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

Examination of Witness (Question Numbers 980-999)


19 MAY 2009

  Q980  Chairman: On the issue, however, of injunctions, you may have seen from summaries of the evidence we have received that one of the main issues that has been raised with us, particularly by Max Mosley and, indeed, by Schillings Solicitors, was their argument that there should be a right of prior notification, that if a newspaper is going to put you on their front page tomorrow morning, you should be told that is going to happen. The media have argued in response that the reason they are opposed to that is because if I was told that I was about to be exposed in the newspaper, I would immediately go and seek an injunction. Your argument would be that the hurdle to acquire an injunction is set quite high under section 12, and therefore that should not necessarily be an argument against pre-notification.

  Mr Straw: Yes. I also saw that Mr Dacre said: "99 times out of 100 we inform the person about what we are going to say and ask for comments." As one of those people whose circumstances have been given a slightly wider audience recently by the Daily Telegraph, they certainly afforded me that courtesy. Again, I will look to see what your Committee has to say on this. I can see there is an argument which goes: "The bar is set high for an interim injunction, therefore what is there to lose if the media are required in any circumstances to inform an individual of anything which is potentially going to breach their rights to privacy or, I assume, be defamatory?" but I have to say, on the scale which I gave to Mr Davies, that I am very sceptical about going down that route. The reason why newspapers go to individuals to ask whether things are true or not is, first, because, funnily enough, they have an interest in telling the truth; they do not want to develop a reputation for telling lies. For example, in the case of the Daily Telegraph in my own circumstances, it was a good idea from their point of view that they did come to me, because one of the suggestions they put to me was fundamentally untrue—which was where our second home was. It was sensible for them to do that. They apologised for that error, it was not published, and that was the end of it. So they have an interest, and they also know that if in subsequent proceedings it turns out that, frankly, they have been pretty casual about checking their facts, that is likely to go to the issue of damages and certainly not find favour in the courts. There could be cases, however, where they are doing this with some villainous behaviour, seriously villainous behaviour, where they are, for example, trying to protect a vulnerable witness. In those circumstances it is right for the media to be at risk on this, but if they, having looked at all this, having had good legal advice, having satisfied themselves that what they are doing is in the public interest and that there is this genuine risk of whoever they are going against using their money or, worse, using other power, then I think they should be entitled to publish and I think this should be their judgment.

  Q981  Chairman: Say they were investigating a serious criminal, where there might be a risk to a witness if they were to tip him off, then surely any subsequent action for failure to pre-notify would fail in the courts if the newspaper was able to demonstrate that there was a good reason why they did not give pre-notification.

  Mr Straw: Indeed. That is true. For all of us—and it is usually Sunday newspapers—who have had the call on a Saturday afternoon to find out this, that and the other—and I have been in public life now for 40 years, so over the years, from time to time, you get these calls, which may be about political issues or may be about personal family issues, as they were in my case some years ago, and then obviously now on the expenses stuff—funnily enough, it seems to me, whatever else one thinks about the press, there is more of a requirement on them to observe standards of truth. They have the same interest, in many ways, as the person about whom they are reporting, to ensure accuracy. Why on earth would they want to put material in which is obviously inaccurate? It is also the case that sometimes they leave it a bit late, but they do inform the person about whom they are going to write with sufficient time normally—just—for countervailing action to be taken if necessary. Chairman, my sense is that this current practice by the press is not broke, and I think the prescription could be worse than the problem.

  Chairman: You will appreciate that this was raised by Max Mosley, who did have his private life exposed to the entire world, who did then go to court and who did win. He obtained a judgment that the articles should not have appeared, but of course it was too late by then: his privacy has been removed. His case to us was that he is not unique; that this is a practice that newspapers quite regularly do; and that a prior notification would offer some defence to people who should have the right to have their privacy protected.

  Q982  Rosemary McKenna: Perhaps I could add to that. We have heard evidence from private individuals who say that stories with a grain of truth have almost destroyed their private lives and their families' private lives, and that there was no prior notification.

  Mr Straw: I do not want to go into details that were public 10 years ago, but having experienced this kind of story, families are put under huge pressure in these circumstances. We were told about the story in advance. It is the publication of the story that is the problem. I have no reason whatsoever to disbelieve what Mr Dacre was saying to this Committee, that 99 times out of 100 the media are going to tell the party. Let me just say in the case of Mr Max Mosley, it may be that if they had told him at five o'clock he would have gone out and got an injunction. He might have done. It is possible, because he has the power and the money to do so. Most people do not have that. There is a need to secure a better balance here, if that is what the mischief is that the Committee identifies. My first port of call here would be the Press Complaints Commission Code, with the understanding, which I think is the case—and I am not a defamation lawyer, Mr Farrelly—that if that was breached in a particular case, then that breach of the code, amongst other things, would be capable of being brought to the attention of the judge in defamation or privacy proceedings.

