Examination of Witnesses (Question Numbers
10 MARCH 2009
Q200 Alan Keen: Did you get the impression
a lot of the time that the headlines were selling newspapers and
the stuff following the articles was disconnected with the headline?
Was the content as well as much rubbish as the headlines that
were put out to sell the papers?
Mr McCann: On many occasions,
yes. I can only assume that the stories were being published on
a commercial decision.
Q201 Alan Keen: Have you tried to
calculate roughly how much profit The Express made after
deducting their costs?
Mr McCann: I have no idea.
Mr Mitchell: I heard from reporters
on the ground that it was putting on upwards of 40,000 or 50,000
copies a day when Madeleine was on the front page. I have no way
of knowing whether that figure is accurate but it certainly was
putting on tens of thousands of paper sales at the height of it
on a daily basis.
Q202 Alan Keen: In the same way as
the photographs of Princess Di have appeared by the hundred.
Mr Mitchell: The Express Group,
for whatever reasons, decided that Madeleine was a front page
story come what may in the same way that they had treated the
princess for the previous decade many times. We could only but
draw the conclusion that there was a commercial imperative at
Q203 Alan Keen: Has anyone tried
to calculate the profit from this to The Express alone?
Has any other newspaper criticised The Express? Have there
been any articles saying that The Express went too far?
Mr Tudor: As one would expect,
the usual broadsheets from memory ran some articles on it, the
Guardian being the classic example. It has a good media
section that tends to run a lot of articles commenting on other
things. It has the Roy Greenslade blog and all that sort of thing.
There was an element of coverage but of course the results against
the Express, the front page apologies, the damages and
so on, prompted a huge amount of coverage, not so much in the
printed media perhaps unsurprisingly but certainly in the broadcast
media, which was of course one of the reasons for having it in
terms of the vindication that the McCanns were seeking and indeed
the deterrent for that matter. If I may turn to your question,
Mr Keen, yes, the headlines in many cases were appalling. I do
not know if you have had the misfortune of having read them. A
large number of them were appalling. A large number of them were
on the front page. Almost all of them were big. Obviously they
all appeared online as well. Leaving aside the legal aspects of
how much an ordinary reader is assumed to have read the whole
of the article, the House of Lords decided some time ago that
the ordinary reader is assumed perhaps artificially to have read
the whole article. In this case, I think we complained against
The Express. I think there were about 110 articles. So
far as I am concerned, every single one of those articles themselves,
including the headlines, were actionable, very serious libels
in their own right.
Q204 Alan Keen: Should there be a
law to ensure that headlines do not exaggerate what is in the
body of the article? It was so bad in your case that it is hardly
relevant even but it is something that happens on a daily basis
in the press. Should there not be a law to ensure that the headline
does not imply more than is in the actual article?
Mr Tudor: It can be a big problem
with websites even more so because they often have just the opening
line plus the headline and you have to click on something to go
over the whole article. From a legal perspective, you would probably
expect me to say this but, yes, I think there is a lot to be said.
If you go into a filling station or a newsagent and read the headline
about Kate and Gerry McCann, you do not bother to buy the newspaper.
You just absorb the headline and the subhead and go about your
every day business without spending the money and reading the
whole of the article. The assumption that people read the whole
article is completely artificial. In practical terms, I would
love the law to move in that direction but I would be surprised
if it were ever to happen because of the practical difficulties.
Q205 Alan Keen: Would you like us
to recommend that?
Mr Tudor: Yes. I think there is
a huge amount to be said for it. To be fair to the newspapers,
I do anticipate that it would lead to difficulties. Sometimes,
to be fair, the headline by definition has to be attention grabbing
within the realms of reasonableness.
Mr McCann: Your point is well
made. It does not just apply to newspapers. If you watch any news
channel, some of the banner strips that run there, often we would
see headlines directly relating to ourselves and say, "That
is not what was said." If you just looked at that banner,
you would believe it was the case. The way we live our lives now,
people are pulsing in and out and that will be the message they
take away. Regarding the point of law, I defer to Adam, but clearly
there is the potential for misinformation to be implied from headlines.
