Examination of Witnesses (Question Numbers
100-118)
MR MARK
THOMSON, MR
JEREMY CLARKE-WILLIAMS,
MR JONATHAN
COAD AND
MR ROD
CHRISTIE-MILLER
24 FEBRUARY 2009
Q100 Alan Keen: I would like to ask
two questions which may not be related to law exactly. One of
the previous panel was kind to newspapers by saying all they want
to do is be responsible journalists. The main aim they have got
is to sell newspapers, that is really why they are there and how
they sell newspapers and how they get people buying more of them
is something which they act on. I have complained to the BBC about
the fact that headlines are given out as the news starts which
are sometimes misleading, and the BBC are in competition with
other newspaper programmes, with Sky and ITV, at times. By the
time they get to the full discussion or the full news item on
it it is not quite the same. Newspapers are guilty of this all
the time in that headlines come out to get people to buy the papers
and by the time you have read 17 paragraphs you realise that it
is not quite the same as the headline made out or the opening
three paragraphs. Is there anything in law that can reflect this?
My experience is that newspapers have got away with it by saying
they did not do anything wrong.
Mr Clarke-Williams: I think that
would be regarded as skilful journalism because one is obliged,
if one is pursuing a defamation claim, to consider the whole of
the article. Therefore, the poison of a headline can sometimes
be corrected by what appears later in the article itself. You
are absolutely right. I have got one case on at the moment where
the headline contains all the evil. I had one comparatively recently
for a union leader which was suggesting in the headline that she
was encouraging her teacher union members to sleep with underage
pupils. That is not what she had said and the article itself revealed
that, but the headline was a very startling thing to confront
the reader with. At the moment as the law stands the article and
the headline would be analysed very closely by a court and a determination
would be made as to whether or not the headline was corrected
by what is read below.
Q101 Alan Keen: Should the law be
changed so that the public are not misled by headlines?
Mr Clarke-Williams: It is an interesting
point to raise because it is something which I think clients find
more difficult to understand than many other areas of defamation.
They cannot understand why a headline which is patently defamatory
and untrue does not give them a cause of action simply because
you can pick through the rest of the article and find a correction
to it. If you asked the man in the street, the man on the Clapham
omnibus, they would say, "Yes, that is something which one
ought to be allowed to bring a claim on," because it is what
strikes the viewer in the eye, I suspect more so on internet publishing
as well. I think people surf, cruise, whatever, the websites and
I think they read headlines and skip on and quite often do not
read the article as well, but in a legal case the article itself
would be read very carefully.
Q102 Alan Keen: Should the law be
changed?
Mr Clarke-Williams: Yes, I think
it probably should.
Mr Thomson: I am not sure. I think
it is presumed that viewers read the whole article. They may not
empirically and it may be unfair, but it is presumed that they
read the whole article. It would get quite technical to just sue
on a headline. Everyone knows newspapers sex up the headline to
sell newspapers. I think it would get quite technical just to
sue on the headline. I am sure the people behind me would be outraged
by the suggestion and it would be quite complicated. That may
be a change too far.
Mr Coad: I think it is a real
problem, though, because if you go and buy petrol or go to a newsagent
or walk past stalls at a station or you turn on breakfast vision,
something will be held up to the camera and there will be a headline.
One of my favourite ones is the Evening Standard report
of the Michael Douglas and Catherine Zeta Jones case, which of
course they won, they won their privacy battle. The headline of
the Evening Standard was "Michael Douglas and Catherine
Zeta Jones lose privacy battle". For an awful lot of people
who walk past the stands that is all they have ever learned. I
agree with Mr Thomson that it does create technical difficulties,
but the reality is that particularly front pages are an advert
and the adverts are sexed up and they send a signal. Since the
reality is that millions of people see the front page who do not
buy the newspapers, that is all they get and at the moment neither
the law nor the PCC provides an adequate remedy for that. I absolutely
agree that it is a problem that needs to be addressed.
