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Press Standards, Privacy and Libel House of Commons Culture, Media and Sport Committee Press standards, privacy and libel Second Report of Session 2009–10 Volume I Report, together with formal minutes Ordered by the House of Commons to be printed 9 February 2010 HC 362-I Incorporating HC 275-i–xv, Session 2008–09 Published on 24 February 2010 by authority of the House of Commons London: The Stationery Office Limited £0.00 The Culture, Media and Sport Committee The Culture, Media and Sport Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Department for Culture, Media and Sport and its associated public bodies. Current membership Mr John Whittingdale MP (Conservative, Maldon and East Chelmsford) (Chairman) Mr Peter Ainsworth MP (Conservative, East Surrey) Janet Anderson MP (Labour, Rossendale and Darwen) Mr Philip Davies MP (Conservative, Shipley) Paul Farrelly MP (Labour, Newcastle-under-Lyme) Mr Mike Hall MP (Labour, Weaver Vale) Alan Keen MP (Labour, Feltham and Heston) Rosemary McKenna MP (Labour, Cumbernauld, Kilsyth and Kirkintilloch East) Adam Price MP (Plaid Cymru, Carmarthen East and Dinefwr) Mr Adrian Sanders MP (Liberal Democrat, Torbay) Mr Tom Watson MP (Labour, West Bromwich East) The following members were also members of the committee during the inquiry: Mr Nigel Evans MP (Conservative, Ribble Valley) Helen Southworth MP (Labour, Warrington South) Powers The committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the Internet via www.parliament.uk. Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at www.parliament.uk/cmscom. Committee staff The current staff of the Committee are Tracey Garratty (Clerk), Arun Chopra (Second Clerk), Elizabeth Bradshaw (Inquiry Manager), Jackie Recardo (Senior Committee Assistant), Ronnie Jefferson (Committee Assistant), Keith Pryke (Office Support Assistant) and Laura Humble (Media Officer). Contacts All correspondence should be addressed to the Clerks of the Culture, Media and Sport Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 6188; the Committee’s email address is [email protected] 3 Contents Report Page Summary 5 1 Introduction 9 2 Privacy and breach of confidence 12 Introduction 12 The Human Rights Act 13 Section 12 of the Act 14 Section 12 in practice 16 Max Mosley and the News of the World 19 Is it time to legislate on privacy? 23 Mr Justice Eady and privacy law 25 Compulsory pre-notification 28 Super-injunctions 31 Breach of confidence 34 3 Libel and Press Freedom 36 The development of our libel laws 36 Bringing and defending a libel action in the UK 38 Early hearings on meaning 38 Defending libel actions – justification and the burden of proof 39 Fair comment 40 Privilege 41 The ‘responsible journalism’ defence 41 Corporations and defamation 46 Jurisdiction 48 The international context 52 The internet and the ‘repeat publication’ rule 56 Criminal libel 59 4 Costs 61 Introduction 61 Attempts to control costs 64 Other inquiries 65 Costs Capping 67 Offer of Amends 69 Hourly rates 70 Conditional Fee Agreements 72 5 Press standards 77 Introduction 77 Financial pressures 77 Newspaper headlines 80 The case of the McCanns 83 4 The events 83 What went wrong? 84 The role of the PCC 87 Lessons learned? 89 Suicide reporting in the media 91 The case of Bridgend 92 Phone-hacking and blagging 96 Fresh allegations 96 The Miskiw contract 97 The ‘for Neville’ email 98 The door-knock 99 Who knew about the phone-hacking? 101 The Goodman and Mulcaire settlements 104 The Taylor settlement 105 The actions of the police 106 Operation Motorman 109 Conclusions regarding phone-hacking and blagging 113 6 Self-regulation of the Press 115 The Press Complaints Commission 115 The PCC and fines 119 The independence of the PCC 123 A more proactive approach? 124 The authority of the PCC 125 The PCC’s statistics 127 ‘Due prominence’ 129 The future of the PCC 130 Conclusions and recommendations 131 Annex 147 Glossary of terms 147 Appendix 149 Press Complaints Commission Code of Practice 149 Formal Minutes 155 Witnesses 160 List of written evidence 162 List of unprinted written evidence 164 List of Reports from the Committee during the current Parliament 166 5 Summary The UK is a country which values the freedom of its press to report and comment on events, public figures and institutions, to be critical of them and to be a platform for dissenting views. These are important freedoms which are not available in all countries. In return, the public expects that members of the UK press will uphold certain standards, be mindful of the rights of those who are written about, and, as far as possible, be accurate in what they report. The current system of self-regulation of the press, under the