  Q983  Paul Farrelly: I hope I am not leaping out of the train of discussion, Chairman, but in relation to prior notification, when we were taking evidence earlier on I gave the example of the case of Robert Maxwell. There are stories where time is an element, particularly in financial investigations, particularly if people are fund raising, where prior notification as a mandatory rule would be very difficult and would stop a lot of serious journalism. In my experience there are two circumstances where there would not be prior notification: the case where you have the subject bang to rights whether it is an intrusion of privacy or not, such as the Max Mosley with the video, or where the newspaper does not care whether they have the facts right because they make a judgment that the person cannot afford to sue. Otherwise, generally, I think newspapers are careful to check their facts. For the Daily Telegraph, I am sure they will have checked what came out on this occasion but I am sure they would have a very strong public interest defence and any action against them would be undermined via government or any of its agencies—like the German Government have paid somebody from an America bank for stolen data on tax evaders, so I am sure those issues are being weighed. Legal change does not happen in a vacuum. Constitutions do not happen in a vacuum. The reality is that in this country we have a press of a dual nature. We have, in the vernacular, the "tabloid press" and then the more serious press for which privacy is not generally an issue; they do not go in for intrusion of privacy. Have you considered, in the circumstances in which we live in this country, whether there is potentially a trade-off between statutorily strengthening privacy so that it is not just judge-made case law, on the one hand, but, on the other hand, a greater protection, a stronger statutory defence for serious investigative journalism in the public interest? Have you considered whether there might be a trade-off here?

  Mr Straw: I am open to ideas here, Mr Farrelly. Say you do what you have suggested and you strengthen people's privacy—and I will come back to why I acknowledge that a case is made for that—and you strengthen the right for serious investigative journalism—so you have hardened up the rights on both sides—you are still going to end up with somebody having to make a judgment about the conflict. If you take investigative journalism, the thing that has been put to me as something that has a chilling effect on investigative journalism is not the court's interpretation of article 8 versus article 10 but conditional fee arrangements for defamation cases. It is for that reason that I believed and do believe that there was a necessity actively to look at amending the law on CFAs and defamation cases in advance of the very thorough review that Lord Justice Jackson is undertaking. That is why I published the consultative document earlier this year, where the consultation is closed. If I am presented with evidence that there is a particular problem—as unquestionably there is here: I think the argument is overwhelming, a particular problem which needs dealing with, you go ahead and deal with it. That is how I deal with that approach. If you ask me as an individual what I think about the tabloid revelations which intrude into people's private lives, I say that I am ambiguous about this. I buy—not out of expenses!—tabloids on a Sunday. I am sorry to say, if apologies are needed, that I am sometimes entertained by them. On the other hand, I also sometimes think, "What would it be like to have, say, details of your total private life exposed?" None of us would want to see our public lives gratuitously spilled over the papers—although the papers are getting slightly better about this matter then they were. That is an area where I do feel very sorry for people, and if they are people of humble means, it is not going to be open to them to take any kind of proceedings in normal circumstances. I think that is about trying to get the press better to set a standard there for themselves. I think it is fairly hard to legislate for that.

  Q984  Chairman: We are going to move on to the CFAs, but before we do, on the issue Paul raised there is case law which is now often cited (originally the Reynolds defence, and then came Jameel) and that is held up as being available to newspapers who have undertaken responsible journalism and through not their own fault might have made a mistake, and yet the evidence we have received is that it is virtually never used for a variety of reasons. Do you think there might be a case for putting it in statute?

  Mr Straw: We would certainly look at that. That was the basis of the 1952 Defamation Act—at least that is my recollection—to encapsulate certain defences into statute law. Yes, if there is a case, one would look at it. In the conversations I have had with media organisations, they have not said to me—and it does not mean they do not believe this, but they have not said it to me, as I recall—that there is a problem with the Reynolds defence. They keep saying to me, especially amongst the regional newspapers or some of the less well-financed national newspapers, that they have a problem about being at risk on costs in respect of CFAs or in respect of, say, contemporary Maxwells, and that is, I think, a real problem.

  Q985  Chairman: Is that something you are considering?

  Mr Straw: I am not considering it at the moment.

  Q986  Paul Farrelly: It is the case that the traditional concerns of newspapers regarding libel and its restrictive nature in this country have given way to the concerns. It is the operation of CFAs, but there is a double effect. What the Chairman is trying to get to is whether, given the evidence that we have received that the responsible journalism defence is not really working in practice and it becomes a trial of the journalist and the journalism, any consideration might be given to putting that on a better standing.

