Examination of Witnesses (Question Numbers
1017-1019)
MR MARK
STEPHENS AND
MS CHARMIAN
GOOCH
2 JUNE 2009
Chairman: Good morning. This is the final
session of the Committee's inquiry into press standards, privacy
and libel. I would like to welcome as our witnesses in the first
part Mark Stephens, a partner of Finer Stephens Innocent, and
Charmian Gooch of Global Witness.
Q1017 Paul Farrelly: This has been a
long haul to the final session, but I think the key question to
kick off on is: in what way do you think UK libel laws have had
a "chilling effect" on the work that you do?
Ms Gooch: In terms of Global Witness
they have a severe effect on how we are able to gather evidence,
particularly overseas from witnesses. We do believe that the sort
of constraints in terms of responsible reporting and information-gathering
are reasonable, and that as an organisation we will always endeavour
to spend a lot of time gathering data, verifying, cross-referencing
and checking. The problem we often encounter is that, if we are
working in countries with despotic regimes where there is a military
that is often in control in remote areas, it is very dangerous
to even speak to individuals or officials who are trying to give
information, and it is impossible to identify them; and therefore,
in terms of bringing them into court, can be very difficult. I
cannot talk on behalf of other NGOs—Mark Stephens can in
terms of NGOs that he has represented—but anecdotally I
know of numerous instances where organisations have held back
from naming and shaming and putting detail into reports because
of fears of particularly libel tourism, because of the very high
conditional fee arrangements, and because of the very high costs
that get awarded in the UK, disproportionate to the rest of Europe,
and that is having a chilling impact. In our case, we endeavour
not to be chilled by that, but we knowingly take risks as a result,
and therefore have put in place very, very detailed and stringent
processes internally to try and minimise risk. The costs involved
are increased because we do due diligence and involve lawyers,
often from the outset well before the report is even written or
planned, and that is a big additional cost.
Q1018 Paul Farrelly: Does minimising
risk actually come down at the end of the day to leaving out some
well-known names which governments, that you seek to influence,
know very well?
Ms Gooch: Global Witness endeavours
to always name names where they need to be named, and has run
risks as a result. Very occasionally we will step back from that.
For example, there is a dictator that I cannot name—we have
very well-founded allegations of a very large bank account full
of money that he has looted from resource sales. We cannot yet
stand that up; therefore we are holding back from that for the
time being. That would be an example. There are other times when
we will effectively take the risk because we believe it is in
the public interest not to be chilled down and for naming and
shaming to take place.
Q1019 Paul Farrelly: You can name
anyone you like here if you use privilege responsibly.
Ms Gooch: Yes, but it is an ongoing
piece of research and investigation.
Mr Stephens: If I could help you,
Mr Farrelly: one of the things we are seeing through our doors
are NGOs coming in who are concerned that they are going to be
sued. To give you a scale of the problem: we have now seen a consultation
between NGOs, of about seven meetings now, a core group of about
30 organisations, which tells you that a lot of them are really
concerned. Only last week there was a major London law firm that
put on a training programme for NGOs in libel and privacy and
it is becoming increasingly an issue for them, because they cannot
get insurance. The risk profile is such that, even if they had
the funding to be able to afford it, they could not do so. As
a consequence, with threats coming not only against the NGO and
the individual authors of reports but also against the trustees
and donors of these organisations, what we are seeing is many
organisations, who are not taking as bold a stance as Global Witness,
inviting the lawyers to take a red pen to take a much more cautious
approach to the removal of names; and of course that denudes the
public interest of information which is essential when making
decisions about society and the way in which we, for example,
fund certain countries and such like.
Ms Gooch: May I just also add
to my previous answer. I do not wish to tempt fate but, thus far,
we have not yet been successfully sued but one cannot predict
the future. We have spent a lot of time fighting off very serious
threats. I was involved in one a few years ago where we had six
different parties making very serious threats against individual
staff, against the Global Witness Charitable Trust, the Global
Witness Foundation in the US, Global Witness in four different
jurisdictions. That went on for over a year and you can imagine
the organisational time, effort, staff time, energy and costs
involved. That in effect does have a chilling effect because that
is time that we could not spend campaigning.
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