Written evidence submitted by Schillings
Lawyers (PS 16)
The law clearly needs to set the right balance
between freedom of speech and the rights of individuals. We believe
in freedom of expression. However all democracies properly appreciate
that there is no such thing as unfettered free speech, and that
the right to free speech has to be balanced against laws to protect
the rights of the individual.
The United States is usually put forth as a bastion
of free speech. However it also has significant limitations on
free speech such as the laws regarding "hate crime"
and obscenity.
In the UK, we believe in the right to a private
and family life as well as the equally important right to a reputation,
as enshrined by the European Convention on Human Rights and the
Human Rights Act 1998.
Contrary to the views of various media commentators,
including most recently Paul Dacre in his speech to the Society
of Editors,[63]
we do not believe that the Human Rights Act pitches rights too
far in favour of the individual as against the media. It is a
balance between the two rights, and in many recent cases it has
been confirmed by the courts that the jurisprudence of the European
Court of Human Rights requires that neither Article 8 not Article
10 is given any presumptive priority in English law—see
eg Sedley LJ in Douglas v Hello! Ltd [2001] 1 QB 967, 1004,
para 135:[64]
"The European Court of Human Rights has
always recognised the high importance of free media of communication
in a democracy, but its jurisprudence does not—and could
not consistently with the Convention itself—give article
10(1) the presumptive priority which is given, for example, to
the First Amendment in the jurisprudence of the United States'
courts. Everything will ultimately depend on the proper balance
between privacy and publicity in the situation facing the court."
We consider that the courts are setting the
right balance between Articles 8 and 10. They are in any event
following the European jurisprudence on Article 8 (eg von Hannover),
which is currently more favourable to claimants than English cases.
It is wrong for the media to criticise individual judges for applying
the Human Rights Act and jurisprudence that they are obliged to
follow.
We would also point out that section 12(3) of
the Human Rights Act 1998 in fact favours the media—it makes
interim (pre-publication) injunctions more difficult to obtain
when there is a countervailing Article 10 right, thereby raising
the hurdle for obtaining an injunction. The test in Cream Holdings
v Banerjee [2004] UKHL 44 applies to such cases, in which
it has to be shown that an injunction is "likely" to
be continued at trial; in other cases the American Cyanamid
test applies: it only has to be shown that there is a "serious
issue to be tried".
The result is that in reality, it is certainly
not the case that in a majority of cases Article 8 rights "trump"
Article 10 rights whether at the pre-publication stage or otherwise.
Practically speaking, those individuals and
companies that reluctantly become post-publication claimants in
defamation or privacy cases would prefer not to be seeking to
repair the damage after it has occurred (a.k.a. shutting the stable
door after the horse has bolted). This is particularly the case
in confidentiality and privacy cases. It is often said that confidentiality
or privacy is like an ice cube on a carpet: once it melts, it
is gone forever. This is all the more acute in the era of global
internet communication.
For the reasons set out below, we consider that
the law as it currently stands entitles the media to publish damaging
information first, and then pay the consequences later, if at
all. This gives rise to considerable stress for individuals, as
well as leading to significant cost concerns and uncertainties
in litigation.
We would therefore encourage the DCMS to strive
to create a system that seeks to resolve Article 8[65]/Article
10 issues prior to publication wherever possible. The courts are
able to order speedy and cost-effective trials on many privacy
(and intellectual property) issues. This approach is to be encouraged
by the DCMS, which should consider the provision of rules that
strike a fairer balance between Article 8 and 10 rights in this
regard.
We make three suggestions by which this might
be achieved.
1. NOTICE REQUIREMENT
We propose that there should be a requirement
to give notice in cases where there is a threat of serious infringement
of an individual's Article 8 rights.
The incentive to do this could be increased damages
or payment of indemnity costs where no such notice is given.
This is a view that appears to be supported
by the PCC and the courts in the context of responsible journalism
(see respectively the Burrell adjudication and discussion
about the Jameel case, below).
In serious cases of threatened infringement
of Article 8 rights (including defamation cases) the target should
be given notice of the intended publication, so that they may
have the opportunity to take action in respect to the allegations
or at least provide a response to the media organisation threatening
publication.
This approach is to some extent supported by
the PCC, who recently stated that a failure to contact the subject
of articles may constitute lack of care under clause 1 of the
Code.—see Burrell v News of the World. [66]This
is also the approach recommended by the courts in Reynolds
v Times Newspapers Ltd and Others [1999] UKHL 45 and Jameel
v Wall Street Journal [2006] UKHL 44:
Secondly, the publisher must have taken the
care that a responsible publisher would take to verify the information
published. The actual steps taken will vary with the nature and
sources of the information. But one would normally expect that
the source or sources were ones which the publisher had good reason
to think reliable, that the publisher himself believed the information
to be true, and that he had done what he could to check it. We
are frequently told that "fact checking" has gone out
of fashion with the media. But a publisher who is to avoid the
risk of liability if the information cannot later be proved to
be true would be well-advised to do it. Part of this is, of course,
taking reasonable steps to contact the people named for their
comments. [67]
A failure to give notice can constitute a denial
of the right to access to justice as enshrined by Article 6 of
the European Convention on Human Rights (and the Human Rights
Act 1998).
