Press standards, privacy and libel - Culture, Media and Sport Committee Contents


Conclusions and recommendations


Privacy and breach of confidence

1.  We understand that the refusal by a court to grant an injunction does not necessarily mean the defendant can publish straightaway: if the claimant appeals the decision, then the Court of Appeal has to hold the ring, pending the outcome of that appeal. That said, it seems to us wrong that once an interim injunction has been either refused or granted in cases involving the Convention right to freedom of expression a final decision should be unduly delayed. Such delay may give an unfair advantage to the applicant for the injunction as newspapers often rely on the currency of their articles. We recommend that the Ministry of Justice should seek to develop a fast-track appeal system where interim injunctions are concerned, in order to minimise the impact of delay on the media and the costs of a case, while at the same time taking account of the entitlement of the individual claimant seeking the protection of the courts. (Paragraph 32)

2.  Without appropriate data on injunctions we are unable to come to definitive conclusions about the operation of section 12 of the Human Rights Act, nor do we believe that the Ministry of Justice can effectively assess its impact. We recommend that the Lord Chancellor, Lord Chief Justice and the courts should rectify the serious deficiency in gathering data on injunctions and should commission research on the operation of section 12 as soon as possible. (Paragraph 37)

3.  We do not overlook the fact that, in Cream Holdings v Bannerjee, the House of Lords held that the effect of section 12(3) of the Human Rights Act was that, in general, no injunction should be granted in proceedings where Article 10 was engaged unless the claimant satisfied the court that he or she was more likely than not to succeed at trial. Although there is little statistical evidence available, we are nevertheless concerned at the anecdotal evidence we have received on this matter. Section 12 of the Human Rights Act is fundamental in protecting the freedom of the press. It is essential that this is recognised by the Courts. (Paragraph 38)

4.  It is entirely understandable, as news and gossip spread fast, that parties bringing privacy (and confidence) cases may wish to bind the press in its entirety, not just a single enquiring publication. On the face of it, however, this appears contrary to the intention behind section 12, if the press has not been given proper notice and opportunity to contest an injunction. We recommend, therefore, that the Lord Chancellor and Lord Chief Justice also closely review these practices. (Paragraph 39)

5.  A culture in which the threats made to Women A and B could be seen as defensible is to be deplored. The fact that News of the World executives still do not fully accept the inappropriateness of what took place is extremely worrying. The 'choice' given to the women by Neville Thurlbeck was in fact no choice at all, given the threat of exposure if they did not co-operate. (Paragraph 56)

6.  We found the News of the World editor's attempts to justify the Max Mosley story on 'public interest' grounds wholly unpersuasive, although we have no doubt the public was interested in it. (Paragraph 57)

7.  The Human Rights Act has only been in force for nine years and inevitably the number of judgments involving freedom of expression and privacy is limited. We agree with the Lord Chancellor that law relating to privacy will become clearer as more cases are decided by the courts. On balance we recognise that this may take some considerable time. We note, however, that the media industry itself is not united on the desirability, or otherwise, of privacy legislation, or how it might be drafted. Given the infinitely different circumstances which can arise in different cases, and the obligations of the Human Rights Act, judges would inevitably still exercise wide discretion. We conclude, therefore, that for now matters relating to privacy should continue to be determined according to common law, and the flexibility that permits, rather than set down in statute. (Paragraph 67)

8.  We have received no evidence in this inquiry that the judgments of Mr Justice Eady in the area of privacy have departed from following the principles set out by the House of Lords and the European Court of Human Rights. While witnesses have criticised some of the judge's individual decisions, they have praised others. If he, or indeed any other High Court judge, departed from these principles, we would expect the matter to be successfully appealed to a higher court. The focus on this one judge regarding the development of privacy law, however, is misplaced and risks distracting from the ongoing national debate on the relationship between freedom of speech and the individual's right to privacy. (Paragraph 76)

9.  Clearly pre-notification, in the form of giving opportunity to comment, is the norm across the industry. Nevertheless we were surprised to learn that the PCC does not provide any guidance on pre-notification. Giving subjects of articles the opportunity to comment is often crucial to fair and balanced reporting, and there needs to be explicit provision in the PCC Code itself. (Paragraph 91)

10.  We recommend that the PCC should amend the Code to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a "public interest" test, and should provide guidance for journalists and editors on pre-notifying in the Editors' Codebook. (Paragraph 92)

11.  We have concluded that a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a "public interest" exception. Instead we believe that it would be appropriate to encourage editors and journalists to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of Article 8. We therefore recommend that the Ministry of Justice should amend the Civil Procedure Rules to make failure to pre-notify an aggravating factor in assessing damages in a breach of Article 8. We further suggest that amendment to the Rules should stipulate that no entitlement to aggravated damages arises in cases where there is a public interest in the release of that private information. (Paragraph 93)