Mr Mitchell: Speaking as a former
journalist, privacy law per se is going down a road that
I know journalism and the media will directly oppose as an infringement
on the right to speak freely. They would argue that they operate
within the law as it currently stands. They did not in Kate and
Gerry's case. That is why they paid the penalty they did. We have
never asked for anything beyond free, fair and accurate reporting.
When it overstepped that mark, that is why Adam and his colleagues
assisted Kate and Gerry in the way they did. I notice in the NUJ
submission they talk about a conscience clause. If a journalist
feels they are being asked to write something, be it a headline
or the copy, that they know to be demonstrably untrue or distorting,
they should be able within their own terms of employment to object
to that. That might be some sort of half way house but the concept
of self-regulation is potentially under threat given the massive
expansion of the media we have now seen. If the media do not police
it themselves, they could well find that this sort of debate is
increasing and the calls for a privacy law become louder.
Q206 Alan Keen: I asked earlier had
anybody done a calculation as to what profit The Express
made after the expense that you incurred. We all want freedom
of expression but would it not be good for the public to be able
to see what profit The Express made on that, just using
The Express as one firm example? Would it not be good to
know how many papers they sold and how much profit they made?
Mr McCann: If you can command
that information, I would like to see it.
Mr Mitchell: It is quantifiable,
I suppose, if you know the accurate figure for sales against cover
price but that is not where they make most of the money. It is
through the advertising anyway. It was definitely put on sales.
Q207 Alan Keen: It is not impossible
to look at the advertising as well. That comes from numbers of
copies sold. We are representing the public. We are not against
the press. We agree with freedom of the press but it is our job
to try to get the balance right. We are representing our constituents
and it is an information age we are in. Would it not be good to
get that information from the press so we can all see it?
Mr McCann: The one point I take
from that is that, if we are relying on tabloid newspapers to
present us with news and fact, then they should not be unduly
influenced by profit. Clearly in our case I think they have been
heavily influenced by profit. I can see no other reason for the
way the stories were covered on such a consistent basis. I would
be very interested to know what an economist within the newspaper
industry could work out as a figure. It disturbed me to know that
The Express sold out on the day the apologies were published.
Q208 Alan Keen: I believe the owner
of The Express is closely tied in with what is put into
the newspapers but if you take the press in general do you think
the owners, the people who collect the profit at the endit
might be a holding company or a conglomerate which has broadcasting,
news printing and all sortsthe people on that top board
who are at arm's length all the time from the newspapers that
are printed should somehow have to carry some responsibility rather
than staying at arm's length and letting it be handled by the
editors and the lawyers so that people higher up should not be
able to escape? I gave the analogy this morning of corporate manslaughter.
If a company is guilty of bad practices and causes danger to their
employees or to the publicI am not a lawyerbut the
company can be guilty of corporate manslaughter. Are owners of
the groups, particularly of the print media, able to escape from
any sort of liability other than the financial costs like the
ones you have incurred?
Mr Tudor: I am primarily a claimant
libel lawyer but I am a huge fan of newspapers. I think they perform
an extremely valuable role in our society. I love reading them
but, at the end of the day, they are commercial entities. I make
no criticism of that. It is good to have a healthy, competitive
newspaper market. The thing that hurts them, that makes them stop
and think about whether they should be publishing serious libels
or seriously infringing people's privacy, I am afraid to say somewhat
cynically, is two things, not necessarily in this order. Firstly,
how much it is going to cost them if they get caught out and if
they get the story wrong. Secondly, to be fair to the newspapers,
of course there is an element of professional pride in journalists,
editors and so on and we have to assume that that is the bedrock
of journalism in this country because, if it is not, heaven help
us, frankly. The main stick to ensure that this kind of thing
does not happen againthat is, other far less serious, far
less voluminous, but nevertheless still very serious for the victimsis
financial. You have the theoretical possibility of having a statutory
fines framework put into place. Personally, I am not a fan of
that. I would be very surprised if it was ever to happen. The
other stick, as we know, I suppose, is the potential humiliation
of losing a libel or privacy action plus the damages they have
to pay out which vindicate and compensate the victim of the libel
or the breach of privacy. The jurisdiction, as I am sure you know,
does exist within the civil court to award punitive damages, exemplary
damages, in certain circumstances but those circumstances are
very, very limited. The reason exemplary damages exist and the
philosophy behind them very much reflects your point, Mr Keen.