Q103 Janet Anderson: Let us turn
to the Human Rights Act and the balance between Article 8 and
Article 10 of the European Convention on Human Rights. It was
suggested in the previous session that section 12 of the Human
Rights Act had not been interpreted correctly by the judiciary
very often, that the weight was now in favour of the personal
privacy rather than freedom of expression and that there was a
failure on the part of the courts to understand the value of freedom
of expression. I wonder if you would just like to comment on that.
Mr Christie-Miller: Article 8
protects rights to privacy and Article 10 freedom of expression
and they are supposed to be equal under the European Convention
on Human Rights. They are given a match. There was agitation in
the Human Rights Act, the legislation which introduced that, for
section 12, but section 12 is a step up in terms of protecting
the media rather than a step down.
Q104 Janet Anderson: That is not
what they were saying in the other session.
Mr Christie-Miller: Let me explain
why I believe that that is not correct. If I am applying for an
injunction to prevent an employee from starting another job somewhere,
for example, then the test I am going to apply as to whether I
should have an interim injunction, the American Cyanamid test,
is a much lower test. Essentially it revolves around whether I
have got a serious issue and where the balance of convenience
lies. If I am looking to restrain somebody's freedom of expression
rights under Article 10 there is a different test which applies,
which is the test introduced by section 12 of the Human Rights
Act. That test is whether I am likely at trial to get an injunction—and
"likely" has been interpreted all the way up to the
House of Lords as meaning essentially 50:50—which is a much
higher test than the old fashioned pre-human rights test. So actually
the media are more protected by section 12 of the Human Rights
Act, but I think the complaint is the way in which more likely
to succeed is being interpreted by the judges. Again, all of the
jurisprudence says that when deciding where the balance lies between
8 and 10 and section 12(3) there should be an intense focus on
the facts. What judges are doing is they are looking at the very
detailed facts of specific cases and saying is this individual
more likely than not to get an junction at the end of trial and
sometimes they say yes and sometimes they say no and most of the
time the judges will say, "You can protect that bit of information
because that relates to your medical condition. You can't protect
that bit of information because you have put that information
into the public domain yourself." You may have talked about
how much you are paid, for example. "You certainly cannot
protect that bit of information because that is just not capable
of being protected." So there is a division between what
information can and cannot be protected and it is decided on the
facts by experienced judges. I do not think it is right to generalise
and say that those judges are not giving due weight to Article
10. They are looking at the facts of each particular case.
Q105 Janet Anderson: So you think
that interpretation is fair, the way it has been interpreted?
Mr Christie-Miller: Personally,
acting for claimants, I think the judges have made individual
decisions which I would rather they had not made. I would rather
they were more claimant friendly and the media will say exactly
the opposite, that they would rather the judges apply this in
a more defendant friendly manner, but the judges are applying
an intense focus on the specific facts and are deciding whether
or not something is likely to be injuncted at a trial or not.
Mr Clarke-Williams: I agree with
Rod. I think judges are conducting a very careful balancing exercise.
As has been mentioned, because it is a phrase which occurs repeatedly
in case law, they do so by applying an intense focus to the facts
of that particular case. It may be, from something which was said
earlier, that the cases which tend to go all the way to trial
and which therefore become the guiding case law are slightly unusual
because they often involve celebrities. Certainly my experience
in acting for ordinary members of the public is that where privacy
issues arise I notice much greater anxiety on the part of the
newspapers to settle those claims at an early stage. I suspect
that a claim by an ordinary member of the public over privacy
issues which went all the way to trial would carry less of a stigma
than some of these celebrity cases which have attracted so much
attention. The fact is, if one reads something like the Mosley
judgment, I do not think that Mr Justice Eady could have done
a more conscientious job in seeking to balance freedom of expression
against the rights to respect for privacy and come up with the
decision which he did. I think it is being fairly applied. I think
to suggest otherwise is to come back to the unfair suggestion
that the judges who are determining these cases are in some way
biased against the media or biased in favour of an individual's
right to respect for privacy and I do not think that is a fair
allegation to make.
