Examination of Witnesses (Question Numbers
460-479)
MR NICK
DAVIES AND
MR ROY
GREENSLADE
21 APRIL 2009
Q460 Chairman: So it is all right
to use prior notification to sort of try and put pressure on the
person to help you, not to give him a chance to—
Mr Greenslade: Exactly.
Mr Davies: Honest journalists
need the option of whether to do the prior notification or not
because it is a tactical requirement depending on legal or PR
threats or threats to witnesses. If you tie us into a law that
says we always have to go to the other side you will lose important
stories so we need to find another mechanism.
Mr Greenslade: The Guardian
famously went to Tesco to try and tease out the truth about the
tax affairs only for Tesco to be unhelpful and then later sue
them which I think is a disgraceful example of the way in which
a paper tried to do the right thing and the corporation turned
on them.
Q461 Paul Farrelly: I imagine it
might be a tactic if I were a tabloid reporter trying to tease
them to say that court privacy laws guarantee your anonymity and
of course that is absolute nonsense. I am sure that is a tactic
that is being used now. Maybe I am just too cynical. You mentioned
the chilling effects in relation to Robert Maxwell and that Tom
Bower was very brave in treading where others feared to go because
Maxwell would always sue. Do you have any other examples of the
chilling effect?
Mr Davies: Jimmy Goldsmith harassed
the press for years with injunctions and legal actions of one
kind or another.
Mr Greenslade: Tiny Roland.
Q462 Chairman: It is suggested to
us that some of the East European oligarchs have taken an aggressive
attitude. Do you have experience of that?
Mr Davies: I personally have not.
There are various wealthy characters from the Middle East who
have been throwing their weight around in the courts as well.
Mr Greenslade: I ought to mention
that I write about the media and I am constantly under threat
from owners, publishers and editors who absolutely loath the libel
laws except when they can use them themselves. I have been threatened
by the Barclay brothers. One action is on-going so I will not
mention that. There are plenty of examples in which journalists
are prime users of the libel law they effect to dislike.
Mr Davies: You do not actually
have to have some bully throwing their weight around for the chilling
effect to occur. While you are writing the story you know you
are going to have to put it through the lawyer. Most newspaper
lawyers like to play safe and so there is going to be this pressure
to take out the key allegations or to soften them, not to tell
the truth.
Mr Greenslade: The last person
to threat me with libel was the News of the World's lawyer.
Q463 Paul Farrelly: I have received
a letter from Carter-Ruck over my declaration of interests. It
is the only letter I have received from Carter-Ruck in my life
where they have not threatened to hang, draw and quarter me because
of privilege. The investigative journalism which you were talking
about earlier on is expensive because it is painstaking. With
the libel laws on top of that does that make it even more expensive?
Mr Davies: Certainly. The prospect
of having to pay huge legal costs in damages is one of the many
obstacles in the way of the so-called investigative work; I think
broader than that, truth telling journalism generally. Particularly
in these commercially pressured newsrooms it is so tempting to
go for the same story that everybody else has done, a little bit
of trivial tat keeps the readers happy. That is not what we should
be doing; we should be asking difficult questions.
Q464 Paul Farrelly: Then we come
to CFAs. What has been your professional experience either at
the coal face or as commentators?
Mr Greenslade: I have changed
my mind about CFAs. When they first came in I believed that this
would offer a genuine opportunity for ordinary members of the
public to get justice but conditional fee arrangements have been
largely used by extremely rich people and the well-heeled and
they have been used to ramp up to an unacceptable level costs
that newspapers may pay. Sometimes one can be somewhat sympathetic
to that if the paper has misbehaved, but they are now, I think,
a massive chilling effect on journalism. I understand the doubling
of the fee and so on, I understand why they do it but it is completely
disgraceful. It is so rare to find that an ordinary member of
the public has taken advantage of a CFA, to be honest.
Q465 Chairman: We have had plenty
of evidence of the ramping up the costs. We have not had evidence
specifically saying they are the preserve of rich people rather
than poor people. Are you aware of actual analysis that will show
that?
Mr Greenslade: No, that is very
much an anecdotal view of mine; I do not have evidence to show
that. However, I think it would be easy enough to obtain given
that there are plenty of organisations—Lovells Solicitors
for instance—who keep a record of every libel action and
would be able to show who is using it and so on.
Mr Davies: There is a bit of a
risk here that because of the greedy exploitation in relation
to fees the whole concept of the CFA will be undermined and therefore
we will just be left with the bad old libel laws and ordinary
people still will not have access. If that is going to happen,
if we are going to lose CFAs we have to think further about providing
some effective mechanism for correcting the bad story.