12.  The free and fair reporting of proceedings in Parliament is a cornerstone of a democracy. In the UK, publication of fair extracts of reports of proceedings in Parliament made without malice are protected by the Parliamentary Papers Act 1840. They cannot be fettered by a court order. However, the confusion over this issue has caused us the very gravest concern that this freedom is being undermined. We therefore repeat previous recommendations from the Committee on Parliamentary Privilege that the Ministry of Justice replace the Parliamentary Papers Act 1840 with a clear and comprehensible modern statute. (Paragraph 101)

13.  We welcome the Speaker's determination to defend freedom of speech in Parliament, as well as the comments by the Lord Chief Justice on the Trafigura affair, and strongly urge that a way is found to limit the use of super-injunctions as far as is possible and to make clear that they are not intended to fetter the fundamental rights of the press to report the proceedings of Parliament. Given the importance of these issues, we hope that a clear statement regarding the way forward is made before the end of this Parliament. (Paragraph 102)

14.  The evidence we have heard shows the impact of the internet on the leaking of information has fundamentally altered the dissemination of information, and consequently breaches of confidence. (Paragraph 112)

15.  In particular, the Trafigura and Barclays cases raise issues over the use of injunctions for breach of confidence by companies which do not have Article 8 rights to defend, the ease with which they appear to be granted and the consistency of practice in the court system. (Paragraph 113)

Libel and Press Freedom

16.  We have received limited evidence on hearings on meaning and the extent to which they are used. We agree, however, that any measures to provide more certainty at an earlier stage, and which cut the enormous costs of libel cases in the UK, should be pursued more vigorously. We urge the Government, therefore, to look closely at this aspect of procedure in its present review of the costs and operation of UK libel laws. (Paragraph 129)

17.  We recognise the difficulties with the whole burden of proof being placed on the defendant but believe, on balance, that in the interests of natural justice, defendants should be required to prove the truth of their allegations. We are concerned, however, to see cases where that burden becomes overly onerous. We make some recommendations in this Report regarding the defence of 'responsible journalism' and the burden of proof on companies suing for defamation, which may level the playing field and assist publication in the public interest. We also urge the Government, however, to examine this aspect of the operation of the UK's libel laws carefully, including how the courts might better require claimants to make reasonable disclosures of evidence, without increasing costs even further through expensive appeals. (Paragraph 135)

18.  The Bower case also highlights concerns which arise when judges exclude evidence which prevents a jury being presented with a rounded picture, or too narrow a view of the thrust of an article. This aspect of the operation of the libel laws also needs examination. (Paragraph 136)

19.  Much of the recent publicity given to concerns of the medical and science community about the harmful effects of UK libel laws on their ability to comment has followed the court rulings to date in the Simon Singh case and media coverage of the cases of the British cardiologist Peter Wilmshurst and the Danish radiologist Henrik Thomson, who have faced action from overseas commercial interests. (Paragraph 141)

20.  We look forward, clearly, to the outcome of the important Simon Singh case. Even from the limited evidence we have received, we believe that the fears of the medical and science community are well-founded, particularly in the internet age and with the growth of 'libel tourism'. We urge the Government, therefore, to take account of these concerns in a review of the country's libel laws, in particular the issue of fair comment in academic peer-reviewed publications. (Paragraph 142)

21.  We appreciate the difficulties, and costs, to date in running a Reynolds defence have meant that it has not often been used in cases which have actually reached court. Nevertheless, we endorse the development of a 'responsible journalism' defence by the courts. We particularly welcome the House of Lords judgment in Jameel which emphasises the need for flexibility and, in our view, the realistic approach the courts must bring to consideration of the defence so that it appropriately protects the media's freedom of expression. However, we are concerned that the defence remains costly and therefore inaccessible to publishers with poor financial resources. We will be making a number of recommendations on costs which we intend should ensure access to this defence in appropriate cases. (Paragraph 161)

22.  We are also concerned that, partly because of the lack of certainty of a Reynolds defence, many cases have to be settled before they come to court, and that as a result there are few opportunities for a body of case law based on Lord Hoffman's judgment in Jameel to be developed. Indeed, it may take decades and we are of the view that the problem is more urgent than that, especially given the challenges facing smaller regional newspaper groups. (Paragraph 162)

23.  The desirability of affording greater protection to genuinely responsible journalism begs the question of whether the law should be amended to put the Reynolds defence, or an expanded version of it, on a statutory footing, perhaps through an amendment to the 1996 Defamation Act. However, there is a risk of unforeseen consequences. It could be maintained that Reynolds/Jameel applied more flexibly is sufficient and we are concerned that codifying the defence and the 'public interest' in law may in itself introduce rigidities or make for less accurate reporting. However it is our opinion that there is potential for a statutory responsible journalism defence to protect serious, investigative journalism and the important work undertaken by NGOs. We recommend that the Government launches a detailed consultation over potentially putting such a defence, currently available in common law, on a statutory footing. We welcome consultations already launched by the Ministry of Justice in the field of media law. Such a further exercise will provide an opportunity to gain more clarity and show the Government is serious about protecting responsible journalism and investigations by the media, authors and NGOs in the public interest. (Paragraph 163)

