Written evidence submitted on behalf of
the Press Standards Board of Finance Limited, Newspaper Publishers
Association, Newspaper Society, Periodical Publishers Association,
Scottish Daily Newspaper Society and Scottish Newspaper Publishers
Association
INTRODUCTION
1. The newspaper and magazine publishing
industry welcomes much of this inquiry. The development of a judge-made
privacy law and the use of "no win, no fee" arrangements
in privacy and libel cases are having a profound adverse impact
across our industry both in terms of press freedom and commercially.
2. The inquiry takes place at a time of serious
commercial distress within the industry, as it faces the impact
of global recession alongside massive structural change arising
from the digital revolution. The Select Committee has an opportunity
to be of great assistance to the industry, which is a vital part
of the UK's creative economy, by tackling these key issues and
recommending constructive change. We are pleased to put forward
suggestions on these points in this short cross-industry submission,
and would welcome the opportunity to give oral evidence on them.
3. However, the industry is surprised that the
Select Committee finds it necessary to review yet again the effectiveness
of the self-regulatory system. An inquiry in 2003 rejected statutory
controls and upheld the principle of self-regulation; while one
as recently as 2007 branded a privacy law "impossible"
to draft and costly to use, and also rejected the idea of fines
being imposed by the Press Complaints Commission [PCC] as impossible
without the sort of statutory backing which would be a "very
dangerous interference with the freedom of the press". Nothing
since then has changed to undermine those findings. Indeed, the
system has in fact continued to evolve in a way which is of increasing
benefit to ordinary members of the public.
THE SUCCESS
STORY OF
SELF-REGULATION
4. The industry is fully committed to effective
self-regulation through the editors' Code of Practice and the
jurisdiction of the independent PCC, with its majority of lay
members. There is no doubt that—as previous inquiries of
this Committee have concluded—standards of reporting have
been raised markedly since the PCC and the Code were established
in 1991. Change has been incremental; but on very many issues—including
the treatment of children and the sick, harassment, intrusion
into grief, the protection of personal privacy in key areas such
as health and victims of sexual assault, and the unacceptable
use of subterfuge—it has been very significant.
5. As importantly, self-regulation has inculcated
within our industry a culture of correcting inaccuracies and other
breaches of the Code speedily and effectively. Complaints statistics
from the PCC show more complaints than ever being resolved, and
in record time. But very many complaints never reach the Commission:
instead they are sorted out by publishers to the satisfaction
of the complainant without the need for the intervention of the
PCC. This is a substantial—and hidden—success of self-regulation.
6. The PCC itself has proved to be an efficient
and accessible regulator. Numbers of complaints—a sign not
of declining press standards, but of ever increasing public awareness
of the PCC—have grown steadily over the years, as has the
Commission's record in resolving them. The latest statistics show
that over 80% of possible breaches of the Code were resolved.
7. Furthermore, the system has shown that
it has the ability to adapt not just to the public's expectations—as
happened in the wake of the death of Diana, Princess of Wales—but
crucially to changes in technology. In 2007, the PCC's remit was
extended by the industry to include on-line audio-visual material
in a speedy and flexible manner that would have been impossible
under any form of statutory system.
8. The Code, too, has evolved over time,
and there are now regular reviews of it, involving consultation
not just with the industry but with the public. Recent changes
have included new rules on the use of digital material, such as
e mail, and on suicide reporting.[8]
9. Self regulation is, of course, also about
more than the PCC, and the industry has consistently demonstrated
its ability to act co-operatively to raise standards and deal
with emerging issues. For instance, in the autumn of 2008, the
industry responded to concerns raised by the Information Commissioner
concerning possible breaches of the Data Protection Act with an
unprecedented cross-industry education and information campaign
aimed at bringing home to every journalist the importance of observing
this vital legislation. An electronic copy is enclosed with this
submission.
INDUSTRY FUNDING
AND COMPLIANCE
WITH THE
PCC
10. One symbol of the industry's commitment
to effective self regulation is the substantial investment that
it has made in the PCC. Since it was established in 1991, the
industry has invested close to £30 million in the work of
the Commission through the Press Standards Board of Finance [PressBof].
11. Registration fees are paid across the industry—from
national, regional and magazine publishers throughout the UK—and
although the levy is voluntary, compliance has always been extremely
high.
