Press standards, privacy and libel - Culture, Media and Sport Committee Contents

Examination of Witnesses (Question Numbers 880-899)


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.

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2010
Prepared 23 February 2010