House of COMMONS
MINUTES OF EVIDENCE
CULTURE, MEDIA AND SPORT COMMITTEE
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Telephone Number: 020 7233 1935
Taken before the Culture, Media and Sport Committee
Mr John Whittingdale, in the Chair
Mr Adrian Sanders
Witnesses: Mr Colin Myler, Editor, News of the World, and Mr Tom Crone, Legal Manager, News Group Newspapers, examined.
Q751 Chairman: Good morning. Can I welcome for the first part of this morning session Tom Crone, the Legal Manager for News Group Newspapers, and Colin Myler, the Editor of the News of the World. The Committee is aware that since we took evidence from Max Mosley and since we issued our invitation to the News of the World, a Max Mosley has indeed issued a writ for libel against the News of the World and we are therefore conscious that that may constrain you to some extent in what you can say. However, we hope, nevertheless, that whilst we will be careful in our questions, you might also feel able at least to say something.
Mr Myler: Yes. Mr Chairman, before we begin, is it possible for me to make an opening statement? Bearing in mind that conversations have taken place this morning regarding the legal situation with Mr Mosley, I would like to make an opening statement, if I could.
Q752 Chairman: As long as it is brief, that is fine.
Mr Myler: It is brief, yes. First of all, I do welcome the opportunity to give evidence before this Committee and thank you for inviting me and Mr Crone. It is an important inquiry into press standards, privacy and libel, which affects us greatly. It comes at a critical time for this industry. The industry is facing severe commercial challenges and challenges to press freedom. As you are all aware, last year alone many hundreds of jobs were lost, particularly in the provinces. It cuts across all of the industry; the national newspapers have also been affected greatly. With the challenges of the digital revolution also, we have had to cope with the additional difficulty of shrinking advertising markets, which has affected the regionals in particular. On top of this, a series of privacy rulings culminating in the judgment by Mr Justice Eady in the case of Moseley v News Group Newspapers have dangerously tipped the balance away from press freedom, in my view. As you will know, due to the libel writ that has been issued against News of the World by Mr Moseley, although we are going to be able to discuss certain issues, I will defer to Mr Crone, if it is okay with you, Mr Chairman, to adjudicate perhaps on the legal side of our responses. Thank you.
Chairman: We understand that.
Q753 Philip Davies: I understand the constraints about the libel action but I want to concentrate initially on the privacy issue, which has already been determined. Were you surprised that Max Mosley sued you for invasion of his privacy?
Mr Myler: I think I was, yes. Yes, I think I was.
Q754 Philip Davies: Why?
Mr Myler: Because I think that Max Mosley is the head of a worldwide organisation, the FIA. He is an elected President of an organisation that has 125 million members worldwide. The evidence that we had, I believe, was overwhelming, and for Mr Mosley to then go to court and have a trial I thought was surprising. That, in essence, is the answer to your question. Yes, I was surprised.
Q755 Philip Davies: Was the reason you thought it was a legitimate story for the News of the World to publish the fact that he was a public figure in that sense, for the reasons you have given, or was it because of what he was indulging in that was of public interest, that somebody should be doing that kind of thing, which is something that the editor of the Daily Mail seemed to be indicating when he gave evidence to us, that it was the activities he was indulging in that was of public concern and interest.
Mr Myler: I do not think you can divorce the two. If you are an elected President of the FIA, ostensibly the richest sport in the world, with, as I say, a membership of 125 million, as a President, surely there are regulations in how you have to conduct your life. Mr Mosley made, I think, quite a case of saying that he had never sought publicity, that he was, indeed, he believed, a private person. I disagree with that fundamentally. He is not just the head of Formula One; he is also the head of the organisation that is in charge of road safety throughout the world, and indeed has done a lot of work in that respect. For a man in his position, as Mr Justice Eady accepted in his judgement, he so recklessly put himself in the hands of five prostitutes, you have to say that you are playing some part in your potential downfall.
Q756 Philip Davies: I think the contrary argument to that is that the activities that he was indulging in bore no relation to his job as head of Formula One motor racing, or anything to do with road safety for that matter, and therefore, what he did behind closed doors was of no concern to anybody else. What he did as the head of Formula One racing clearly would be, and what he did on road safety perhaps, but what his sexual activities were behind closed doors bore no relation to his public duties. What would you say to that?
Mr Myler: I fundamentally disagree, fundamentally disagree. I think that people in those positions have an accountability to respect their organisations, and indeed, as a result of the story appearing in the News of the World there were elements within the Formula One industry that took great exception to what he was doing.
Q757 Philip Davies: How much did it cost to defend the privacy action?
Mr Myler: The costs were about £900,000 and, of course, the damages were £60,000, so about £1 million.
Q758 Philip Davies: What were the commercial benefits to the News of the World for publishing that story? Did you see any enhanced sales or did you get any commercial benefit from running the story?
Mr Myler: I do not believe we did, and rarely in these situations, in my experience, are there any commercial advantages, despite what people actually think.
Q759 Philip Davies: So what was the motivation in printing this story if there was no commercial benefit? We have heard from every newspaper editor that they, perfectly reasonably, say that of course, they are in the business of selling newspapers. That is what they are paid to do. Why would you take the risk of running a story if you did not see any commercial benefit in running the story?
Mr Myler: Because it was a very good story. The man who runs Formula One behaving the way he did, by any standards, is a very good story. You only have to look at the manner in which it was followed up by every media to see that they felt the same.
Q760 Chairman: In actual fact, both the editor of the Daily Express and the editor of the Daily Mail told us that they would not have run it.
Mr Myler: No, they said they would not have broken it but they ran it after it was broken, which is typical of broadcasting organisations like the BBC, ITV, and papers like the Guardian.
Q761 Chairman: They ran it because, plainly, the fact that it had appeared in the newspapers and he was contemplating legal action made it a story but the fact is, they said that they would not have broken the story.
Mr Myler: That is why we have a diversity on the newsstands.
Q762 Chairman: They said they would not because they publish family newspapers. Do you consider the News of the World a family newspaper?
Mr Myler: Yes, I do.
Q763 Chairman: So you disagree that that was an unsuitable subject story for a family newspaper?
Mr Myler: I do not agree that it was an unsuitable story for a family newspaper. No, I do not. I think everybody understands what the News of the World is about. Some people might sneer and say that we are scurrilous and scabrous but we are who we are and I make no apologies for publishing that story, as the editor. None at all.
Q764 Chairman: So it is all right for families to sit around the breakfast table to read stories about masochistic orgies on a Sunday morning?
Mr Myler: Yes, it is. I would like your draw your attention, if I may, Mr Chairman, that we have a 3 million circulation and approximately 8 million readers, and 36% of that readership are the so-called ABC1s. These are the readers of broadsheets. In other words, we have more people buying the News of the World than the total of all the broadsheet readers on a Sunday. People are intelligent enough and discretionary enough to decide what they buy, and long may that continue. Everybody has the right as an editor, as a reader, to decide what they publish and what they buy. That is why we have, I believe, the best press in the world.
Q765 Philip Davies: You accepted in court that one of your journalists threatened two of the women in the case with exposure unless they co-operated with the News of the World.
Mr Crone: Can I just say something there, please? We are in the position, as we have already stated, that a libel writ has been issued against us. That in the normal course of events leads to a libel trial. The libel trial will be, we suspect, about certain areas of the Mosley coverage. It will include not only a claim for compensatory damages but it will also include a claim for aggravated damages and exemplary damages. Those issues are really all about behaviour, attitude of the defendant, et cetera, and your question goes to the heart of that. I really do not think we should go there because we are facing a jury trial. This hearing is being transmitted live on the Internet. It is clearly going to be picked up and reported on by the newspapers and broadcasters henceforward and we have jury members out there who will be asked to decide, among other things, this exact question.
Q766 Philip Davies: In which case, I will ask a general question. Do you think it is reasonable for a journalist to threaten somebody with exposure unless they co-operate with the said journalist and the said newspaper?
Mr Myler: No, I do not, and if a journalist did that, he would be censured.
Q767 Chairman: Just on that, again, a general question: the practice of saying to somebody, "There are two stories I can write. There is this story, which unfortunately will result in your being named and being publicised, or there is this story, in which you will not be named and which will be based essentially on what you are willing to tell us", is that normal and acceptable practice?
Mr Myler: No. Let me say first and foremost that when I became editor of the News of the World, one of the first things that I did was to start seminars. Seminars had been going on between the PCC, under their auspices, and the staff. One of the things that I introduced into individual contracts was the understanding that, first of all, an individual on the staff of the paper had to absolutely take accountability for his or her behaviour as an ambassador representing the newspaper. It was not enough any more to turn around and say that he or she had behaved badly because the news editor had demanded that they get an exclusive. That was not good enough. Those issues were put into every individual's contract, and indeed my own, so that they had to understand the Code, they had to buy into the Code itself, and that has happened. If an individual journalist in the course of trying to get a story, any story, misbehaves or oversteps the mark, they are spoken to and dealt with accordingly, depending on the discretion of the departmental head and the seriousness of what happens.
Q768 Chairman: I understand that but the practice of essentially saying to somebody involved in a story that "there are two ways of writing it and it is up to you which way we write", you do not think that constitutes misbehaviour?
Mr Myler: I think it can be construed as misbehaviour but I think a lot of it depends on exactly what is said. I think that is very important, because two people can have different interpretations of what is meant.
Q769 Philip Davies: Some of us are concerned about the introduction of a privacy law by the back door, so to speak, and potentially in light of that particular decision. Has the verdict on the Max Mosley case with regards to privacy changed what you do? Has it had a chilling effect on you, in the sense that you will now shy away from exposing stories that perhaps you otherwise would have done and felt you had a duty to do in the public interest?
Mr Myler: I do not think it has had a chilling effect. It has had a very practical effect in the manner in which, as an editor, you conduct yourself. It is fair to say that I probably now spend an equal time talking to lawyers as to journalists, and that is not a bad thing, quite frankly. The level of proof, the benchmark, to get a story into the News of the World is as high as any newspaper I have worked on for 40 years. It does not mean to say that you shy away. It means that you have to be equally diligent, efficient and careful, and get very good legal advice.
Q770 Mr Sanders: Is anyone entitled to privacy?
Mr Myler: I do not think privacy is an absolute right for anyone, any individual or any organisation. There are issues regarding the PCC Code, like health confidentiality, matters that everybody respects, but I think everything has to be taken on individual cases and individual merits. It is a very broad question.
Q771 Mr Sanders: Given that you would carry a story on somebody that you felt was in the public interest, how would you define "public interest"?
Mr Myler: It is not always what the public want to know about, which is how a lot of people come back on the media: what is in the public interest and is it in the interest of the public? Let me answer it in another way, which touches on your previous question, if I may. If you had a child or grandchild in school and your child's teacher was practising S&M sessions because they liked that kind of behaviour, do you think it is right that you should have a right to know that that is going on? If an elected Member of Parliament or an archbishop is conducting practices that are completely and utterly immoral and against the conduct in which they have been either elected or are representing in a religious sense, do you think that you would have a right to know? I would argue that you do, and newspapers would have an obligation to make that known. Does that answer your question?
