Examination of Witnesses (Question Numbers
860-879)
MR IAN
HISLOP AND
MR ALAN
RUSBRIDGER
5 MAY 2009
Q860 Paul Farrelly: I want to get
on to responsible journalism later in the questions, but in terms
of costs you have settled with Tesco for the usual undisclosed
amount for your own reasons, where do the cost negotiations stand?
How much is Carter Ruck still demanding?
Mr Rusbridger: As far as I know
they are still going on. I should say, though, the settlement
was confidential, the damages were insignificant, so costs and
damages had no relation to each other, and I think that is one
area which you might look at. I personally think there is some
question about whether corporations should be allowed to sue unless
they can prove malice or economic loss. If they are going to sue
and if a paper uses an offer of amends I think there ought to
be some form of compulsory arbitration before you get into this
huge ramping of costs, and then I think the judge ought to take
a view of what the damages are likely to be, and if they are insignificant
then there ought be a capping of costs.
Q861 Paul Farrelly: On that particular
case, which you were both involved in, did Tesco threaten to sue
Private Eye?
Mr Hislop: No, the Guardian
had taken the hit. I have to say it was the same journalist who
was inquiring into Mr Granger who wrote the excellent piece about
Tesco. On the point about cost, and the name Carter Ruck has come
up, the last time we were in court in a very long case which we
eventually won the judge actually criticised Carter Ruck for creating
the amount of work which they had charged for.
Q862 Paul Farrelly: That was the
Condliffe case?
Mr Hislop: Yes, and I have to
say at the end of that Private Eye had run up costs of
nearly a million pounds; the defendant went bust; we had to pay
them, so a huge victory for us there and staggering costs. They
are absolutely enormous. And this is without the CFAs which I
hope will be considered. If someone comes and says: "We are
suing you, and not only that, we have a CFA, which means we can
just make it up. It will be any figure that comes into our head,
double it, double it again, and you pay all of it", that
makes you think twice about running a piece.
Q863 Paul Farrelly: I want to go
on to CFAs in a second but, clearly, Mr Condliffe was a charlatan
of the highest order but a corporation like Tesco is in a different
category. It is our biggest retailer, it made £3 billion
profit last year, so for the likes of Tesco to pursue this to
the nth degree like that, the motivation is not about money. What
do you think the motivation is about?
Mr Hislop: If they were avoiding
tax my guess is they are interested in money, don't you think?
It is about money.
Q864 Paul Farrelly: It is a matter
of degree. Alan, what do you think Tesco's motivation was in pursuing
this so hard against the Guardian, with no great publicity
for them?
Mr Rusbridger: I think to be fair
to them they were genuinely offended that we had got it wrong,
and I think they take corporate social responsibility seriously.
If they had conducted themselves in advance differently, if they
had been more open with us and had agreed to meet us before we
published the pieces the mistakes would never have happened. That
is putting the best possible interpretation on them. I think there
is a feeling generally—and I would not accuse Tesco of this—that
if you hit newspapers in this way they are simply not going to
write about this. There was an Oxford University study where they
went round to the tax directors of a lot of FTSE 100 companies
who said, "The reason we can get away with tax avoidance
is the media never writes about it because it is simply too complicated",
and I think that is a fairly shrewd assessment. It is no coincidence
that when we did come back and write about it over two weeks using
the expertise, I must say, of Private Eye's former tax
inspector to double-check what we were doing, and about the changes
in the Budget and the proposals of the G20 on tax evasion, when
you put these subjects into the public domain people are outraged
by what is going on, but nobody was writing about it because it
was too risky.
Q865 Paul Farrelly: Without jettisoning
the libel laws, in terms of process what do you think in the current
framework would improve the situation? For instance, cost-capping
orders on CFAs, fee limiting for the likes of Carter Ruck, early
rulings on meaning? What would be top of both of your lists?
Mr Rusbridger: All those. Early
ruling on meaning which could be taken by judges not juries. Cost
capping in relation to damages. I agree with everything that has
been said previously about the burden of proof. The two cases
most notably we have been involved in in which there was changed
burden of proof are Jonathan Aitken and Tesco. They
knew what they had done, what was going on, and it was up to us
to prove to the standards of the criminal court, or certainly
the civil court, what had been going on, so I think the burden
of proof should certainly be switched. I think there should be
some form of binding arbitration in the case of corporations before
you can get to the immense cost of fighting cases, and I think
we should look again at Reynolds and its literal interpretation,
that you have to clear every bar of a ten-bar gate in order to
prove that you are behaving responsibly as a journalist. I am
not saying Reynolds has not been useful but I think it
is mainly useful to big newspapers with good legal departments
and not much use to people working for provincial newspapers or
less well-off newspapers.