24.  We hope that Government measures to reduce costs and to speed up libel litigation will help address the mismatch in resources between wealthy corporations and impecunious defendants, along with our recommendations to widen and strengthen the application of the responsible journalism defence. Given the reaffirmation by the House of Lords in Jameel of the rights of companies to sue in defamation, the law could only be changed by statute, if Parliament felt it desirable to address potential abuses of libel laws by big corporations. One possible way of addressing the issue might be to introduce a new category of tort entitled "corporate defamation" which would require a corporation to prove actual damage to its business before an action could be brought. Alternatively, corporations could be forced to rely on the existing tort of malicious falsehood where damage needs to be shown and malice or recklessness proved. We also consider that it would be fairer to reverse the general burden of proof in such cases. Given the seriousness of this issue, we recommend that the Government examines closely the law as it now stands, looking also at how it operates in Australia, and consults widely on the possibility and desirability of introducing such changes in the UK through an amendment to the Defamation Act 1996. (Paragraph 178)

25.  Whatever the constitutional situation, or diplomatic niceties, we believe that it is more than an embarrassment to our system that legislators in the US should feel the need to take retaliatory steps to protect freedom of speech from what they view as unreasonable attack by judgments in UK courts. The Bills presented in Congress, allowing for triple damages, were reminiscent of the 1970 Racketeer Influenced and Corrupt Organisations Act, which was originally aimed at tackling organised crime. As such, they clearly demonstrated the depth of hostility to how UK courts are treating 'libel tourism'. It is very regrettable, therefore, that the Government has not sought to discuss the situation with their US counterparts in Washington, or influential states such as New York and California. We urge it to do so as soon as possible. (Paragraph 205)

26.  We welcome the Lord Chancellor's establishment of the Working Group on Libel and the inclusion of 'libel tourism' in its remit. We also agree with him that it is important to have an evidence base for decision-making. During the course of our inquiry we asked for information on the number of cases challenged on the grounds of jurisdiction and the success rate of such challenges. We have been provided with no such information and it was not clear who would be responsible for collecting it. Without reliable data it is difficult to see how the Government can monitor the implementation of Rule 6.36 of the Civil Procedure Rules. (Paragraph 207)

27.  We recommend that the Ministry of Justice and the Courts Service should as a priority agree a basis for the collection of statistics relating to jurisdictional matters, including claims admitted and denied, successful and unsuccessful appeals made to High Court judges and cases handled by an individual judge. We further recommend that such information be collated for the period since the House of Lords judgment in the Berezovsky case in May 2000 and is published to inform debate and policy options in this area of growing concern. (Paragraph 208)

28.  In cases where neither party is domiciled nor has a place of business is the UK, we believe the claimant should face additional hurdles before jurisdiction is accepted by our courts. On balance, we believe there is sufficient evidence to show that the reputation of the UK is being damaged by overly flexible jurisdictional rules and their application by individual High Court judges, as exemplified by Mr Justice Eady in the Mardas and New York Times case. (Paragraph 214)

29.  We recommend that the Ministry of Justice and the Civil Justice Council consider how the Civil Procedure Rules could be amended to introduce additional hurdles for claimants in cases where the UK is not the primary domicile or place of business of the claimant or defendant. We believe that the courts should be directed to rule that claimants should take their case to the most appropriate jurisdiction (ie the primary domicile or place of business of the claimant or defendant or where the most cases of libel are alleged to have been carried out). (Paragraph 215)

30.  It is clear that a balance must be struck between allowing individuals to protect their reputations and ensuring that newspapers and other organisations are not forced to remove from the internet legitimate articles merely because the passage of time means that it would be difficult and costly to defend them. We welcome the Lord Chancellor's consultation and look forward to his conclusions. As a general consideration, we believe it would be perverse if any recommendations increased the uncertainty faced by publishers under the UK's already restrictive libel laws. (Paragraph 229)

31.  In order to balance these competing concerns, we recommend that the Government should introduce a one year limitation period on actions brought in respect of publications on the internet. The limitation period should be capable of being extended if the claimant can satisfy the courts that he or she could not reasonably have been aware of the existence of the publication. After the expiry of the one year limitation period, and subject to any extension, the claimant could be debarred from recovering damages in respect of the publication. The claimant would, however, be entitled to obtain a court order to correct a defamatory statement. Correction of false statements is the primary reason for bringing a defamation claim. Our proposal would enable newspapers to be financially protected in some degree from claims against which the passage of time may make establishing a defence difficult. (Paragraph 230)

32.  We have also received evidence that electronic archives should be protected by 'qualified privilege'. This issue is explored by the consultation, with a one year limitation period suggested, unless the publisher has not amended or flagged the online version in response to a complaint. We agree. This would take into account views expressed by the ECtHR in Times Newspapers v UK, regarding the increasing importance of online archives for education and research in modern times. (Paragraph 231)

