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


Examination of Witnesses (Question Numbers 1020-1039)

MR MARK STEPHENS AND MS CHARMIAN GOOCH

2 JUNE 2009

  Q1020  Chairman: Would they employ UK-based libel lawyers to pursue?

  Ms Gooch: It varies. Each situation is different. In that instance they started to do so and then switched to another jurisdiction. In other threats we have had, yes, they do. There was an attempt to injunct some information we had put up on a website about a public official—a public official who is the son of the President of Congo-Brazzaville, his name is Denis Christel Sassou-Nguesso; and Schillings, the UK-based law firm, whom I note have been in to give evidence—

  Q1021  Chairman: Indeed, their name has cropped up a few times in the course of the Inquiry.

  Ms Gooch: In fact, I am very interested and little bit concerned to see that the Committee has heard a lot of evidence from claimant lawyers, but remarkably little from defence lawyers. I think Mark Stephens is probably one of the few defence lawyers that you have heard. I would ask that you take that into account when you weigh up the evidence from the claimant lawyers. In the case of Schillings, they pursued an aggressive and inaccurate process against us which led to one of their lawyers having to make a public apology in court because of basically making threats that could lead to the directors of Global Witness being put in prison, which they then later retracted and said that they had been unaware of some of the issues and some of the finer points of company law in Hong Kong, which is somewhat hard to believe for a law firm that prides itself and promotes itself as a leading corporate law firm. In that case that was an issue over privacy; and an issue about "how do you balance public interest and privacy"? Judge Burton found in our favour and found that the use of oil revenue to fund a private lifestyle—hundreds of thousands of dollars of luxury goods—was in fact an issue that did need and did warrant having credit card statements put up on the internet so that people could scrutinise them.

  Q1022  Paul Farrelly: Before we move on, in your experience what sort of people benefit from this chilling umbrella? Are they people like arms dealers, for instance?

  Mr Stephens: Yes, they are certainly arms dealers; they tend to be the rich, the powerful; some very large companies who are exploiting natural resources—for example, illegal logging and mining in predominantly Third World and emerging markets. So we see those sorts of people benefiting, as well as people who are receiving corrupt payments and that kind of thing. It is very high level public interest. If you can rate public interest as a graded scale then it would certainly come up the very highest end.

  Q1023  Chairman: You mentioned privacy law, which is one of the main areas this Committee has been examining. Are you finding that with the extension of privacy law through a series of judgments that people are now seeking to prevent you carrying out your work by threats of privacy law rather than libel action?

  Ms Gooch: Yes, that injunction was two years ago—that attempt to injunct and get the information taken down—and that was by an individual who was domiciled overseas; had no presence in the UK; I believe had absolutely no intention of ever paying. There was £50,000 of costs; two years on, we have yet to see those costs despite a court order. In a sense, here we have a public official involved in corruption overseas, who was very happy to use the British courts to try and chill down and stop legitimate comment and information; and yet when that same court makes an order of costs against him (this is the son of the President) has absolutely no intention of paying. I would also question very much whether Schillings ever seriously thought that he would pay up.

  Q1024  Chairman: Did Schillings get paid?

  Ms Gooch: One would assume so!

  Mr Stephens: It would be difficult to believe they would never get paid. In relation to that particular case, it does seem wrong that somebody can come here from abroad and begin proceedings.

  Q1025  Chairman: Where do you think he should have taken action then?

  Mr Stephens: Certainly preferably not Congo-Brazzaville. The issue I think is there was ongoing litigation in Hong Kong, for example, which has perfectly decent jurisdiction.

  Q1026  Chairman: Your organisation is based in London?

  Ms Gooch: My organisation is.

  Q1027  Chairman: In a sense, taking action in a London court does not seem so inappropriate?

  Ms Gooch: What I think should have happened—and a recommendation or an ask I would make to the Committee to consider—is that claimants who have an overseas domicile should be required to put a significant cash deposit down, because otherwise I think the chances of any proper justice being done on this is very slim.

