Examination of Witnesses (Question Numbers
880-899)
MR IAN
HISLOP AND
MR ALAN
RUSBRIDGER
5 MAY 2009
Q880 Chairman: How many injunctions
have you been subject to on privacy, potentially?
Mr Hislop: Well, a lot of blanket
ones come round. Schilling sends them round. You probably get
one a fortnight saying: "You won't write about this story.
We have an injunction against everyone."
Q881 Chairman: And they actually
have obtained one?
Mr Hislop: Yes.
Q882 Paul Farrelly: I do not want
to lose sight of this area of confidence.
Mr Hislop: They are binding privacy
and confidentiality up together and slightly blurring the edges.
I think what Alan means is strictly privacy, like the Mosley-type
privacy.
Q883 Paul Farrelly: In the Barclays
case, and here we are talking about large corporations and where
it is confidence not privacy, the documents were already out there
but the injunction was still granted to get you to take them down.
Then the Guardian went to court and lost the hearing. So
it seems to me that the public interest argument or protection
for whistle blowers is not really working in practice. Or is that
just one judge?
Mr Rusbridger: No, I think confidence
is a problem, and the public interest defence does not always
work with judges.
Q884 Paul Farrelly: Are you appealing
that judgment, or is it going to be too costly?
Mr Rusbridger: No. I was told
it would cost £100,000 to appeal, and life is too short.
The documents are out; they were put on to a website called Wikileaks,
and I am allowed to tell you that because it was mentioned in
Parliament, but I think it is a very interesting case where the
law has completely failed to catch up with the internet because
there was this arcane discussion in the High Court about whether
this was private or not and whether they could contain it in a
room, whereas everybody was twittering and linking to it because
it was already out there, but the court pretended it was not.
Q885 Paul Farrelly: If you will allow
me, Chairman, I cannot resist one line of thought on the Condliffe
case, your one victory, your pyrrhic victory, as it were, with
a capital "P". When lawyers take cases up pro bono,
if they lose one of the concerns for them is they may be liable
for some of the costs. In this very specific area of libel, where
lawyers tout for business and basically their clients lie, have
you thought about perhaps subjecting them to a similar sort of
regime that would give them second or third thoughts about behaving
as they do?
Mr Hislop: Well, I think that
would be a terrific idea, obviously, and could be very specific
to a couple of firms!
Q886 Mr Sanders: Is it really the
libel law that needs reform or is it establishing precisely what
you mean by privacy law? We have always held off from having an
informal privacy law and I am not yet persuaded that that is the
way to go, but I am certainly persuaded that there are better
ways of looking at libel in other countries and perhaps we ought
to be looking to amend our law closer to the American system.
Do you have a view on that?
Mr Rusbridger: I think we should.
I am not sure the American system is perfect because you get into
this difficulty of what constitutes a public figure, and I think
the history of the so-called Sullivan law has run into difficulties
there, but I would rather, obviously, be at the end of the American
spectrum because I think Article 10 does not carry quite the same
weight as the First Amendment, so you have not got something you
can hold up, which should trump most things.
Q887 Mr Sanders: Do you need your
own First Amendment?
Mr Rusbridger: Yes. I suppose
Article 10 was supposed to be the equivalent of the First Amendment
but it has not quite achieved that status. I would rather explore
the area of public interest, the serious matter of what you are
writing about, rather than get hung up on what is a public figure.
Mr Hislop: I think that is right;
your point about defining what the privacy law is, I think, is
sensible because it is upon us, as it were, this privacy law,
and I think it is time to say what it is. I think the general
public think it is the same, that the paparazzi jumping inside
someone's bedroom is the same as someone asking questions about
where the money has gone. They are not the same, and I think most
people understand what the basis of privacy is. Certainly with
the McCanns it must be fairly easy to frame a wording that stops
you saying: "Well, you murdered your children, you must prove
it now that you did not." We cannot use that as the basis,
surely.
Q888 Mr Sanders: No, but in terms
of the McCann family being public figures, did they not become
public figures by using the media in order to publicise the tragedy
of the missing child? It is not as easy as it first looks to try
and determine who is and who is not a public figure. How do you
apply that test to Private Eye? Obviously I would think
most people think politicians—fair game; heads of nationalised
industries and big companies—fair game. But who is not fair
game? Where is the dividing line?
Mr Hislop: I suppose it is essentially
people who affect the way you live your life, so that if you write
about this person and what they do, that in some way will affect
the way the general public lives. As a basic definition that seems
reasonable. That is how I would put it.