Q772 Mr Sanders: You are being the moral guardian here and making that judgement yourself.
Mr Myler: No, I am not being a moral guardian.
Q773 Mr Sanders: What a vicar gets up to behind closed doors is really a matter between him and his God. It is not necessarily a matter for the readership of the News of the World.
Mr Myler: I fundamentally disagree.
Q774 Mr Sanders: I do not think there is anything in the Bible that says S&M is wrong. There are some religions in the world that actually encourage flagellation.
Mr Myler: It is rather interesting, is it not, that the Editor of the News of the World, alongside, I may add, the Editor of the Daily Mail at the time, feels rather incensed that, when it comes to certain cases, Mosley being the obvious example, the moral indignation comes from the columns of the News of the World and the Daily Mail instead of perhaps the moral leadership that should come from a High Court judge, who believes or dismissively says that that kind of conduct is unconventional, where I have to respectfully disagree.
Q775 Mr Sanders: Sorry, that it is unconventional?
Mr Myler: I do not believe that the conduct that Mr Mosley engaged in can be dismissed as unconventional because I believe it was far more serious.
Q776 Mr Sanders: So it is conventional?
Mr Crone: No. Excuse me. You are quite wrong about the vicar and the Bible. The Bible is full of morality: thou shalt not commit adultery.
Q777 Mr Sanders: That is not a S&M, is it - or is it? I do not know.
Mr Crone: You have not seen the Moseley film. Yes, it is.
Q778 Mr Sanders: You set yourself up as a moral guardian.
Mr Myler: No, we are not.
Q779 Mr Sanders: You can justify any invasion of privacy at all because you think it is right for children to read it over the cornflakes in your family newspaper. The reality is this guy's privacy was invaded.
Mr Myler: Yes.
Q780 Mr Sanders: You have exposed that and you have done him enormous damage, way beyond what is probably justified.
Mr Myler: I think Mr Mosley did himself damage. I think you are shooting the messenger, with respect, and that is a very easy shot to take at the News of the World.
Q781 Mr Sanders: He would have done himself damage if he had broadcast it to the world.
Mr Myler: I think the Judge himself said of Mr Mosley's behaviour that if you put your trust in five prostitutes, you are being reckless. Are you justifying Mr Mosley's behaviour?
Q782 Mr Sanders: That is a matter for Mr Mosley, and I am not actually interested in his behaviour.
Mr Crone: I think it goes well beyond that, with respect. This man is the spokesman and representative globally of an awful lot of people, 125 million people, including every member of the AA and RAC in this country, incidentally; he is their global head. There is, I think, a duty and an obligation on him to behave and to observe professional and private standards which make him a fit and proper person to hold that office and to represent that organisation.
Q783 Mr Sanders: I am sorry. I thought you were claiming that this was sub judice and you could not talk about Mr Mosley.
Mr Crone: I am talking about the general.
Q784 Mr Sanders: It suits you when it suits you to talk about Max Mosley in public, but when you are asked a difficult question by this Committee on this case, defending yourself, you hide behind sub judice.
Mr Crone: I do not think it is a difficult question. I am talking in generalities and I would
really like to finish, if I can. May
I? Thank you. If someone in Max Mosley's position behaves
in a way which falls so far below the standards of a fit and proper person, a
representative, just as each of you members of this Committee are for your
constituents, if you so far breach the duties and obligations of your office
and the organisation which you represent or the people which you represent,
then I think you are entitled to be exposed by the media, and indeed, by anyone
else who wishes to expose you. What Mr
Justice Eady found was that Mr Mosley in his behaviour, private behaviour, his
behaviour in his private life, went so far as to leave himself exposed and
vulnerable to blackmail. This is not
blackmail: "Give me £100,000, Mr Mosley."
This is blackmail: "I want to the Formula One race in
Price: I have to part company with
Mr Myler: Yes. The fact that he is the President of it and he is conducting himself in the way that we exposed, absolutely.
Q786 Adam Price: And that it could open him up to blackmail?
Mr Myler: That is what the Judge actually said. We did not say that.
Q787 Adam Price: Here is the difficulty though, because actually, it was only your act of publication that brought the FIA into disrespect, if you accept that argument. If you had not published, then nobody would ever know.
Mr Crone: No. Listen. What the threat of blackmail means is that someone could quietly come along to you and say, "Right, I know about what you have been doing. I know that you are terrified that it is going to be made public. You are now going to do the following things for me." That might be "Give me a load of money." In this instance I suspect it might have been something far more sinister and far more damaging to the wider public interest.
Q788 Adam Price: The only instance of alleged blackmail, of course, in relation to this case is the charge made against your own chief reporter.
Mr Crone: No, absolutely not. You have not read Mr Justice Eady's judgment.
Mr Myler: The other issue to remember here, because it is very important, is that Mr Mosley himself said that on two occasions - I think it was in the February before the two parties were held - he was told, firstly by Bernie Ecclestone and secondly by Sir John Stevens, the former Metropolitan Police Commissioner, that they believed that he was being watched and that he needed to be careful. On the basis that Mr Mosley introduced this - we were not aware of this - that he was warned by these two people, why then would you within weeks engage in the practices that he did twice - not once but twice - if he had been put on notice by his colleague in Formula One, Mr Ecclestone, and by Sir John Stevens, who of course now runs a private agency, Quest? Why would you disregard that good advice and conduct those two parties in the way he did, yards from his home in fact? He opened himself up by his conduct to what he did. The News of the World did not drag him kicking and screaming to that flat. The News of the World did not pay those five girls. They did not keep him there, a prisoner, for five hours. We did not do that. He did that himself.
Q789 Adam Price: When you took over as Editor, I think you gave an address to the Society of Editors or an interview and you talked about - and I paraphrase - changing the culture of the News of the World and moving away from what you described as "celebrity stings", essentially drugs and sex stories in relation to prominent figures. Why did you feel you had to make those comments and how has the culture of the News of the World changed?
Mr Myler: You will not be surprised to hear that I was misquoted.
Q790 Adam Price: That is the press for you!
Mr Myler: Even editors can be misquoted.
We forgive them their sins. What
I said was - and I particularly used the instance of Mazher Mahmood, otherwise
known as the "fake sheik". One of the
misconceptions about the News of the World is that we are just a
scurrilous newspaper that you have to put the Marigolds on before you read it
and then wash your hands after you read it, and almost certainly if a neighbour
comes in for a coffee, you turn it over so that they do not see that you buy
it, even though you buy it inside the Sunday Times or the Observer
or the Telegraph. The truth is
that Mazher Mahmood is probably one of the most professional newspaper
journalists in the world. He has been
responsible in 18 years for convicting and jailing 232 criminals. That is unprecedented. He only gets the headlines for donning the
fake sheik outfit when he is doing so-called stings with the
Q791 Paul Farrelly: The word "disrepute" was just being bandied around. If hypothetically one of your reporters or executives was found to indulge in private S&M sessions, would that be a sackable offence at the News of the World, for gross moral misconduct, actions liable to bring the paper into disrepute?
Mr Myler: Let me answer it in this way. A few weeks ago we ran a story about a Member of Parliament who was having sex romps in his office on Armistice Day at 11.30 at night. This is, if you do not mind me saying so, very relevant because another gentleman who sat giving evidence to you made a point of saying that there was no reason to run the story the following day, the following weekend; we could have waited. We did wait with this particular gentleman. We waited two weeks in fact. We gave him three opportunities. Three times he denied it and three times he lied. If a member of my staff conducted himself in that way, he would have been fired. If any executive within the organisation had conducted himself in that way, I am sure he would have been fired or he would have had the good grace to resign. In this particular case, let me say, I do not actually believe that the Standards Commissioner, despite receiving complaints, has even talked to the Member of Parliament, corresponded with him, and certainly did not ask us for our evidence. Maybe I am pre-empting something we will talk about later but I think it does highlight the rather flippant nonsense that is levelled at the media industry, certainly in our area, with the PCC, when it comes to transparent jurisdiction.
Q792 Paul Farrelly: They are interesting comments but they were not an answer, as you will appreciate.
Mr Myler: I think I did, with respect, Mr Farrelly, give you an answer. I said that if that had happened with a member of my staff or an executive within our organisation, I believe they would have left the company.
Q793 Paul Farrelly: On your premises but not off your premises.
Mr Myler: Are you saying that---
Q794 Paul Farrelly: I am just asking you a question. I think it is relevant.
Mr Myler: I think it is very difficult for an individual who wants to go and be regarded as judgemental on other people if his own personal life is contradictory to that. I think he has a great difficulty, yes.
Q795 Paul Farrelly: Can you just resolve finally one thing for me out of curiosity? The ladies involved have been generally referred to by letters of the alphabet. Is that because the press is being very responsible in not being over-salacious or in fact are they covered by injunctions?
Mr Myler: It was agreed - and Mr Crone can correct me if I am wrong - by both legal sides and the Judge that they would remain anonymous. That was agreed by the legal teams but it was also upheld by the media.
Q796 Paul Farrelly: Is that binding or voluntary?
Mr Crone: It is binding. As a result of the hearings, it is binding on the rest of the press.
Mr Myler: There is a legal injunction in place.
Q797 Alan Keen: I was concerned. I am sure masses of my constituents, on the law of averages, must read the News of the World. I was a bit shocked when you said a while ago that you found it hard to find any case where somebody was not entitled to privacy. You have mentioned MPs and Max Mosley but how far out does it extend to my constituents? If a neighbour rings you up and says, "The fellow next door is having it off with a woman next door", it might be of interest to people because we are all interested. Just to put things in perspective, I can still picture a headline on the front page of the News of the World from over 55 years ago which said "Trial marriage". It was a couple living together before they got married. It was shocking in those days.
Mr Myler: Now it is a reality TV programme!
Q798 Alan Keen: This is a serious inquiry.
Mr Myler: Yes.
Q799 Alan Keen: Surely people must be entitled to some sort of privacy.
Mr Myler: Of course they are. Let me
give you an example. I think that there
are people out there with the misapprehension that every time... I cannot tell you how many phone calls the News
of the World gets on its news desk each week but it is hundreds: someone is
doing this, someone is doing that, you should investigate this, you should
investigate that. A few months ago we
had a story about a serving army sergeant who was advertising himself as a male
escort on an escort website. Rather
stupidly, he filmed himself in full uniform and, of course, he finished up
going out with a young lady who was visiting
Q800 Chairman: But there are lots of stories you run which do have those consequences, that marriages end and careers are finished. Essentially, you are setting yourself up to decide whether or not you are going to destroy someone's life.
Mr Myler: No, it is not about destroying someone's life, with respect.
Q801 Chairman: Destroying a marriage and destroying a career.