12. In such a complex and large industry,
it has been inevitable that there have been occasions on which
publishers have withdrawn temporarily from the system, often as
a result of wider newspaper industry issues. In 1994, Mirror Group
Newspapers—under different ownership to now—withdrew
temporarily from PressBof following a dispute with the PCC. It
returned when the dispute was resolved, but pulled out again for
a short time when it left the Newspaper Publishers Association
[NPA]. Such events do occur, but they have—over nearly two
decades—been extremely rare and manageable.
13. Currently, Northern and Shell—publishers
of Express Newspapers and OK! Magazine—are not contributing
to the system. It would, of course, be of great concern to the
industry if a major publisher such as this were permanently to
withdraw from the system, but PressBof is actively engaged in
seeking a solution to the issue. Discussions are ongoing and we
will update the Select Committee with any important developments.
In the meantime PressBof's investment in the PCC is unaffected;
and for the present, the PCC continues to deal with complaints
against Northern and Shell titles, meaning that the Commission's
service to the public is also unaffected.
THE PCC AND
THE LAW
14. The complaints conciliation and adjudication
system under the Code of Practice administered by the PCC has
never been intended to mimic or supplant the law. The Code itself
deals with areas of basic journalistic ethics—accuracy,
privacy, protection of the vulnerable—but it does not cover
some civil or criminal offences where complainants may have legal
redress. These include copyright, breach of confidence, incitement
to racial hatred and libel.
15. People with a grievance against a newspaper
or magazine may therefore have alternative methods of redress
available to them, although it is worth underlining at this point
that the PCC does not impose a legal waiver on people with a complaint:
they can—although few do—pursue a complaint through
the PCC then through the Courts, or vice versa. If complainants
are seeking injunctive relief or damages, then clearly legal redress
is essential; if they are seeking speedy and amicable resolution
of a complaint, the PCC's service is tailor-made and free.
16. Although the Human Rights Act has increased
the scope of potential redress in privacy cases, this is nothing
new. Complainants have made decisions about whether to use the
PCC for serious accuracy complaints, or sue for libel, ever since
the Commission was established in 1991. Just as the Advertising
Standards Authority is merely one route for people with a grievance
against an advertisement (as they can also complain to the OFT
or even undertake litigation), the PCC is part of a tapestry of
potential solutions to a press complaint: it does not seek to
monopolise territory in which the Courts and other regulators
also have a role to play.
17. The key difference between the law and
the PCC is that the Commission's service is entirely free. It
is also private and quick. This is why over 4,500 people used
the PCC last year, compared to the very small numbers who took
proceedings in Court.
THE MCCANNS,
THE PRESS
AND THE
PCC
18. It is against this background that the
atypical and tragic case of the McCanns needs to be viewed.
19. In part because of the international nature
of their case, the McCanns used lawyers to assist them throughout
their ordeal; but this inevitably impacted on the manner in which
grievances against the press—abroad as well as in the UK—were
pursued. In some areas where no legal redress was easily or swiftly
possible (such as harassment—where the PCC has an excellent
record) the Commission was able to assist, as the PCC's submission
will detail.
20. As far as a number of stories in one
particular group of newspapers was concerned, the McCanns had
to make a judgement about the nature of the redress they sought.
It is arguable that, had the McCanns made use of the PCC's services
earlier to complain about inaccurate reporting, this problem would
not have arisen. However, it seems that some form of compensation
was understandably important to them because of the financing
of the Madeleine McCann fund—it should be remembered that
they regarded the media as "important partners" in the
search for Madeleine, according to their press spokesman, Clarence
Mitchell[9]—and
they therefore had a strong motivation to pursue a libel action.
21. To imply that this indicates a weakness
in the self regulatory system is fundamentally to misunderstand
its nature. The PCC is at heart a complaints resolution and adjudication
process which meets the needs of the overwhelming majority of
people with a grievance against a newspaper or magazine: it is
not a substitute for the law, but sits alongside it.
FINES AND
COMPENSATION
22. The PCC has no power to levy fines or
provide compensation for complainants in the way the law does,
for a very good reason. The PCC is absolutely free to use. Importing
money into the system would mean that it became populated by lawyers
(on both sides of the argument)—as the Select Committee
itself recognised in 2007—and would therefore no longer
be so accessible. While a tiny handful of complainants might benefit,
the vast majority would lose out.