auspices of the Press Complaints Commission (PCC), came into force in 1991, following the Calcutt inquiry of 1990. Since then there have been times when events have led the public and politicians to question the integrity of the methods used by the press, and the competence of the PCC as an industry regulator. Our inquiry was primarily prompted by the persistent libelling by the UK press of the McCann family and others, following the disappearance of their daughter Madeleine in Portugal in May 2007, the limited intervention of the PCC and its failure to launch an inquiry into the industry’s failings in the case. We also sought to address concerns that the operation of libel laws in England and Wales and the impact of costs were stifling press freedom in the UK, as well as considering the balance between personal privacy and press freedom. This Report is the product of the longest, most complex and wide-ranging inquiry this Committee has undertaken. Our aim has been to arrive at recommendations that, if implemented, would help to restore the delicate balances associated with the freedom of the press. Individual proposals we make will have their critics – that is inevitable – but we are convinced that, taken together, our recommendations represent a constructive way forward for a free and healthy UK press in the years to come. Privacy and breach of confidence In this section we examine the case brought by Max Mosley against the News of the World, as well as considering other recent case law and the impact of injunctions and super-injunctions on freedom of speech. We also comment on the operation of the Human Rights Act, which incorporates the European Convention on Human Rights in UK law. The European Convention includes both the right to freedom of expression and the right to a private and family life, rights that must be balanced against each other. That being the case, we make a number of recommendations designed to ensure that the balance between the two Convention rights is appropriate. We do not consider however that it would be right, at this time, to legislate on privacy. We rule out mandatory pre-notification. We recommend however that the PCC should amend its Code to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a ‘public interest’ test, and should provide guidance for journalists and editors on pre-notifying in the Editors’ Codebook. We also recommend that failure to pre-notify should be an aggravating factor in assessing damages. To balance this, we recommend the development of a fast track procedure for a final decision where an interim injunction banning publication of a story has been granted, or where a court refusal has been appealed. We comment on the recent events surrounding the imposition of a ‘super-injunction’ obtained by Trafigura, a company trading in oil, base metals and other items, preventing the publication of a report on alleged dumping of toxic waste in the Ivory Coast, and subsequent debate over 6 reporting of Parliamentary Questions relating to that report. We express our concern at the confusion over the level of protection provided to the reporting of Parliamentary proceedings by the Parliamentary Papers Act 1840 and recommend that these important elements of freedom of speech should be put beyond doubt through the enactment of a modern statute. We also recommend that the Lord Chancellor and the Lord Chief Justice act on concerns regarding injunctions more generally in cases of both breach of privacy and confidence. Libel and press freedom In this section we focus on the operation of libel law in England and Wales and its impact on press reporting. We consider important recent cases and developments since the 1996 Defamation Act, including ‘responsible journalism’, the government’s consultation on the issue of ‘multiple publication’ in the internet age and legislation to abolish criminal libel. We consider the fairness of the ‘burden of proof’ being on the defendant, but in relation to individuals conclude that in order to satisfy natural justice the defendant should still be required to provide the proof of his allegations. However, with regard to corporations and defamation, we recommend that the Government should consider reversing the general burden of proof. We discuss the damage ‘libel tourists’ have caused to the UK’s reputation as a country which protects free speech and freedom of expression, especially in the United States, where a number of states have enacted legislation to protect their citizens from the enforcement of libel settlements made in foreign jurisdictions. We also comment on bills currently before the US Congress which are designed to afford similar protections.
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