  Q1028  Chairman: You would not question the appropriateness of their taking action in the UK court—just that you did not get any money?

  Ms Gooch: No, I question the basis on the fact that they attempted to injunct on privacy when in fact this was a public interest issue. Congo-Brazzaville as a country has received millions of pounds of UK money, tax payers' money. Congo-Brazzaville has made promises to the international community, including the UK, about reforms to receive that money and to forgive debt; and this is actually part of a larger concern that we have as an organisation, that millions, in fact billions of pounds of resources—such as oil, diamonds, timber and other resources—the revenue from those are being looted out; they are being handled by banks; and basically banks are facilitating a state looting. For governments that are serious about the claim that they want to make poverty history and have supported the Millennium Development Goals, for them not to tackle this massive abuse, and what in effect is corruption and the facilitation of corruption, is a long-term problem. This information that we put up on the website was connected to that work.

  Q1029  Chairman: I entirely understand that, and that presumably is why the UK court decided not to grant an injunction. You seemed to suggest earlier that you did not think it was right that they went to the UK courts; actually I do not see which other courts they would have gone to other than Congo, which obviously from your point of view would have been rather less satisfactory.

  Mr Stephens: Chairman, there are two issues arising here: one is in relation to Global Witness, which is an English and American organisation; and there are also issues in relation to cases, for example, with Human Rights Watch, which is an American organisation, which was sued here by a Rwandan wanted for genocide. There is no obvious connection with the courts of this country in those kinds of cases. It does seem to me, as I am sure the Committee is by now acutely aware, the British courts do have this very expansive notion of which cases they will and will not take.

  Q1030  Chairman: Can I just explore that a little further then. The cases that have been drawn to our attention are where the definition of "publication" has been stretched to the limit to get into the UK courts—in other words, 20 copies of a book. An organisation like Human Rights Watch presumably their reports are pretty widely circulated in this country; so to that extent the views they are expressing would be widely known here?

  Mr Stephens: They would; they are available more widely; but let us just take the print suggestion. One of the proposals that was put forward in the written submissions was that we should treat as de minimis, and therefore not as a publication within the jurisdiction, where there is, say, less than a thousand print publications within a jurisdiction. That has two effects: one is that a thousand is a fairly minimal number in terms of dealing with somebody's reputation; it is likely to have had a much more significant circulation in another jurisdiction, which would be perhaps more appropriate to sue in; and as a consequence of that we are not cluttering our courts up with small pettifogging claims, rather than the bigger claims which are more appropriately dealt with within the jurisdiction of this court. It was for that reason I felt it was a good idea to try and draw some kind of arbitrary line in the sand, and a thousand seemed to be roughly where the courts were going, saying things below that would be an abuse of process, and numbers of publications above that were clearly a substantial tort within the jurisdiction of this court.

  Q1031  Chairman: Have you attempted to challenge the jurisdictional issue when action has been taken?

  Mr Stephens: Yes, we have. Whenever that comes up we do that. The problem, of course, is that it is hugely expensive. A challenge to the jurisdiction is a full day in court, usually with barristers; invariably the other side will have a Queen's Counsel; and that is going to be in the order of £50,000-£80,000 in terms of legal costs to fight with the evidence and everything in advance. That in terms of an organisation, an NGO, is two researchers for a year. When you are faced with the choice between paying lawyers and two researchers to get good reports out and proper public information, it seems to me we should not be paying the lawyers. Perhaps that may not be in my best financial interests in the long-run, but I think in society's interest it is the right thing to do.

  Q1032  Chairman: Did you ever succeed in a jurisdictional issue?

  Mr Stephens: Yes, we have. There have been a number of cases where we have managed to throw it out; but what happened was that the law then changed against us. Sir Charles Gray, who is now a High Court judge, came up with the rather clever idea of saying, "Well, we will only sue in relation to the publication in the UK and the person's reputation in the UK, or within the jurisdiction of the court"; and that sort of artificially circumscribes the tort. If you are then asking the court to say, "Where is the most appropriate place for this case to be tried?"—if it is about an English reputation in relation to an English circulation, it is clearly London, even if that circulation is but 27 copies, for example.

