Memorandum by the Newspaper Society
The Newspaper Society is the association of
publishers of regional and local newspapers. Its members publish
around 1,300 titles, selling over 36 million copies each week,
with a further 28 million delivered free. These include daily
morning and evening newspapers (around seven million adults read
a regional daily but no national daily newspaper) and weekly and
Sunday titles, paid for and free.
Nine out of 10 adults read a regional newspaper.
The regional press also supplies electronic, online and broadcast
news and information services. Regional titles are therefore relied
upon as an authoritative source of international, national, regional
and local news and information. These all involve reports of the
regional and local impact of government policy and initiatives,
Parliamentary proceedings and reports, in addition to coverage
of the national and constituency activities of local Members of
Parliament. Regional newspapers' specialist political reporters
and editors constitute a substantial proportion of the Parliamentary
The Newspaper Society's interest in the Committee's
enquiry relates to the interaction of Parliamentary privilege
and the public scrutiny of the legislature's activities, which
is fundamental to a democracy. The media plays a supporting role
in such scrutiny. It informs the public about matters in respect
of which Parliamentary privilege is enjoyed. The Society is therefore
interested by the inter relationship between freedom of expression,
freedom of information and open government, with reference to
the role of the media. As the Committee's terms of reference acknowledge,
this raises specific issues for legal reform, especially in respect
of defamation and contempt.
Members of Parliament enjoy the right to speak
freely and without fear of legal proceedings in respect of what
they say or do in the course of Parliamentary proceedings. The
Committee is considering whether there should be changes to the
scope of parliamentary privilege. In doing so, we suggest that
consideration ought to be given to the separate but related question
of privilege for the media's reports of Parliamentary proceedings
or matters which might require reference back to such proceedings.
There is legitimate public interest in the wider dissemination
to the public of fair and accurate reports of Members' statements
and actions, and in the analysis and summary of Parliamentary
papers, reports, orders, motions or other documents generated
by Parliamentary activities. Therefore, if the scope of parliamentary
privilege is increased, perhaps because of clarification of the
definition of parliamentary proceedings, the media ought to enjoy
parallel extension of its defences to legal action. However, the
media should not lose legal protection for fair and accurate reports
of parliamentary proceedings, if the Committee recommends the
converse, that citizens should have increased rights and remedies
against Members and officials for words and deeds in the course
of parliamentary proceedings. The media's reports should not be
infected by any wrongdoing inherent in the Parliamentary perpetrator
of the publication, words or deeds reported. This would penalise
the media and curtail coverage of Parliament in a manner incompatible
with democratic tradition or freedom of expression.
There are some deficiencies in the current protection
of fair and accurate reports circulated to the public, which need
to be remedied.
Although the media enjoy qualified privilege
at commonlaw against defamation claims in respect of fair and
accurate reports, until the remainder of the Defamation Act 1996
is brought into effect, only paid for publications and the broadcast
media benefit from statutory privilege for such reports, provided
that they are of matters of public concern and for the public
benefit published without malice. (It would be helpful for further
indication to be given as to when the Act is to be implemented).
Given the nature of modern communications, as well as the particular
requirements of the regional press and specialist publications,
there ought to be explicit recognition that the defence applies
to reports highlighting particular matters and not, as the older
caselaw suggests, only those dealing with the whole day's proceedings.
Implementation of the remainder of the Defamation
Act 1996 would also improve protection for reports dealing with
parliamentary papers. Under the Parliamentary Papers Act 1840,
no civil and criminal proceedings can be pursued against those
who publish, without malice, extracts or abstracts of Parliamentary
papers by print or broadcast means. Yet no protection is given
to fair and accurate summaries or reports. Publication by reading
aloud or by the new media would not qualify for protection. Nor
does the protection extend to drafts or material connected with
parliamentary proceedings but not ordered to be published. Furthermore,
unusually, the burden of proof lies upon the defendant to establish
that his publication was free from malice.
In respect of defamation actions only, some
of these problems will partially be relieved by the Schedule to
the Defamation Act, which will provide a statutory qualified privilege
defence, rebuttable by proof of malice, for fair and accurate
copies or extracts published by or on the authority of any legislature
or issued for the information of the public, whatever the form
of the publication, if of public concern and for the public benefit.
Nonetheless, this does not solve all problems.
