Written evidence submitted by Guardian
News and Media Ltd
PRESS STANDARDS/SELF
REGULATION
The DCMS Committee in 2007 recommended
that self-regulation be retained for the press, while adding that
it must be seen to be effective if calls for statutory regulation—described
by the Committee as "a very dangerous interference with the
freedom of expression"—were to be resisted.[1]
The inquiry asks whether the McCanns' successful
action against the Daily Express and others for libel indicates
a serious weakness with the self-regulatory regime. This case
is highly unusual, and we doubt that it is indicative of a general
trend, or general failings in the interaction between the libel
laws and self-regulation.
We support a robust and effective system of
self-regulation.
Self-regulation—through the PCC or other
means—offers a quick, cheap, flexible and effective remedy
in most cases.
The PCC's chief sanction is to require the newspaper
to publish in full and with due prominence an adjudication by
the PCC upholding a complaint against a particular publication.
This is effective in its own right as newspapers do not relish
the prospect of what is seen as a form of public humiliation and
a failing in standards. Indeed the case against Brighton Argus
illustrates this—the newspaper apparently sought to bury
its report of a PCC adjudication against it on page 32. The PCC
made a second judgment against the paper: and required it to publish
both adjudications with sufficient prominence.
Self-regulation includes the responsibility
of individual editors for regulating the conduct of staff. At
Guardian News & Media standards are set out in an editorial
code.[2]
The code begins with a statement from C.P. Scott, "a newspaper's
primary office is the gathering of news. At the peril of its soul
it must see that its supply is not tainted." The introduction
to our editorial code makes it clear that the most important currency
of the Guardian is trust, and that the purpose of the code is
to protect and foster trust between Guardian publications (in
print and online) and its readers. Compliance with the standards
set out in the editorial code, and the PCC Code serves to protect
the integrity of the Guardian's editorial content.
The Readers Editors for Guardian and Observer
publications play a vital role in self-regulation as independent
ombudsmen, offering a free and quick settlement of complaints.
MediaWise Trust said in evidence to the CMS Committee in 2007,
"MediaWise has always encouraged publications to appoint
their own in-house Readers Editor to deal with complaints, act
as an internal auditor reviewing the publication's journalism,
and publish a well sign-posted Corrections Column. As the Guardian
has demonstrated, this system can perform a dual function, providing
accountability and enhancing media literacy."[3]
INTERACTION BETWEEN
LIBEL LAWS
AND PRESS
REPORTING
The chilling effect of libel laws has long been
recognised by the courts.[4]
In particular, the burden of proof is on the Defendant's shoulders
who must prove the truth of any factual allegations. The claimant
only needs to show that the allegations are defamatory, that they
are identified and are the subject of the libel, and that the
defendant is responsible for the publication. The fact that the
burden of proof lies with the defendant has encouraged forum shopping
and made London the libel capital of the world. The burden of
proof should be reviewed.
Senior US Courts have refused to enforce foreign
defamation judgments that do not conform with the first constitutional
protection of free speech.[5]
The question of costs is an integral part of
the interaction between libel laws and press reporting. The costs
of defending a libel action are often prohibitive, particularly
for small publishers. Even at the pre-publication stage, the costs
may be excessive. The attached article by Alan Rusbridger, "A
chill on the Guardian", New York Review of Books outlines
some of the difficulties and huge expenses involved in obtaining
pre-publication advice on issues that involve large corporations,
in particular where the investigation concerns complex issues
such as off-shore tax structures.
Conditional fee agreements were originally introduced
to help claimants who did not have the means to launch a libel
action. In practice, they have most often been used by lawyers
representing wealthy clients, to enhance their recoverable costs.
Lawyers on CFAs are entitled to success fees of up to 100% on
a base fee. In addition to success fees, a losing defendant must
pay any "notional" after the event (ATE) insurance premium
(around £68,000 for £100,000 of cover). The
claimant does not have to pay the premium, and has little or no
incentive to monitor the costs their lawyers are incurring, including
hourly rates. The courts have recognised that CFAs may breach
Article 10.[6]
There should be cost capping in cases concerning freedom of expression,
and the recovery of legal costs should be limited to those costs
that are certified as reasonable and proportionate.