Q866 Paul Farrelly: Finally, with
respect to prior notification we have asked lots of questions
on this of various witnesses, and the answer coming back is that
it clearly all depends on how likely, apart from the evidence
you have amassed, the subject of an inquiry is to go for an injunction
and whether he/she is likely to succeed. How realistic is the
threat of injunction on both of your publications?
Mr Hislop: Now it is immediate,
which is why I am worried about prior notification. We are involved
in a case at the moment where we attempted to run a story in January
and we still have not been able to run it. The journalist involved
put it to the person involved, which was an error; there was an
immediate injunction; we won the case; they have appealed; we
are still in the Appeal Court. Essentially it is censorship by
judicial process because it takes so long and it costs so much.
I have to say if you go for an injunction in the middle of the
night or on a weekend or a Saturday, you get a judge who does
not know a great deal about this sort of thing and they give the
injunction. In the old days of libel if you said you were going
to justify you were allowed to run the piece. Now, if they say
privacy—fine, must not say word. Anything to do with privacy
now goes straight through. So you find yourself unable to run
stories because they have invoked confidentiality or bound it
up with privacy and that is a real problem. It means four months
later I am sitting on a very good story which I have run once
within the lower court—not about sex, nothing to do with
red tops, a proper public interest story—which I cannot
not run, and it would have been in the public domain if I had
not tried to act responsibly—it was not me actually; it
was the journalist. I should make that clear. Therefore I think
you have to be careful with prior notification, and Mr Mosley's
idea that you should be in jail if you do not notify the person
involved in the story is just silly.
Mr Rusbridger: I agree with that,
I think there are big problems with prior notification. We have
not been hit on anything to do with the privacy yet but confidence
is quite a problem for us. Barclays' documents that we were sent
we put on the web and were hit in the same way as Ian at two o'clock
in the morning by a judge who told us to take them down. Now,
that was clearly in the public interest, we know, because, if
you look at the small print of the Budget, the Budget has closed
down most of the loopholes that Barclays were using, so it was
clearly in the public interest that those documents should have
been published. The other not untypical kind of case is you have
a source; you have documents; if you go to the person you are
writing about they could well get an injunction on the basis of
the documents, and so you play this game in your mind where you
say, well, perhaps we should destroy these documents so there
are no documents they can get at which might be used to get at
the source, but if you destroy the documents and they then sue
you in libel you have no documents. So you are weighing up these
kinds of games, except they are not games because they cost so
much money.
Mr Hislop: On that point also,
if you go to prior notification and they get this immediate injunction
on content, they have maybe a month to go and lean on whoever
they think has given the story at which point your story may then
disappear, so the person who told you the story imagines it will
be in print and they will be fine, the story does not appear,
there is no fuss, and the person who it is about comes and leans
on them.
Q867 Paul Farrelly: Is it a reality
that, if prior notification were to be pursued, a claimant will
try and seek any grounds to suppress the story? I think, Alan,
you have used the word "lottery". There is no consistency
in the granting of injunctions. You mentioned Barclays, yet in
the Mosley case the judge refused to order the newspaper
to take a video down from its website.
Mr Rusbridger: It is very difficult
to second-guess the judges. I am slightly divided on this because
I think it is wrong that you have one or two judges creating all
the media law in this country. On the other hand, if you have
a complete lottery of judges who just happen to be the duty judge
at two o'clock in the morning and know nothing about media law,
then I am not sure that is much better. But it is unpredictable
and I do not think the law should be unpredictable.
Mr Hislop: And it was not. For
a very long time in terms of libel the principle was "Publish
and be damned", a very old-fashioned principle in this country,
so if you said "I will prove this to be true" you were
allowed to publish. In privacy or confidentiality now I think
essentially the feeling is, "We will not allow you to publish
this", so the burden has gone completely back the other way.
Q868 Philip Davies: As you may know
from previous sessions I am very sympathetic to the case you put,
particularly in terms of burden of proof, and I am a big fan of
the American system. I think it would be much better than the
current system we have. I think the freer the press the better
the democracy we have. Alan, you said you were sympathetic to
the switching of burden of proof but the case that always throws
a spoke in the wheels in terms of changing the burden of proof
is the case of Madeleine McCann and the way that the McCanns were
libelled because, on that shift of burden of proof, therefore,
it seems that they would have had to prove that they were not
involved in the disappearance of their child, which seems to me
a rather difficult thing for them to prove. So how would you answer
that particular problem with changing over the burden of proof?
Mr Rusbridger: That is a difficult
one. I think the only answer is that, as Tom Crone said earlier,
in all other jurisdictions I know of the burden of proof operates
the other way, and generally quite well. It is rather to our shame
that London has become the libel capital of the world because
we have it on the other foot, so I think the McCanns are a bad
case on which to make law. In the example I gave of Jonathan Aitken
we were trying to prove what he was up to one weekend three or
four years previously which was a ridiculous situation for us
to be in because he knew what he was doing, he could have produced
the documents and receipts, it would have been an easy matter
and, of course, the case would never have come to court because
he was not telling the truth about it. I think we can all produce
particular examples of cases to buttress our own case, but I think
the fact that most of the world operates to the other standard
of proof is tenable.