If you can see that a decision has been made to publish an article
regardless of its truth in order to make more money out of sales
that day, then perhaps the law should allow that to then be reflected
in the damages. At the moment, the circumstances in which exemplary
damages are awarded are very, very limited. I think it has been
held that they cannot be awarded in privacy cases. They are available
in libel cases but only very rarely. I take the view that Kate
and Gerry's case was a classic one where punitive damages, exemplary
damages, may well have been awarded if it had gone to court, in
which case it may well have been that the judge would have thrown
the book at Express Newspapers, but even then these things are
never open and shut because you have to establish a state of mind,
recklessness as to the truth or otherwise and so on. It is far
from straightforward in terms of bringing a real, financial deterrent
Q209 Alan Keen: Are you saying that,
as with the banking system, self-regulation particularly in the
print media must come to an end? Self-regulation has not worked,
Mr Tudor: I am not sure it was
ever intended to work in the kind of scenario we are talking about
in terms of libel. I am not sure it works in terms of general
privacy in the Max Mosley sense. I know Mr Mosley thinks there
is a great deal to be said for having an obligation to pre-notify
somebody before you publish something about their private life
and I have considerable sympathy for that. There is a place for
self-regulation but to suggest, as I think some media organisations
do, that it is working perfectly, we do not need to worry and
we do not need to bother the courts with more and more cases I
think is simply not the case.
Q210 Chairman: You reached a settlement
with Associated Newspapers and with News International in the
form of the News of the World, but you decided to go to
court against The Daily Express. Was that because you could
not reach a settlement or was it because you decided that The
Daily Express was so serious that you wanted to see them in
Mr McCann: We complained against
the Express Group first because they were the most serious and
the worst. We came to an agreement with them and there was an
open statement in court in front of Mr Justice Eady. It did not
actually go to trial.
Q211 Chairman: Mr Tudor, we have
heard from other members of your firm a week ago about your firm
quite often operating on a CFA. You have said in your view it
is quite clear that there was serious defamation so you were very
confident clearly that you would win this case. Did you consider
Mr Tudor: Yes. My partners and
I talked about it. We have a committee of partners that looks
at whether or not a case is on a no win, no fee basis, as you
probably heard from my partner, Mark Thompson. We did that with
Kate and Gerry's case. It was a longer, more difficult discussion
than would ordinarily be the case because of the extraordinary
nature, volume and so on. We sent the complaints to The Express
and The Star, at which point we were acting on a normal
retainer. We indicated to Kate and Gerry and we told The Express
and The Star at that time that if the matter was not resolved
we would indeed go on to a no win, no fee arrangement.
Mr McCann: If there was not the
facility for a conditional fee arrangement, it is very unlikely
we would have continued with the action on the basis that this
was not our main purpose. We are still looking for Madeleine.
Much of our energies are diverted in that but also the prospect
of a fairly swift, conclusive verdict along with taking away most
of the riskessentially, we would have had to remortgage
our house to do that. It had a huge bearing and I am thankful
to Carter Ruck for taking us on.
Q212 Mr Hall: You went to some extraordinary
lengths I think to avoid having to take any legal action in this
case. You really did go to the newspapers and point out to them
that a lot of what they were reporting was factually incorrect
or just pure fabrication. That clearly did not work with one group
of newspapers. What was the final story that drove you to take
Mr McCann: We had done as much
as we thought we could. There was a period where it seemed to
go pretty quiet. After that, there was a short lull. In January
2008, we had the same headlines rehashed, the same stories with
the same incredibly disturbing content. At that point we said,
"Enough is enough. This cannot continue." It was a last
resort. We did not want to get into an adversarial process with
the media in general but we felt it had to be done. With hindsight,
we probably should have done it earlier because it led to a dramatic
change in the coverage.
Q213 Mr Hall: You chose one specific
group of newspapers to take legal action against. Was that because
they were the only serial offender, if you like, or was it just
because the sheer nature of their reporting set them aside from
all the other media reports?
