Written evidence submitted by Mark Thomson
From the outset, I wish to clarify that I am
making the below submission as an individual, and not on behalf
of the McCann's who, as you may be aware, are clients of Carter-Ruck.
For professional reasons, I cannot comment on any of the specifics
of the McCann case.
I have worked in media law for over 20 years and
have been involved in complaints to the various regulators for
invasion of privacy and inaccuracy, as well as many significant
court actions for privacy, defamation and harassment (e.g Naomi
Cambell v Mirror Group, Loreena Mckennitt v Ash, Sienna
Miller v Newsgroup and Big Pictures; Marco Pierre White
v New York Times and Amar v BBC). I have acted for
both individuals as well as broadcasters (Carlton TV) and publishers
(OUP and Penguin). I have also written numerous articles on media
law and contributed to the book Privacy and the Media—The
Developing Law edited by Hugh Tomlinson QC. I make this submission
based on my own experience.
Why the self-regulatory regime was not used in
the McCann case, why the PCC (PCC) has not invoked its own inquiry
and what changes news organisations themselves have made in the
light of the case?
While I cannot comment on the specific case,
I would point out that the PCC, set up and funded by the media,
does not award compensation for damage to reputation, make declarations
of falsity, issue penalties, or grant injunctions. Indeed, the
PCC does not want to exercise these functions. The PCC either
mediates to provide for publication of apologies or, in rare cases,
issues an adjudication that the newspaper must publish, although
recently a newspaper publicly disagreed with the content of a
PCC adjudication.
In claims for defamation, the most effective form
of vindication is an award of damages and a substantial award
sends the message to the world that the allegations are untrue
and should not be repeated.[47]
Accordingly, whilst the PCC sets a minimum standard
of conduct for journalists and the PCC code has improved considerably
over the years, in my view, it does not provide effective remedies
for libel or for invasion of privacy. This is also the view of
the European Court of Human Rights[48]
in relation to privacy.
Reputation is an important right which is now
guaranteed by Article 8 of the European Convention on Human Rights
(ECHR). It takes a long time to obtain a good reputation and a
short time to lose it; it is therefore essential for an individual
to have access to the courts and to have effective remedies that
effectively restore his or her reputation.
Whether the successful action against the Daily
Express and others for libel in the McCann case indicates a serious
weakness with the self-regulatory regime
No comment, for professional reasons.
The interaction between the operation and effect
of UK libel laws and press reporting
UK libel laws, which have developed from a combination
of common law and statutory law (such as the Defamation Act 1996
and the influence of Article 10 of the ECHR), remain consciously
and carefully balanced in order to allow an individual to seek
remedies when a defamatory allegation has been made against him,
but also to allow reasonable investigative journalism that is
in the public interest.[49]
Libel laws are needed in order to hold the press
to account when they make serious errors, damaging and destroying
peoples' reputations, and sometimes their livelihoods.
Where a newspaper or broadcaster reports allegations
that are in the public interest, and where the newspaper or broadcaster
has acted responsibly, they will have a defence to any claim in
libel, even where the defamatory allegations are untrue. This
development in the law is significant protection for the media.
However, where defamatory and untrue allegations are made in error,
the claimant should have a right to vindicate his reputation by
legal redress. The media also have the advantage of the offer
of amends regime brought in by the Defamation Act 1996, which
has reduced libel awards.
These developments mean that responsible press
reporting is much less vulnerable to legal claims. On the other
hand irresponsible, defamatory and intrusive reporting are, and
have always been and deserve to be, vulnerable to legal claims.
Newspapers, in particular tabloid newspapers, have huge circulation
and therefore huge power to affect people's live. They also have
huge resources.
The impact of conditional fee agreements on press
freedom, and whether self-regulation needs to be toughened to
make it more attractive to those seeking redress
Conditional Fee Agreements (CFA's) provide access
to justice including access to courts which provide effective
remedies for libels and invasions of privacy. This is a right
guaranteed by Article 6 of the ECHR. There are numerous examples
of successful claims, where if such a scheme had not existed,
a claimant would have been deprived of legitimate redress. CFA's
also allow victims with modest means to be on a level playing
field with their media opponents.
As mentioned above, the PCC and other regulatory
bodies do not provide sufficient and effective remedies.