First, the protection does not extend to fair
and accurate reports or summaries of such documents. Such an extension
would be helpful in improving protection for more comprehensive
reports so that these could be disseminated without fear of legal
Second, no protection is given against legal
actions other than for defamation. The publisher has to rely on
the 1840 Act, which would be of no avail to some media unless
Thus, it would be helpful if legal protection
could be extended, particularly if the Committee recommends changes
which widen parliamentary privilege.
Such protection is also needed to protect reports
of parliamentary proceedings against criminal and civil legal
proceedings, other than defamation.
We hope that the Committee will be considering
clarificationand possibly extensionof parliamentary
privilege in relation to the laws of contempt.
It is arguable that the present conventions
and resolutions might sometimes unduly curtail Parliamentary discussion
of matters of public interest because criminal legal proceedings
have been set in train or a civil trial date set. The Committee
might consider whether the scope of Parliamentary debate and questioning
is too easily curbed or delayed or too tightly restricted, so
that wider debate is unnecessarily prevented.
This is also relevant to actions pursued by
the Law Officers of the Crown, raises questions of independence
and whether Parliamentary scrutiny could be unnecessarily restrained.
The respective position of Members of Parliament
and the media are unclear. For example, the issues as to liability
raised by the Colonel B affair and Spycatcher have not been satisfactorily
resolved. Fair and accurate media reports of parliamentary proceedings
and papers ought to be protected against action for contempt of
court in any event, but particularly so if Members of either House
or officials do enjoy parliamentary privilege and are not themselves
in contempt of Parliament for the words or action reported. As
the Spycatcher litigation demonstrated, there is scope for restrictions
upon UK Parliamentary discussions and reports of them (an injunction
had to be varied expressly to permit reporting of Parliamentary
proceedings), untenable elsewhere. Only if formal legal challenge
is mounted is the necessity for secrecy questioned.
The operation of the Human Rights Bill and principles
behind the Government's freedom of information initiative suggest
that free speech, press freedom and the public right to know ought
to be given greater priority and legal protection. We are pleased
that the Committee is examining the inter relation of privilege
with the Official Secrets Acts, European Convention of Human Rights
and Freedom of Information.
The solution to some of these issues might be
reform of the substantive law rather than special protection for
Members of Parliament and others involved in Parliamentary proceedings.
The introduction of significant and actual harm tests and a public
interest defence into Official Secrets legislation would be helpful.
Ensuring that courts do not too readily restrict reporting of
court proceedings or trial judges too readily fear prejudice to
proceedings are other alternatives. Consideration should be given
to the use of public interest immunity certificates in preventing
matters being adduced at trial, recent caselaw notwithstanding.
One particular area where radical reform is
necessary is defamation law.
If the Committee decides to widen the scope
of Parliamentary privilege, then appropriate changes ought to
be made to extend legal protection to fair and accurate reports
of those activities. This might be most relevant, for example,
to statements by Members of Parliament outside the House, correspondence
with Ministers, draft Parliamentary papers. The Defamation Act
1996 does permit the extension of qualified privilege defences
to some matters published by persons designated by the Lord Chancellor
and we understand that consultation is to be held on suitable
We also believe that there should at least be
reconsideration of section 13 of that Act, as set out below, in
the absence of the best remedy, which would be radical reform
of the libel laws.
The exercise of Parliamentary privilege should
not be abused. Clearly, care is necessary to avoid its use as
a shield against unwelcome criticism or justified investigation.
Nor should Parliament seek to hold the media or others in contempt
of the House for investigations or criticism of legitimate public
Members of the Houses of Parliament are in a
favoured position in that they can publicly make and reply to
allegations, knowing that they are protected from legal action
and that there is some protection for others' dissemination of
They are also free to take legal action against
others, in the same way as any other citizen. This includes actions
for libel. The operation of parliamentary privilege does not prevent
this. Indeed it is more likely to hinder a defendant who seeks
to justify a statement made about a Member of Parliament. The
Defamation Act 1996 has added further complications to this problem,
so that all relevant matters still cannot be placed before a jury
The Society is pleased that the Committee is
considering the operation of Section 13 of the Defamation Act
1996. The problems inherent in this section were raised by the
Society and other media organisations during the passage of the
Bill. The then Opposition ensured that the difficulties of principle
and practice were at least alluded to in debate by the House,
even if they were not successful in ensuring that full and detailed
consideration by such a Committee could be given before any legislation
The Society regrets that many of the theoretical
problems pointed out during the passage of the Bill became a reality
as soon as the section came into use.