Mr Myler: I disagree fundamentally, Mr Chairman, with respect, because it is very easy to put the News of the World in the stocks and say, "Isn't it awful that the News of the World does this and the News of the World does that?" All newspaper editors have to make a decision. Everybody in an elected position, in your case, has to make a decision. You hear representations from your constituents but you ultimately have to make a call. Sometimes it is what they want and sometimes it is not. Yes, the consequences of running certain stories in newspapers have a catastrophic effect but it is too easy to shoot the messenger. Yes, I think it does come to something when the News of the World is using its editorials and its column inches to question where the moral compass has gone in some instances that come via the courts, that come from judges. Is that wrong? Do we not have a right on behalf of our readers? They have a choice. If they do not agree with what we do, they will stop buying us. It is simple. If people do not agree with what you do, they stop voting for you. We are accountable, very transparently, every day of the week and every Sunday. There are not many industries or professions where you are accountable and made accountable so quickly.
Q802 Chairman: But you yourself said in that specific instance you decided that this chap had made a mistake and it was too harsh to throw away all the service he had given to this country on the basis of a mistake.
Mr Myler: Yes.
Q803 Chairman: That is therefore a judgement which you, as the Editor, will make on a regular basis, basically as to whether or not to spare somebody, and that is just part of your job, is it?
Mr Myler: I think the way of answering that, Mr Chairman, with respect, it is to say that there is a great deal of responsibility on an editor's shoulders each day, and we do not always get it right, and when we do not get it right, we have to put it right. Sometimes that can be not only very costly but it can also be very embarrassing and it can be very humiliating.
Q804 Chairman: But the alternative argument is that actually, rather than an editor, who is inevitably going to be influenced by questions of newspaper sales, for instance, it might be more appropriate to have a neutral figure who can determine whether or not there really is a public interest, and that neutral figure should be a judge.
Mr Myler: Why? In what way would a judge be able to sit in neutrality to decide whether or not a newspaper story to be published? Notwithstanding, by the way, that over the years, and indeed, only two years ago a trial had to be halted when a judge asked, "Can somebody tell me what a website is, please?"
Q805 Chairman: It is easy to make jokes about judges.
Mr Myler: That is not a joke. That happened. They stopped the trial. It was a trial involving three people on internet terrorism.
Q806 Chairman: I am sure there are bad judges just as much as there are bad editors.
Mr Myler: Absolutely. I think it would be a sorry day indeed, quite rightly - and you cannot sack a judge; you can sack an editor - it would be a sorry state of affairs if we got to the point where we had to go into committee by asking judges "By the way, we have this story..." That is indeed what is happening now, by the way. That is, in a sense, exactly what is happening now.
Q807 Chairman: That is why I raised it, because that is what is happening.
Mr Myler: I think maybe the best way of answering that is not my words but
the words of Sir Ken MacDonald, who wrote a very interesting piece in the Times
last week, which I am sure you have seen.
He said, "
Q808 Janet Anderson: Mr Myler, I think you said when you were referring to the case of the MP that you gave him three opportunities to comment. Was that before you published the story?
Mr Myler: Yes, and indeed, in the two weeks before the story was eventually published.
Q809 Janet Anderson: But you did not do that with Max Mosley. In fact, you went to great lengths to keep the story out of your first edition.
Mr Myler: Not great lengths but we did not put it in the first edition.
Q810 Janet Anderson: Was that because you were afraid of Mr Mosley seeking an injunction or was it just to protect the story?
Mr Myler: Spoof stories, as they are so called, have been around for decades. There is nothing new in that. Great play is made that we kept the story out to avoid it. If you do a spoof story, ostensibly it is to make sure that your rivals do not have an opportunity of following it and ripping it off and stealing it. We are in an incredibly difficult place because of where privacy law is at the moment, and that is again a judgement call about what you do and I had to make that call.
Q811 Janet Anderson: So why did you warn the MP, as it were, and not Mr Mosley? What was the reason for the different decision in those two cases?
Mr Myler: We just decided that we would give this MP the opportunity of talking about what we had found him to be doing.
Q812 Janet Anderson: Why did you not give that opportunity to Mr Mosley?
Mr Myler: Because we knew that probably Mr Mosley would get an injunction, and I felt very strongly that this was a story that actually should not be stopped because of an injunction.
Q813 Janet Anderson: So it was because of the possibility of an injunction?
Mr Myler: That, and the commercial rivalry. There are two things, not just one.
Q814 Alan Keen: I made a joke in my maiden speech in 1992 about my career taking another downward step when I became elected to Parliament. I just wondered, we understand that you started off with the Catholic Pictorial News, and you came directly from being Editor of the New York Post to the News of the World. We went to see the New York Post not that long ago and they were not too complimentary about the British press. Would you say your career is taking a downward path or an upward path because now you can battle away commercially to save the newspaper world by the stories you write.
Mr Myler: It is a very interesting journey, is it not, from a reporter with
the Catholic Pictorial in
Q815 Alan Keen: I am not being critical.
Mr Myler: No, no. I am interested to
see how the people in
Sanders: On that point, libel laws are very
different in the
Mr Myler: If I may, I think Mr Crone is probably best to answer this in terms of where we are, and the legal complications are very interesting. Maybe if I could invite Tom in the first instance to give a response on the law, then I will come in.
Mr Crone: You will know already, I am sure, because of the investigations you have already made, and your visit to America, that the difference between the two laws, the American and British, primarily is the burden of proof in libel, and indeed, the difference between defamation law in this country and every other area of civil law is that the claimant who comes to court saying, "I have been wronged. Give me money" does not actually have to prove anything. He just stands up and says it is wrong and the burden of proof is automatically, from the first moment in the case, shifted on to the defendant, and that is in front of a jury. I must say, over the last 29 years I have found that to be a very, very onerous burden indeed for newspapers to shift, especially - and this is just human nature and perception - if you happen to be the Sun or the News of the World. They are the two newspapers I represent. I think it is wrong because I think the burden is too great, frankly. We had a case in court last month where I thought - and so did most people actually watching it, I think -that the burden of proof was pretty well satisfied by the evidence we called. Even on the claimant's own account, he behaved appallingly, but the jury went away and came back the next day and gave him £75,000, and it cost us about £1 million. Very interestingly, someone - and perhaps I should not be saying this - bumped into a jury member in the pub not long afterwards. He declared himself as a jury member and he said, "We did not understand any of it, so we decided there was this big rich newspaper on one side and this little guy on the other, so we decided to give it to the little guy."
Mr Myler: That is it in a nutshell.
Q817 Paul Farrelly: What was the case?
Mr Crone: I should not say.
Q818 Paul Farrelly: You have given the example. I think you should name the case.
Mr Crone: In that case, it was a former East Enders actor called Mo George against the Sun newspaper. It was an allegation of beating his girlfriend.
Mr Myler: I cannot put it in any better words than that. It really does need to be addressed.
Q819 Mr Sanders: Do you think you can change the ethics? There is a lot that is written in the newspapers that is written in code or it is hint or innuendo. Actually, if you had that system, a similar system to America, with absolute freedom of expression and of speech enshrined in a constitution, you would get rid of that innuendo and you would actually tell it like you want to tell it, and you would not be hiding behind code and hints and innuendo.
Mr Myler: The problem that you have, and Mr Crone has just said it, is that you can have a week or a two-week trial and the jury comes out at the end of it and it does not understand what it is being asked to adjudicate on. So hinting innuendo is no good. People read newspapers to have questions answered, not to be offered more questions than we can answer.
Q820 Mr Sanders: My observation would be there is a lot of code and hint and innuendo of things where you are skirting around because the law prevents you from actually naming somebody or telling it like it really is.
Mr Myler: That is right, and that is why we have to abide by the law. We have to abide by what the legislation says and if you cannot name a certain person - Mr Farrelly raised the issue of the ladies involved in the Mosley case and why they were known as initials. That was because it was agreed, first of all by the two legal teams and by the Judge that they would remain anonymous.
Q821 Janet Anderson: When it comes to use of the libel law, we took evidence from Professor Greenslade, and he told us there are plenty of examples in which journalists are prime users of the libel law they affect to dislike. Have you or your paper ever issued a libel action to prevent another party publishing information about you?
Mr Myler: I am not aware of one. I will check but I do not believe we have.
Q822 Janet Anderson: Have you ever threatened anyone with libel action?
Mr Crone: No. I have been in this job for 29 years four months and about 28 days and no, never - not that I can recall.
Q823 Janet Anderson: Professor Greenslade did say that the last person to threaten him with a libel suit was the News of the World's lawyer.
Mr Crone: No, I did not. I pointed out that it was completely wrong and it was libellous. It was actually the coverage of the Moseley case, believe it or not, in which he said I gave evidence, and I did not, and actually, everyone who was following it knew I did not give evidence. Mr Myler gave evidence and the reporter gave evidence but the esteemed professor thought I did, and he was quite disparaging about the evidence I gave, suggesting it was disingenuous and possibly dishonest. I suggested he correct it. He did not come back to me at all. I therefore wrote to the editor of the newspaper, the Guardian, who you will be hearing from next, I believe. I think I got a reply something like three and a half weeks later, with a mealy-mouthed form of words, and I said, "Forget it. Don't bother. If you can't do it properly, don't bother." So no, I did not threaten him with libel. Actually, Greenslade came up and met me socially not long after that and apologised.
Q824 Alan Keen: You were talking about the member of the Armed Forces and you did not run the story. You did say that the woman happened to be on the staff of the News of the World. What you meant was that she had gone specially to catch him out.
Mr Myler: Not catch him out, no. Why would she be catching him out? He was breaking every rule in the book of army regulations, and he was a family man too. If every time a story appears in the News of the World I and its staff are going to be accused of being the moral guardians of everything that takes place in this country, that is just ridiculous, because we are not.
Q825 Alan Keen: No, I am not objecting to it on those grounds. It is back to the privacy thing again. I was concerned about the words you used earlier on. Then you gave the sergeant as an example. Again, I maybe would not argue with you too strongly that that was wrong, even if someone went in to trick him.
Mr Myler: Excuse me. It is not---
Q826 Alan Keen: If you are trying to get a story through a trick.
Mr Myler: No, it is not to get a story. Here is a man who is a sergeant in the army, who is advertising himself as a male escort on a male escorts site, in full army uniform, and making no other claims than that is what he is; he is a serving army sergeant and if he gets found out, he is going to be in trouble and will probably lose his job. We did not set him up. He set himself up.
Q827 Alan Keen: I have already said that. I was not rally arguing against you on that case. I was more concerned about the phrase you used. I am concerned about my constituents: you said that nobody is really entitled to privacy. I was at the South Bank yesterday with my wife watching the lesbian, gay, bisexual and transgender people; it was a special weekend of entertainment provided by that group of people. Is it fair game to reveal someone who is gay who has not come out, for instance?
Mr Myler: No.
Q828 Alan Keen: So my constituents would be safe there? You would not think that was something that should be revealed?
