Examination of Witnesses (Question Numbers
900-917)
MR IAN
HISLOP AND
MR ALAN
RUSBRIDGER
5 MAY 2009
Q900 Paul Farrelly: We heard from
counsel to the News of the World and the Sun earlier
that he felt on balance that it would be helpful if that sort
of defence was given some statutory basis. Do you think that there
is any insuperable difficulty in defying public interest to make
that a reality? We have defined public interest with various legislation
such as freedom of information, whistle-blowing. Would it be helpful?
Mr Hislop: Well, the judges are
doing it anyway; why shouldn't you have a go?
Mr Rusbridger: I think the PCC's
Code, which is reflected obviously through Article 12, is a pretty
good public interest code. I heard someone the other day define
public interest as information which the more it is repeated the
more it gains in value, which is maybe not a legalistic definition
but you can try it on cases, or another way of looking at it is
that it is information which, if it were denied, would have an
effect on how you live your lives. So if it was a picture of a
newsreader on a beach and you were denied that picture would that
have any improvement on any aspect of the way you live your life.
So I think there are informal ways of testing what the public
interest is but I think, as Ian said, you kind of know it when
you see it.
Q901 Paul Farrelly: And every case
is different. Reynolds was different, for example, from
Tesco. With Tesco you actually got in the article
the actual name of the tax wrong, by your own admission, but the
thrust of your article was right and, in fact, the article was
accurate because, as you have said, Private Eye managed
to turn up proof that they were, indeed, avoiding corporation
tax.
Mr Rusbridger: We accused them
of murder and, in fact, they were guilty of manslaughter. It was
difficult to claim a great moral defence, and we would never dream
of doing such a thing because, as Private Eye demonstrated,
they did.
Q902 Paul Farrelly: But the point
of my question is if any defence was on a statutory basis you
would want it to be rather more extended than to narrow it down
to the sort of circumstances surrounding Reynolds, for
instance.
Mr Hislop: Yes, and you would
want it to be as broad as possible. I do not want to line up with
the News of the World but there have to be circumstances
where that is a very grey case and that is why it is so, I think,
dangerous to let Mr Mosley impose his anger at what happened to
him on changing the law. He won his case; he now wants to change
the rules as well. In his evidence I believe he said things like:
"Well, if a bishop is having an affair with an actress or
a racing driver is and there is some other misconduct, those are
equally private", and you are thinking no, they are not,
you stick to your case and argue that. The other cases are not
really I think up to him to define, and those may well be in the
public interest.
Q903 Chairman: But, on Alan's definition,
in what way does it change the way people live their lives to
know Mr Mosley likes having his bottom spanked in private?
Mr Hislop: I am saying he can
defend that, I am not here to defend the News of the World,
but the problem about Justice Eady's summary, as I am sure you
know, is he said "We are a grown up cosmopolitan country,
whatever we do behind doors is entirely up to us—unless
there are Nazis in it, and then it is in the public interest."
Is it? The judgment makes no sense. Is your right to dance about
as a Nazi private? Or is it you are only allowed to dance about
as a German officer? It is a silly case and you should not be
making law on it. But even in the judgment that you are looking
at it does not make any sense. You have to define what is private
and what is not.
Mr Rusbridger: I think this is
why we should not pin too much on Mosley because lots of people
have different views on Mosley. I would reserve my alarm for when
judges are presented with privacy cases in which there is a clear
public interest, and which they then allow 8 to trump 10. Then
I think we are in trouble.
Mr Hislop: Yes, which is why I
hope it does not happen in this one.
Q904 Chairman: Just on the judges
point, you previously said you were concerned when talking about
injunctions about somebody going to a lawyer who has no experience
of media law and, therefore, getting a judgment which is precautionary,
but one of the big criticisms that has been made, particularly
by Paul Dacre, is that the cases are being heard repeatedly time
and again by the same person and that judge has displayed a moral
judgment and various other things he has been accused of. Is that
a matter of concern for you? Do you think it is a problem that
Justice Eady appears to have almost a monopoly in this area?
Mr Hislop: Yes, I think it is
a problem, although I have to say he did find for us in the lower
court, which is an example of an extremely fine judgment so it
is not always his fault, but on balance, it would be better if
it was not just him and one other judge making all the law, because
it does seem to be that his own prejudices, his own views, whatever,
coming out and he is handling all the cases, including the libel
tourism. It is all the areas, really, and it just seems very unbalanced.
Mr Rusbridger: I agree with that.
Again, he found for us in Tesco so he is not all bad, but
I think there is a tendency for the libel judges to be picked
from the libel bar; they are quite often people who were doing
the claimant cases; and I think it would just be better to have
a wider ball of people, some of them with a wider experience of
human rights, because I think it is too easy for the newspaper
industry to attack Eady; it is almost unfair on Eady. It would
be better if there were a wider selection of judges having to
perform the same balancing act between 8 and 10, and then you
would get a better take on what is happening to the law.