Q466 Philip Davies: It seems to me
that there is no perfect system and that in effect you are trying
to trade off which is the lesser evil. Is having as free a press
as possible more important than having access to the law for people
who have been maligned? It seems to me it is where you strike
that particular balance. As Paul mentioned, my chief concern would
be if journalists were not able to expose wrongdoings by people
in authority because they were scared of the potential cost of
doing so. You have both mentioned during the course of this morning
that you would want to either get rid of the libel laws and Roy
said there should be a radical change. We understand where the
problem is but where would you put the solution? What would be
the end solution?
Mr Davies: There are two sides
to this. The serious journalists need to be able to tell the truth
without fear. The media victim needs to be able to have recourse
to justice. I would deal with the first problem, the serious journalist
being to tell the truth by going to the American model on libel
law; that is a good place to start. On the justice for the media
victim, if I then take advantage of that American model to write
something disgustingly untrue about you then we want the PCC to
do its job properly and not as it has been doing with the kind
of independent elements built in that we have been talking about.
If the only recourse for media victims is through the courts you
immediately run into some sort of cost problem. It requires lawyers
and who is going to pay for that? In principal the self-regulation
model ought to work but it has been in the hands of people working
with bad faith and that has to be stopped. I want to give self-regulation
another chance despite everything that Christopher Meyer has done.
Q467 Philip Davies: So beef up the
PCC.
Mr Davies: Yes, a decent independent
PCC that really acts as a referee and not as a defender of the
press; it should help people who are media victims.
Mr Greenslade: I agree with that.
We have two presses in Britain and that is the difference between
the United States and us. We still have a press which is the venal
press at the bottom and many of the problems that they cause cause
people to say that we need a privacy law, we need harsher action;
we are lucky we have the libel laws because of their misbehaviour.
We want to enhance responsible journalism. I think that having
a self-regulation is the answer because it is the only way that
I think the ordinary members of the public are ever going to get
any chance of correcting inaccuracies, not having their privacy
intruded upon and so on, must be through that method. We need
to reform the libel law. I am not saying that we do away with
it totally because I still think people need to be able to protect
their professional reputation—that seems only fair—but
you need to show just on the American model that there is malice
involved, that you have not gone through responsible journalism
to actually attack somebody. It is iniquitous to me when you start
out on a story to find out that you cannot make allegations or
mount evidence about people because they will immediately respond
by going to law and you can get that chance because your own office
lawyers, who are the greatest chilling effect in the world, will
tell you that you dare not do that. Obviously I have examples
of that but I cannot go into those because even with the privilege
here that would be foolish. There are plenty of examples where
I have written about editors and publishers and have never managed
to get those stories into the public domain. That is absolutely
not a good way of proceeding.
Q468 Philip Davies: We heard in America
that if you are a public figure it is very difficult to sue, that
in effect it is a free for all and I have a lot of sympathy of
that. What in your mind constitutes somebody who is a public figure?
Certainly not Max Mosley.
Mr Greenslade: He is president
of Formula One.
Q469 Philip Davies: Does that count
as a public figure? Is a public figure somebody who lots of people
in the public have heard of? It seems to me that that is a difficult
one to pin down.
Mr Greenslade: It is difficult
and it changes over time. Some people might retreat into what
we might call privacy or wish for a private life. I think it is
always difficult. I did not regard Max Mosley as a public figure
because I do not regard the man who happens to run Formula One
racing—whose name I had only ever heard of because of his
father—as a public figure. Let me put it this way, it is
a grey area. I think all of you elected politicians have to be
regarded as public figures. Most people who serve in the bureaucracy—Whitehall
and so on—have to be regarded as public figures even though
they are not that well known to the public.
Q470 Chairman: Is Paul Dacre a public
figure?
Mr Greenslade: Yes, Paul Dacre
is a public figure. I think editors and publishers are.
Mr Davies: It actually comes back
to the public interest point. I am thinking that you could have
somebody who is not inherently a public figure but becomes a public
figure because it is in the public interest that they are. The
man who is storing firearms in his house so that he can go out
into the street and massacre strangers, it is in the public interest
that we should be able to treat him as a public figure and say
that without risk of him suing us. He has become public because
of what he is doing.
Q471 Chairman: So did Gerry McCann
become a public figure?
Mr Davies: In that he should have
been exempted from the standard protection against libel. Both
of these concepts, public figure and public interest, are fuzzy
but I think public interest is probably more helpful to deal with:
is it in the public interest for Gerry McCann to be exempted from
libel protection? I do not think it is. He does not have power
over people, does he? People do not need to know. The man with
guns in his house we need to know about; politicians we need to
know about; we need to know about editors.