23. Moreover, the majority of complainants who
go to the PCC actively choose some form of conciliation—preferring
to get their complaint remedied by a correction, apology or published
letter rather than some form of compensation.
24. Importantly, the introduction of fines
and compensation into the system could lead to the breakdown of
the successful consensus on which the PCC—and the change
in newspaper and magazine culture which the Code of Practice has
engendered—is based. There is a real concern that some publishers
could leave the system, possibly to the extent of threatening
its very survival. Other publications, as happens in France (where
there is a privacy law), may make the commercial judgement that
a fine is worth paying if a story sells enough copies: that would
be the abnegation of self regulation.
"NO WIN,
NO FEE"
ARRANGEMENTS
25. The PCC and self regulation work well,
and it is difficult to discern any grounds for its fundamental
tenets to be questioned. But of far more significance to the industry
at this time is the issue of so-called "no win, no fee"
cost arrangements in litigation, which are having a serious impact
on press freedom.
26. Partly as a result of these Conditional Fees
Arrangements [CFAs] and "after the event" [ATE] insurance
policies, costs in freedom of expression cases—libel and
privacy—are now running out of control, with extremely damaging
consequences across the print and broadcast media.
27. CFAs are having a serious commercial
impact on all publishers—who sometimes face bills running
into millions of pounds to defend even fairly straightforward
cases—and, even more importantly, a profound chilling effect
on investigative journalism. This point is recognised at the most
senior levels of the judiciary. Lord Hoffmann has said that "freedom
of expression may be seriously inhibited in defamation actions
conducted under CFAs" while Lord Justice Brooke has said
that "the obvious unfairness of such a system is bound to
have a chilling effect on a newspaper exercising its right to
freedom of expression and lead to the dangers of self imposed
restraints on publication".[10]
Justice Secretary Jack Straw has denounced costs as "scandalous",[11]
while even the UN Human Rights Commission has called on the Government
to limit "the requirement that defendants reimburse a plaintiff's
lawyer's fees and costs regardless of scale, including Conditional
Fee Arrangements and so-called `success fees', especially insofar
as these may have forced defendant publications to settle without
airing valid defences" because of the potential impact on
freedom of expression.[12]
28. Publishers defending actions are now
in a hopeless situation. The problem of cost is most damaging
for local and regional newspapers, in common with other small
publishers and individuals who often cannot afford to fight legal
actions which could put their business or livelihood in jeopardy.
The regional and local press is particularly vulnerable to the
chilling effects of the CFA regime under which newspapers can
in effect be held to ransom. The threat of CFA inflated costs
of litigation can deter publication or force settlement of actions,
even though the claims might have little merit. Thus right across
the media, cases are being settled where there is no editorial
reason to do so.
29. The ATE insurance system attendant on
the CFA regime has also created particular problems for the regional
and local press. In practice, no allowance is made even for where
newspaper editors and publishers feel that a valid complaint has
been made and have sought to resolve the matter as soon as reasonably
practicable on receipt of the complaint. At the behest of their
solicitor, the claimant will often have already incurred the liability
to pay an ATE premium—but which the claimant will not actually
pay—even before the letter of complaint has been sent to
the newspaper. The newspaper therefore becomes liable to pay a
substantial sum, which has been incurred by another who will not
be actually liable to pay it, before the newspaper knows the precise
substance of the legal complaint, regardless of the merits of
the claim and irrespective of a swift resolution, which renders
any such insurance and insurance premium completely unnecessary.
30. The industry is currently in discussion
with the Government about how to deal with the iniquities of the
current system. Action is needed on a number of fronts—on
which the Media Lawyers Association is providing you with further
details—including introducing mandatory cost capping in
freedom of expression cases, establishing maximum or fixed recoverable
hourly rates and abolishing success fees. We would welcome the
Select Committee's support in these discussions.
PRIVACY
31. The other major issue for our industry
is the way in which the Human Rights Act has been used to introduce
a judge-made privacy law into the UK.