It should be possible to reach a prompt and
cost-effective settlement, even where proceedings have been issued,
when a newspaper admits it has got it wrong. The offer of amends
procedure was designed by Parliament to settle cases quickly and
with low costs. The publisher admits its error, publishes a correction
and apology, and a judge to decide damages if appropriate. The
level of damages depends in part on the sufficiency of the correction
and apology. However, even this procedure can become lengthy and
time-consuming where major corporations resort to highly aggressive
and expensive libel actions.[7]
While the Law Lords in Jameel v Wall Street
Journal 2006 did not accept the argument that trading companies
cannot suffer injury to feeling and should only be able to sue
where they can prove special damages, Baroness Hale reminded the
court of the McLibel case, where the European Court of Human Rights
found it was disproportionate to award damages against McDonalds'
critics, since McDonalds had not established any financial loss.
Baroness Hale said:
"it seems, therefore, that while the retention
of the rule that a company does not have to show that it has in
fact been harmed in any way may be within our margin of appreciation,
we should scrutinise its impact with some care to see whether
it may have a disproportionately chilling effect upon freedom
of speech."[8]
In other jurisdictions corporations are restricted
in libel actions. For example, the Uniform Defamation Laws 2006,
Australia, prevent corporations from suing for defamation involving
damage to reputation unless they have fewer than ten employees
or they are not-for-profit organisations. Corporations can only
sue for "injurious falsehood" where they can prove actual
economic loss.
Some reform of the British legal system is required.
In 1975 the Faulks Committee recommended that changing the
law so that any company wishing to sue for libel would have to
prove quantifiable damage. It stated:
No action in defamation should lie at the suit
of any trading corporation unless such corporation can establish
either—(i) that it has suffered special damage, or (ii)
that the words were likely to cause it pecuniary damage.[9]
A proposal set out in the attached article is
that before any corporation is permitted to sue it should be a
requirement that it must first attempt to resolve matters via
mediation—whether through an ombudsmen or regulatory or
self-regulatory bodies.[10]
CONTEMPT
The law is unclear, particularly on internet
archives and online publication. In the case of William Beggs,
2001 High Court of Judiciary in Scotland, Lord Osborne made
it clear that newspapers publishing online archives containing
"accessible" material which was potentially "seriously
prejudicial" to the accused were not in contempt of court.
The Law Commission's Scoping Study No. 2, 2002 endorsed the
view that "much of the prejudicial effect" of online
material could be removed by an appropriate judicial direction
to try the case on the evidence. It should be standard practice
for judges to give jurors robust instructions at the outset of
a trial not to search for material on the internet.
Perhaps of greater concern to news publishers
is the difficulty of reporting trials. Many trials—particularly
terrorist trials—are closed to contemporaneous reporting
in case something is published that might impact on a jury in
an alter trial. In "Media law", Geoffrey Robertson QC
and Andrew Nichol QC comment as follows:
".. many judges proceed to 'balance' their
sense of fair trial against free speech, with their professional
instincts naturally favouring the former. This is not in fact
the procedure laid down by Article 10 itself (which requires
a presumption in favour of free speech which should only be overridden
in cases of necessity by narrowly construed exceptions) but it
is a process which has, regrettably, been adopted."[11]
EXEMPLARY DAMAGES
FOR LIBEL
OR BREACH
OF PRIVACY
Damages should be compensatory only. The Neill
Committee recommended in 1991 that exemplary damages in defamation
should be abolished. In Elton John v MGN 1996 the Court of
Appeal established that damages in libel claims are intended to
be compensatory and any exception will be rare, and must follow
"a pressing social need". Freedom of expression would
be undermined if exemplary damages were awarded in privacy cases,
as HJ Eady stated in Mosley v News Group international 2008—exemplary
damages for privacy would fail the test of "necessity and
proportionality" required to justify a restriction on free
speech.[12]
PRIVACY
We recognise and support the right to privacy
under Article 8 ECHR, and this is reflected in the PCC Code
and the Guardian's editorial code:
"In keeping with both the PCC Code and the
Human Rights Act we believe in respecting people's privacy. We
should avoid intrusions into people's privacy unless there is
a clear public interest in doing so."[13]
The right to privacy must be weighed against
the right to impart information to the public under Article 10.
The courts should narrowly interpret Article 8 to protect
the intimacies of personal and family life; the concept of privacy
should not be used to protect reputation itself.