Mr Greenslade: We needed to know
about Damien McBride.
Mr Davies: I would say that there
is a strong argument saying that the entire Monica Lewinsky story
is not in the public interest. What does it matter who the President
has sex with? That is the more fruitful way, asking about public
interest rather than public figure.
Mr Greenslade: I think you would
have to apply that test on each occasion, story by story and context
by context which again is a first class example of why you cannot
really enshrine this in a statute.
Q472 Paul Farrelly: Paul Dacre?
Mr Greenslade: Paul Dacre is not
a public figure the instant he is no longer in power of the newspapers
but he is now a public figure.
Q473 Paul Farrelly: I want to go
back to CFAs and the potential reform of CFAs. Before CFAs would
you say that it would be a fair comment that the costs of taking
out libel actions were in some way responsible for the culture
of tabloid journalism we have now because tabloids would say,
"They can't afford to sue us and if they cannot sue us we
have nothing to be afraid of and if they don't sue us it must
be true"?
Mr Davies: It is not just the
tabloids I am afraid. The Guardian is the most sophisticated
and honest newspaper in this country but it is common for lawyers
there to say, "Has this chap got money?" Any reasonable
lawyer will anticipate that because if they are poor they cannot
afford to sue us whoever we work for.
Mr Greenslade: Journalists have
always made that judgment in my experience. You take greater risk
with those unlikely to sue.
Mr Davies: There was a perfectly
good line of logic to say that we should introduce these CFAs
so that ordinary people are no longer cut out of this legal redress.
It is the doubling of the fees that has really caused the problem.
Q474 Paul Farrelly: There are a lot
of interesting proposals for a reform of the system in the Ministry
of Justice document that has been issued on cost capping through
a process that hopefully this Committee will be able to feed into
in its reports. It would be very interesting to get from Lovell
White Durrant the record of libel actions from the past.
Mr Greenslade: It is a key bit
of information that the Committee should have which shows exactly
how they are operating or not operating. The truth is that ordinary
members of the public—I hate using that phrase, but people
out of the public eye—rarely sue at all. That is the truth.
Papers count on that fact as well, of course.
Q475 Paul Farrelly: The highest profile
case of ordinary people using the CFA was the McCann case. They
could not have done it otherwise.
Mr Greenslade: They have been
transformed, as we have described, into public figures.
Mr Davies: They would not have
been able to sue unless the CFA was there for them. They could
not have afforded the lawyers.
Mr Greenslade: No, I do not think
they would have done.
Q476 Paul Farrelly: Do you think
there is a danger then from using one case and saying that CFAs
across the board are a good thing.
Mr Davies: There are two different
elements. The CFA allows people who do not have money to hire
lawyers to go in for free and then pay the lawyer. That is a good
thing. It is the lawyers who appear not to be willing to accept
that unless they have this secondary factor that they can ratchet
up their fees if they win.
Mr Greenslade: Worse, of course,
are the examples of people from abroad using CFAs which opens
another can of worms about libel tourism and is an example of
how you can have a chilling effect on publications that perhaps
only circulate a relatively small number of publications—books
or magazines or even websites—which are only seen by a minority
of people. We have been there and I think that is another example
of the way in which our libel laws, compared to anywhere else
in the world except perhaps possibly Ireland, are iniquitous.
Q477 Paul Farrelly: Are you aware
of any examples of foreigners using CFAs or being offered CFAs?
Mr Greenslade: No.
Q478 Alan Keen: It has been mentioned
to me by more than one Member of Parliament that people who set
themselves up as investigators should be subject to FOI because
sometimes they have a special interest in why they are doing it.
Do you think there is a case for that?
Mr Greenslade: I think that journalism
is about disclosure and disclosure usually means that you are
going to have sources who wish to remain confidential and applying
an FOI to journalists in those circumstances would be an even
greater chilling effect on proper journalism.
Mr Davies: I think I would find
it very difficult to persuade people to talk to me off the record
if they thought there was as a risk that the Freedom of Information
Act could be used to disclose it because it would be beyond my
capacity to control it.
Q479 Alan Keen: There are cases of
morality where if you want to disclose stuff about somebody else
you should honestly say, "Here I am, I am doing it".
I am not talking about disclosing those people but you were saying
it would lead to that. I think the MPs who have raised this with
me are talking more about the people who have lobby passes here,
should they have to disclose commercial interests?
Mr Greenslade: I think everyone
who works either in elected office or for elected people should
be completely transparent about all their interests.
Mr Davies: If a journalist is
writing a story on a subject in which he has some kind of commercial
personal vested interest then that needs to be on the table. If
that is not declared then that is a problem. Is that what you
are saying?
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