The CMS Committee has released its report today on press standards, privacy and libel after a consultation process lasting over a year. Despite being subjected to intense lobbying by the media (and the press in particular), its report is generally balanced and contains much good sense.
It also does not spare some of the principal apologists for the current lax state of press regulation, with both Sir Christopher Meyer, former chair of the Press Complaints Commission (PCC), and a number of prominent individuals at News International coming in for particular criticism. Its accusation against News Group Newspapers of “collective amnesia” is particularly telling in the sections dealing with phone hacking as is the suspicion expressed that the newspaper group had bought the silence of key potential witnesses.
The report, which runs to nearly 170 pages, is difficult to summarise because of the wide ranging topics which the Committee tackled. The Committee rightly stresses that a healthy democracy requires freedom for the media to comment and to be critical of public figures and institutions. The report expresses concern about two aspects of the current law which (it says) undermine this: principally the cost of defending libel actions and the use of the privacy jurisdiction of the court to prevent publication of stories which might have a public interest element.
Privacy and Breach of Confidence
The Committee considered but rejected a privacy statute. It recommends, however, that the PCC should amend its Code to include a requirement that journalists notify the subject of their articles prior to publication, subject to a “public interest” test. Although this is not in the PCC Code, it is in the Editor’s Code Book where one of the checklist items for responsible journalism is “have likely complainants been given an adequate opportunity to respond?” The Committee recommends that failure to pre-notify should be an aggravating factor in assessing damages.
Libel and Press Freedom
Despite intense lobbying, the Committee rejected a change to the “burden of proof” being on the defendant. It expressed concern about the reputation of the UK in the eyes of Americans in particular as being a place where libel tourists could undermine the USA’s commitment to free speech. One of its bases for so doing was that the UK was the jurisdiction of choice for overseas claimants. The Committee appeared not to be aware that many non-libel litigants choose this country as their jurisdiction of choice because of the excellence of our legal system.
The Report does not record the fact that our libel laws have been found by the European Courts to be consistent with European concepts of human rights – including free speech.
The Committee addresses the issue of litigation costs in defamation. One puzzling aspect of the Report is the rejection of the argument that newspapers should bear some responsibility for their own costs burden when not settling actions which they subsequently lose, which obvious and reasonable argument the Committee rejects as “extraordinary”. The Committee complains that “If a defendant is in the right he should not be forced into a settlement which entails him sacrificing justice on the grounds of cost.” The Committee appears not to appreciate that this is a feature not only of all UK litigation but of legal disputes the world over.
The suggestion that lawyers who protect the rights of claimants against the media should only be permitted a 10% uplift by way of success fee by contrast creates a serious access to justice issue. The mere cost of cash-flowing a substantial libel action over (say) 18 months would exceed 10% thereby providing claimant lawyers with no premium whatsoever to protect the Article 8 rights of individuals who have been the victim of defamatory or privacy invading publications for profit.
The four major stories and cases which are addressed in the report are that of the McCanns, Max Moseley’s action against News of the World, the Transfigura injunction and Peaches Geldof’s complaint and subsequent legal action against the Star. In the Press Standards section the Committee concludes that commercial factors led to the untrue articles written about the McCanns. It concludes that self-regulation “signally failed” in this case.
On phone hacking the Committee rejected the claims by News Group Newspapers that both the number of victims of phone hacking and the number of individuals within that organisation who were aware of this were small. Both the newspaper and the PCC were criticised for having undertaken less than full or rigorous investigations.
Self-regulation of the Press
The Committee made various criticisms of the PCC concerning its lack of independence, the lack of lay members on the Code Committee, its lack of power to fine and its failure to ensure “due prominence” for corrections and apologies.
The Committee concluded, however, that self-regulation was preferable to statutory regulation and suggested that there should also be some incentive for newspapers to subscribe to the self-regulatory system. It suggested that this could come in the form of lifting the costs burden in defamation cases being made available only to those publications which subscribed to the PCC.
One of the striking aspects of the Report is its criticism of the attitude adopted by some of those representing the press to the very procedure whereby the Report was compiled. Press witnesses were accused of a cavalier attitude to the authority of the Committee and of providing evidence that was less then credible and self contradictory. No-one reading the Report could be left in any doubt that the media (and press in particular) emerge at the end of the process as preferring to be free of any accountability at all. If we were to ever reach that point, then its value to us as a democracy would effectively be lost.
One only has to go and buy newspapers or log on to news websites to realise that the media in this country (and the press in particular) do not operate under the jackboot of either an oppressive libel or privacy law. The press is content for the Code Committee of the PCC, which writes the industry’s rules, to exclude lay members and for its Chairman (Paul Dacre) to do his job while stating in speeches that all restrictions on press freedom impact on its profitability.
It has to be remembered when considering both the submissions to the Committee and the Report setting out its conclusions that the role of the law and self-regulation in this field is principally a balancing of the rights of the large international corporations that own the media as against the relatively modest resources of even the “rich and famous” (be they libel tourists or indigenous people with human rights) who are using the law to protect those rights against those powerful vested interests.