Mr McCann: Undoubtedly, we could
have sued all the newspaper groups. I feel fairly confident about
that but that was not what we were interested in. We were interested
in putting a stop to it first and foremost and looking for some
redress primarily with an apology. The Express was the
worst offender by some distance. After the quiet period, The
Express rehashed it and it was a very easy decision as to
which group of newspapers to issue the complaint against.
Q214 Mr Hall: Was the standard of
the reporting in The Express significantly worse than the
other newspapers, of a lower standard? I have no experience of
this. I do not know how you managed to get the translations from
the Portuguese newspapers. How did it compare with the reports
in the Portuguese newspapers?
Mr McCann: Kate and I really did
stop reading the newspapers very, very quickly. Unfortunately,
many of our family and friends did not. Just to emphasise again
how disturbing it was for us, often if we were going to bed, putting
on the television and you had the newspapers being shown on the
news last thing at night, to see a front page headline that you
knew to be rubbish and, worse, insinuating that you were involved
in your own daughter's death or disappearance was incredibly,
unbelievably upsetting. Often, it was feedback through us or through
our media person. What we did do though, for the reasons I outlined
earlier, around July/August 2007, we had an offer from a Portuguese
lady who said she could translate the Portuguese press for us
on a daily basis. She did that and then it became very apparent
to us the way the news cycle was happening. I want to make this
absolutely clear: we could see that often what was a throw away
line at the bottom of a Portuguese tabloid, along the lines of
"Somebody said this", the next thing was fact in a headline
and greatly embellished, rehashing much of the article but often
in much stronger terms than had been originally reported.
Q215 Mr Hall: You said that your
intention for the libel action was to stop factually incorrect,
fictitious, fabricated stories appearing in the press.
Mr McCann: Yes. Again, I make
this absolutely clear: our primary motive was we felt these were
damaging the search. If people believed Madeleine was dead or
that we were involved in her disappearance, then people would
not look, would not come forward. That was our absolute, primary
objective by taking action.
Q216 Mr Hall: What is your assessment
of the success of that action?
Mr McCann: I think it has been
incredibly successful. There was an overnight change in the reporting
and what would be carried. I think Kate particularly wants me
to say this: we would much rather that none of these stories had
been published in the manner that they were and we would rather
not have had to take action, because I cannot say that the damage
that was done has been reversed. I hope it has but I cannot say
that it has. We will not know until we find Madeleine and who
Mr Mitchell: All it could have
taken is one person who had information, who reads some of that
and says, "It must not have been anything" and the call
never comes through. It could all still hinge on one call.
Mr McCann: When people are presented
with information on almost a daily basis insinuating something,
even if it is on rather fragile ground, there is not always the
reasoning and rationale behind it and the objectives of why that
information is in the public domain in the first place are not
Q217 Mr Hall: Other than the financial
penalty that the newspaper group suffered in having to settle
the action, do you think they have suffered any other serious
consequences for the misreporting in this case, because they clearly
have damaged the case to find Madeleine. That I think goes beyond
any shadow of a doubt. Do you think there should have been other
consequences apart from the financial damages that they had to
Mr McCann: I do not know if the
Express Group stated exactly what action they have taken and who
they have held accountable and responsible for that. You could
apply that to the others. We should make that public. All of us
would expect in our walks of life, in the jobs that we do, that
when you get something so badly wrong so often, with potentially
serious consequences, someone should be held to account. There
has been a financial payment. I have no idea whether that has
seriously damaged Express Newspapers or not.
Q218 Paul Farrelly: There have been
scores of libellous articles over months and months and no one
has been sacked, demoted or reprimanded. Robert Murat was quoted
at the weekend as telling Cambridge University that a British
journalist covering this was so anxious to break the story that
she created it. "She tried to convince the Portuguese Police
that I was acting suspiciously"; yet nobody has paid any
penalty. What does that say about the press?
Mr Mitchell: It may be instructive
to know that when the complaint first went in the initial response
from the Express Group was to offer the chance to set everything
right in an exclusive interview with OK Magazine, which
is owned by Mr Desmond as well. You do not have to think too long
and hard about our response to that offer.
Q219 Mr Sanders: It says in The
Express's apology that they "promise to do all in their
power to help efforts to find her". Have they done anything
in their power since that apology to help you?
Mr Mitchell: I think our silence