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

Examination of Witnesses (Question Numbers 900-917)


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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