Q869 Philip Davies: Ian, I think
you described yourself, or were described, as the most sued man
in the country or somewhere! How many times have you been sued
for libel?
Mr Hislop: Again, I think that
is slightly out of date because the libel laws were changed. A
lot of amendments were made about 10 years ago, when I was creating
a lot of noise and Alan was doing a lot of sensible writing of
papers and sending them in, and a number of elements of the libel
lottery were changed I think greatly to the good of the whole
system, so it is possible to change things and to get them right
and I would say I am less sued now for libel. I am not saying
there are not quite a few around but not so many as in those ridiculous
days. There is much more use now of privacy, which is the bit
I hoped we would get on to because I think the cliché is
privacy is the new libel. If you want to shut people up privacy
is how to go about it now. Libel is too difficult because you
have to prove that it is not true.
Q870 Philip Davies: So how many times
is it that you have been sued for libel?
Mr Hislop: I do not know.
Q871 Philip Davies: I do not mean
this facetiously but you have not been very successful in defending
lots of those libel actions.
Mr Hislop: I have won one.
Q872 Chairman: And you did not get
any money from that!
Mr Hislop: Thank you for pointing
that out!
Q873 Chairman: I am just interested
as to why you feel you were so unsuccessful in defending those
libel actions.
Mr Hislop: Well, certainly incompetence
may have been a feature, and some of them we may have got wrong,
that is perfectly possible, but I would point out that we lost
I think a good half dozen cases against Robert Maxwell before
the last one, in which Private Eye accused him of stealing
money from his own pension fund—you can see why we get in
trouble—and we would have lost that as well.
Q874 Philip Davies: From what you
are saying now libel is not the big issue for you?
Mr Hislop: It is a big issue because
as soon as you get one now the costs will probably cripple you.
I am being facetious; you get fewer libels but each one is much
more dangerous because it costs you a couple of hundred grand
before you have started, and if it is a CFA you are looking at
half a million more. The Guardian is being very discrete
about its libel costs from Tesco but we are talking nearly
a million, and these are huge figures to run one story. The idea
that you get any readers by spending a million quid on a case
about tax—I would guess if we put the word "tax"
in Private Eye most readers would think "I will buy
something else". There is less libel about but it is much
more dangerous; what there is a lot more about is privacy.
Q875 Philip Davies: There has been
lots of debate over the years about whether there should be a
privacy law or not in this country. Do you feel now that with
the interpretation of the Human Rights Act, as it appears to be,
that there is in effect a by-the-back-door, de facto, privacy
law in this country that now applies which is stopping you from
publishing stories that you would otherwise publish?
Mr Hislop: Yes. I think privacy
law has evolved and been largely determined by the judges, and
by a very small number of judges, and I think we are at the stage—which
is why it is over to you really—where, if we are going to
have a privacy law or not have a privacy law or we are going to
tinker with the elements of privacy, Parliament is where this
should be happening, I do not think it should be just left to
judges interpreting the Human Rights Act because, as the previous
witness said, Section 12, the freedom of the press, does not seem
to have much weight when put up against Article 8, privacy, and
I think that is a real problem, or is certainly becoming a problem
for us.
Mr Rusbridger: Can I offer a slightly
qualified view on that because we have not been hit by any privacy
actions. We have been hit by a lot of confidence actions and a
lot of libel actions, but nobody has actually used privacy against
us now. I am much more worried about libel than privacy, and I
think what is happening is that judges are being required to balance
Article 8 against Article 10 and Section 12 and they have not
had very good cases yet and I think probably we have to give it
a bit more time, because I do not think there has been a good
case where someone has tried to gag a newspaper with a really
good public interest defence.
Q876 Philip Davies: Does it depend
which market you are in as to what is your biggest problem, whether
it is libel or privacy? It seems to me that potentially the
News of the World seems to have an increasing issue with privacy,
whereas perhaps papers like the Sunday Times or the
Observer or whatever are still mainly concerned about libel.
Is that true? Does it depend which market you are in?
Mr Rusbridger: That is very broadly
true.
Q877 Philip Davies: It does not mean
one is more important than the other; it depends which market
you are in?
Mr Rusbridger: Yes.
Mr Hislop: But libel is much harder
and I think privacy is a way of achieving the same effect, so
it is beginning to cross over.
Q878 Chairman: How many privacy actions
have you lost?
Mr Hislop: Well, we have not lost
it yet but we have had a lot of lawyers' letters.
Q879 Chairman: How many are actually
going to court?
Mr Hislop: We have one at the
moment, and I have challenged two others in terms of trying to
vary the order on privacy cases, so that is three this year I
have been involved in the legal process with, which is quite a
lot.
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