Mr Coad: I take this on a more
general level because I think if you simply go out and buy newspapers
today you will find them full of all sorts of material which you
might think is private or controversial. You can take a list of
scalps that the press have been able to have notwithstanding all
these cries of foul. The fact is that the British press does fulfill
its role as a watchdog, as it should and none of us would want
it to be any other way, but it is simply not true to look at our
papers and say they are anodyne or newspaper editors are downtrodden.
The simple going and purchasing day-by-day of newspapers or looking
at websites just gives an entire lie to that. I really think that
the evidence there is overwhelming, that there is not an unreasonable
restriction on what they can publish either on section 12 or on
any other basis either.
Q106 Janet Anderson: Do you think
there should be harsher penalties available?
Mr Coad: Harsher penalties for
the invasion of privacy?
Q107 Janet Anderson: Yes.
Mr Coad: The whole issue of invasion
of privacy is better dealt with on an injunctive basis. It goes
back to the point that we made earlier on about prior notification.
It is scant comfort for a client to receive a modest sum of money
from a newspaper after their lives have been wrecked one way or
another. It is not a great way of protecting privacy by paying
the money after it has been breached. So the preferable way is
to develop some kind of system where there is an effective protection
for privacy. Do I think the penalties are too high? No, I do not
think they are. Given the value to newspapers of the private lives
of celebrities or otherwise, the vast sums of money which they
choose to pay on the market for these things and since they are
published with profit then I do not think that the current fines
notionally that they get for breaching people's human rights are
excessive. I would also add that the PCC's Code of Practice is
written entirely by the press and the press has written in at
paragraph 3 of the Code, virtually verbatim, Article 8. So at
least there is recognition by the press itself that this is a
value which they themselves should take note of.
Mr Thomson: I think the balance
is about right. There are certain areas that privacy law could
develop and particularly paparazzi activity of people. I think
the real problem with the media and the tabloid media is that
in essence they have now a policy they do not notify in advance,
which means that whether it is accurate or not they do not know,
if it is private they fear an injunction and just as a policy
they do not notify so the damage gets done. They know the risk
of an injunction. Mr Mosley's situation was that he could not
even get an injunction restraining the video for which there was
no public interest and probably never was and that is the major
issue about this area now. There is a policy of no notification
and that means that victims, whether it is a celebrity or anyone
else, are not told in advance about the publication and it means
that the damage is done sometimes permanently, and sometimes when
the damage is done they do not want to go to trial because it
is too distressing and embarrassing. It used to be when I started
in practice the media would notify. Nowadays generally the tabloid
media do not. There are a lot of victims who do not have an effective
remedy and who cannot face the sort of trial that Catherine Zeta
Jones or Naomi Campbell had to face. It is a real issue. Whether
it is the law, whether it is Parliament should intervene or whether
it is the regulators should put it in their Code, something ought
to happen because there are real victims and they are not just
celebrities whose lives are being affected by this and sometimes
permanently and irretrievably and it is a big issue.
Q108 Janet Anderson: Would you say
that the way things are at the moment is encouraging irresponsible
journalism?
Mr Thomson: Yes. I think it has
got worse. I think online articles are particularly risky and
vulnerable to claims. The practice at the moment is that press
standards have got worse and there are more victims. The media
know this. Sometimes it is just too embarrassing. I have a number
of claims where the client would have won, but given that they
published the article, which was deeply embarrassing, they just
did not want to go to court and face the full publicity of an
action. If they were notified it would have been, for a small
amount of money, resolved either by agreement or by a judge. When
I am notified in advance, and so you are given a few hours to
seek to complain, what generally happens is—because I know
all the media lawyers—that you will make a call and say
do not do it and maybe you will threaten an injunction. A lot
of the time it is three phone calls and they say, "Alright,
we won't publish those pictures of so and so with their kids,"
but the issue is when they do not notify and the general policy
is they do not. There are real victims everywhere in England and
Wales without an effective remedy and they do not want to face
the Mosley publicity trial and they are left without a remedy.
Q109 Janet Anderson: So that general
policy that is being adopted of not notifying people means that
journalists are encouraged to be sloppy because they think "Well,
I'm going to get away with it"?