Mr Myler: No, I do not think it is fair game. I think the phrase "fair game" is not the right term to use. Every single case has to be judged on its merits, and I think that, if you look at a very high, public case of the last couple of months relating to the 13-year-old boy that allegedly fathered a baby down in Eastbourne, I think it was, that was open house at the time, where a newspaper rightly published a story that here is a boy of 12 or 13 who has fathered a baby. I think it is - again, I have to be careful. We are in a legal minefield because injunctions have now been issued regarding this. Suffice to say that there were other boys involved who, it is believed, possibly could have been the father, and I think I understand that one of them, other than the 13-year-old boy, has been proved to be the father. In other words, it was not the 13-year-old who said he was the father that turned out to be the father. As a result of legal measures that have been taken on behalf of all of those families, principally by Social Services, the identity of the real father has not been revealed, and probably will not be able to be revealed. So privacy, if you like, has been afforded to those people, rightly.
Q829 Alan Keen: First of all, you talk about the moral compass and that openness was necessary. When I was talking about the progression of your career, was I right that the New of the World is really a money-making machine rather than anything else?
Mr Myler: No, it is not. No, no, no. Sorry, it is not a money-making machine. We are a commercial business, like thousands of other businesses around. If we do not make money, we do not have a business. That is a principle that any other business operates under. If I could just remind you - and this is something you did not get because I did not realise it: the News of the World has been around since 1843. On the first front page that it had, its editorial, its mission statement, raged against social injustice and it pledged "to give poorer classes of society a paper that supports their means". For 25 years between 1942 and 1969 the paper actually ran an advisory service where it employed 40 professors and 100 typists. In real terms today, that cost £5 million. There are not many businesses in this day and age that would set aside that kind of investment as a service to its readers. The News of the World raised £1.5 million reward for Madeleine McCann in 48 hours. In eight years it has campaigned for 14 different pieces of legislation to be introduced under Sarah's Law. That is a very heavy commitment, that I would regard as very compelling, and something that should be applauded when it comes to what the News of the World does. So it is not all about whether someone runs off with somebody else's wife. We have just launched a campaign with the Department of Education and the Department of Energy to save our readers money by going green. We have just joined with the Forestry Commission to give away a million seedlings to 25,000 schools. Every single school will get seedlings. So we actually do some positive good, I like to think.
Q830 Alan Keen: Could I ask you one last thing? Paul Dacre, when he was here in front of us last week, agreed with me when I said - this was an issue that had been raised by different people during the inquiry - that it is wrong for newspapers to mislead the public with a headline, and then the allegations that attract people to buy the papers are not as true as the headline made out. Although he argued the case to a certain extent, he said he basically agreed with that. One or two of the lawyers we have had in front of us said that is something that should be taken account of in libel law, that if the headline misleads, and the body of the article is different, that should be taken into account where I understand up till now it is not.
Mr Crone: No. The ordinary reasonable reader is expected to read whatever is on a page, in other words the words underneath the headline as well. If he has to turn inside to find the truth that is quite different, but if the front page has both the headline and whatever needs to be put underneath it to balance it and so forth, then that would not constitute libel, not normally.
Q831 Alan Keen: That would not be a libel?
Mr Crone: Not on its own, no.
Q832 Alan Keen: But one or two lawyers have said that they thought that it should be because the headline and the first part of the article misleads. Should a paper be able to cover that up by one sentence at the end?
Mr Crone: It very rarely happens, actually. I think headlines usually reflect the story.
Mr Myler: I think you are talking about some rather egregious excesses in maybe the '70s and '80s. I do not think that happens any more. I think also people who buy newspapers are far more intelligent than people often believe, and they can discern and decide. And they do.
Alan Keen: Well, people are beginning to disagree with that, I have to say.
Q833 Chairman: Can I quickly move on to the Press Complaints Commission? How seriously do you take a judgment of the Press Complaints Commission?
Mr Myler: Very seriously. No editor wants to have an adjudication against them.
Q834 Chairman: How many have you had?
Mr Myler: I think I have had about three, and one was a couple of months ago.
Q835 Chairman: And if the Press Complaints Commission contacts you prior to publication, how many times have you not run a story because of the intervention of the Press Complaints Commission?
Mr Myler: Maybe, with respect, if I could turn it round the other way, the dialogue with the Press Complaints Commission never stops, we talk to them literally up to publication on certain stories, and their advice is invaluable, often incredibly wise, sometimes not quite the way we expected things to go, but we do talk to them all the time and it is invaluable, because it is an open dialogue.
Q836 Chairman: Invaluable but you do not necessarily follow it?
Mr Myler: Certainly personally, if they come up with a reason that I find compelling, I would rarely disagree with them.
Q837 Chairman: But there will be instances where you do not find it compelling?
Mr Myler: Yes. Can I give you another example, a practical one? We had a story of a policeman who had gone through a transgender process. The Force were aware of it because his superior had sent out an e‑mail explaining that this was what the individual had been going through, that it was a rather harrowing experience for him and his family, and when he/she was welcomed back into the Force he wanted to send as many people on courses so they could understand how to deal with it. We had a picture of the individual, not dressed as a man but dressed as a woman, and it was only indeed to Mr Crone's credit at about 3.30 in the afternoon on the Saturday that he said to me: "We may have an issue here", and I said "What is that issue?" and he said "Well, because there is a significant difference between, say, 500 members of his Force being aware of what he is going on and 8 million readers being drawn into it", and we pixilated the face of the individual, and I can guarantee that a year ago that would not have happened.
Q838 Chairman: That I do not think is to do with the Press Complaints Commission.
Mr Myler: We spoke to the Press Complaints Commission about it. The Press Complaints Commission actually, strangely on that occasion, felt that we did not need to pixilate the face. They felt that because a communication had gone out amongst the Force it was out there.
Q839 Chairman: So you actually decided that it was not responsible, even though the Press Complaints Commission did not think it was irresponsible?
Mr Myler: Yes. We pixilated the face of the individual.
Q840 Chairman: And what happened after the three occasions on which you have had judgments against you from the Press Complaints Commission? What actions followed from the adjudication?
Mr Myler: None in terms of me personally, and in the last case it was my decision not to go to anybody without prior notification, and that is what the Press Complaints Commission ruled against us on. Singularly on that matter.
Q841 Chairman: On the fact that you had not given prior notification?
Mr Myler: Yes, and that was my decision.
Q842 Chairman: And has that altered your practice in terms of prior notification, or do you just disagree with the Press Complaints Commission decision?
Mr Myler: No, it does not carte blanche say that we never warn anybody. Indeed, we did with the MP in the example I gave you.
Q843 Chairman: But the fact you had lost a Press Complaints Commission complaint about prior notification clearly has not meant that in future you always prior notify, because you did not in the case of Mr Mosley?
Mr Myler: No, and the reason I did not go to this particular individual is because he is a self‑confessed liar and he had committed perjury on video.
Q844 Chairman: But it is arguable that you say OK, you publish an adjudication, and you say I accept that the Press Complaints Commission have ruled against me, but it does not appear to make any difference to the future of behaviour?
Mr Myler: Yes, it does. Any editor that has ruling after ruling or adjudication after adjudication is probably not going to stay in his job very long.
Q845 Chairman: But three is OK?
Mr Myler: Well, three in forty years is something that I think is not a bad batting average. One is too many but three, over that period of time - given the way the industry has changed.
Q846 Adam Price: You yourself previously resigned I think when you were editor of the Sunday Mirror ‑‑
Mr Myler: "resigned"?
Q847 Adam Price: Resigned in the passive tense, whatever, but you freely admitted the mistake and you took the responsibility for your decision; your predecessor of the News of the World also was resigned, or resigned, in relation to the Goodman case. Do you think that actually there would not be so much an issue of suspicion about the press if more editors did the honourable thing and, where they made a judgment call that they had got it wrong, they resigned? I can remember, for example, a recent resignation of an editor of the Daily Mail which, you know, is the greatest infringer against the Press Complaints Commission code of conduct. Do you think people would have more respect for the press if editors took responsibility for their actions?
Mr Myler: I cannot speak for the editor of the Daily Mail but I have to say he is probably one of the most distinguished editors we have had and been lucky to have in our industry for many, many years. I think the simple answer to your question is that you stand and fall by your judgment and if you make a bad call you either go or you are fired, and that is what has happened in my experience. But, again, we live in a world where I think probably the only people who come below journalists in the public's esteem are your colleagues, and I think that we need a little bit of transparency and honesty here. People who fall on their swords are few and far between. Editors do and have, and some MPs ‑ well, let's put it this way, members perhaps have not when they should have done.
Q848 Adam Price: I think that criticism absolutely applies both ways. In terms of the Reynolds and Jameel defence of responsible journalism, do you think it would help free expression and free press if that judgment was placed on a statutory basis? If it was enshrined in law on legislation?
Mr Crone: Yes, I think it probably would actually. The only problem with going statutory on a lot of these things is that it becomes kind of rigid, and it loses the kind of flexibility that you can occasionally get when the judges are in a nice liberalising mood - which is not very often, I have to say! But yes, I think to have it recognised and put into statute would be a good thing. Generally, you see, we are very unhappy with the way privacy law has gone as a result of judgments obviously primarily in this country but led, I suppose, by the judges in Strasbourg, and what that has emanated from is a piece of legislation in 1998, the Human Rights Act, which was introduced for all the right reasons, a much wider raft of basic human rights, 18 altogether I think - the right to life, right to liberty, right to freedom of expression and right to privacy, privacy and freedom of expression just happen to be two of them - but I do not think when that came in that many people would have foreseen this massive and rapidly and progressively growing area of normal privacy. In fairness there were those in the media, a few of us, who lobbied hard and predicted that that is exactly what was going to happen. The Junior Minister, the late Lord Williams, who steered it into the House of Lords originally I think, introduced Section 12 of the Human Rights Act specifically to meet that concern. The judges, again inimitably in their own way, have analysed Section 12 into nothing effectively. It is completely ineffectual. Completely. So yes, perhaps there is room for a little bit more statutory intervention, certainly in the area of public interest, where the lines should be drawn. Part of our submission, in fact, is an opinion we have submitted from Anthony White QC in which he points out the absolutely glaring inconsistency and discrepancy between the Data Protection Act civil liability and defences for improper publication of personal data, which is exactly the same as publication of private information, and what Parliament has decreed is that it should be a defence in journalistic publication that the publisher had a reasonable belief that it was acting in the public interest. Now there is no such thing in privacy. If you have gone into the area of privacy and the judge decides you do not have a public interest, it does not matter what you think or thought at the time, and that is absolutely contradictory to the will of Parliament. In the longer term, of course, if public policy undertaken by Parliament is contradicted by what the judges are doing, then that is an attack on democracy effectively.
Q849 Chairman: Mr Myler, Mr Crone, I think we have finished our questions. Can I thank you for your evidence, and can I also thank you particularly for your willingness to answer questions despite Mr Mosley's impending libel action.