Article 9 of the Bill of Rights prevents the
courts from questioning or impeaching the freedom of speech and
debate in proceedings in Parliament. A newspaper sued for libel
by a Member of Parliament cannot therefore bring forward evidence
in its defence of matters which infringes such privilege. Although
reference might be made to Hansard to demonstrate that an event
took place, or that something was said or done, as a matter of
historical fact, no inference could be made as to the motive for
doing so. No evidence can be admitted, no suggestion made or inference
drawn in cross examination which might lead the court into such
inquiry and so fall foul of the Bill of Rights. However, only
in extreme cases where the exclusion of such material meant that
the defendant could not prove the truth of his publication, will
the court decide to stay the action because, in the particular
circumstances of that case, it would be impossible to determine
the matter fairly between the parties. It would be too serious
an inroad into freedom of speech if the media were forced to abstain
from the truthful disclosure of a Member's misbehaviour. Nonetheless,
in all other cases, the action could proceed, but the defence
would be deprived of relevant evidence which supported his case.
Section 13 of the Defamation Act 1996 now permits
a Member of either House and officials to waive the privilege
insofar as it protects them. This perpetuates injustice. The privilege
and its waiver can be manipulated to serve the plaintiff who benefits
from the privilege. He might waive it where it would be certain
that a court might otherwise stay the proceedings. Alternatively,
he might sue, but retain the privilege himself or know that others
will do so, and so ensuring that the defence will be thereby gravely
hindered in establishing the truth of the matter at a trial.
For example, the plaintiff can choose not to
waive the privilege if he might therefore benefit by the defendant's
inability to put all relevant evidence before the court, which
supports the defence and the truth of its allegation. The defence
will be disadvantaged but the case proceed. Alternatively, the
case might concern the linked actions of two Members. One might
choose to waive the privilege. The other, however, might retain
its protection. No evidence cold be adduced, no cross examination
carried out, no inference drawn in respect of the second Member.
Indeed, he might successfully request the deletion of all reference
to him in pleadings and witness statements. It might be difficult
in such circumstances to suggest that all relevant matters have
been fairly disclosed and evaluated in hearing and determining
the case. It was also suggested in the course of Parliamentary
debate that a document or evidence given to a Committee of the
House which contained a number of allegations about several Members,
could not be automatically adduced in a case where its submitter
had waived privilege, because it would be for the Committee to
decide if privilege should be waived.
Section 13 therefore does not establish an equitable
means for production and examination of evidence perhaps crucial
to proper determining of defamation actions. Any widening of parliamentary
privilege would increase these problems. It should not be used
as a model for waiver of privilege in respect of other legal proceedings.
Consideration needs to be given to its reform.
Indeed, alleviation of the problem, so far as
defamation laws are concerned might better lie with radical reform
of the libel laws in addition to review of parliamentary privilege.
If the burden of proof were reversed and if a "public figure"
defence were introduced, there might be a more equitable balance
between the beneficiary of parliamentary privilege and other citizens
which supported free speech and the democratic process for all
those involved within it.
The Newspaper Society has responded to the consultations
by the Law Society and the Committee on Standards in Public Life
on proposals for legislation on corruption and misuse of public
office. Copies are enclosed.
The review of the scope of Parliamentary privilege
and the degree to which the work of Members relies upon the unfettered
free speech which it bestows upon them, might well demonstrate
to the Joint Committee the extent of restrictions which do constrain
others' freedom of expression. We hope that the Joint Committee's
recommendations will therefore include significant improvements
of the rights of ordinary citizens to freedom, enabling properly
informed and unconstrained scrutiny, report, comment and criticism
of the institutions and all those involved in the democratic process.
The Newspaper Society is grateful to the Committee
for its invitation to submit evidence. It would be happy to provide
any information which the Committee might find helpful.
20 January 1998
Memorandum by the Newspaper Society to
the Home Office
MISUSE OF PUBLIC OFFICE: A NEW OFFENCE?
As you know, the Nolan Committee has invited
comments on the proposals contained in its Consultation Paper.
The Newspaper Society has submitted its preliminary
views to the Law Commission after consideration of their paper
on corruption. I enclose a copy of this submission for your perusal.
You will see that we make the point that the "criminalising"
of certain methods of gathering news could have an adverse effect
on investigative journalism.
In similar vein, we are concerned to ensure
that a statutory offence of misuse of public office should not
be couched in such a way that it could be employed to inhibit
the release of information to journalists.