Q889 Alan Keen: On the PCC, I understand
you do not contribute towards it.
Mr Hislop: No.
Q890 Alan Keen: Is that because you
do not agree with it, or think that it is ineffective, or just
that you are short of money? Why is it?
Mr Hislop: We do not pay and Private
Eye does not belong to the PCC, no. I have always felt Private
Eye should be out of that. It means that we just obey or do
not obey or we are judged by the law rather than by the PCC. Practically
two and a bit pages per issue of Private Eye are criticism
of other individuals working in journalism. On the whole, they
appear on the board of the PCC adjudicating your complaint, so
I would be lying if I said that did not occur to me. So no, I
always thought it would be better for the Eye to be out
of it.
Q891 Alan Keen: Your view is different,
Alan, on the PCC? People have been critical of it and it is important
that we get not necessarily a balanced view but a proper view
on the PCC. I note that it fulfils a certain role but not the
same as Carter Ruck or Schillings. What role should it play? Is
it playing the right role?
Mr Rusbridger: Broadly I think
it does good. It is good to bind the press together under an agreed
code, and I think the Code is a pretty good code. I think editors
do respect it; they do not want adjudications against them; I
think they do an awful lot of useful mediation work which is from
the public view. I think its problem is that it is not a conventional
regulator. It describes itself as a regulator but it is not like
the GMC and it is not like the Law Society, and it is quite opaque
in its appointment processes, and I think it is going to have
to clarify this view of itself for two reasons. One is that there
is clearly a divergence now between the PCC's jurisprudence on
privacy and the courts', and I think if the PCC wants to get back
in that game as opposed to sitting and looking a bit irrelevant
on the sidelines it is going to have to take a view on where it
sits in relation to the view of privacy that the courts are going
to take. It was interesting, I was on the public platform with
the Sir Christopher Meyer about a month ago in which the Mosley
case came up and somebody asked him: "What would you have
done about Mosley if he had come to the PCC?" and he was
unable to say. He said it would have been very finely balanced.
I know he treated Mosley as a bit of a figure of fun when he came
to give evidence here but actually, if Mosley had gone to the
PCC, the PCC would have had essentially the same balancing act
as Mr Justice Eady did. So I think the PCC is going to have to
clarify its view on privacy and decide whether it is going to
leave it to courts or try and get into the action on privacy,
which I think would be a good thing because it is cheaper and
so on and so forth, and I think the other respect about which
the PCC is going to have to think a bit more carefully in the
future is this aspect of proactivity. It was remarkably uncurious
about the Motorman cases and the Goodman case. There were
a lot of people writing; there were a lot of court cases before
the Data Protection Commissioner and before the Information Commissioner
about the industrial scale—industrial scale—of the
use of private detectives, and the PCC really I do not think handled
that in a particularly aggressive or inquiring way which I think
just makes it look odd to outsiders. If that was the GMC or the
Law Society and there was prime facie evidence of mass
scale law-breaking, most other regulators would have stepped in.
So full marks for mediation and for being free and quick, but
I think it is going to have to think about its role going forward.
Q892 Alan Keen: Do you think the
editors have too much influence on the action? Is that why the
PCC is not proactive?
Mr Rusbridger: Well, they are
in a minority. I do not know what the reason is. I think over
the last 10 years it has changed its role into being more of a
mediator and less of a regulator, and it did so almost without
people noticing.
Q893 Alan Keen: Do you think it should
be more of a regulator, then?
Mr Rusbridger: Well, the examples
I have given you are of cases where, if you think of any other
regulator in any other aspect of life, they would behave in a
more proactive and inquiring way, and if the PCC is to maintain
confidence going forward, which I hope it does because, as I say,
I broadly support it, it is going to have to think about these
two aspects, what it thinks about privacy and whether it should
be more inquisitive and inquiring—inquisitorial—when
it becomes aware of bad behaviour up to and including law breaking
by an awful lot of journalists.
Q894 Alan Keen: But in changing its
role into being much more inquiring, should it not be freer from
the newspaper industry itself? Somebody gave a wonderful analogy
of a jury. If five of the jury out of twelve were friends of the
accused that would be completely unacceptable, but that really
is what the PCC is. There is a lot of influence from the industry.
It is self-regulation so the industry should be involved in the
setting up, but should we recommend that it is taken away from
the industry? It could get advice from the industry, but give
it more teeth?