33.  The offence of criminal libel is untenable in a modern, democratic society. We therefore welcome the Government's decision, 27 years after it was advocated by the Law Commission, to repeal the law of criminal libel. We hope this will encourage other legislatures, including the Scottish Parliament, to demonstrate their own commitment to freedom of expression by doing the same. (Paragraph 235)

Costs

34.  The evidence we have heard leaves us in no doubt that there are problems which urgently need to be addressed in order to enable defamation litigation costs to be controlled more effectively. We find the suggestion that the problem confronting defendants, including the media, who wish to control their costs can be solved by settling cases more promptly to be an extraordinary one. If a defendant is in the right, he should not be forced into a settlement which entails him sacrificing justice on the grounds of cost. (Paragraph 262)

35.  We are aware that machinery exists for defendants to protect their position as to costs by making a payment into court. It does not appear to us that this machinery effectively protects a defendant, who genuinely attempts to settle a claim at an early stage, against a determined and deep-pocketed litigant. This is another issue which needs to be addressed by the Ministry of Justice. (Paragraph 263)

36.  Mandatory universal costs capping, if implemented in isolation, is too crude an instrument to introduce greater discipline while preserving flexibility and access to justice. We therefore welcome the costs budgeting pilot which has the potential to impose greater discipline on those incurring costs. Without such discipline, no cost control methods are likely to succeed. We also welcome Lord Justice Jackson's proposal that there should be a more interventionist approach to controlling costs by the courts. Nevertheless, we recommend that costs capping should remain as a remedy to be used in those cases where parties cannot agree a way to make costs budgeting work. (Paragraph 274)

37.  The offer of amends procedure was intended to provide a simple and effective way of acknowledging a mistake, and putting it right at minimal cost to both parties by means of an apology, payment of moderate compensation and suitable costs. Whatever the rights and wrongs of the individual case, headline figures for costs such as those incurred by the Guardian in the Tesco case simply undermine Parliament's purpose in introducing the offer of amends procedure. (Paragraph 279)

38.  Within the context of more active case management by the courts, we can see merit in the proposal that there should be some limitation on the maximum hourly rates that can be recovered from the losing party in defamation proceedings. This should have a significant impact on costs across the board. While we note the difficulties identified by the Advisory Committee on Civil Costs, we agree with the Ministry of Justice that it should reconsider this issue now that Lord Justice Jackson's final report has been published. (Paragraph 285)

39.  Although some have suggested that CFAs should be means-tested, in practice, given the high costs involved, this would be likely to result in access to justice being limited to the extremely poor and the super rich. The complexities involved also do not lend themselves to a simple or proportionate solution. We therefore do not support the introduction of means-testing for CFAs. (Paragraph 292)

40.  We welcome steps taken so far to limit recoverability of After The Event insurance premiums in publication proceedings. However, we agree with Lord Justice Jackson that ATE premiums should become wholly irrecoverable. The fact that it is possible for insurance companies to offer ATE insurance at no cost to the policy holder, whether they win or lose their case, is extraordinary and discredits the principle on which ATE insurance is based. We recommend that the Ministry of Justice should implement his recommendations in this respect. (Paragraph 306)

41.  All the evidence we have heard leads us to conclude that costs in CFA cases are too high. We also believe that CFA cases are rarely lost, thereby undermining the reasons for the introduction of the present scheme. However it is vital to the maintenance of press standards that access to justice for those who have been defamed is preserved. We do not agree with the Ministry of Justice that the maximum level of success fees should be capped at 10%, nor do we believe that success fees should become wholly irrecoverable from the losing party. However we would support the recoverability of such fees from the losing party being limited to 10% of costs leaving the balance to be agreed between solicitor and client. This would address the key issue and seems to us to provide a reasonable balance, protecting access to justice, adequately compensating solicitors for the risks taken, giving claimants and their lawyers, in particular, a strong incentive to control costs and ensuring that costs to a losing party are proportionate. (Paragraph 307)

42.  This is by no means the first time that attempts have been made to control the costs of civil litigation. The Government must ensure that this time measures are effective. Equally, it will be important that the impact of such measures in practice is systematically monitored so that any necessary adjustments can be made. (Paragraph 308)

43.  Lawyers must also play their part. Just as the press must be accountable for what it writes, lawyers must be accountable for the way in which cases are run, and that includes costs. The current costs system, especially the operation of CFAs, offers little incentive for either lawyers or their clients to control costs, rather the contrary. It also leads to claims being settled where they lack merit. We hope that the combined effect of our recommendations, the Ministry of Justice consultations and the conclusions of Lord Justice Jackson, will provide the impetus for a fairer and more balanced approach to costs in publication proceedings. (Paragraph 309)

Press standards

44.  There is still a great deal of good, responsible journalism in the British press. However, the picture painted for us of corners being cut and of fewer journalists struggling to do more work is cause for concern. If the press is to command the trust and respect of the public, the public needs to know that the press is committed to high standards even in difficult times. (Paragraph 324)