Q905 Paul Farrelly: On the subject
of responsible journalism, I wanted to raise a few points that
have come up very briefly. Firstly, first publication. It is the
case, is it not, that the libel laws have not kept up with the
internet and that every day is deemed a new publication as long
as you keep it on the internet, so that would be a fairly simple
change to make?
Mr Rusbridger: Yes, but we are
still stuck in the era of the Duke of Brunswick sending his servant
down to inspect the Times in the library. That would be
a relatively simple thing to do that first publication would sort
out.
Q906 Paul Farrelly: You raised burden
of proof, Alan. Could you give one example, in the Aitken
case, for example, of a very reasonable step that Jonathan Aitken
should have been able to make or have had to have made to defend
his case, or to pursue his case, that would have made a big difference
to the Guardian?
Mr Rusbridger: I have heard it
argued that the judge could decide where the burden of proof is
but if the judge in that case had said: "Come on, Mr Aitken,
this is all about a weekend in the Ritz in"—whatever
the date was—"1996-97, you could produce the receipts,
you know what you were doing", the case would have been over
within 20 minutes because we could have worked out exactly what
he was doing. It was pure luck that we managed to get into the
basement of a deserted hotel in order to get the receipts that
he had not given us and we came quite close to losing that, so
that to me is the clinching point.
Q907 Paul Farrelly: Was that the
law's fault or the judge's that no order was made?
Mr Rusbridger: Given that the
burden of proof is on the defendant the judge could not order,
but maybe it comes to your point, Mr Sanders, if the judge could
have had the discretion at the beginning of the case and had said,
"Well, in the McCann case that would have been impossible
for you to prove, that you did not murder, but in the Aitken
case it seems to all hinge on the facts of one particular weekend,
so therefore I order that in this case you come up with these
documents."
Q908 Paul Farrelly: In Australia,
of course, Tesco would not be able to sue. What do you think of
critics saying: "Don't go that far because then it will give
everyone licence to say what they like"?
Mr Rusbridger: I think the law
in Australia is that no company that employs more than 12 employees
can sue unless two things, one: unless they can prove malicious
falsehood, i.e. that you were deliberately spreading information
in order to damage the firm and, secondly, to prove economic loss.
In Britain, after Derbyshire, public bodies cannot sue, Trade
unions cannot sue, and I think you saw the Donaldson case
is another. It would be a small step to extend that to corporations.
Mr Hislop: And that has changed
it a lot for Private Eye. Ten years ago, when all those
official bodies could sue, they did.
Q909 Paul Farrelly: Finally, it seems
very odd that in Britain you are free to report the announcements
of the lowest district council with qualified privilege but you
cannot rely on documents coming from august panels from the United
Nations. This is a complaint by non governmental organisations
putting evidence in, that you cannot place any reliance on these
documents if you have a libel suit against you by a well-known
arms dealer, even though they have been named liberally in documents,
for instance, from the United Nations, or even the Department
of Defence. Either with the statutory defence of responsible journalism
or having a look at privilege, have you ever given any thought
to how the situation might be improved in that respect?
Mr Rusbridger: I think there is
a serious problem at the moment. The Anchie (?) case is
a problem of a man convicted in the French courts but the English
courts will not rely on the French courts' judgments; we had a
case involving the Malaysian police force where we could not rely
on Malaysian Police Force documents. It is happening a lot with
the verdicts of Russian courts or Eastern European courts, with
Eastern Europeans coming here to sue, but I think it is more broad
than simply courts. There is a big inquest going on at the moment
as to whether the press reported the imminent collapse of the
banking industry and whether we should have been more alert and
more aggressive in reporting what was going on inside these investment
banks. May I just say, if you want us to perform that function,
which clearly we should, then I think you have to give us some
form of protection when writing about incredibly complex matters,
matters so complex, a bit like tax avoidance, that the people
who sat on the boards of those companies did not understand them,
and if you are going to want the press to go after these companies
then you are going to have to extend some form of privilege to
a wider area of documents than simply court documents.
Mr Hislop: And in those cases,
if the press had gone after the individual banking executives,
they would have claimed privacy, particularly about their own
payment, not merely confidentiality. They would have said: "It
is entirely my own business how much money I take home from the
Royal Bank of Scotland".
Q910 Janet Anderson: When the Committee
was in the States recently we were fortunate enough to meet Ben
Bradley, who was the editor of the Washington Post at the
time of Watergate, and we have had quite a lot of evidence
from a number of witnesses about the relative decline in investigative
journalism and the extensive use of briefings and press notices
and so on, sometimes described as "churnalism". Is that
something you recognise? Also, our next inquiry is going to be
on the future of local newspapers, so could you perhaps tell us
how do you see the future of the press generally, bearing in mind
what is happening on the internet and so on?
Mr Rusbridger: Well, the financial
condition of the press is dire, and is hitting local papers first.