Mr Rusbridger: I think what I
am talking about are the broad parameters of the way it should
see its role rather than the individual adjudications. I have
never been on the PCC. One hears anecdotally that it is helpful
having editors present who can explain things but I do not know
if that is true or not, and I am not sure whether it would be
improved or not by not having editors on, but I think I am taking
a step back and saying there is a more conceptual role about how
the PCC should see itself which is for the industry to decide,
and I think it would be good for the industry to take a different
view because it would make self-regulation more effective.
Q895 Alan Keen: Would it give a defence
to the newspaper industry from lawyers like Carter Ruck and Schillings
if we recommended that the PCC was strengthened, so that it could
both defend newspapers as well as at times help to regulate? What
do you think?
Mr Rusbridger: On this big issue
to do with the developing law of privacy, one way that newspapers
can try and forestall that is by saying that there is no need
to go to the courts because we have an effective means of tackling
that, an effective means of redress, and I think at the moment
the outside view of the PCC is that it is a bit weak on privacy.
There were a lot of cases around turn of the century, cases like
Anna Ford and Sarah Cox amongst others, where the PCC took a fairly
relaxed view of privacy, and I think they would take a different
view today. So I think the PCC has to send a signal saying, "We
are serious about privacy, we are not living on a different planet,
we acknowledge that the Human Rights Act has Article 8 and that
people have a right to privacy, but you do not have to go to courts
in order to get redress", so the question is what kind of
redress, what kind of processes would the PCC offer, and I think
if they could think constructively about that rather than just
criticising the courts that would be a more constructive way of
doing things.
Q896 Alan Keen: Ian, you said you
would rather the law accepted it, but if you were able to change
the PCC in any way, do you think that would be acceptable?
Mr Hislop: If it had that sort
of structure and means of redress I would think very seriously
about joining again, because that would make sense.
Q897 Paul Farrelly: I want to address
the area of responsible journalism, in particular the Reynolds
and so-called Jameel defences which have not proven to
be the beacon of light that they were held out to be when the
judgments were first delivered. First, could I ask you both whether
either of you have used Reynolds or Jameel when
you have been sued for libel?
Mr Rusbridger: We use Reynolds
pretty extensively. There are three or four reporters who have
learned to use it and if you asked them they would say they rely
very heavily on the legal department, so it would not work if
you were on the Leicester Mercury or the East Anglian
Daily Times and you did not have that kind of legal department.
You have to work extremely thoroughly in the way you phrase questions
and it is a long, drawn out, rather arduous way of processing
stories, but I do not think it is all bad. I think it has enabled
us to print a lot of stories that we could not have published
in the past in a different kind of voice, raising questions rather
than asserting things, but we have got a lot of information in
the public domain using Reynolds. There are certain problems
over it, including the single publication rule which is another
aspect of libel, that when the courts view every day a new day
the material is published again on a internet, and Reynolds
becomes quite difficult if you are addressing very old cases of
going back and saying who exactly made the phone calls when and
was this put, and I think it is there is a problem if it is treated
too literally, which some of the judges have done, where you say
"This is a ten-bar gate and you have to get over every single
bar before we can give you the protection you need", as I
said earlier. I think it would be better if they said, "This
is broadly a story that is in the public interest; it would not
deter journalists from doing this kind of journalism; we are not
going to insist they get over every bar of these gates",
that is indicative of the kind of approach we would encourage.
Mr Hislop: I would agree with
that. We have not used the Reynolds defence in any cases.
I think it creates a climate where it is easier to do certain
types of story, but my two problems would be a broader definition
of public interest, because I think it is quite difficult to get
that, and prior notification I do not think is open and shut in
terms of trying to do quite difficult or interesting stories.
Q898 Paul Farrelly: What was the
difficulty in the Tesco case of using Jameel and
Reynolds?
Mr Rusbridger: That we did not
clear enough of the bars. We were in this sort of courtly dance
with Tesco pre publication; we sent them, I think, 17 questions
to which they responded to less than half a dozen from memory,
and so we were left with gaps in our knowledge, and effectively
we felt at the time they were dead-balling our inquiries and we
were on weak grounds in respect of one answer that they gave us
that we did not include in full, so that that bar that said you
had to fully include the other side's response we would have been
weak on, so we could not rely on Reynolds.
Q899 Paul Farrelly: Because you could
not rely on the responses that were perhaps not forthcoming?
Mr Rusbridger: Well, I think in
fairness to Tesco we should have been more generous in respecting
the responses they were giving us. I think we were suspicious
because they were not answering so many of the questions that
we wanted them to answer and because they refused a face-to-face
meeting, so it was just an odd case.
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