  Mr Straw: On that one, I would certainly be very happy to look at it.

  Q987  Chairman: It would require you probably to put into a statute a definition of public interest. Is that possible?

  Mr Straw: It is possible. We have thought about it in respect of the Freedom of Information Act. Ultimately, if you have a public interest test, you can say that these matters need to be taken into account—certainly, in a discrete area like investigative journalism—but, however detailed you are, you will come to a point of how you apply those general principles to a particular set of circumstances and that is a job for the courts. In the Freedom of Information Act we gave guidance to the tribunal and the courts by the nature of the exemptions—so some things were not exempt, some things were completely exempt. On other things, for example, matters under policy consideration, that is a guidance to the courts and they have to make the judgment.

  Q988  Rosemary McKenna: The Committee has received a lot of evidence on the recent phenomenon known as libel tourism, where foreign nationals use UK courts to sue non-UK companies or individuals for libel. Should the Government issue statutory guidance on jurisdiction in those circumstances?

  Mr Straw: As the Committee will know, Chairman, there has to be some connection with this jurisdiction otherwise the court will not hear it. I think it was before your Committee that one of the witnesses was asked for details about the number of cases which arose and the answer was that you would wish the data to be obtained from the court service. If that is not already in hand, I will make sure that it is. There are criticisms of our defamation and privacy jurisdiction. One is that it is very expensive—and until the opposite is proved, that is also my view. The second is about so-called forum shopping. On that I have yet to be convinced that there is a significant problem. I am not ruling it out; I just want to see what the evidence is. Some of us face situations where people have a bee in their bonnet in a particular case, they think they have been unfairly treated, but when you go to it you find that, although they may have some cause for concern in that case, it does not make an argument for a change in the general law.

  Q989  Rosemary McKenna: We were given evidence that a case was based on a book published in America, brought by a Middle Eastern businessman with Irish citizenship which was heard in the UK courts.

  Mr Straw: And only 23 copies of that book were published in this country, as I understand.

  Q990  Rosemary McKenna: But then it is in case law, is it not?

  Mr Straw: On the face of it, the circumstances of that case were something of a surprise to me. Picking up something the Master of the Rolls said about the media strategy of the courts, I have always found it wise to read the small print of judgments before rushing to comment on them myself. Sometimes you find there s a judgment at court which, even after you have read every word, remains slightly eccentric in your opinion, but usually, whether you agree or disagree with it, you think there is a good argument here.

  Rosemary McKenna: We are looking forward to reading the evidence of cases.

  Q991  Chairman: You say you are not persuaded necessarily that there is a problem here. Are you concerned that the US Congress is about to pass law effectively allowing American courts to overturn UK court judgments?

  Mr Straw: The American Congress, subject to the other states of that realm, is sovereign in these areas. We could do the same here, if we wished, to make judgments unenforceable abroad in this country. I do not have any particular comment on that.

  Q992  Chairman: Obviously we could, but is it not a matter of concern that this has already been passed in New York and Chicago, I believe, and now in Washington? Congress is essentially saying that they no longer have faith in the UK courts and the judgments they are reaching.

  Mr Straw: There is a reputational issue about defamation proceedings in England and Wales. I cannot speak for Scotland. Part of that is to do with the costs. Let me say there is a reputational issue in other areas of proceedings which are equally of concern to me. Say in medical negligence, the costs which are payable to the plaintiffs are typically on an upward trajectory and very difficult to control within the existing system, whilst the defendants' costs can be controlled, not least by a proper client/lawyer relationship and bidding them down. There is that problem. I would simply say, Chairman, on this issue of fraud shopping that I have not seen sufficient evidence myself at the moment to suggest that there is a major problem here, but I await, amongst other things, your Committee's response on this because you will have the evidence, and you have seen a lot more evidence than I have.

  Q993  Chairman: I do not think it is about costs.

  Mr Straw: I understand your point.

  Q994  Chairman: We talked to lawyers in New York and in Washington, and the concerns they express are very serious. They are essentially saying that the Act became known as the "Libel Terrorism Act" because it was being used, they said, to protect people who were financing terrorism from exposure. The book by Rachel Ehrenfeld was going to reveal the links between a particular Saudi businessman and al-Qaeda and it was his attempt to use the UK courts to suppress that which meant it was quoted in America as being libel terrorism. Surely that must be of some concern to you. That is a view being taken by legislators across America.