Journalists are generally avoiding the giving
of notice and have admitted to doing so. The News of the World
admitted in the Burrell case above that they did not give
Mr Burrell notice because they were concerned that he might have
obtained an "unmeritorious" injunction. Colin Myler
also admitted the same in the course of the Mosley v News Group
Newspapers privacy trial.[68]
There is a significant commercial incentive
for the media to publish information that they know would give
rise to a successful injunction application. The likelihood is
that in most cases, the decision to publish will result in the
media organisation not being sued by the subject, because the
information has already been published. Madonna's current case
against Associated Newspapers in respect of the unauthorised publication
of wedding photographs is an appropriate example of a newspaper
refusing to notify the subject (a copyright and privacy claim).
Further, the Court of Appeal (in Douglas
v Hello! Ltd) has recognised that because damages awards in
privacy cases are very modest, this does not represent a disincentive
against publication of infringing material:
The sum is also small in the sense that it
could not represent any real deterrent to a newspaper or magazine,
with a large circulation, contemplating the publication of photographs
which infringed an individual's privacy. Accordingly, particularly
in the light of the state of competition in the newspaper and
magazine industry, the refusal of an interlocutory injunction
in a case such as this represents a strong potential disincentive
to respect for aspects of private life, which the Convention intends
should be respected. [69]
We are not suggesting necessarily that damages
should be increased but we would urge the DCMS to vocalise that
the lack of a notice requirement encourages the publication of
infringing material and is not to be condoned.
Another option is indeed to allow increased
damages (and in particular remove the limit on defamation damages
effected by the comparison which is drawn as of right with personal
injury cases). Further still, it is open to the DCMS to recommend
that legislation should be brought in to allow for exemplary damages
in such cases. Exemplary damages are not currently available in
privacy cases—see eg Douglas v Hello! (above) and
Mosley v News Group Newspapers (2008) EMLR 20 (at [235]).
The media regularly complain that costs in media
cases are out of kilter with the damages. But it is rarely acknowledged
that damages have been capped.
Damages are not the main motivator for many
Article 8 complainants. As was observed by Eady J in Cox v
MGN and Others [2006] EWHC 1235 (QB):
The amount of financial compensation was not
the Claimants' only or main concern; they were seeking undertakings
from all four Defendants and, above all, delivery up and destruction
of the photographic digital images to make further publication
impossible.
Accordingly the judge considered it to be over
simplistic to say that the amount of costs claimed in the case
was disproportionately high (approximately £140,000) in comparison
to the damages received (£50,000).
2. ABOLITION
OF THE
RULE IN
BONNARD V
PERRYMAN IN
LIBEL CASES
Under the law as it currently stands, it is
not possible to obtain a pre-publication (or "interim")
injunction in defamation cases, unless it can be shown that the
allegations intended to be published are "demonstrably false";
put another way, it has to be shown by the applicant that no defence
to the claim has any prospect of succeeding. This rule ought to
be amended by statute. It has now been accepted by the European
Court of Human Rights that the right to reputation is one of the
rights protected under Article 8 of the Convention, and English
law provides for a flexible test for obtaining pre-publication
injunctive relief in cases where infringements of Article 8 rights
are threatened.
As above, Section 12 of the Human Rights Act 1998
protects the media by raising the bar for injunctive relief to
be granted in freedom of expression cases, since it requires the
claimant to prove that an injunction would be likely to be granted
at trial. The same provision ought to apply to defamation cases,
and in particular the Cream Holdings test ought to be confirmed
as applying to defamation cases as one of the rights protected
under Article 8. We submit that the cases of Greene v Associated
Newspapers [2004] EWCA Civ 1462[70]
was wrongly decided, and is in conflict with subsequent jurisprudence
from the European Court of Human Rights (see Cumpana and Mazare
v Romania (2005) 41 EHRR 2005—above).
There is no sense in having a rigid rule that
applies to defamation (reputation) rights pre-publication, namely
that an injunction can only be granted if there is no arguable
defence, but allowing for a flexible rule with regard to other
Article 8 rights that, as per Cream Holdings, which generally
allows for those rights will be protected at the pre-publication
stage if it appears that the applicant is more likely than not
to succeed at trial.
The historical reason for the rule in Bonnard
v Perryman has been that damage to reputation can be "repaired"
by a jury's award of damages at trial through the "vindication"
that a claimant obtains on a successful outcome of a defamation
case. Today this justification is virtually obsolete for the following
reasons:
(a) Damages in defamation cases have been significantly
reduced from the levels when Bonnard v Perryman was decided.
The award of substantial damages is an important aspect of vindication.
(b) Litigants are strongly encouraged to resolve
disputes prior to trial, and there are numerous procedural disincentives
against pursuing a claim to trial. The Offer of Amends regime
provides defendants with the opportunity to reduce damages by
substantial amounts (often 50%) if an offer to make amends is
accepted.
