do you believe
to be the current balance between those two articles? Marcus,
would you like to start maybe by referring to the (Naomi) Campbell
case, which I think was one of the seminal cases in this area?
Mr Partington: The Media Lawyers
Association firmly believes that the balance between freedom of
expression and personal privacy has swung too far in favour of
personal privacy. The safeguards which were designed by Parliament
in section 12 of the Human Rights Act have, we would say, been
largely and quite cleverly overridden by the courts; and therefore
the balance, we would say, is skewed too far in favour of Article
8.
Q28 Janet Anderson: You are saying
that section 12 has failed to protect freedom of expression?
Mr Partington: Yes. I think section
12 has failed to do what Parliament intended it to do; which was
clearly that the courts were to give freedom of expression a greater
stress than they actually have. The truth is now, we believe,
that it is very easy to get through the Article 8 doorway, but
it is much harder to defend something in Article 10 terms.
Mr Jaffa: I think that is probably
right. The regional press is not faced with anything like the
level of activity that the nationals have. Thinking back over
the last, say, 12 months for the regionals for which I act, there
have been a number of cases where information has been in the
public domain, whether by the website or actually in the paper,
and yet the claimant has gone off to the High Court and obtained
a privacy injunction, notwithstanding section 12. It is hard for
me to understand how that can be. These are not international
celebrities; these are cases involving a young lad who was brain
damaged at birth and was suing his local health authority for
a phenomenal amount of money. There was a clear public interest
in that story for local people and yet, despite the information
about the claimant (the child was not identified or anything;
it was a perfectly respectable story), they were still injuncted,
despite section 12 and despite the Article 10/Article 8 balance
that is supposed to be taken into account. There was another story
where there was an injunction because a private company was placing
delinquent youths in a residential area, and these were not just
youths who were in a bit of trouble, they had gone through the
whole system and this was the final opportunity to reform them.
The local paper found out about it—a clear issue for local
people, for the neighbours who lived around them; they were in
a residential street; it was in the public domain this information
if you knew where to look for it—the paper published a story
and then was injuncted. Again, I cannot see how section 12 can
be said to be working properly in those specific examples. I just
do not see it happening; but we do not get it as much as the nationals
do, that is for sure.
Q29 Janet Anderson: You think your
freedom of expression is actually being hampered?
Mr Partington: Yes.
Janet Anderson: Do you think that that
view is taken in other countries? The reason I mention that is,
we were recently in Barcelona and we had a meeting with the editor
of La Vanguardia, which I think is one of the biggest broadsheets
in Barcelona, and one of the questions we asked was: if there
were a case of a politician who claimed to be happily married
and was discovered to be having an affair, and if there were a
footballer who claimed to be happily married and was discovered
to be having an affair, would he see it as his job to publish
the details? He said, "In the case of the footballer, yes;
in the case of the politician, no, because we have no interest
in politicians' private lives". Do you think there are different
standards in different countries?
Q30 Mr Sanders: Yes, it is self-evident!
Mr Partington: There are definitely
different standards. One of the things I am not sure we are going
to have time to come onto, but obviously we are now in a situation
where American states are passing laws to protect American citizens
from UK judgments—
Q31 Chairman: I hope we will come
on to that.
Mr Partington:— because
they think we do not do enough in this country to protect freedom
of expression.
Q32 Chairman: You have suggested
that Parliament attempted to give weight to freedom of expression
and privacy through section 12 in the Human Rights Act but that
that is not actually happening. Would you share the judgment of
Paul Dacre that that has come about due to arrogant and amoral
judgments of one man?
Mr Partington: No. It is not down
just to the decisions of one man; but as we say in paragraph 27
of our submission the requirement of section 12 has been progressively
hollowed out as judges make their own interpretations; and that
is judges in the plural; it is not just one judge but a succession
of judges. Mr Thomson from Carter-Ruck who sits behind me, and
you will be hearing from, said he thought it was originally thought
that section 12 would protect the media, but it is ironic that
in fact section 12 has not had the intended effect. That is a
claimant lawyer saying that actually section 12 has not had the
effect. I would not agree with what Paul Dacre said and the words
you have just quoted back to me. The problem is the judiciary
has not gone with what Parliament intended in section 12.
Q33 Chairman: I can quite understand
your reluctance to criticise an individual judge, but it is your
contention essentially that the judiciary are interpreting section
12 in a manner which was not the intention of Parliament?
Mr Partington: Correct.
Q34 Chairman: They are doing it knowingly,
presumably?
Mr Partington: Yes.
Mr Mathieson: I think what I would
say, and I agree that the balance has swung too far in favour
of Article 8, is that one thing the courts find it difficult to
take into account is the inherent value in freedom of expression.