45.  While we have no absolute proof of the link between financial pressures and declining press standards, we are concerned at the evidence we have heard that one may be contributing to the other. Such a state of affairs is in no-one's interest. If press standards decline, then public confidence in the press is likely to be diminished even further, leading to declining sales and worsening still further the finances of the industry. (Paragraph 325)

46.  Misleading headlines can cause harm and are poor journalism, but we recognise the difficulty the courts must face in drawing distinctions between messages conveyed in headlines and in articles and weighing their relative impact. We feel the PCC, for its part, could more do to address the problem of headlines than offer brief guidance in its Editors' Codebook. We recommend that the PCC Code itself should be amended to include a clause making clear that headlines must accurately reflect the content of the articles they accompany. (Paragraph 332)

47.  Of course, it is impossible to say for certain that untrue articles were written in the McCann case as a result of pressure from editors and news desks. It is, however, clear that the press acted as a pack, ceaselessly hunting out fresh angles where new information was scarce. Portugal was also a foreign jurisdiction, where contempt of court laws were unclear, and no consideration was given to how reporting might prejudice any future trial. It is our belief that competitive and commercial factors contributed to abysmal standards in the gathering and publishing of news about the McCann case. (Paragraph 351)

48.  That public demand for such news was exceptionally high is no excuse for such a lowering of standards. Nor could the efforts of the McCanns to attract publicity for their campaign to find their daughter conceivably justify or excuse the publication of inaccurate articles about them. (Paragraph 352)

49.  While the lack of official information clearly made reporting more difficult, we do not accept that it provided an excuse or justification for inaccurate, defamatory reporting. Further, when newspapers are obliged to rely on anonymous sources and second-hand information, they owe it to their readers to make very clear that they are doing so, just as they owe it to their readers clearly to distinguish speculation from fact. (Paragraph 353)

50.  The PCC Code of Conduct states in paragraph 1a that 'the Press must take care not to publish inaccurate, misleading or distorted information, including pictures'. In paragraph 1c, it states that 'the Press, while free to be partisan, must distinguish clearly between comment, conjecture and fact.' We believe it was obvious as early as May 2007 that a number of newspapers were ignoring these requirements, yet the PCC remained silent. That silence continued even though the coverage remained a matter of public concern through the summer and autumn of that year. It was only in March 2008, after the Express Group settled in the McCanns' libel case, that the PCC spoke out. By then, as we have seen, hundreds of false and damaging articles about the McCanns and others had been published across a large number of titles. This was an important test of the industry's ability to regulate itself, and it failed that test. (Paragraph 364)

51.  While we understand Mr Dacre's regret that the McCanns did not make a formal complaint to the PCC, we do not believe that justifies the PCC's failure to take more forceful action than it did. Under its Articles of Association, the PCC has the power to launch an inquiry in the absence of a complaint; such provisions were in our view made for important cases such as this. Nor does the McCanns' decision to sue for libel justify inaction: they did not sue until early in 2008. (Paragraph 365)

52.  The newspaper industry's assertion that the McCann case is a one-off event shows that it is in denial about the scale and gravity of what went wrong, and about the need to learn from those mistakes. (Paragraph 373)

53.  In any other industry suffering such a collective breakdown - as for example in the banking sector now - any regulator worth its salt would have instigated an enquiry. The press, indeed, would have been clamouring for it to do so. It is an indictment on the PCC's record, that it signally failed to do so. (Paragraph 374)

54.  The industry's words and actions suggest a desire to bury the affair without confronting its serious implications - a kind of avoidance which newspapers would criticise mercilessly, and rightly, if it occurred in any other part of society. The PCC, by failing to take firm action, let slip an opportunity to prevent or at least mitigate some of the most damaging aspects of this episode, and in doing so lent credence to the view that it lacks teeth and is slow to challenge the newspaper industry. (Paragraph 375)

55.  We have sympathy with the views of PAPYRUS but consider that a complete ban on the reporting of the method of suicide would have a negative impact on the freedom of the press. For reasons which we detail below, we do not believe that the guidance contained in the PCC Code on suicide reporting should be altered, but rather that the PCC needs to enforce compliance with the Code as it stands. (Paragraph 380)

56.  We recommend that the PCC should not wait for people who find themselves suddenly thrust into the media glare in traumatic circumstances to come to it, but should take more steps to ensure that such people are aware of its services. This could perhaps most easily be achieved through dedicated and compulsory training of coroners and police family liaison officers about ways in which the PCC can help and through providing them with standard leaflets which can be offered to those with whom they come into contact. (Paragraph 392)

57.  The coverage of suicide in the media is one of the most sensitive areas that falls into the PCC's remit. We note the good work the PCC did in Bridgend from May 2008, although we believe the PCC should have acted sooner and more proactively. (Paragraph 395)

58.  The PCC Code provides suitable guidance on suicide reporting, but in our view the PCC should be tougher in ensuring that journalists abide by it. The experience of Bridgend shows the damage that can be caused if irresponsible reporting is allowed to continue unchecked; the PCC needs to monitor the conduct of the journalists and the standard of coverage in such cases. (Paragraph 396)