While it is suggested by some that judges are
over-sensitive to the rights of those claiming privacy, we have
yet to see a reasoned judgment in a case where a genuine countervailing
public interest argument might be more convincingly pressed than
in the privacy cases dealt with so far. The courts should pay
special regard to s12 (4) Human Rights Act 1998:
(4) the court must have particular regard
to the importance of the Convention right to freedom of expression
and, where the proceedings relate to material which the respondent
claims, or which appears to the court, to be journalistic, literary
or artistic material (or to conduct connected with such material),
to:
(a) the extent to which:
(i) the material has, or is about to,
become available to the public; or
(ii) it is, or would be, in the public
interest for the material to be published;
(b) any relevant privacy code.
SUMMARY
In summary, it is vital that newspapers are
free to report, and the public are therefore informed of, matters
of public interest. News publishers fulfil a vital function in
reporting on the activities of organisations and individuals,
public figures and governmental bodies. They provide a forum for
comment and debate, and the free flow of information and ideas.
The libel laws should be reviewed, in particular the burden of
proof on the defendant should be eased, and there should be some
limitation on defamation actions by corporations, particularly
in relation to matters of great public interest. There should
be controls on costs in defamation and other actions where its
impact threatens to limit freedom of expression. Contempt laws
should be clarified and jurors clearly directed not to search
for material concerning a trial; there should be no threat of
contempt proceedings for publishing material in online archives.
News publishers should be encouraged to adopt the ombudsman system
of Readers Editors to enable a quick and effective resolution
of complaints.
The importance of Article 10 of the ECHR,
and section 12 of the Human Rights Act 1998 should be
at the forefront when there is any judicial consideration that
involves restricting freedom of speech, bearing in mind the words
of Lord Steyn:
"Freedom of expression is, of course, intrinsically
important: it is valued for its own sake. But it is well recognised
that it is also instrumentally important. It serves a number of
broad objectives. First, it promotes the self-fulfilment of individuals
in society." Secondly, in the famous words of Holmes J. (echoing
John Stuart Mill), "the best test of truth is the power of
the thought to get itself accepted in the competition of the market:"
Abrams v. United States (1919) 250 U.S. 616, 630. per Holmes
J. (dissenting). Thirdly, freedom of speech is the lifeblood of
democracy. "The free flow of information and ideas informs
political debate. It is a safety valve: people are more ready
to accept decisions that go against them if they can in principle
seek to influence them. It acts as a brake on the abuse of power
by public officials. It facilitates the exposure of errors in
the governance and administration of justice of the country."[14]
January 2009
1 Seventh Report of Session 2006-07 "Self-regulation
of the press", House of Commons 2007 [54] Back
2
http://image.guardian.co.uk/sys-files/Guardian/documents/2007/06/14/EditorialCode2007.pdf. Back
3
Ev 8, 4.26 HC Culture, Media and Sport Committee, Seventh
Report of Session 2006-07 "Self-regulation of the
press", House of Commons 2007 Back
4
Reynolds v Times Newspapers Ltd 1999, Lord Nicholls (at
192H) "the common law has long recognised the 'chilling effect'
of the rigorous reputation protection principle". Back
5
Following libel judgment in High Court, London against Rachel
Ehrenfeld, Senators Lieberman & Specter introduced Free Speech
Protection Act of 2008. This Bill would protect American journalists
from libel suits brought in foreign courts that do not have the
same protections for free speech that are found in the U.S. constitution. Back
6
Campbell v MGN Ltd 2005, Lord Hoffmann "freedom of
expression may be seriously inhibited in defamation actions conducted
under CFAs". Back
7
See "A chill on the Guardian", Alan Rusbridger,
New York Review of Books, Janaury 2009 Back
8
Jameel v Wall Street Journal HL 2006 (154) Back
9
Report of the Faulks Committee on Defamation (Cmnd 5909) (1975),
p342 Back
10
"A chill on the Guardian", Alan Rusbridger,
New York Review of Books, Janaury 2009 Back
11
"Robertson & Nicol on Media Law", Fifth
edition, Thomson, Sweet & Maxwell Back
12
Mosely v News Group International 2008 (197) Back
13
http://image.guardian.co.uk/sys-files/Guardian/documents/2007/06/14/EditorialCode2007.pdf. Back
14
In Reg. v Secretary of State for the Home Department, Ex
parte Simms [2000] A.C. 115, Lord Steyn (at 126E-G): Back
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