There has been declared by the courts what they call a "presumptive
equality" between Article 8 and Article 10. Those of us who
defend and value freedom of expression would say that there is
an inherent value in having a vibrant and varied press and broadcasting
industry; and that in itself is something which should be taken
into account when you are weighing the respective interests of
privacy on the one hand and freedom of expression on the other.
I think Paul Dacre's speech reflects his frustration at the courts
failure to recognise that the media has its own importance.
Mr Armstrong: I would add to that
by saying simply that the law has been skewed slightly because
it has developed through a relatively small number of high profile
cases on a small number of specific sets of facts. It is quite
difficult for a judge to keep in mind the generality of that proposition,
I would argue, when faced with the specific facts of an individual
case where you may have shortcomings by the journalists, and the
nature of the investigation and the intrusion that has taken place
he is bound to focus more on that. In a way the problem is intrinsic
in the decision-making process where the facts of an individual
case will tend to cast those general points into the shadow. I
think that is where the skew has come because we are dealing with
cases involving celebrities if you like, by and large, that have
been decided by the courts, and a relatively small number at that.
It is not a very in-depth jurisprudence yet.
Q35 Rosemary McKenna: The PCC code
and privacy, the PCC, how relevant is the code today in privacy
cases; could the procedure be made more effective?
Mr Jaffa: I think the PCC's code
is absolutely spot-on. I really get very cross when I hear people
say that the PCC is ineffective; that the PCC code is ineffective.
The relevant provision of the code concerning privacy reflects
Article 8 and it takes into account Article 10 as well—the
wording does. If you go to your local regional paper, or the editor,
he will tell you like every other regional newspaper editor that
as soon as anything comes in from the PCC they jump to it; they
take it extremely seriously. It is a fabrication for people to
say that the PCC is an empty vessel; that the code is worthless;
and that, from my experience, regional editors ignore it; that
is simply not true. It is a working document; it develops as time
goes by; and from the regional press's perspective it is extremely
effective, first of all, in preventing infringements of privacy,
because they take it seriously; and then, if there is a complaint
and it turns out that the code has been contravened, in rectifying
it.
Q36 Rosemary McKenna: Because they
cannot prevent the publication of an article?
Mr Jaffa: I cannot speak for the
PCC, but I think you will find they will say that they can more
and more frequently; they are taking early action.
Mr Armstrong: What I find in my
conduct cases is that the presence of the PCC and the code and
their involvement at a pre-publication stage does have a persuasive
effect. You are right that they cannot issue an injunction or
prevent publication peremptorily; but in terms of persuasion and
adding force to the argument of prevention of privacy intrusion
it does have an effect. I do find it generally a very useful additional
tool.
Mr Partington: I would agree with
that. Many people do not know that the PCC proactively will warn
newspapers before a story, or as a story develops that, for example,
certain people do not want to be approached; certain people have
been approached and do not want to be approached again; and that
sort of thing happens all the time but it happens maybe on a quiet,
behind-the-scenes, level which is actually very effective. If
newspapers are told, for example, that somebody does not want
to be approached then they would obviously adhere to that instruction
by the PCC. A lot of the work the PCC does perhaps does not get
the focus and the praise that it deserves, but it is quite effective
behind the scenes. I think what is very important is the PCC in
those circumstances is used by the non-celebrities, the ordinary
people who can approach the PCC and then use their services to
get what they want.
Mr Jaffa: I think the one difference
between me and the others here is that my colleagues and I check
stories. The nationals operate in a different way from the regional
press; and my colleagues and I check stories before they are published,
obviously to try and prevent legal problems arising; but one of
our key considerations is the code. Is this story going to contravene
the PCC code? My clients, and you will see from my submission
paper that I represent a fair number of the regional press, really
do take the code seriously; and they take proactive action by
talking to people like me to try and ensure that the material
they publish complies with the code. It is all in the background;
nobody knows about it but it is really there, I can assure you.
Q37 Mr Evans: Do you think the PCC
have been effective, for instance, in cases like the Royal Family,
or wannabe Royal Family, Kate Middleton, for instance, when clearly
she was rather disturbed by the amount of attention she was getting?
Mr Partington: I think that is
probably a question that would be better addressed to Kate Middleton,
perhaps. I think it has been effective. I think Kate Middleton
is an interesting example of somebody who, on one level on certain
occasions, does not seem to want publicity, but for somebody who
does not want publicity to go to the most high profile nightclubs
in London where there are lots of photographers outside seems
strange behaviour for somebody who then wants to complain about
press—
Q38 Rosemary McKenna: So because
you go to a high profile nightclub you want publicity, is that
what you are suggesting?
Mr Partington: What I am suggesting
is that if you want to have a quiet, unassuming private life there
is a way of doing it.
Mr Sanders: Do not go out with a member
of the Royal Family!
Q39 Rosemary McKenna: Are you suggesting
that it is inappropriate for someone to go to a high profile nightclub
but object to intrusion into their privacy?
Mr Partington: No, not at all.
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