Mr Myler: Thank you.
Witnesses: Mr Ian Hislop, Editor, Private Eye, and Mr Alan Rusbridger, Editor, The Guardian, examined.
Chairman: Can I welcome you to the second part of this morning's session, Alan Rusbridger, Editor of the Guardian, and Mr Hislop, Editor of Private Eye, and can I thank you both for the coverage which your publications have given to proceedings so far in our Committee, in your own different ways!
Q851 Paul Farrelly: Alan, your submission to the Committee included a very extensive article in the New York Review of Books entitled "A chill on the Guardian". Could you and Ian give us some examples of the chilling effects of libel and, indeed, conditional fee arrangements in action?
Mr Hislop: I brought along something to prove the point. Last week I received this letter from Schillings, a firm who do a great deal of threatening newspapers and other publications in terms of privacy. Now, Schillings have sent me a letter saying they act for a man called Richard Granger. He will be familiar to you. Mr Granger was in charge of the NHS IT project, which is responsible possibly for losing the country maybe £12 billion of money. That is everything in the present round of cuts times about four. Now, Mr Granger is not involved in a sex scandal; Mr Granger is not involved in a legover case with the News of the World. He is a legitimate target of inquiry for journalists. I have a letter from Schillings here saying, "We understand that your journalist has been approaching various parties to make inquiries". That is it, a lawyer's letter straight in. It quotes Reynolds immediately, "We remind you of the recent judgment ... defamatory allegations ... confidentiality" ‑ it is confidential and private, what we are asking about, his business life. He wants to know all the allegations, everything in advance, he wants to know when we are going to publish, and we end up with a threat. That is a "chill" wind.
Q852 Chairman: But are you chilled?
Mr Hislop: I am so chilled I brought it up! I just give it to you as proof positive that the idea that the privacy law is only indulged in by frothy celebrities, it will only be used on silly cases for the red tops, it need not concern anyone involved in proper journalism, is not true. Straight away, as soon as the celebrities make a bridge hit, the rich and powerful who want to use it for their own means come right in behind.
Q853 Chairman: But you must get about thirty letters like that a week?
Mr Hislop: No, this is new. Schillings obviously sends everyone letters all the time, that is his job, but the idea that you have a case which is just my journalist asking questions - bang, in comes the letter. That is a chill wind.
Q854 Paul Farrelly: I will leave it to you to consider whether you wish to submit that as evidence to the Committee.
Mr Hislop: It says on the top, "Private and Confidential"!
Q855 Paul Farrelly: But not "Privileged"?
Mr Hislop: No. I assumed it was more important to tell you about it than observe Mr Schilling's wishes. I hope that is right.
Q856 Paul Farrelly: Could you for clarity name the partner involved in that? Because we have had someone from Schillings in front of us.
Mr Hislop: Simon Smith.
Q857 Paul Farrelly: Alan, do you have any examples?
Mr Rusbridger: I think you have had lots of examples of cost, and it is the cost of libel actions that is the thing that preoccupies me because, CFAs or no CFAs, it is becoming staggeringly expensive to do the kind of journalism that I guess most members of this Committee would believe in, and I think it is a given in journalism that mistakes are made despite the best attempts to get things right, and the attempts we now have to make in advance to try and prevent mistakes being made can cost tens and tens and tens of thousands of pounds, and if mistakes are made the forms of libel defence that are theoretically available to try and settle cases quickly can still end up costing hundreds of thousands of pounds, so I think all this is a great discouragement to the forms of investigative journalism about things that I think everybody would agree are public interest.
Q858 Paul Farrelly: Your book's article concerned the Tesco case. Could you just give us some insight into how much that cost the Guardian and what legal costs you were being asked to pay, both for your own and the other side?
Mr Rusbridger: That is a case where we did make two serious mistakes about the nature of the tax avoidance that Tesco were involved in and about the sums involved. That they were tax avoiders was not in doubt largely because Private Eye, who has the sense to employ a former Inland Revenue inspector, got the tax schemes right, so it was a question of what kind of tax avoidance they were involved in and the amount of tax avoidance. When we realised the mistakes we made we used what is theoretically the cheapest and easiest method, which is that you put your hands up and say "We have got it wrong, we will publish an apology", which we did, "and correct it", and it then went on for six months with a bill from Tesco eventually for £800,000, without CFAs, and on the tax avoidance schemes which were supposedly so simple that Channel 3 could understand them, we had a bill for £350,000 for Tesco to explain to themselves what these tax avoidance schemes were, so we were entering an immensely complex area of commercial life which very few people understand. It is almost unwritable now in public if corporations are going to be able to use the law in that way. We decided we were not going to be put off and we would come back and do a very long series on tax avoidance this year, and that cost us about £90,000 to legal in advance to make sure we could not get hit a second time. So with those kinds of sums, work it out for yourselves. There are very few media organisations that are going to do that kind of journalism in future faced by that kind of penalty.
Q859 Paul Farrelly: So even with the offer of amends procedure, and I remember I was quite staggered actually to read a two-page mea culpa in the Guardian, you were not off the hook? The defences in law were not really being terribly helpful with a claimant who had a point to prove, for whatever reason?
Mr Rusbridger: Well, they fought it extraordinarily aggressively. They retained Carter Rucks who effectively launched four actions against us, against me personally for malicious falsehood, against the paper for malicious falsehood and both for libel, so they were trying to use malicious falsehood which was effectively saying that I had deliberately printed the story knowing it to be untrue, in order to destroy the defence in the offer of amends, and eventually when we got in front of a judge after six months of just a staggering amount of paperwork from Carter Rucks, charging up to £600 an hour for their legal partner, the judge said: "Look, you have to make up your minds, there is no point in having this malicious falsehood; you can get everything you need in libel", but it certainly was not the quick, instantaneous, cheap method that was argued for by Parliament.
Q860 Paul Farrelly: I want to get on to responsible journalism later in the questions, but in terms of costs you have settled with Tesco for the usual undisclosed amount for your own reasons, where do the cost negotiations stand? How much is Carter Ruck still demanding?
Mr Rusbridger: As far as I know they are still going on. I should say, though, the settlement was confidential, the damages were insignificant, so costs and damages had no relation to each other, and I think that is one area which I think you might look at. I personally think there is some question about whether corporations should be allowed to sue unless they can prove malice or economic loss. If they are going to sue and if a paper uses an offer of amends I think there ought to be some form of compulsory arbitration before you get into this huge ramping of costs, and then I think the judge ought to take a view of what the damages are likely to be, and if they insignificant then there ought be a capping of costs.
Q861 Paul Farrelly: On that particular case, which you were both involved in, did Tesco threaten to sue Private Eye?
Mr Hislop: No, the Guardian had taken the hit. I have to say it was the same journalist who was inquiring into Mr Granger who wrote the excellent piece about Tesco. On the point about cost, and the name Carter Ruck has come up, the last time we were in court in a very long case which we eventually won the judge actually criticised Carter Ruck for creating the amount of work which they had charged for.
Q862 Paul Farrelly: That was the Condliffe case?
Mr Hislop: Yes, and I have to say at the end of that Private Eye had run up costs of nearly a million pounds; the defendant went bust; we had to pay them, so a huge victory for us there and staggering costs. They are absolutely enormous. And this is without the CFAs which I hope will be considered. If someone comes and says: "We are suing you, and not only that, we have a CFA, which means we can just make it up. It will be any figure that comes into our head, double it, double it again, and you pay all of it", that makes you think twice about running a piece.
Q863 Paul Farrelly: I want to go on to CFAs in a second but, clearly, Mr Condliffe was a charlatan of the highest order but a corporation like Tesco's is in a different category. It is our biggest retailer, it made £3 billion profit last year, so for the likes of Tesco to pursue this to the nth degree like that, the motivation is not about money. What do you think the motivation is about?
Mr Hislop: If they were avoiding tax my guess is they are interested in money, don't you think? It is about money.
Q864 Paul Farrelly: It is a matter of degree. Alan, what do you think Tesco's motivation was in pursuing this so hard against the Guardian, with no great publicity for them?
Mr Rusbridger: I think to be fair to them they were genuinely offended that we had got it wrong, and I think they take corporate social responsibility seriously. If they had conducted themselves in advance differently, if they had been more open with us and had agreed to meet us before we published the pieces the mistakes would never have happened. That is putting the best possible interpretation on them. I think there is a feeling generally ‑ and I would not accuse Tesco of this - that if you hit newspapers in this way they are simply not going to write about this. There was an Oxford University study where they went round to the tax directors of a lot of FTSE 100 companies who said, "The reason we can get away with tax avoidance is the media never writes about it because it is simply too complicated", and I think that is a fairly shrewd assessment. It is no coincidence that when we did come back and write about it over two weeks using the expertise, I must say, of Private Eye's former tax inspector to double‑check what we were doing, and about the changes in the Budget and the proposals of the G20 on tax evasion, when you put these subjects into the public domain people are outraged by what is going on, but nobody was writing about it because it was too risky.
Q865 Paul Farrelly: Without jettisoning the libel laws, in terms of process what do you think in the current framework would improve the situation? For instance, cost‑capping orders on CFAs, fee limiting for the likes of Carter Ruck, early rulings on meaning? What would be top of both of your lists?
Mr Rusbridger: All those. Early ruling on meaning which could be taken by judges not juries. Cost capping in relation to damages. I agree with everything that has been said previously about the burden of proof. The two cases most notably we have been involved in in which there was changed burden of proof are Jonathan Aitken and Tesco. They knew what they had done, what was going on, and it was up to us to prove to the standards of the criminal court, or certainly the civil court, what had been going on, so I think the burden of proof should certainly be switched. I think there should be some form of binding arbitration in the case of corporations before you can get to the immense cost of fighting cases, and I think we should look again at Reynolds and its literal interpretation, that you have to clear every bar of a ten‑bar gate in order to prove that you are behaving responsibly as a journalist. I am not saying Reynolds has not been useful but I think it is mainly useful to big newspapers with good legal departments and not much use to people working for provincial newspapers or less well‑off newspapers.
Q866 Paul Farrelly: Finally, with respect to prior notification we have asked lots of questions on this of various witnesses, and the answer coming back is that it clearly all depends on how likely, apart from the evidence you have amassed, the subject of an inquiry is to go for an injunction and whether he/she is likely to succeed. How realistic is the threat of injunction on both of your publications?
Mr Hislop: Now
it is immediate, which is why I am worried about prior notification. We are involved in a case at the moment
where we attempted to run a story in January and we still have not
been able to run it. The journalist
involved put it to the person involved, which was an error; there was an
immediate injunction; we won the case; they have appealed; we are still in the
Mr Rusbridger: I agree with that, I think there are big problems with prior notification. We have not been hit on anything to do with the privacy yet but confidence is quite a problem for us. Barclays' documents that we were sent we put on the web and were hit in the same way as Ian at in the morning by a judge who told us to take them down. Now, that was clearly in the public interest, we know, because, if you look at the small print of the Budget, the Budget has closed down most of the loopholes that Barclays were using, so it was clearly in the public interest that those documents should have been published. The other not untypical kind of case is you have a source; you have documents; if you go to the person you are writing about they could well get an injunction on the basis of the documents, and so you play this game in your mind where you say, well, perhaps we should destroy these documents so there are no documents they can get at which might be used to get at the source, but if you destroy the documents and they then sue you in libel you have no documents. So you are weighing up these kinds of games, except they are not games because they cost so much money.