59.  During our inquiry, regarding the reporting of personal tragedies, we also asked how the press - local newspapers, in particular - moderated their websites, when asking readers to comment on stories. Certain comments of which we have been made aware have been sick and obscene. The PCC told us, though, that it did not consider this a major issue. (Paragraph 397)

60.  The Editor's Codebook refers to complaints about newspaper websites, making clear that editors are responsible for "any user-generated material that they have decided to leave online, having been made aware of it, or received a complaint." We believe this does not go far enough, with respect to moderating comment on stories about personal tragedies, in particular. The Codebook should be amended to include a specific responsibility to moderate websites and take down offensive comments, without the need for a prior complaint. We also believe the PCC should be proactive in monitoring adherence, which could easily be done by periodic sampling of newspaper websites, to maintain standards. (Paragraph 398)

61.  It is likely that the number of victims of illegal phone-hacking by Glenn Mulcaire will never be known. Nevertheless, there is no doubt that there were a significant number of people whose voice messages were intercepted, most of whom would appear to have been of little interest to the Royal correspondent of the News of the World. This adds weight to suspicions that it was not just Clive Goodman who knew about these activities. (Paragraph 423)

62.  We have seen no evidence that Andy Coulson knew that phone-hacking was taking place. However, that such hacking took place reveals a serious management failure for which as editor he bore ultimate responsibility, and we believe that he was correct to accept this and resign. (Paragraph 439)

63.  Evidence we have seen makes it inconceivable that no-one else at the News of the World, bar Clive Goodman, knew about the phone-hacking. It is unlikely, for instance, that Ross Hindley (later Hall) did not know the source of the material he was transcribing and was not acting on instruction from superiors. We cannot believe that the newspaper's newsroom was so out of control for this to be the case. (Paragraph 440)

64.  The idea that Clive Goodman was a "rogue reporter" acting alone is also directly contradicted by the Judge who presided at the Goodman and Mulcaire trial. In his summing up, Mr Justice Gross, the presiding judge, said of Glenn Mulcaire: "As to Counts 16 to 20 [relating to the phone-hacking of Max Clifford, Simon Hughes MP, Andrew Skylett, Elle Macpherson and Gordon Taylor], you had not dealt with Goodman but with others at News International." (Paragraph 441)

65.  Despite this, there was no further investigation of who those "others" might be and we are concerned at the readiness of all of those involved: News International, the police and the PCC to leave Mr Goodman as the sole scapegoat without carrying out a full investigation at the time. The newspaper's enquiries were far from 'full' or 'rigorous', as we - and the PCC - had been assured. Throughout our inquiry, too, we have been struck by the collective amnesia afflicting witnesses from the News of the World. (Paragraph 442)

66.  The News of the World and its parent companies did not initially volunteer the existence of pay-offs to Clive Goodman and Glenn Mulcaire, and their evidence has been contradictory. We do not know the amounts, or terms, but we are left with a strong impression that silence has been bought. (Paragraph 449)

67.  The newspaper's approach in this instance also differed markedly, we note, from that adopted towards sports reporter Matt Driscoll, to whom a tribunal awarded nearly £800,000 - possibly the biggest amount in the industry to date - in November 2009 for unfair dismissal after persistent bullying by then editor Andy Coulson. The newspaper strongly resisted that particular claim. (Paragraph 450)

68.  Gordon Taylor was cited in one of the charges over which Glenn Mulcaire was convicted in 2007. In the civil action, however, the News of the World nonetheless initially resisted the claim, and on a false basis. We consider there was nothing to prevent the newspaper group drafting its confidentiality agreement to allow the PCC and this Committee to be informed of these events, so as to avoid, at the very least, the appearance of having misled us both. We also believe that confidentiality in the Taylor case, and the size of the settlement and sealing of the files, reflected a desire to avoid further embarrassing publicity to the News of the World. (Paragraph 455)

69.  We recommend that Section 1 of the Regulation of Investigatory Powers Act is amended to cover all hacking of phone messages. (Paragraph 466)

70.  In 2006 the Metropolitan Police made a considered choice, based on available resources, not to investigate either the holding contract between Greg Miskiw and Glenn Mulcaire, or the 'for Neville' email. We have been told that choice was endorsed by the CPS. Nevertheless it is our view that the decision was a wrong one. The email was a strong indication both of additional lawbreaking and of the possible involvement of others. These matters merited thorough police investigation, and the first steps to be taken seem to us to have been obvious. The Metropolitan Police's reasons for not doing so seem to us to be inadequate. (Paragraph 467)

71.  We accept that in 2007 the PCC acted in good faith to follow up the implications of the convictions of Clive Goodman and Glenn Mulcaire. The Guardian's fresh revelations in July 2009, however, provided good reason for the PCC to be more assertive in its enquiries, rather than accepting submissions from the News of the World one again at face value. This Committee has not done so and we find the conclusions in the PCC's November report simplistic and surprising. It has certainly not fully, or forensically, considered all the evidence to this inquiry. (Paragraph 472)