  Mr Straw: Of course it is of concern, but it is also the case that the substantive law in America in some of these areas, because of the First Amendment, is different and their perspective is different. I do not know the details or the evidence against this Saudi businessman. I am all in favour of people against whom there is overwhelming evidence of involvement in terrorism being named. I am not in favour, unless it is a really serious charge, of media organisations effectively convicting people of terrorism. I think the bar has to be pretty high if what the media is seeking to do is to make the most substantial allegations of terrorism against somebody. But I say I am open to look at what you have to say.

  Q995  Chairman: Is the British Government making any representations to the US Government about the measures that are currently under debate in Congress?

  Mr Straw: I have not myself seen any instructions. I will check on that because it could be that elsewhere in the entirely seamless system of British Government this has happened. It is not within my knowledge or that of my officials.

  Q996  Paul Farrelly: On this point of libel tourism, there is one step that the UK could take which would rule out some of the more extreme cases, which is to move on with the times and the internet and move on from the Duke of Brunswick and the institute of single publication. Mr Justice Eady, in one recent judgment allowing jurisdiction here, said that in due course an international agreement might be reached as to the appropriate way of resolving claims arising out of internet publication. But we do not need international treaties; we could institute that into UK law as one sensible step, would you not think?

  Mr Straw: I am about to publish a consultation document on defamation and the internet—we will certainly publish it before the summer recess—which can deal with this issue, and it also deals with issues of liability of the internet service providers—this problem which these days is repeatedly raised by the media of so-called repeat publication by online archives. We are having to consider this ourselves in the context of online access to court data, to convictions—which I am very keen on, because I think that the public have a right to know whether X or Y has not only gone to court but what happened, but of course there is then an issue of proportionality about how long that stays on immediately accessible to a far greater degree than it would be just in the files in the public library.

  Q997  Paul Farrelly: Clearly there is a focus on the problem and that is very welcome. There is a second issue to do with jurisdiction. We have received evidence not only from media companies but from very serious non government organisations that the UK libel laws, because of the potential for forum shopping, are having a very restrictive effect on what they can publish. I will give you an example. Here in the UK, of course, any minor council document attracts qualified privilege.

  Mr Straw: Council? Local authority?

  Q998  Paul Farrelly: Pronouncements by local councils, individuals, but there are non government organisations that cite the findings of serious panels from the United Nations about the activities of arms dealers, for example. There is one very well-known arms dealer, whom I will not name under privilege here but I have asked you about him in relation to Zimbabwe when you were Foreign Secretary years ago, and action has since been taken by him, but that sort of individual has the facility to suppress some of the legitimate activity of NGOs. There is a clear issue here. Clearly it can be addressed by statutory protections for responsible journalism, responsible publications, but there is not just a reputational issue. From the evidence we have had it is a substantive issue for the work of serious organisations.

  Mr Straw: I accept what you say. Again I will await your inquiry. You are going into aspects of the operation of the law of defamation as well as of privacy, frankly, in greater detail than I have done. Funnily enough, I have considerable faith in making Parliament work better. If we end up in a position where your Committee, Chairman, has initiated a series of changes which we then accept and get into legislation, I think that is a good way of handling it. All I need is the evidence. I had the evidence on the CFA thing, so I acted. The evidence is there. That issue, although it does not for a second mean that it is not an issue, has not happened to have been raised with me.

  Q999  Philip Davies: Following on from where Paul was, the biggest difference, of course, for America and Britain is that they place much higher weight to freedom of speech, and that is reflected in their libel laws, where the burden of proof is the other way round in America compared to Britain. It is something I would like to see, but, given where the burden of proof is, is it not a surprise to you that, given that the onus in our system is on the defendant to prove that what they have said is true, and the claimant has no burden of proof at all, the legal fees for the defence side tend to be considerably lower than the legal fees on the claimant's side? Would you not think, given it is the defence side which has to prove everything that they have printed is true, that their fees would be higher?

  Mr Straw: I do not make any comment on the hourly rates or overall fees charged by the lawyers for the defendants, except to say that there is or should be a broad equality of arms between the newspaper organisation and the solicitors' firm with whom they strike a deal over costs. And they can control it. And I think they do—not least by saying, "If you continue to charge costs of this scale, we will move our work elsewhere." This is happening now in respect of NHS litigation. The legal firms on the other side are in a very different position. They face none of that kind of natural economic pressure to keep their costs down from their client because the client has agreed a CFA arrangement with them. This document, as you know I basically agree with it. I have no comment to make about the level of fees for defendants, but I think that the level of fees for plaintiffs' lawyers is too high. That will remain my view unless and until they are able to advance a case to your Committee or to me, based on the public interest, for them to continue to charge rates at this level, with the uplift at this level. I am not yet convinced.

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