Mr Hislop: On that point also, if you go to prior notification and they get this immediate injunction on content, they have maybe a month to go and lean on whoever they think has given the story at which point your story may then disappear, so the person who told you the story imagines it will be in print and they will be fine, the story does not appear, there is no fuss, and the person who it is about comes and leans on them.
Q867 Paul Farrelly: Is it a reality that, if prior notification were to be pursued, a claimant will try and seek any grounds to suppress the story? I think, Alan, you have used the word "lottery". There is no consistency in the granting of injunctions. You mentioned Barclays, yet in the Mosley case the judge refused to order the newspaper to take a video down from its website.
Mr Rusbridger: It is very difficult to second-guess the judges. I am slightly divided on this because I think it is wrong that you have one or two judges creating all the media law in this country. On the other hand, if you have a complete lottery of judges who just happen to be the duty judge at in the morning and know nothing about media law, then I am not sure that is much better. But it is unpredictable and I do not think the law should be unpredictable.
Mr Hislop: And it was not. For a very long time in terms of libel the principle was "Publish and be damned", a very old‑fashioned principle in this country, so if you said "I will prove this to be true" you were allowed to publish. In privacy or confidentiality now I think essentially the feeling is, "We will not allow you to publish this", so the burden has gone completely back the other way.
Q868 Philip Davies: As you may know from previous sessions I am very sympathetic to the case you put, particularly in terms of burden of proof, and I am a big fan of the American system. I think it would be much better than the current system we have. I think the freer the press the better the democracy we have. Alan, you said you were sympathetic to the switching of burden of proof but the case that always throws a spoke in the wheels in terms of changing the burden of proof is the case of Madeleine McCann and the way that the McCanns were libelled because, on that shift of burden of proof, therefore, it seems that they would have had to prove that they were not involved in the disappearance of their child, which seems to me a rather difficult thing for them to prove. So how would you answer that particular problem with changing over the burden of proof?
Mr Rusbridger: That is a difficult one.
I think the only answer is that, as Tom Crone said earlier, in all
other jurisdictions I know of the burden of proof operates the other way,
and generally quite well. It is rather
to our shame that
Q869 Philip Davies: Ian, I think you described yourself, or were described, as the most sued man in the country or somewhere! How many times have you been sued for libel?
Mr Hislop: Again, I think that is slightly out of date because the libel laws were changed. A lot of amendments were made about ten years ago, when I was creating a lot of noise and Alan was doing a lot of sensible writing of papers and sending them in, and a number of elements of the libel lottery were changed I think greatly to the good of the whole system, so it is possible to change things and to get them right and I would say I am less sued now for libel. I am not saying there are not quite a few around but not so many as in those ridiculous days. There is much more use now of privacy, which is the bit I hoped we would get on to because I think the cliché is privacy is the new libel. If you want to shut people up privacy is how to go about it now. Libel is too difficult because you have to prove that it is not true.
Q870 Philip Davies: So how many times is it that you have been sued for libel?
Mr Hislop: I do not know.
Q871 Philip Davies: I do not mean this facetiously but you have not been very successful in defending lots of those libel actions.
Mr Hislop: I have won one.
Q872 Chairman: And you did not get any money from that!
Mr Hislop: Thank you for pointing that out!
Q873 Chairman: I am just interested as to why you feel you were so unsuccessful in defending those libel actions.
Mr Hislop: Well, certainly incompetence may have been a feature, and some of them we may have got wrong, that is perfectly possible, but I would point out that we lost I think a good half dozen cases against Robert Maxwell before the last one, in which Private Eye accused him of stealing money from his own pension fund - you can see why we get in trouble - and we would have lost that as well.
Q874 Philip Davies: From what you are saying now libel is not the big issue for you?
Mr Hislop: It is a big issue because as soon as you get one now the costs will probably cripple you. I am being facetious; you get fewer libels but each one is much more dangerous because it costs you a couple of hundred grand before you have started, and if it is a CFA you are looking at half a million more. The Guardian is being very discrete about its libel costs from Tesco but we are talking nearly a million, and these are huge figures to run one story. The idea that you get any readers by spending a million quid on a case about tax - I would guess if we put the word "tax" in Private Eye most readers would think "I will buy something else". There is less libel about but it is much more dangerous; what there is a lot more about is privacy.
Q875 Philip Davies: There has been lots of debate over the years about whether there should be a privacy law or not in this country. Do you feel now that with the interpretation of the Human Rights Act, as it appears to be, that there is in effect a by‑the‑back‑door, de facto, privacy law in this country that now applies which is stopping you from publishing stories that you would otherwise publish?
Mr Hislop: Yes. I think privacy law has evolved and been largely determined by the judges, and by a very small number of judges, and I think we are at the stage - which is why it is over to you really - where, if we are going to have a privacy law or not have a privacy law or we are going to tinker with the elements of privacy, Parliament is where this should be happening, I do not think it should be just left to judges interpreting the Human Rights Act because, as the previous witness said, Article 12, the freedom of the press, does not seem to have much weight when put up against Article 8, privacy, and I think that is a real problem, or is certainly becoming a problem for us.
Mr Rusbridger: Can I offer a slightly qualified view on that because we have not been hit by any privacy actions. We have been hit by a lot of confidence actions and a lot of libel actions, but nobody has actually used privacy against us now. I am much more worried about libel than privacy, and I think what is happening is that judges are being required to balance Article 8 against Articles 10 and 12 and they have not had very good cases yet and I think probably we have to give it a bit more time, because I do not think there has been a good case where someone has tried to gag a newspaper with a really good public interest defence.
Q876 Philip Davies: Does it depend which market you are in as to what is your biggest problem, whether it is libel or privacy? It seems to me that potentially the News of the World seems to have an increasing issue with privacy, whereas perhaps papers like the Sunday Times or The Observer or whatever are still mainly concerned about libel. Is that true? Does it depend which market you are in?
Mr Rusbridger: That is very broadly true.
Q877 Philip Davies: It does not mean one is more important than the other; it depends which market you are in?
Mr Rusbridger: Yes.
Mr Hislop: But libel is much harder and I think privacy is a way of achieving the same effect, so it is beginning to cross over.
Q878 Chairman: How many privacy actions have you lost?
Mr Hislop: Well, we have not lost it yet but we have had a lot of lawyers' letters.
Q879 Chairman: How many are actually going to court?
Mr Hislop: We have one at the moment, and I have challenged two others in terms of trying to vary the order on privacy cases, so that is three this year I have been involved in the legal process with, which is quite a lot.
Q880 Chairman: How many injunctions have you been subject to on privacy, potentially?
Mr Hislop: Well, a lot of blanket ones come round. Schilling sends them round. You probably get one a fortnight saying: "You won't write about this story. We have an injunction against everyone."
Q881 Chairman: And they actually have obtained one?
Mr Hislop: Yes.
Q882 Paul Farrelly: I do not want to lose sight of this area of confidence.
Mr Hislop: They are binding privacy and confidentiality up together and slightly blurring the edges. I think what Alan means is strictly privacy, like the Mosley‑type privacy.
Q883 Paul Farrelly: In the Barclays case, and here we are talking about large corporations and where it is confidence not privacy, the documents were already out there but the injunction was still granted to get you to take them down. Then the Guardian went to court and lost the hearing. So it seems to me that the public interest argument or protection for whistle blowers is not really working in practice. Or is that just one judge?
Mr Rusbridger: No, I think confidence is a problem, and the public interest defence does not always work with judges.
Q884 Paul Farrelly: Are you appealing that judgment, or is it going to be too costly?
Mr Rusbridger: No. I was told it would cost £100,000 to appeal, and life is too short. The documents are out; they were put on to a website called Wikileaks, and I am allowed to tell you that because it was mentioned in Parliament, but I think it is a very interesting case where the law has completely failed to catch up with the internet because there was this arcane discussion in the High Court about whether this was private or not and whether they could contain it in a room, whereas everybody was twittering and linking to it because it was already out there, but the court pretended it was not.
Q885 Paul Farrelly: If you will allow me, Chairman, I cannot resist one line of thought on the Condliffe case, your one victory, your pyrrhic victory, as it were, with a capital "P". When lawyers take cases up pro bono, if they lose one of the concerns for them is they may be liable for some of the costs. In this very specific area of libel, where lawyers tout for business and basically their clients lie, have you thought about perhaps subjecting them to a similar sort of regime that would give them second or third thoughts about behaving as they do?
Mr Hislop: Well, I think that would be a terrific idea, obviously, and could be very specific to a couple of firms!
Q886 Mr Sanders: Is it really the libel law that needs reform or is it establishing precisely what you mean by privacy law? We have always held off from having an informal privacy law and I am not yet persuaded that that is the way to go, but I am certainly persuaded that there are better ways of looking at libel in other countries and perhaps we ought to be looking to amend our law closer to the American system. Do you have a view on that?
Mr Rusbridger: I think we should. I am not sure the American system is perfect because you get into this difficulty of what constitutes a public figure, and I think the history of the so‑called Sullivan law has run into difficulties there, but I would rather, obviously, be at the end of the American spectrum because I think Article 10 does not carry quite the same weight as the First Amendment, so you have not got something you can hold up, which should trump most things.
Q887 Mr Sanders: Do you need your own First Amendment?
Mr Rusbridger: Yes. I suppose Article 10 was supposed to be the equivalent of the First Amendment but it has not quite achieved that status. I would rather explore the area of public interest, the serious matter of what you are writing about, rather than get hung up on what is a public figure.
Mr Hislop: I think that is right; your point about defining what the privacy law is, I think, sensible because it is upon us, as it were, this privacy law, and I think it is time to say what it is. I think the general public think it is the same, that the paparazzi jumping inside someone's bedroom is the same as someone asking questions about where the money has gone. They are not the same, and I think most people understand what the basis of privacy is. Certainly with the McCanns it must be fairly easy to frame a wording that stops you saying: "Well, you murdered your children, you must prove it now that you did not." We cannot use that as the basis, surely.
Q888 Mr Sanders: No, but in terms of the McCann family being public figures, did they not become public figures by using the media in order to publicise the tragedy of the missing child? It is not as easy as it first looks to try and determine who is and who is not a public figure. How do you apply that test to Private Eye? Obviously I would think most people think politicians - fair game; heads of nationalised industries and big companies - fair game. But who is not fair game? Where is the dividing line?