(c) Settlements are often entered into by the
media for, they say, commercial reasons rather than to provide
any genuine vindication to the claimant. Apologies are often published
with minimal prominence and claimants can find difficulty publicising
the fact that they have obtained a "victory" in respect
of false allegations. Trial results tend to make news; settlements
often do not.
(d) Perhaps most importantly of all, out of court
settlements do not generally provide for a process by which an
independent adjudicator can conclude, after examination of the
evidence, that published allegations are false. Certainly, there
is a difference between a media organisation accepting that allegations
are false (say in a statement in open court) and a decision by
a judge or jury after a trial process that includes detailed cross
examination and other testing of the evidence.
3. SPEEDY TRIALS
IN INJUNCTION
CASES
If the media are concerned about a story being
"killed" when pre-publication injunctions are granted,
then the DCMS ought to consider rules that encourage litigants
and the courts to work towards speedy trials to resolve whether
publication should be allowed in defamation (and privacy) cases
where an interim injunction has been granted.
We submit that in many cases, a trial could be arranged
to take place within a month or two of the initial injunction
being granted. In many cases, the process could be even quicker.
Such speedy trials would protect freedom of
speech, reduce the costs of litigation and promote certainty.
In appropriate cases they could also provide the media with the
opportunity to fully argue the case for publication in sufficient
time for a story to still be newsworthy once the trial process
has been completed.
SPECIFIC QUESTIONS
FROM THE
CONSULTATION
Below we express views on the specific questions
asked in the consultation, except insofar as they have been answered
above.
1. 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
2. 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
We take these questions together. We do not intend
to comment on the PCC and the McCann's issue specifically, but
will say that the starting point is that our self-regulatory authorities
(in particular the PCC) do not adequately protect Article 8 or
reputational rights.
The PCC is seriously inadequate since it cannot:
— make findings of fact or declarations
of falsity of allegations;
— make a monetary award of compensation
in appropriate cases;
— compel witnesses or order disclosure;
and
— deal effectively with pre-publication
disputes.
There is also a general public perception that
the PCC is too favourable to the media; accordingly there is a
lack of public confidence in using this route to resolve serious
complaints against the media. It is therefore important to consider
how the law protects the rights of individuals in pre-publication
cases (see above).
3. The interaction between the operation
and effect of UK libel laws and press reporting
We answer this in the main submission set out
above.
4. 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
We are broadly in support of the proposal reached
after the Theobalds Park consultation—see our attached letter
to the Ministry of Justice that sets out our views on this issue.[71]
5. 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
Our general point is that the contempt of court
rules which apply in this jurisdiction can be enforced against
outsiders to the jurisdiction, and ought to be enforced in cases
with an international element where there had been a breach of
a Section 11 Order overseas. Failing to do so in the age of the
Internet renders the Order useless, when the information is being
published online in another jurisdiction but is clearly available
in this jurisdiction.
We have acted for a blackmailed individual who
had received the benefit of a reporting restrictions order under
Section 11 of the Contempt of Court Act 1981. The details of the
case are confidential but if it would be of assistance to the
Committee we would be happy to disclose further details on a "not
for publication" basis.
6. What effect the European Convention on
Human Rights has had on the courts' views on the right to privacy
as against press freedom
The media claim that the European Convention
and Strasbourg jurisprudence have eroded the right to freedom
of expression. Complaints are regularly made, for example, that
the public interest defence is a "fig leaf" defence.
However, in the cases in which such a public interest defence
has been raised by the media and has failed, such as in Mosley,
the public interest argument was a weak one. There could have
been no public interest justification for the disclosure of Mr
Mosley's private sex life to millions of people on the basis of
public interest. Numerous further cases have been decided in which
no public interest exist. A classic example is cases involving
the publication of photographs of naked people on honeymoon or
on holiday. The media regularly carries such stories, without
a hint of legitimate public interest. They cannot complain when
successful legal action is taken over them.
7. 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
We have discussed above our views on increasing
damages in media cases. We advocate rather for the giving of proper
notice, with a failure to do so leading to increased damages.
8. Whether, in the light of recent court
rulings, the balance between press freedom and personal privacy
is the right one
See main submissions above.
January 2009
63 Paul Dacre speech: http://www.societyofeditors.co.uk/userfiles/file/PaulDacreSpeech91108.doc Back
64
As cited with approval in Campbell v MGN Ltd [2004] 2 AC
457 at [106] Back
65
By which incidentally we would include rights to preserve reputation,
including the right not to be defamed. We refer to the ECHR case
of Cumpana and Mazare v Romania (2005) 41 EHRR 200 at 91
in which it was concerned that the right to reputation is protected
under Article 8 of the Convention. Back
66
http://www.pcc.org.uk/news/index.html?article=NTQwNQ== Back
67
At para. 149 Back
68
Extract from the transcript of Mr Myler's evidence. Ev not printed Back
69
Douglas v Hello! Ltd [2005] EMLR 609 at [256] Back
70
And an earlier case coming to the same conclusion-Coys v Autocherish
(2004) EMLR 25 Back
71
Ev not printed Back
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