Moreover, it is doubtful whether, contrary to
numerous statements by the media, conditional fee agreements have
a chilling effect on freedom of expression. When newspapers act
responsibly and notify their target of proposed publication of
the material, they are likely to have a defence in libel. If they
notify their intended victim of any intended private disclosure,
then any problem will be quickly resolved, probably by agreement
and, if necessary, by a speedy Court hearing.
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
This point is best addressed by in-house lawyers
who have to deal with these issues on a daily basis.
What effect the European Convention on Human Rights
has had on the courts' views on the right to privacy as against
press freedom
In general, the ECHR has had a larger effect on the
courts' views in favour of press freedom than on the right to
privacy. Since the late 1980s, early 1990s, the media has been
relying successfully on Article 10 to defend itself against state
injunctions (Spycatcher), source disclosure orders (See
Mersey Care NHS Trust v Ackroyd [50]
and Goodwin v UK [51]
), and excessive libel damages (Tolstoy Miloslavsky v UK [52]
and John v MGN [53]
), as well as to help establish the defence of responsible journalism
(Reynolds[54]
and Jameel[55]).
Moreover, despite a lot of recent ill-conceived criticism
from the tabloid press the Human Rights Act (HRA) and, in particular,
Section 12 of the HRA has further increased the protection of
the press, since injunctions for threatened breaches of confidence
have become more difficult to obtain than they were before the
HRA came into force. In addition, reporting restrictions are now
more heavily scrutinised than before.
In contrast, in relation to privacy, the effect
of the ECHR has been to accelerate the continuing development
by the common law of claims in confidence, now renamed the misuse
of private information. It is important to remember that, prior
to the 1980's and 1990's, spurred on by the intrusive activities
of the tabloid press (and in parallel to numerous parliamentary
reports highlighting concerns over invasions of privacy), the
law of confidence was already developing considerably, in such
cases as Spycatcher, Stephens v Avery[56]
and Barrymore v Newsgroup Newspapers[57].
Indeed, this was the submission of the (Labour) Government to
the European Court of Human Rights in Spencer v UK[58].
The recent decisions of the ECHR such as Peck
v UK[59]
and Von Hannover v Germany[60]
have undoubtedly increased the level of protection of privacy
for all people, whether those in the public eye or not. However,
the precise impact of these cases is still being worked out by
the Courts. It is clear that where there is a genuine public interest,
the media has nothing to fear.
It is therefore somewhat ironic that some sections
of the media want the Human Rights Act repealed or amended since,
if they were to be successful, it may well have the effect of
make obtaining injunctions easier to obtain.
Whether financial penalties for libel or invasion
of privacy, applied either by the courts or by a self-regulatory
body, might be exemplary rather than compensatory
Libel law currently allows for a claimant to
seek exemplary damages where the defendant's defamatory publication
has been done "with guilty knowledge, for the motive that
the chances of economic advantage outweigh the chances of economic,
or perhaps physical penalty."[61]
Such cases are rare and exemplary damages awards
are, in any event, vulnerable to appeal. A claim in aggravated
damages will only really be available where the conduct of the
newspaper is reprehensible. It is important that a claimant has
the right to seek exemplary damages for very serious defamations
as this limits the possibility that a media organisation will
take a commercial decision to publish an allegation regardless
of its truth.
At present, the law does not allow for exemplary
claims for breach of confidences/invasions of privacy as is clear
from the decision of Mr Justice Eady in Mosley v Newsgroup
Newspapers Limited[62].
However, a claimant in a privacy/confidence claim can seek an
account of profits as an alternative to compensatory damages which
could have much the same financial effect on the defendant as
exemplary damages. However, claims for accounts of profits are
complex and difficult to pursue.
It should be noted that whilst self-regulators
such as Ofcom/ITC have imposed very substantial fines, which almost
certainly have a punitive element, these fines do not offer any
compensation to the victim. The PCC do not, and do not wish to
have, any power to fine newspapers or award compensation. (This
is not surprising considering they are funded by newspapers.)
The writer's view is that the tabloid press
have got worse with regard to privacy in the last few years, especially
given technical advances in the last few decades of high powered
digital cameras, unlawful surveillance devices, email communication
and the internet.