Mr Hislop: I suppose it is essentially people who affect the way you live your life, so that if you write about this person and what they do, that in some way will affect the way the general public lives. As a basic definition that seems reasonable. That is how I would put it.
Q889 Alan Keen: On the PCC, I understand you do not contribute towards it.
Mr Hislop: No.
Q890 Alan Keen: Is that because you do not agree with it, or think that it is ineffective, or just that you are short of money? Why is it?
Mr Hislop: We do not pay and Private Eye does not belong to the Press Complaints Commission, no. I have always felt Private Eye should be out of that. It means that we just obey or do not obey or we are judged by the law rather than by the Press Complaints Commission. Practically two and a bit pages per issue of Private Eye are criticism of other individuals working in journalism. On the whole, they appear on the board of the Press Complaints Commission adjudicating your complaint, so I would be lying if I said that did not occur to me. So no, I always thought it would be better for the Eye to be out of it.
Q891 Alan Keen: Your view is different, Alan, on the Press Complaints Commission? People have been critical of it and it is important that we get not necessarily a balanced view but a proper view on the Press Complaints Commission. I note that it fulfils a certain role but not the same as Carter Ruck or Schillings. What role should it play? Is it playing the right role?
Mr Rusbridger: Broadly I think it does good. It is good to bind the press together under an agreed code, and I think the Code is a pretty good code. I think editors do respect it; they do not want adjudications against them; I think they do an awful useful mediation work which is from the public view. I think its problem is that it is not a conventional regulator. It describes itself as a regulator but it is not like the GMC and it is not like the Law Society, and it is quite opaque in its appointment processes, and I think it is going to have to clarify this view of itself for two reasons. One is that there is clearly a divergence now between the Press Complaints Commission's jurisprudence on privacy and the courts', and I think if the Press Complaints Commission wants to get back in that game as opposed to sitting and looking a bit irrelevant on the sidelines it is going to have to take a view on where it sits in relation to the view of privacy that the courts are going to take. It was interesting, I was on the public platform with the Sir Christopher Meyer about a month ago in which the Mosley case came up and somebody asked him: "What would you have done about Mosley if he had come to the Press Complaints Commission?" and he was unable to say. He said it would have been very finely balanced. I know he treated Mosley as a bit of a figure of fun when he came to give evidence here but actually, if Mosley had gone to the Press Complaints Commission, the Press Complaints Commission would have had essentially the same balancing act as Mr Justice Eady did. So I think the PCC is going to have to clarify its view on privacy and decide whether it is going to leave it to courts or try and get into the action on privacy, which I think would be a good thing because it is cheaper and so on and so forth, and I think the other respect about which the Press Complaints Commission is going to have to think a bit more carefully in the future is this aspect of proactivity. It was remarkably uncurious about the Motorman cases and the Goodman case. There were a lot of people writing; there were a lot of court cases before the Data Protection Commissioner and before the Information Commissioner about the industrial scale - industrial scale ‑ of the use of private detectives, and the Press Complaints Commission really I do not think handled that in a particularly aggressive or inquiring way which I think just makes it look odd to outsiders. If that was the GMC or the Law Society and there was prime facie evidence of mass scale law‑breaking, most other regulators would have stepped in. So full marks for mediation and for being free and quick, but I think it is going to have to think about its role going forward.
Q892 Alan Keen: Do you think the editors have too much influence on the action? Is that why the Press Complaints Commission is not proactive?
Mr Rusbridger: Well, they are in a minority. I do not know what the reason is. I think over the last ten years it has changed its role into being more of a mediator and less of a regulator, and it did so almost without people noticing.
Q893 Alan Keen: Do you think it should be more of a regulator, then?
Mr Rusbridger: Well, the examples I have given you are of cases where, if you think of any other regulator in any other aspect of life, they would behave in a more proactive and inquiring way, and if the Press Complaints Commission is to make a confidence going forward, which I hope it does because, as I say, I broadly support it, it is going to have to think about these two aspects, what it thinks about privacy and whether it should be more inquisitive and inquiring - inquisitorial - when it becomes aware of bad behaviour up to and including law breaking by an awful lot of journalists.
Q894 Alan Keen: But in changing its role into being much more inquiring, should it not be freer from the newspaper industry itself? Somebody gave a wonderful analogy of a jury. If five of the jury out of twelve were friends of the accused that would be completely unacceptable, but that really is what the Press Complaints Commission is. There is a lot of influence from the industry. It is self‑regulation so the industry should be involved in the setting up, but should we recommend that it is taken away from the industry? It could get advice from the industry, but give it more teeth?
Mr Rusbridger: I think what I am talking about are the broad parameters of the way it should see its role rather than the individual adjudications. I have never been on the Press Complaints Commission. One hears anecdotally that it is helpful having editors present who can explain things but I do not know if that is true or not, and I am not sure whether it would be improved or not by not having editors on, but I think I am taking a step back and saying there is a more conceptual role about how the Press Complaints Commission should see itself which is for the industry to decide, and I think it would be good for the industry to take a different view because it would make self‑regulation more effective.
Q895 Alan Keen: Would it give a defence to the newspaper industry from lawyers like Carter Ruck and Schillings if we recommended that the Press Complaints Commission was strengthened, so that it could both defend newspapers as well as at times help to regulate? What do you think?
Mr Rusbridger: On this big issue to do with the developing law of privacy, one way that newspapers can try and forestall that is by saying that there is no need to go to the courts because we have an effective means of tackling that, an effective means of redress, and I think at the moment the outside view of the Press Complaints Commission is that it is a bit weak on privacy. There were a lot of cases around turn of the century, cases like Anna Ford and Sarah Cox amongst others, where the Press Complaints Commission took a fairly relaxed view of privacy, and I think they would take a different view today. So I think the Press Complaints Commission has to send a signal saying, "We are serious about privacy, we are not living on a different planet, we acknowledge that the Human Rights Act has Article 8 and that people have a right to privacy, but you do not have to go to courts in order to get redress", so the question is what kind of redress, what kind of processes would the Press Complaints Commission offer, and I think if they could think constructively about that rather than just criticising the courts that would be a more constructive way of doing things.
Q896 Alan Keen: Ian, you said you would rather the law accepted it, but if you were able to change the Press Complaints Commission in any way, do you think that would be acceptable?
Mr Hislop: If it had that sort of structure and means of redress I would think very seriously about joining again, because that would make sense.
Q897 Paul Farrelly: I want to address the area of responsible journalism, in particular the Reynolds and so‑called Jameel defences which have not proven to be the beacon of light that they were held out to be when the judgments were first delivered. First, could I ask you both whether either of you have used Reynolds or Jameel when you have been sued for libel?
Mr Rusbridger: We use Reynolds pretty extensively. There are three or four reporters who have learned to use it and if you asked them they would say they rely very heavily on the legal department, so it would not work if you were on the Leicester Mercury or the East Anglian Daily Times and you did not have that kind of legal department. You have to work extremely thoroughly in the way you phrase questions and it is a long, drawn out, rather arduous way of processing stories, but I do not think it is all bad. I think it has enabled us to print a lot of stories that we could not have published in the past in a different kind of voice, raising questions rather than asserting things, but we have got a lot of information in the public domain using Reynolds. There are certain problems over it, including the single publication rule which is another aspect of libel, that when the courts view every day a new day the material is published again on a internet, and Reynolds becomes quite difficult if you are addressing very old cases of going back and saying who exactly made the phone calls when and was this put, and I think it is there is a problem if it is treated too literally, which some of the judges have done, where you say "This is a ten‑bar gate and you have to get over every single bar before we can give you the protection you need", as I said earlier. I think it would be better if they said, "This is broadly a story that is in the public interest; it would not deter journalists from doing this kind of journalism; we are not going to insist they get over every bar of these gates", that is indicative of the kind of approach we would encourage.
Mr Hislop: I would agree with that. We have not used the Reynolds defence in any cases. I think it creates a climate where it is easier to do certain types of story, but my two problems would be a broader definition of public interest, because I think it is quite difficult to get that, and prior notification I do not think is open and shut in terms of trying to do quite difficult or interesting stories.
Q898 Paul Farrelly: What was the difficulty in the Tesco case of using Jameel and Reynolds?
Mr Rusbridger: That we did not clear enough of the bars. We were in this sort of courtly dance with Tesco pre publication; we sent them, I think, 17 questions to which they responded to less than half a dozen from memory, and so we were left with gaps in our knowledge, and effectively we felt at the time they were dead‑balling our inquiries and we were on weak grounds in respect of one answer that they gave us that we did not include in full, so that that bar that said you had to fully include the other side's response we would have been weak on, so we could not rely on Reynolds.
Q899 Paul Farrelly: Because you could not rely on the responses that were perhaps not forthcoming?
Mr Rusbridger: Well, I think in fairness to Tesco we should have been more generous in respecting the responses they were giving us. I think we were suspicious because they were not answering so many of the questions that we wanted them to answer and because they refused a face‑to‑face meeting, so it was just an odd case.
Q900 Paul Farrelly: We heard from counsel to the News of the World and The Sun earlier that he felt on balance that it would be helpful if that sort of defence was given some statutory basis. Do you think that there is any insuperable difficulty in defying public interest to make that a reality? We have defined public interest with various legislation such as freedom of information, whistle‑blowing. Would it be helpful?
Mr Hislop: Well, the judges are doing it anyway; why shouldn't you have a go?
Mr Rusbridger: I think the Press Complaints Commission's Code, which is reflected obviously through Article 12, is a pretty good public interest code. I heard someone the other day define public interest as information which the more it is repeated the more it gains in value, which is maybe not a legalistic definition but you can try it on cases, or another way of looking at it is that it is information which, if it were denied, would have an effect on how you live your lives. So if it was a picture of a newsreader on a beach and you were denied that picture would that have any improvement on any aspect of the way you live your life. So I think there are informal ways of testing what the public interest is but I think, as Ian said, you kind of know it when you see it.
Q901 Paul Farrelly: And every case is different. Reynolds was different, for example, from Tesco. With Tesco you actually got in the article the actual name of the tax wrong, by your own admission, but the thrust of your article was right and, in fact, the article was accurate because, as you have said, Private Eye managed to turn up proof that they were, indeed, avoiding corporation tax.
Mr Rusbridger: We accused them of murder and, in fact, they were guilty of manslaughter. It was difficult to claim a great moral defence, and we would never dream of doing such a thing because, as Private Eye demonstrated, they did.
Q902 Paul Farrelly: But the point of my question is if any defence was on a statutory basis you would want it to be rather more extended than to narrow it down to the sort of circumstances surrounding Reynolds, for instance.
Mr Hislop: Yes, and you would want it to be as broad as possible. I do not want to line up with the News of the World but there have to be circumstances where that is a very grey case and that is why it is so, I think, dangerous to let Mr Mosley impose his anger at what happened to him on changing the law. He won his case; he now wants to change the rules as well. In his evidence I believe he said things like: "Well, if a bishop is having an affair with an actress or a racing driver is and there is some other misconduct, those are equally private", and you are thinking no, they are not, you stick to your case and argue that. The other cases are not really I think up to him to define, and those may well be in the public interest.