32. At the time the Human Rights Bill was before
Parliament, publishers raised consistent warnings that the legislation
could be used in this way, without Parliament ever having had
a chance to examine and debate the extremely deleterious consequences
of any privacy law for freedom of expression. It was in order
to prevent this that the Government moved to amend the legislation
through what became Section 12 of the Human Rights Act 1998. This
sought to protect freedom of expression and self regulation. As
the then Home Secretary, the Rt Hon Jack Straw, made clear at
the time:
"The Government have always made clear our
support for effective self-regulation as administered by the Press
Complaints Commission under its code of practice. We have also
said that we have no plans to introduce legislation creating a
general law of privacy. On the question of prior restraint, our
intention, as I said in the House on 16 February, is that the
thresholds that the new clause sets will mean that interlocutory
injunctions should be granted ex parte only in the most exceptional
of circumstances. Similarly, on self-regulation, the new clause
provides an important safeguard by emphasising the right to freedom
of expression. Our intention is that that should underline the
consequent need to preserve self-regulation. That effect is reinforced
by highlighting in the amendment the significance of any relevant
privacy code, which plainly includes the code operated by the
PCC | I have explained the effect that we want to achieve with
our new clause. If, for any reason, it does not work as we envisage,
and press freedom appears at risk, we shall certainly want to
look again at the issue".[13]
33. While Parliament, in passing Section
12 of the Act, appears to have been clear that it did not intend
a privacy law to be developed, the judiciary seems to have taken
the opposite point of view. In a series of landmark cases—outlined
in a lecture given by Paul Dacre at the Society of Editors in
November 2008[14]—a
judge-made privacy law is being developed (particularly through
the rulings of one judge who handles a disproportionate number
of cases) which is now extremely damaging to press freedom.
34. The situation is now so serious that
the warning given by former Master of the Rolls, Lord Woolf, in
the case of Garry Flitcroft should be underlined:
"The courts must not ignore the fact that
if newspapers do not publish information which the public are
interested in, there will be fewer newspapers published, which
will not be in the public interest."[15]
35. Any form of privacy law is damaging
to freedom of expression because of the way in which it potentially
hands power to those who wish to gag newspapers and magazines
on matters of public interest. A judge-made law is even more damaging
because of the uncertain manner in which it is formulated by case-law,
and often—as noted above—by a single judge: publications
have no certainty on which to base judgements, as they do with
the jurisprudence crafted under the PCC Code, and can face often
protracted and costly legal proceedings, fuelled by "no win
no fee" arrangements.
36. Furthermore, any form of privacy law
is—ultimately—for the rich and famous who are prepared
for the spotlight (and cost) of high profile Court proceedings.
37. In view of the serious problems arising
from the legislation—and the manner in which crucial undertakings
to the industry have failed to protect freedom of expression—it
is now time for a serious review of the operation of Section 12
of the Act. For instance, Section 12 (4) could be amended to take
account of situations where there is a reasonably held belief
that the material in question is in the public interest—as
opposed to a judge deciding whether the material is, or is not,
in the public interest.
CONCLUSION
38. There are many fundamental legal and
commercial issues currently affecting the newspaper and magazine
publishing industry—caught in the vice-like grip of a severe
recession in advertising and massive structural change in the
market.
39. However, the answers are not to be found
in unnecessary reform of the self regulatory system. The PCC works
well, and the Code of Practice has raised standards. To concentrate
on one, atypical episode, which was always inevitably heading
in the direction of litigation, would be a great mistake.
40. Instead, the Select Committee has an
opportunity to help our industry—a crucial part of the UK's
creative economy—with recommendations on reform of conditional
fees and of the Human Rights Act to reverse the extremely serious
damage they are doing both to freedom of expression and to the
long-term commercial future of the press which is now facing unprecedented
challenges.
January 2009
8 For more detail, see http://www.pcc.org.uk/cop/evolving.html Back
9
Speech at the Society of Editors, Bristol, 10th November 2008. Back
10
King v Telegraph Group Ltd [2005] WLR 2282 (para 99). Back
11
Daily Mail, 23 September 2008. Back
12
For more detail see
http://daccessdds.un.org/doc/UNDOC/GEN/G08/433/42/PDF/G0843342.pdf?OpenElement
Back
13
Hansard, 2 July 1998, col 541. Back
14
Included in the Appendix. Back
15
11 March 2002. Back
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