72.  We have been surprised by the confusion and obfuscation in the Information Commissioner's Office about the format of the information it holds, and to whom that information has been released. Given our interest in the ledgers, and the visit of our Chairman to the offices of the Information Commissioner to inspect them, we would have expected to be told that the information was available in an electronic format. As such, it could easily have been redacted to give more information about suspect activities than appeared in 2006 in What price privacy now?. (Paragraph 484)

73.  The question of whether there should be custodial sentences for breaches of section 55 of the Data Protection Act is not a new one. We recommended in our 2007 report Self-regulation of the press that custodial sentences be used as a deterrent and were disappointed at the Government's rejection of our recommendation. However, we welcome the current Ministry of Justice consultation on the introduction of sentences and hope that a subsequent change in the law is imminent. (Paragraph 490)

74.  We recognise the value of the work of the Office of the Information Commissioner in investigating the activities of Steven Whittamore and his associates. The Office can take much of the credit for the fact that such illegal blagging, described to us in 2007 as being widespread across the newspaper industry, is now rare. However we are disappointed that the then Information Commissioner did not feel he had the resources to identify and inform all those who were or could have been the victim of illegal blags, and that he did not at the time make the case that he should be given such resources. (Paragraph 491)

75.  The articles in the Guardian have been criticised for lack of clarity, in distinguishing between phone-hacking by Glenn Mulcaire and blagging and other data protection offences uncovered by Operation Motorman. It has also been asserted, by the News of the World and the police among others, that they contained no 'new evidence'. The real question, however, is 'new' to whom? Assistant Commissioner Yates admitted to us that his assertion was, in fact, a circular argument. The Guardian's original revelations relied on unused and unpublicised evidence available to the police. And revelation of facts not already in the public domain is the very definition of 'news'. (Paragraph 492)

76.  The Guardian articles did contain new information, in particular, concerning the payments to Gordon Taylor and others and the 'for Neville' email. This inquiry has subsequently revealed more facts, including the pay-offs made to Clive Goodman and Glenn Mulcaire and that they tapped the phones of the princes themselves. They also highlighted the fact that a culture undoubtedly did exist in the newsroom of News of the World and other newspapers at the time which at best turned a blind eye to illegal activities such as phone-hacking and blagging and at worst actively condoned it. We condemn this without reservation and believe that it has done substantial damage to the newspaper industry as a whole. (Paragraph 493)

77.  We are encouraged by the assurances that we have received that such practices are now regarded as wholly unacceptable and will not be tolerated. We have seen no evidence to suggest that activities of this kind are still taking place and trust that this is indeed the case. However, we call on the Information Commissioner, the PCC and the industry to remain vigilant and to take swift and firm action should any evidence emerge of such practices recurring. (Paragraph 494)

78.  In seeking to discover precisely who knew what among the staff of the News of the World we have questioned a number of present and former executives of News International. Throughout we have repeatedly encountered an unwillingness to provide the detailed information that we sought, claims of ignorance or lack of recall, and deliberate obfuscation. We strongly condemn this behaviour which reinforces the widely held impression that the press generally regard themselves as unaccountable and that News International in particular has sought to conceal the truth about what really occurred. (Paragraph 495)

Self-regulation of the Press

79.  We remain of the view that self-regulation of the press is greatly preferable to statutory regulation, and should continue. However for confidence to be maintained, the industry regulator must actually effectively regulate, not just mediate. The powers of the PCC must be enhanced, as it is toothless compared to other regulators. (Paragraph 531)

80.  We are concerned at Sir Christopher Meyer's dismissal in such a cavalier way of Max Mosley's lack of faith in the efficacy of the Press Complaints Commission. The judgment in Mosley v News Group Newspapers makes detailed criticisms of the News of the World. We would expect the head of the Press Complaints Commission to have been, at the very least, concerned at the evidence given and the findings made in the Mosley judgment. (Paragraph 538)

81.  It is right that a complainant cannot both use the courts and pursue a PCC complaint at the same time, even if this means that some choose to bypass the PCC in favour of the courts. Indeed, if complainants were allowed to pursue an issue in both the courts and through the PCC it would both create an unfair burden on the newspaper industry and potentially prejudice a court judgment. Nevertheless, in cases where there have been clear and systematic failings by the press, the PCC should not use court proceedings as a reason not to launch its own inquiry. If the PCC were seen as more balanced and effective, then it is more likely that people will wish to use its services. (Paragraph 539)

82.  We acknowledge that the PCC itself has attempted to address the issue of ensuring that it is seen to be independent, increasing the number of lay members of the PCC to 10 as against seven industry members. However, we believe that more needs to be done to enhance the credibility of the PCC to the outside world. We recommend that the membership of the PCC should be rebalanced to give the lay members a two thirds majority, making it absolutely clear that the PCC is not overly influenced by the press. We further recommend that there should be lay members on the Code Committee, and that one of those lay members should be Chairman of that Committee. In addition to editors of newspapers and magazines, practising journalists should be invited to serve on the PCC's Committees. (Paragraph 542)