Mr Thomson: A lot of the intrusive
articles are inaccurate as well. Nothing is ever plainly private.
There is a mixture of inaccuracies and privacy. I had a client
where the newspaper wanted to publish details about his cancer
treatment and one published details about his cancer treatment
but they got the details wrong. There is no public interest in
this. He was an actor. Because they did not check in detail the
facts they had got the wrong kind of treatment and it caused him,
his family, his wife and his friends huge distress.
Q110 Mr Sanders: How do you view
the PCC? When would you advise your clients to seek redress through
the PCC rather than another route?
Mr Coad: You do not really get
redress from the PCC since they have elected to have only one
sanction and that is the publication of a correction and apology.
As you know, I have written a substantial paper on this. If I
may, I am going to demonstrate a point which, I have to say, I
have my client's permission to do. As I have tried to say, you
are looking for a litmus test about a regulator: How can you judge
the effectiveness of what they are doing? I complained about this
article.
Q111 Chairman: You will have to describe
it.
Mr Coad: I would like you to see
it.
Q112 Chairman: It will not be on
the record unless you describe it.
Mr Coad: I will read it out: "Peaches:
spend night with me for £5,000". You see it as millions
and millions and millions of people see it either on breakfast
television, at petrol stations or at Tube stations or whatever
and this is your headline point. Not one single word of this story
was true; not a syllable of it. Not only was it there, but if
you turn to page five you will find—and I have made photocopies
of all these—that it carries on in the same vein. On a Blue
Peter basis of "Here is something which I made earlier"
here is the paper that carries the apology. The point is, Mr Whittingdale,
it is not there. That is it: that is what the millions and millions
of people who have seen it will have seen. In fact it is there.
Q113 Chairman: Where is that?
Mr Coad: Thank you, you have made
my point.
Q114 Chairman: It is actually necessary,
if this is to be useful, for you to tell us.
Mr Coad: I will point it out to
you but I have made photocopies. Perhaps you would like someone
to pass them round.
Q115 Chairman: I am sorry to be difficult
but photocopies will not appear in the transcript of the session.
If you want this taken as evidence, you have to describe it.
Mr Coad: It is on page 2, in size
it is 2.6% of the correction. This is what the newspaper admitted.
I do not think I need to tell you that what the headline implies,
but the newspaper accepts and says: "We apologise to Peaches
for the implication in the headline that she provided services
of a personal or sexual nature for the payment of a fee."
So the newspaper accepted that that is what the implication was
on the front page. The point is this: the newspaper agreed, as
they could do no other, that the front page story was inaccurate,
but what they would not do was put the correction on the front
page. I went to the PCC and made the point that millions and millions
of people who do not buy the newspaper will have seen this on
the front page and therefore the only place for the correction
to be is on the front page. In 2003 Sir Christopher Meyer came
in front of you and said of prominence, not once but twice, that
of course corrections must be "at least as prominent"
as the original article "otherwise it would be ridiculous".
I think we would agree with that. You will see that also in my
paper I have done a little survey and he said that on a front
page where there has been a hideous transgression—and you
may think that accusing a 19-year-old girl of prostitution on
the front page of a national newspaper might possibly be a hideous
transgression—in those circumstances the apology should
be on the front page, or at least trailed on the front page. Well,
it was not. If you have a regulatory body which has as its sole
sanction the publishing of corrections and apologies, and time
after time they flout that in favour of the very industry that
pays them and appoints them and set them up, then that is the
clearest indication, in my view, that it is a body which is failing.
It causes the most intense frustration and people simply cannot
understand it. They cannot understand how an editorial decision
can be made on one day that this story is of sufficient importance
to go on the front page, but miraculously when it comes to correcting
it, and a volte-face is undertaken, the editorial decision
is taken no, it should be elsewhere, or it should be a tiny fraction
of the original story. As far as you go back to redress, that
is the only redress that the PCC gives. My last point, and then
I will shut up, is that there are three interest groups when it
comes to an apology: there is the newspaper; there is the individual,
family, friends and whatever; and there is the general public
who have been misled in the first place. The striking thing about
the PCC policy on prominence is that invariably it favours the
newspapers' interests because the only interest group where it
is best the apology is kept small is the newspaper. It is invariably
the newspaper that persuades the PCC to agree to a 5% size apology,
so the interests of the complainant and the general public who
have been misled are set aside in favour of the newspaper. There
simply can be no other explanation of a body like this, that it
is failing the complainants and it is obviously, and fatally,
biased in favour of those that set it up and fund it.
