Press freedom seminar
Shortly before the House of Commons Select Committee on Culture, Media and Sport published its report, “Press Standards, Privacy and Libel” (HC 362-1) (“the Report”), Gray’s Inn staged its own seminar on press freedom: “Gagging the Press—Is the Public Bound to Suffer?” Lord Justice Moses chaired a star-studded line-up of speakers (see photographs on p 32) including: Professor Eric Barendt, Goodwin Professor of Media Law; Juliet Herd, International Editor of “Hello!”; Sir Ken Macdonald QC, former DPP; Max Mosley, former president of FIA who won a high profile privacy case against the News of the World in 2008 (see (2008) The Times, 30 July); Benedicte Paviot, broadcaster for France 24; Alan Rusbridger, Editor of the Guardian; and Bob Satchwell from the Society of Editors. Michael Beloff QC summed the evening up in a manner that was thought provoking and entertaining.
The gravitas on stage was reflected in the audience. Lord Hoffmann and Lord Justices of Appeal were in attendance. As were broad-sheet editors and newspaper libel lawyers, who—without fear of an injunction or the chill of a costs order for defending their say—took to the floor during the question and answer session to express their concern at the escalating costs of defending legal battles. Alan Rusbridger who had fought several battles—against Jonathan Aitken, Tesco and Neil Hamilton amongst others—declared that there is a common consensus that the libel laws are a national embarrassment.
It was argued that the highest importance should be accorded to freedom of expression and the free exchange of ideas. In the case of traditional forms of investigative journalism and science reporting, there should be a strengthening of the “public interest” defence, requiring public figures and major corporations to demonstrate malice before they can succeed in their action. It has felt that the change of law in Australia, which requires corporations with ten or more employees to show malice in libel proceedings, has significantly increased the freedom of the media to talk about business and financial affairs.
Sir Ken Macdonald QC said that we need to acknowledge that the freedom to speak frankly and freely has been somewhat under threat in this country in recent years. He sought to look at matters in a wider context than libel and privacy, by looking at the broadening of “criminal” speech and criminalising the possession of articles and books many of which are freely available on the internet. He also cited the unnecessary new offences of encouraging terrorism as though incitement were not enough to deal with the problem that the new offence was meant to deal with.
Professor Eric Barendt argued that the public does not have a right to know about the sexuality or the sex life of politicians or of public figures unless their behaviour affects the discharge of their professional duties. We are all entitled to say “mind your own business”. He asked whether the British public would have been better off had it known that Lloyd George was conducting an affair with his secretary and the Great War simultaneously. Matters need to be looked at not simply from a human rights angle, but also from a utilitarian aspect. If the media is allowed to print carte blanche, we risk hounding out some clever and able people from public office and to deter others from entering it.
Another significant issue is prior notification, powerfully argued by Max Mosley. He is taking his case to Strasbourg to argue that there is a gap in English law in which newspapers are not bound to tell the subject-matter of their story that they are about to publish something that s/he would probably prefer to keep private. If newspapers do not inform a person about the publication, the person cannot take the case to court and seek an injunction preventing publication of the story. The situation in privacy is wholly different from that of libel. In privacy cases the damage is irrevocable because it is impossible to erase information wrongly placed into the public domain from the minds of the public. An injunction is the only remedy.
Perhaps the topic that touched the rawest nerve concerned the Press Complaints Commission (“PCC”). Both Ken Macdonald and Max Mosley called for its reform and for the creation of an independent regulator. The current body has repeatedly been described as lacking teeth and independence.
The Select Committee Report
The issues which were aired at Gray’s Inn were again thrust into the spotlight in the Select Committe Report, published on 24 February. The two main issues were the need to reform the PCC in order to retain self-regulation and the damning criticism of News International for failing to carry out a rigorous inquiry into phone hacking, describing the company as being guilty of “deliberate obfuscation” and “collective amnesia”. The report contained the following findings:
- It rejected the idea of a statutory law of privacy: “Given the infinitely different circumstances which can arise in different cases and the obligations of the Human Rights Act, judges would inevitably still exercise wide discretion. We conclude therefore, and for now matters relating to privacy should continue to be determined according to common law.”
- It rejected a legal requirement for pre-notification as it would be “ineffective due to what we accept is the need for a public interest exception”. At the moment, pre-notification, in the form of giving opportunity to comment, is the norm but there is no PCC guidance provided on the subject. Editors and journalists though should be encouraged “to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of Article 8.” The Civil Procedure Rules 1998 should be amended appropriately.
- Self-regulation through the PCC should continue but lay membership should constitute a two-thirds’ majority “making it absolutely clear that the PCC is not overtly influenced by the press”. There should be lay members and a lay chairman for the Code Committee and practising journalists should be invited to serve on the PCC’s committee. The PCC must be more pro-active and not wait for a complaint to be made in cases of serial breaches of the Code occurring or being likely to occur. Appropriate action includes making contact with those involved, issuing a public warning or initiating an inquiry. Action should be mandatory once “three or more members of the Commission have indicated to the Chairman that they believe it would be in the public interest”. Finally, the PCC should have the ability to impose a financial penalty where a serious breach of the Code has occurred, and in the most serious cases should have the “ultimate power to order the suspension of printing of the offending publication”.
- “There is potential for a statutory responsible journalism defence to protect serious, investigative journalism and the important work undertaken by NGOs.” The government should launch a detailed consultation over putting such a defence on a statutory footing.
- The problem of the “mismatch of resources between wealthy corporations and impecunious defendants” could be addressed by introducing a new category of tort entitled “corporate defamation” “which would require a corporation to prove actual damage to its business before an action could be brought. Alternatively, corporations could be forced to rely on the existing tort of malicious falsehood where damage needs to be shown and malice or recklessness proved”.
- Libel tourism needs to be discouraged by amending the Civil Procedure Rules to “introduce additional hurdles for claimants in cases where the UK is not the primary domicile or place of business of the claimant or the defendant.” Courts should be directed to rule “that claimants should take their case to the most appropriate jurisdiction”.
Seizing the moment
A thorough overhaul of the libel laws is long overdue and the Select Committee’s report makes for refreshing reading. The moment needs to be seized. The Justice Secretary has announced a Working Party to libel law and Lord Justice Jackson’s Review of Civil Litigation Costs (Final Report) is now in the implementation stage. Waiting in the wings is Strasbourg’s decision in the Max Mosley case. The times are changing, and those on either side of the media scrutiny will hopefully find themselves subject to regulation which balances the public’s right to know with the individual’s right to privacy with a fairness and transparency that the British press and public both deserve, but of which they have been deprived for too long.
Siobhan Grey, Charter Chambers, organised and opened the Gray’s Inn seminar