Data Protection Bill [HL]

Written evidence submitted by the Evening Standard and the Independent (DPB48)

From the Evening Standard Ltd and Independent Digital News and Media Ltd

Submission to the Data Protection Bill Committee

1. The Government’s recent decision not to hold the second part of the Leveson Inquiry is an excellent development.

2. Given the radical changes to our industry in the last seven years, and especially taking account of a shift in relations between journalists and police, we do not believe a large-scale inquiry into past behaviour is relevant or appropriate.

3. The Secretary of State’s reaffirmation of the Government’s intention to repeal Section 40 of the Crime and Courts Act is particularly welcomed.

4. If it were implemented, the impact of Section 40 on media companies which ha d not agreed to submit to membership of a ‘recognised regulator’ would have serious consequences. 

5. The cost of defending journalism is already prohibitive, particularly due to the use of Conditional Fee Agreements by claimants and their legal representatives. If Section 40 were to be triggered the situation would be considerably worse.

6. In recent years we have received around 50 threats of legal action per year in respect of material we have published in either the Evening Standard or The Independent. Each case is dealt with on its merits: where we have erred we naturally seek to make amends straight away. Some cases we settle for commercial reasons; i.e. the cost of defending an actual claim if we became emb roiled in a long-running case is viewed as unjustifiable even though we believe they have no merit and we would prefer to fight them.

7. Many – indeed, we would say the majority – of the threats of legal action we receive are unmerited and we defend letters from claimant lawyers robustly, and in detail, in order to resolve or rebut the complaint when appropriate. Were Section 40 to be implemented, it stands to reason that claimant lawyers would have no reason not to issue proceedings, knowing th at we would be most likely to gi ve in to unreasonable demands (eg for removal of content, publication of retractions or indeed payment of ‘compensation’) rather than fight a costly legal battle.

8. It has been suggested that cases without any merit could be struck out and would not attract the cost penalties envisaged by Section 40. Yet the minimum cost to a publisher of defending a claim to a strike-out hearing is, in our experience, around £25k. While it may be possible in such cases – at the current time – for publishers to seek repayment of their own costs by the other side, it is not at all certain that judges would, as matter of course, agree to set aside the provisions of Section 40 (if implemented) in relation to successfully striking out a claim. 

9. It may be recalled that the Evening Standard was sued for libel some years ago by the organised crime boss, David Hunt, over allegations which had been previously reported by the Sunday Times. A stay was put on the Evening Standard case pending the outcome of proceedings against the Sunday Times; the case eventually went the way of the Sunday Times. Had Section 40 been in play during that case, we would have found ourselves facing a considerable bill for defending a claim which ultimately fell away in light of the outcome in the Sunday Times proceedings. This would have been manifestly unfair.

10. In our experience, defending an action for libel through to trial typically costs over five hundred thousand pounds in legal fees. If we faced the prospect of paying £1 million or more on top to the claimant (including a ‘success fee’ under a CFA), even where we succeed, our ability to defend important, public interest journalism would be greatly diminished.

11. Our group is fundamentally opposed to the Royal Charter process which led to the establishment of the Recognition Panel. Notwithstanding that, our view is that the recognition of Impress as a ‘recognised regulator’ by the RP was flawed – not least because of its reliance, ultimately, on a single wealthy donor (who has a personal agenda against sections of the news media) for its financial sustainability.

12. Against this backdrop we find it deeply troubling that amendments introduced to the Data Protection Bill when it went through the House of Lords effectively seek to bring a Leveson 2-style inquiry into existence and to create a cost-shifting regime in respect of Data Protection claims that would broadly mirror the intentions of Section 40. As such, our group supports the Government’s amendments to the Bill which would remove clauses 142, 168 and 169.

13. The introduction of a new costs regime in DPA cases is a cause for concern in its own right, not least because publishers are coming under increasing pressure from claimant lawyers who seek to shoehorn Data Protection claims into what are essentially non-legal complaints. We are also anxious that it would encourage critics of the media to press for its extension across other legal claims.

 

14. Attempts to force a change in the press regulation framework by enacting punishing costs provisions against media companies put at risk the long-established principles of the freedom of the press for which the UK has been admired across the world. 

March 2018