Q116 Mr Sanders: That is a very persuasive
example of failing. What needs to happen to bring about the remedy
that many people believe the PCC is there to obtain for them?
Mr Coad: There needs to be root
and branch reform of the PCC. My own view is that the better thing
would be to change this entirely anachronistic system we have
whereby footage that is shown on a newspaper website is regulated
by one body but if it is shown on television it is regulated by
another. We now have a rapidly converging set of media. The only
sensible thing to me—and also to avoid the competitive advantage
that newspapers have by regulating themselves, which of course
the broadcasters do not have—and I should add that I have
spent quite a lot of my time defending broadcasters—the
only sensible thing is to place newspapers under Ofcom and for
them to be regulated. You read a newspaper on the screen, you
watch television programmes on a screen through your PC. Why on
earth should there be any difference in regulation? Why for example
should the PCC be allowed to operate a system where there is no
independent representation on the Code Committee? You cannot turn
up at hearings where your complaints are being adjudicated, rather
like Guantanamo Bay. There is no substantive appeal to decisions
of the PCC and this cannot be right.
Q117 Chairman: We are at 1 o'clock
which means we are going to have to stop in any second, but I
am anxious that the other three of you say whether or not you
agree with Jonathan Coad about the inadequacy of the PCC?
Mr Thomson: It has a role but
it is a limited role. The Code is reasonably good but it should
be amended and it should include notification so that it is part
of their professional obligations to notify. It has a limited
role. The notification of harassment procedure is quite effective
and I am sure is of use. If someone is being harassed by the media
they do actively intervene, but the adjudications and the complaints
procedure is not, in my view, a sufficient remedy. They have a
limited role and for serious complaints and serious libels they
are best dealt with between lawyers rather than through the PCC.
Mr Clarke-Williams: I agree with
that analysis. For minor inaccuracies it can sometimes be a sensible
option for a client, but, I am afraid, the inadequacies so graphically
described by Jonathan mean that it has engendered enormous cynicism
about the PCC, which has got as far as the general public, and
quite often members of the general public say, "There is
no point going to the PCC, is there?" when I meet with them
at the initial client meeting. That is a sad reflection on the
way in which it is regarded.
Q118 Paul Farrelly: It appears very
rapid and proactive when it comes to members of the Royal Family,
for instance in the issue of the Evening Standard
saying that Prince Philip had got prostate cancer, but not when
it comes to ordinary members of the public. Is that a fair assessment?
Mr Clarke-Williams: It is certainly
my experience acting for ordinary members of the public rather
than members of the Royal Family, yes.
Mr Coad: That is a good point
but, as I recall, the prostate cancer story was most of the front
page. I will never understand why there was a kind of postage
stamp note on the front page saying that there had been a correction,
but the correction was page 14 or something like that, so for
those who walked past and saw the story and did not buy the Evening
Standard, which would be millions, the story was effectively
not corrected.
Mr Christie-Miller: I have not
got any newspapers or a PowerPoint presentation so I cannot compete
with Jonathan, but I am not quite as damning as Jonathan is. I
tend to agree with Jeremy and Mark a little bit more. There are
certain things the PCC is very good at. If one has a non-defamatory
inaccuracy, so it is not something that is open to be sued upon,
then the PCC is the right person to use. In addition, we have
had instances where the media have—and I am not quite sure
of the right word—amalgamated photographs to make an untrue
set of circumstances appear. Again in non-defamatory circumstances
the PCC Code has bite on those, but, other than that, if it is
serious, use the courts I think. That is always our experience.
Chairman: I am afraid we are having going
to have to stop here. Can I thank all four of you very much.
| 