We are faced with the prospect, for the first time since the Enlightenment,
of communities not having any verifiable source of news, so the
threat to the press is very great at the moment, which is why
I think you should listen to what is being said. I know you had
a lawyer who represents a lot of local papers saying he cannot
imagine any local papers ever defending libel actions again, and
I think that is very grave. Most local papers just simply do not
have the resources to do investigations any more, and the more
you get into the spiral decline of cutting costs because the advertising
has gone and the circulation is declining, the more you get into
what is known now as "churnalism", where reporters do
not leave the office and simply do not have the time to make inquiries.
Q911 Janet Anderson: Is that going
to happen to the nationals as well?
Mr Rusbridger: I think it is happening
to the nationals.
Mr Hislop: Nick Davies' book is
very good, and the section on churnalism is particularly good
about taking a story down from the Wire and you write it up and
then the Wire reads your paper the next day, someone on another
shift, and says, "Oh, that's a good story" and puts
it in again, so there is a desperate cycle of nothingness going
on about news. And the Eye slightly benefits because a
lot of our stories come from local journalists who cannot get
their stories into their own papers because their papers do not
want to take any risks at all, and they certainly do not want
to cover anything to do with the Council in case they lose the
Council advertising, so it is pretty desperate locally. We had
a competition for the blandest local news front page and it is
basically charity walks. That is it. There is plenty of room for
that in local newspapers but not only that, so I think it is dire
and they do not want to take on the costs.
Q912 Janet Anderson: I am interested
particularly in what you say about local council advertising because
there is some evidence in my part of the world that newspapers
are quite frightened of publishing stories about local councils
for that very reason. Would you agree with that?
Mr Hislop: That is what they say,
so I presume it is true!
Janet Anderson: Thank you.
Q913 Mr Sanders: I have a question
on the development of the media and where it goes in the future,
and blogs. Although blogs in the law should not have different
standards they do appear to have different standards, and increasingly
newspapers are using stories broken on blogs as if that is the
verifiable source and there are then difficulties they get into.
Do you have a view of how you can improve the standards, if you
like, of blogs?
Mr Hislop: My own views on blogs
is their stories become useful when they go into what they call
dead wood, and it is very interesting that the e-mail smears,
which were discovered by a man who runs a blog but not published
on his blog, were given to real newspapers to put in so that they
took the risk and came up with the defences and the justification
to do it, which I thought was a validation of the role of newspapers.
A lot of what is written on blogs would never get into any newspapers,
and I am hoping the original McBride ideas would not have ever
made it into print. They would have made it on to some blogs and
then swilled about a bit and then someone would have said: "Oh,
guess what's on the blog" and that might have got in, but
given direct to a paper I am guessing Guardian Media would not
have put them straight in.
Mr Rusbridger: I agree. It is
too easy to smear all blogs because there are some wonderful blogs
which are incredibly knowledgeable and, on their subject, much
better than newspapers. They are subject to the same laws of libel
and I suspect we will see libel cases in which people go after
blogs. They have tended not to do so up till now, but clearly
there is a responsibility on newspapers if they are going to use
material from blogs to subject them to the same kind of checking
that we would to anything.
Q914 Mr Sanders: You do not ever
envisage Private Eye becoming a blog in the future? You
always see a future for it being a dead tree?
Mr Hislop: Yes, and, if you want
to find out what is going on, buy it. Do not try and get it free!
Q915 Paul Farrelly: Ian, short of
catching someone red-handed on tape, like the News of the World
did with Mosley, perhaps wearing a Nazi uniform, handing over
to a politician a big wadge of cash in a transparent brown envelope
so you can see that it is cash, are there any figures that even
Private Eye would not touch now because they just sue?
Mr Hislop: No, I do not think
there is anyone we would not have a crack at. Again, this is part
of the point of Private Eye and part of the point of most
publications. We were sued by Lord Ashcroft and he has quite a
lot of money, I do not think there are many deeper pockets than
that, so I do not think we should be put off by that.
Q916 Paul Farrelly: You must have
golden pockets to be able to afford to do that?
Mr Hislop: We have very generous
readers!
Q917 Paul Farrelly: Alan, back to
the chilling effect?
Mr Rusbridger: There is nobody
we would feel, on principle, intimidated by. The difficulties
are that if you are going to remain a serious newspaper you have
to do serious reporting of foreign affairs, and I think we see
that as one of our main functions. Increasingly two thirds of
our readership is abroad and that takes us into territory where
we are sometimes writing stories about other countries which they
cannot write about in their own countries. We have talked a bit
about Russians and Eastern Europeans, and it is quite hard to
get some of the evidence there to the standards required. If you
are going to be held to the burden of proof that would exist in
a court then that will stop you from printing material that I
think should be published, even when you win. We have just had
a case with this purveyor of vitamin pills, which you heard about
from Ben Goldacre, Matthias Rath. We had to risk half a million
pounds in order to fight that case and go to South Africa for
weeks on end in order to get the evidence in order to take him
on, and even though he eventually dropped the case we will still
be out of pocket to the tune of about £200,000. So we will
not be wondering in the future why newspapers ever got things
wrong but will be wondering why newspapers ever attempted to do
this, because it is going to become impossible given the financial
constraints on newspapers.
Chairman: Thank you both very much.
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