There is a massive and continuing unlawful trade
in highly sensitive information as demonstrated by the Information
Commissioner in his two significant reports to parliament "What
Price Privacy" and "What Price Privacy Now". I
am also aware of this trade, from my own experience.
I set out below a brief extract of a table exhibited
at page 9 of his second report "What Price Privacy Now"
(2006). The Information Commissioner describes that table as follows:
"The following table shows the publications
identified from documentation seized during the Operation Motorman
investigation, how many transactions each publication was positively
identified as being involved in and how many of their journalists
(or clients acting on their behalf) were using these services.
It should be noted that while the table is dominated
by tabloid publications, they are far from being alone. Certain
magazines feature prominently and some broadsheets are also represented.
The Commissioner recognises that some of these cases may have
raised public interest or similar issues, but also notes that
no such defences were raised by any of those interviewed and prosecuted
in Operation Motorman"
|
| Publication | Number of transactions
positively identified
| Number of journalists/
clients using services
|
|
| Daily Mail | 952 | 58
|
| Sunday People | 802 | 50
|
| Daily Mirror | 681 | 45
|
| Mail on Sunday | 266 | 33
|
| News of the World | 228 |
23 |
| Sunday Mirror | 143 | 25
|
| Best Magazine | 134 | 20
|
| Evening Standard | 130 |
1 |
| The Observer | 103 | 4
|
| Daily Sport | 62 | 4
|
|
| |
|
In these circumstances, where a very serious invasion of
privacy has taken place, and the defendant has not given the claimant
any prior notice, and thus has denied the claimant the opportunity
to restrain publication, I believe that exemplary damages should
be available to act as a deterrent. This will probably require
Parliament to legislate for this. Otherwise, the now standard
and increasing tabloid media practice of publishing private information
without any prior notice will continue unchecked.
Whether, in light of recent court rulings, the balance between
press freedom and personal privacy is the right one
In my view, the balance reached by the Courts between press
freedom and personal privacy has improved considerably.
The Courts have made it clear that there is a presumptive equality
between press freedom and personal privacy. Each case is judged
on its facts alone and whether the particular intrusive publication
is justified by a genuine public interest or some other factor,
such as the material is in fact in the public domain. Consequently,
some information will be restrained and some will not, depending
on the particular facts of the case.
Parliament has also introduced two important laws protecting
privacy, the Protection From Harassment Act 1997 and the Data
Protection Act 1998 which have helped.
Nevertheless, it would be a significant improvement if the
privacy codes of Ofcom and the PCC included a provision that a
journalist/newspaper had to approach the target before publishing
defamatory and/or private material.
This is consistent with the concept of reasonable journalism
in Reynolds and is a matter of basic fairness. The tabloid
media refrain from notification in order to avoid the risk of
a complaint or even to avoid an injunction. The consequence is
that people's private information is released permanently without
any chance of the victim remedying the situation.
47
See 9.1, p 263 of Gatley on Libel and Slander, Eleventh
Edition, Sweet & Maxwell [2008] Back
48
See Peck v United Kingdom (44647/98) [2003] E.M.L.R. 15 Back
49
Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127 Back
50
Mersey Care NHS Trust v Ackroyd [2007] HRLR 19 Back
51
Goodwin v United Kingdom (17488/90) [1996] 22 E.H.R.R.
123 Back
52
Tolstoy Miloslavsky v United Kingdom (A/323) [1996] E.M.L.R.
152 Back
53
John v Mirror Group Newspapers [1997] Q.B. 650 CA Back
54
Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127 Back
55
Jameel v Wall Street Journal Europe [2006] UKHL 44 Back
56
Stephens v Avery [1988] Ch. 449 Back
57
Barrymore (Michael) v News Group Newspapers Ltd [1997]
F.S.R. 600 Ch D Back
58
Spencer v United Kingdom (28851/95) (1998) 25 E.H.R.R.
CD105 Eur Comm HR Back
59
Peck v United Kingdom (44647/98) [2003] E.M.L.R. 15 Back
60
Von Hannover v Germany (59320/00) [2004] 16 BHRC 545 Back
61
Broome v Cassell [1972] A.C.1027 Back
62
Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) Back
| 