We note that in attempting to define the common
law offence of misconduct in a public office Halsbury's Laws
of England describes it as an umbrella term for a bundle of
different acts, including "disclosure of information".
You will be aware that on occasion journalists obtain information
from people who carry out public functions. Often this is information
which the organisation would prefer to keep under wraps but which
the office-holder in question believes should be released in the
The Consultation Paper acknowledges that it
should be a defence to criminal proceedings that the office-holder
acted in good faiththat is, reasonably and honestly. It
may be that a specific defence should be included to cover those
situations where an office-holder is justified in the public interest
in releasing the information. Such justification has been recognised
under the common law; in order to constitute an offence the misconduct
impugned must be such as is calculated to injure the public interest
(see R v Dytham  QB 722). It would of course be preferable
for any satutory offence to be drafted in a way which acknowledges
as fundamental the importance of the public's right to know about
matters of genuine public interest.
We would be grateful if the Newspaper Society
could be included in any further consultations on this issue.
30 October 1997
Submission from the Newspaper Society
to the Law Commission
LEGISLATING THE CRIMINAL CODE: CORRUPTION
I am writing on behalf of the Newspaper society
to set out our preliminary views on the issues canvassed in the
Consultation Paper. I regret the fact that we were unable to meet
the preferred deadline for the submission of comments.
We take the view (in answer to one of the most
fundamental questions raised by the Law Commission) that a moral
element is inherent in corruption and that a person's reasons
for acting in a particular way should be taken into account. There
are circumstances in which it is important to distinguish between
a course of action undertaken with a reprehensive motive and one
embarked upon with a laudable aim.
As you will appreciate, the Newspaper Society
represents publishers of the local and regional press. Given that
private sector employees owe duties of loyalty and confidence
to their Principal we can envisage situations in which journalists
might encourage or facilitate a breach of duty and thereby act
"corruptly" as defined by the Consultation Paper. This
would not necessarily be "entrapment" as envisaged in
para 8.101 (ie to expose the corrupt conduct of the person offered
a reward). It could be more in the nature of whistleblowing: a
desire to uncover information about the employer's questionable
activities, an aim to which no moral obloquy can attach. The "inducement
or reward" might be the promise of some small payment, travel
expenses, or the provision of lunch etc.
We believe that a person's reasons for acting
in particular way are a significant factor. Our concern is that
the "criminalising" of this kind of newsgathering could
inhibit investigative journalism. This could be avoided either
through the exclusion of such conduct from the definition of "corrupt"
behaviour or perhaps (less attractively) via the introduction
of a public interest defence. You are no doubt aware that the
Code of Practice adhered to by newspapers, magazines and periodicals
defines the public interest (non-exhaustively) as follows:
(i) detecting or exposing crime or a serious
(ii) protecting public health and safety;
(iii) preventing the public from being misled
by some statement or action of an individual or organisation.
It seems evident that the broad definition of
corruption formulated in para 1.41 would catch a wide range of
activities which are normal business practice and viewed since
time immemorial as wholly unexceptionable. In the main, corporate
hospitality and the provision of small gifts are intended to create
a positive image of the giver; they are invariably morally neutral.
The consultation paper says (at para 8.52) that
"ordinary business hospitality" is not corrupt because
it "creates no substantial conflict between the recipients'
interests and their duty". This would seem to suggest that
such hospitality should fall outside the offence of corruption
altogether. It would surely be extremely difficult to enforce
such a rule. The consequence of that unenforceability would be
that what is now open and "above board" would be concealed.
Transparency would be replaced by concealment.
Para 8.58 goes on to state that it should not
be a defence that what was done was normal practice but that this
factor (inter alia) should be capable of "having a
bearing" on whether or not the defendant's conduct was corrupt.
I presume that "ordinary business hospitality" is synonymous
with "normal practice". It is not entirely clear whether
the intention is to exclude such conduct altogether from the scope
of any offence.
We do not believe that "advantages"
of small value should be caught; in practice, benefits which are
"de minimis" would be ignored by the authorities.
There seems little merit in introducing a legislative yardstick
which would not be observed.
We are not convinced that to abandon the distinction
between public and private duties is the right course to take.
In our opinion, there may be valid reasons for maintaining the
distinction (in part because of the evidential difficulties involved)
although the definition of what constitutes a "public body"
needs to be revised. There may well be scope for extending its
I hope that these views can be taken into account
and that the Society will be included in the consultation process
in the event that a draft Bill is to ensue.
31 July 1997