  Q1033  Paul Farrelly: The Schillings lawyer who apologised in court, did anyone refer him to the Law Society for a disciplinary proceeding?

  Ms Gooch: We did not. Perhaps we should have done, and perhaps we still should.

  Q1034  Paul Farrelly: I used to be a practising journalist and the burden of proof is all one way. Have you ever in your experience come across libel lawyers who actually do not bother to go through the proper procedures to check whether their clients are lying or not, and therefore are recklessly making threats?

  Mr Stephens: One of the things that concerned me, particularly in the Denis Christel case, given that the allegations were about receipt of corrupt money by skimming the national oil wealth, I was concerned that the lawyers in that particular case were being paid with corrupt money—which as all lawyers know they should have, and may have to my knowledge, reported to National Criminal Intelligence Service (NCIS). That is, I think, a matter of enormous importance. Perhaps one of the ways of stopping people representing these corrupt people is to check the money supply. I have reported people, acting for people over the years, and I have never been told, "Don't act". All that seems to happen is that the police, if they do anything, are just watching from afar.

  Q1035  Paul Farrelly: Is it not usually in law that responsible lawyers will make sure that they do not believe their clients, if it is criminal law, are indeed guilty and criminals and therefore should not represent them?

  Mr Stephens: No, we are employed to do the best job we can for whoever comes along. Whether they be guilty or innocent, that is not the point. The point really is that there needs to be in place systems which ensure that organisations which are peculiarly vulnerable, like NGOs, like charities, are not able to be bullied and pushed around in the playground of our libel courts by the rich and the powerful. One of the ways of doing that, I think, is if you are going to sue an NGO then I think you have to show, one, there is no public interest in what you are doing; so if you are using bra-cams and tittle-tattle-type reports, which I cannot see anyone ever would, then in those circumstances you would not have a public interest; but if it is a public interest then it ought to be debated and the information ought to be out there, and they ought not to be allowed to have injunctions to prevent that kind of thing coming out.

  Q1036  Chairman: Can I just ask you one question which is slightly away from our remit which was put to me in the last 24 hours. Criminal libel remains on the UK statute, although virtually never used. It was suggested to me the fact that the UK still has it gives cover to other countries which pay less attention to the law to maintain it and then use it to basically lock up anybody who says something they do not like. Is that a view that you would echo?

  Mr Stephens: It is, Chairman. In fact I can speak with some knowledge on this. I defended, I think, the last criminal libel in this country.

  Q1037  Chairman: Which was?

  Mr Stephens: It was in relation to Scallywag magazine some time ago. I also took proceedings to defend blasphemy to the European Court of Human Rights in a case about a film called Visions of Ecstasy. I think both of those laws are being used when you go to the Third World. I am very often asked to be a trial observer or, indeed, to go and monitor the human rights standards of other countries, and invariably, particularly in the Commonwealth, it is said back to me, "Yes, but you've got criminal libel—why shouldn't we?" This is a particular problem in Southeast Asia. I think the quicker we do away with these laws—which we all know have fallen into desuetude and are not likely to be resurrected—we are able then to stand up and encourage others to make reforms. I think those would be very, very welcome changes.

  Q1038  Chairman: Thank you. That exactly bears out what was suggested to me.

  Ms Gooch: If I might just add to that. Global Witness has been on the receiving end of this in Cambodia where, over the years, we have detailed the way in which the entire state revenue has been captured by the Prime Minister and his family and cohorts around him. As a result Global Witness named staff cannot enter the country and are subject to threats of criminal defamation.

  Q1039  Mr Hall: In your evidence to the Committee you said you have never lost a libel case.

  Mr Stephens: That is her—not me!



 
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