Q903 Chairman: But, on Alan's definition, in what way does it change the way people live their lives to know Mr Mosley likes having his bottom spanked in private?
Mr Hislop: I am saying he can defend that, I am not here to defend the News of the World, but the problem about Justice Eady's summary, as I am sure you know, is he said "We are a grown up cosmopolitan country, whatever we do behind doors is entirely up to us - unless there are Nazis in it, and then it is in the public interest." Is it? The judgment makes no sense. Is your right to dance about as a Nazi private? Or is it you are only allowed to dance about as a German officer? It is a silly case and you should not be making law on it. But even in the judgment that you are looking at it does not make any sense. You have to define what is private and what is not.
Mr Rusbridger: I think this is why we should not pin too much on Mosley because lots of people have different views on Mosley. I would reserve my alarm for when judges are presented with privacy cases in which there is a clear public interest, and which they then allow 8 to trump 10. Then I think we are in trouble.
Mr Hislop: Yes, which is why I hope it does not happen in this one.
Q904 Chairman: Just on the judges point, you previously said you were concerned when talking about injunctions about somebody going to a lawyer who has no experience of media law and, therefore, getting a judgment which is precautionary, but one of the big criticisms that has been made, particularly by Paul Dacre, is that the cases are being heard repeatedly time and again by the same person and that judge has displayed a moral judgment and various other things he has been accused of. Is that a matter of concern for you? Do you think it is a problem that Justice Eady appears to have almost a monopoly in this area?
Mr Hislop: Yes, I think it is a problem, although I have to say he did find for us in the lower court, which is an example of an extremely fine judgment so it is not always his fault, but on balance, it would be better if it was not just him and one other judge making all the law, because it does seem to be that his own prejudices, his own views, whatever, coming out and he is handling all the cases, including the libel tourism. It is all the areas, really, and it just seems very unbalanced.
Mr Rusbridger: I agree with that. Again, he found for us in Tesco so he is not all bad, but I think there is a tendency for the libel judges to be picked from the libel bar; they are quite often people who were doing the claimant cases; and I think it would just be better to have a wider ball of people, some of them with a wider experience of human rights, because I think it is too easy for the newspaper industry to attack Eady; it is almost unfair on Eady. It would be better if there were a wider selection of judges having to perform the same balancing act between 8 and 10, and then you would get a better take on what is happening to the law.
Q905 Paul Farrelly: On the subject of responsible journalism, I wanted to raise a few points that have come up very briefly. Firstly, first publication. It is the case, is it not, that the libel laws have not kept up with the internet and that every day is deemed a new publication as long as you keep it on the internet, so that would be a fairly simple change to make?
Mr Rusbridger: Yes, but we are still stuck in the era of the Duke of Brunswick sending his servant down to inspect The Times in the library. That would be a relatively simple thing to do that first publication would sort out.
Q906 Paul Farrelly: You raised burden of proof, Alan. Could you give one example, in the Aitken case, for example, of a very reasonable step that Jonathan Aitken should have been able to make or have had to have made to defend his case, or to pursue his case, that would have made a big difference to the Guardian?
Mr Rusbridger: I have heard it argued that the judge could decide where the burden of proof is but if the judge in that case had said: "Come on, Mr Aitken, this is all about a weekend in the Ritz in" - whatever the date was - "1997/6, you could produce the receipts, you know what you were doing", the case would have been over within 20 minutes because we could have worked out exactly what he was doing. It was pure luck that we managed to get into the basement of a deserted hotel in order to get the receipts that he had not given us and we came quite close to losing that, so that to me is the clinching point.
Q907 Paul Farrelly: Was that the law's fault or the judge's that no order was made?
Mr Rusbridger: Given that the burden of proof is on the defendant the judge could not order, but maybe it comes to your point, Mr Sanders, if the judge could have had the discretion at the beginning of the case and had said, "Well, in the McCann case that would have been impossible for you to prove, that you did not murder, but in the Aitken case it seems to all hinge on the facts of one particular weekend, so therefore I order that in this case you come up with these documents."
Mr Rusbridger: I think the law in
Mr Hislop: And that has changed it a lot for Private Eye. Ten years ago, when all those official bodies could sue, they did.
Farrelly: Finally, it seems very odd that in
Mr Rusbridger: I think there is a serious problem at the moment. The Anchie(?) case is a problem of a man convicted in the French courts but the English courts will not rely on the French courts' judgments; we had a case involving the Malaysian police force where we could not rely on Malaysian Police Force documents. It is happening a lot with the verdicts of Russian courts or Eastern European courts, with Eastern Europeans coming here to sue, but I think it is more broad than simply courts. There is a big inquest going on at the moment as to whether the press reported the imminent collapse of the banking industry and whether we should have been more alert and more aggressive in reporting what was going on inside these investment banks. May I just say, if you want us to perform that function, which clearly we should, then I think you have to give us some form of protection when writing about incredibly complex matters, matters so complex, a bit like tax avoidance, that the people who sat on the boards of those companies did not understand them, and if you are going to want the press to go after these companies then you are going to have to extend some form of privilege to a wider area of documents than simply court documents.
And in those cases, if the press had gone after the individual banking
executives, they would have claimed privacy, particularly about their own
payment, not merely confidentiality.
They would have said: "It is
entirely my own business how much money I take home from the Royal Bank of
Q910 Janet Anderson: When the Committee was in the States recently we were fortunate enough to meet Ben Bradley, who was the editor of the Washington Post at the time of Watergate, and we have had quite a lot of evidence from a number of witnesses about the relative decline in investigative journalism and the extensive use of briefings and press notices and so on, sometimes described as "churnalism". Is that something you recognise? Also, our next inquiry was going to be on the future of local newspapers, so could you perhaps tell us how do you see the future of the press generally, bearing in mind what is happening on the internet and so on?
Mr Rusbridger: Well, the financial condition of the press is dire, and is hitting local papers first. We are faced with the prospect, for the first time since the Enlightenment, of communities not having any verifiable source of news, so the threat to the press is very great at the moment, which is why I think you should listen to what is being said. I know you had a lawyer who represents a lot of local papers saying he cannot imagine any local papers ever defending libel actions again, and I think that is very grave. Most local papers just simply do not have the resources to do investigations any more, and the more you get into the spiral decline of cutting costs because the advertising has gone and the circulation is declining, the more you get into what is known now as "churnalism", where reporters do not leave the office and simply do not have the time to make inquiries.
Q911 Janet Anderson: Is that going to happen to the nationals as well?
Mr Rusbridger: I think it is happening to the nationals.
Mr Hislop: Nick Davies' book is very good, and the section on churnalism is particularly good about taking a story down from the Wire and you write it up and then the Wire reads your paper the next day, someone on another shift, and says, "Oh, that's a good story" and puts it in again, so there is a desperate cycle of nothingness going on about news. And the Eye slightly benefits because a lot of our stories come from local journalists who cannot get their stories into their own papers because their papers do not want to take any risks at all, and they certainly do not want to cover anything to do with the Council in case they lose the Council advertising, so it is pretty desperate locally. We had a competition for the blandest local news front page and it is basically charity walks. That is it. There is plenty of room for that in local newspapers but not only that, so I think it is dire and they do not want to take on the costs.
Q912 Janet Anderson: I am interested particularly in what you say about local council advertising because there is some evidence in my part of the world that newspapers are quite frightened of publishing stories about local councils for that very reason. Would you agree with that?
Mr Hislop: That is what they say, so I presume it is true!
Janet Anderson: Thank you.
Q913 Mr Sanders: I have a question on the development of the media and where it goes in the future, and blogs. Although blogs in the law should not have different standards they do appear to have different standards, and increasingly newspapers are using stories broken on blogs as if that is the verifiable source and there are then difficulties they get into. Do you have a view of how you can improve the standards, if you like, of blogs?
Mr Hislop: My own views on blogs is their stories become useful when they go into what they call dead wood, and it is very interesting that the e‑mail smears, which were discovered by a man who runs a blog but not published on his blog, were given to real newspapers to put in so that they took the risk and came up with the defences and the justification to do it, which I thought was a validation of the role of newspapers. A lot of what is written on blogs would never get into any newspapers, and I am hoping the original McBride ideas would not have ever made it into print. They would have made it on to some blogs and then swilled about a bit and then someone would have said: "Oh, guess what's on the blog" and that might have got in, but given direct to a paper I am guessing Guardian Media would not have put them straight in.
Mr Rusbridger: I agree. It is too easy to smear all blogs because there are some wonderful blogs which are incredibly knowledgeable and, on their subject, much better than newspapers. They are subject to the same laws of libel and I suspect we will see libel cases in which people go after blogs. They have tended not to do so up till now, but clearly there is a responsibility on newspapers if they are going to use material from blogs to subject them to the same kind of checking that we would to anything.
Q914 Mr Sanders: You do not ever envisage Private Eye becoming a blog in the future? You always see a future for it being a dead tree?
Mr Hislop: Yes, and, if you want to find out what is going on, buy it. Do not try and get it free!
Q915 Paul Farrelly: Ian, short of catching someone red‑handed on tape, like the News of the World did with Mosley, perhaps wearing a Nazi uniform, handing over to a politician a big wadge of cash in a transparent brown envelope so you can see that it is cash, are there any figures that even Private Eye would not touch now because they just sue?
Mr Hislop: No, I do not think there is anyone we would not have a crack at. Again, this is part of the point of Private Eye and part of the point of most publications. We were sued by Lord Ashcroft and he has quite a lot of money, I do not think there are many deeper pockets than that, so I do not think we should be put off by that.
Q916 Paul Farrelly: You must have golden pockets to be able to afford to do that?
Mr Hislop: We have very generous readers!
Q917 Paul Farrelly: Alan, back to the chilling effect?
Mr Rusbridger: There is nobody we would feel, on principle, intimidated by. The difficulties are that if you are going to remain a serious newspaper you have to do serious reporting of foreign affairs, and I think we see that as one of our main functions. Increasingly two thirds of our readership is abroad and that takes us into territory where we are sometimes writing stories about other countries which they cannot write about in their own countries. We have talked a bit about Russians and Eastern Europeans, and it is quite hard to get some of the evidence there to the standards required. If you are going to be held to the burden of proof that would exist in a court then that will stop you from printing material that I think should be published, even when you win. We have just had a case with this purveyor of vitamin pills, which you heard about from Ben Goldacre, Matthias Rath. We had to risk half a million pounds in order to fight that case and go to South Africa for weeks on end in order to get the evidence in order to take him on, and even though he eventually dropped the case we will still be out of pocket to the tune of about £200,000. So we will not be wondering in the future why newspapers ever got things wrong but will be wondering why newspapers ever attempted to do this, because it is going to become impossible given the financial constraints on newspapers.
Chairman: Thank you both very much.