83.  If the appointment and subsequent activities of the press members of the PCC are not transparent, then its activities will be little understood by the public. As a matter of best practice, information on all appointments to the PCC, as well as any rotation or dismissal of members, should be made available via the PCC's website as soon they occur and contained within the PCC's Annual Report. (Paragraph 543)

84.  The failure of the PCC to prevent or at least limit the irresponsible reporting that surrounded the McCann and Bridgend cases has undermined the credibility of press self-regulation. In future the Commission must be more proactive. If there are grounds to believe that serial breaches of the Code are occurring or are likely to occur, the PCC must not wait for a complaint before taking action. That action may involve making contact with those involved, issuing a public warning or initiating an inquiry. We recommend that such action should be mandatory once three or more members of the Commission have indicated to the Chairman that they believe it would be in the public interest. (Paragraph 552)

85.  Whatever the true reasons for Peter Hill's resignation from the PCC, we believe that the fact that the Express Group did not pay subscriptions into the self-regulatory system for a prolonged period is deplorable, even though the PCC continued to issue judgements on articles in Express Group papers. (Paragraph 556)

86.  Even the temporary absence of contributions from such a major newspaper group exposed a weakness in the very principle of the self-regulatory system. We accept that this was an exceptional case. Nevertheless, it illustrates the need to ensure that the PCC is reliably resourced by the industry to carry out its functions. (Paragraph 557)

87.  We have concluded that there must be some incentive for newspapers to subscribe to the self-regulatory system. Without such an incentive for publications to join and remain in the PCC, the system is too precarious. We recommend that the Government consider whether proposals to reduce the cost burden in defamation cases should only be made available to those publications which provide the public with an alternative route of redress through their membership of the PCC. (Paragraph 558)

88.  We welcome Peter Hill's decision to include adherence to the PCC Code in the contract of journalists who work at the Daily Express. We are disappointed that our previous recommendation on this matter was not acted on across the industry. We therefore recommend that the PCC should mandate the inclusion of a clause requiring respect for the Code in staff contracts of journalists of all subscribing publications. (Paragraph 560)

89.  Controversy over the PCC's complaints activity arises in part from the manner in which the PCC presents its complaints statistics in its annual and biannual reports, and we recommend that the PCC should conduct a review of this matter with a view to ensuring maximum clarity. (Paragraph 568)

90.  In particular, contacts from members of the public which are not followed up with the appropriate documentation should not be considered as true complaints. Including them in headline complaints totals (quoted frequently by both the PCC and its critics) is unhelpful to the public and we recommend that a different formula be found for presenting them in the statistical sections of PCC publications. (Paragraph 569)

91.  The printing of corrections and apologies should be consistent and needs to reflect the prominence of the first reference to the original article. Corrections and apologies should be printed on either an earlier, or the same, page as that first reference, although they need not be the same size. Newspapers should notify the PCC in advance of the proposed location and size of a correction or apology; if the PCC indicates that the requirement for 'due prominence' has not been fulfilled and the paper takes no remedial action, then this non-compliance should be noted as part of the published text of the correction or apology. We recommend that this should be written into clause one of the PCC Code. (Paragraph 573)

92.  In order to command public confidence that its rulings are taken seriously by the press, we believe that, in cases where a serious breach of the Code has occurred, the PCC should have the ability to impose a financial penalty. The industry may see giving the PCC the power to fine as an attack on the self-regulatory system. The reverse is true. We believe that this power would enhance the PCC's credibility and public support. We do not accept the argument that this would require statutory backing, if the industry is sincere about effective self-regulation it can establish the necessary regime independently. In the most serious of cases, the PCC should have the ultimate power to order the suspension of printing of the offending publication for one issue. This would not only represent a major financial penalty, but would be a very visible demonstration of the severity of the transgression. (Paragraph 575)

93.  It is vital that both the press and the public understand that the PCC is more than a complaints handling body, and that it has responsibility for upholding press standards generally. To this end, we recommend that the PCC should be renamed the Press Complaints and Standards Commission. Further, in order to equip it more fully to discharge this remit, we recommend that the PCC should appoint a deputy director for standards. It may be desirable for the person appointed to have direct experience of the newspaper industry; we recommend that this should be permitted. (Paragraph 576)

94.  The freedom of the press is vital to a healthy democracy; however, with such freedom come responsibilities. The PCC has the burden of responsibility of ensuring the public has confidence in the press and its regulation and it still has some way to go on this. (Paragraph 577)

95.  This Report is the product of the longest, most complex and wide-ranging inquiry this Committee has undertaken. Our aim has been to arrive at recommendations that, if implemented, would help to restore the delicate balances associated with the freedom of the press. Individual proposals we make will have their critics - that is inevitable - but we are convinced that, taken together, our recommendations represent a constructive way forward for a free and healthy UK press in the years to come. (Paragraph 578)


 
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