Examination of Witness (Question Numbers
19 MAY 2009
Q980 Chairman: On the issue, however,
of injunctions, you may have seen from summaries of the evidence
we have received that one of the main issues that has been raised
with us, particularly by Max Mosley and, indeed, by Schillings
Solicitors, was their argument that there should be a right of
prior notification, that if a newspaper is going to put you on
their front page tomorrow morning, you should be told that is
going to happen. The media have argued in response that the reason
they are opposed to that is because if I was told that I was about
to be exposed in the newspaper, I would immediately go and seek
an injunction. Your argument would be that the hurdle to acquire
an injunction is set quite high under section 12, and therefore
that should not necessarily be an argument against pre-notification.
Mr Straw: Yes. I also saw that
Mr Dacre said: "99 times out of 100 we inform the person
about what we are going to say and ask for comments." As
one of those people whose circumstances have been given a slightly
wider audience recently by the Daily Telegraph, they certainly
afforded me that courtesy. Again, I will look to see what your
Committee has to say on this. I can see there is an argument which
goes: "The bar is set high for an interim injunction, therefore
what is there to lose if the media are required in any circumstances
to inform an individual of anything which is potentially going
to breach their rights to privacy or, I assume, be defamatory?"
but I have to say, on the scale which I gave to Mr Davies, that
I am very sceptical about going down that route. The reason why
newspapers go to individuals to ask whether things are true or
not is, first, because, funnily enough, they have an interest
in telling the truth; they do not want to develop a reputation
for telling lies. For example, in the case of the Daily Telegraph
in my own circumstances, it was a good idea from their point of
view that they did come to me, because one of the suggestions
they put to me was fundamentally untruewhich was where
our second home was. It was sensible for them to do that. They
apologised for that error, it was not published, and that was
the end of it. So they have an interest, and they also know that
if in subsequent proceedings it turns out that, frankly, they
have been pretty casual about checking their facts, that is likely
to go to the issue of damages and certainly not find favour in
the courts. There could be cases, however, where they are doing
this with some villainous behaviour, seriously villainous behaviour,
where they are, for example, trying to protect a vulnerable witness.
In those circumstances it is right for the media to be at risk
on this, but if they, having looked at all this, having had good
legal advice, having satisfied themselves that what they are doing
is in the public interest and that there is this genuine risk
of whoever they are going against using their money or, worse,
using other power, then I think they should be entitled to publish
and I think this should be their judgment.
Q981 Chairman: Say they were investigating
a serious criminal, where there might be a risk to a witness if
they were to tip him off, then surely any subsequent action for
failure to pre-notify would fail in the courts if the newspaper
was able to demonstrate that there was a good reason why they
did not give pre-notification.
Mr Straw: Indeed. That is true.
For all of usand it is usually Sunday newspaperswho
have had the call on a Saturday afternoon to find out this, that
and the otherand I have been in public life now for 40
years, so over the years, from time to time, you get these calls,
which may be about political issues or may be about personal family
issues, as they were in my case some years ago, and then obviously
now on the expenses stufffunnily enough, it seems to me,
whatever else one thinks about the press, there is more of a requirement
on them to observe standards of truth. They have the same interest,
in many ways, as the person about whom they are reporting, to
ensure accuracy. Why on earth would they want to put material
in which is obviously inaccurate? It is also the case that sometimes
they leave it a bit late, but they do inform the person about
whom they are going to write with sufficient time normallyjustfor
countervailing action to be taken if necessary. Chairman, my sense
is that this current practice by the press is not broke, and I
think the prescription could be worse than the problem.
Chairman: You will appreciate that this
was raised by Max Mosley, who did have his private life exposed
to the entire world, who did then go to court and who did win.
He obtained a judgment that the articles should not have appeared,
but of course it was too late by then: his privacy has been removed.
His case to us was that he is not unique; that this is a practice
that newspapers quite regularly do; and that a prior notification
would offer some defence to people who should have the right to
have their privacy protected.
Q982 Rosemary McKenna: Perhaps I
could add to that. We have heard evidence from private individuals
who say that stories with a grain of truth have almost destroyed
their private lives and their families' private lives, and that
there was no prior notification.
Mr Straw: I do not want to go
into details that were public 10 years ago, but having experienced
this kind of story, families are put under huge pressure in these
circumstances. We were told about the story in advance. It is
the publication of the story that is the problem. I have no reason
whatsoever to disbelieve what Mr Dacre was saying to this Committee,
that 99 times out of 100 the media are going to tell the party.
Let me just say in the case of Mr Max Mosley, it may be that if
they had told him at five o'clock he would have gone out and got
an injunction. He might have done. It is possible, because he
has the power and the money to do so. Most people do not have
that. There is a need to secure a better balance here, if that
is what the mischief is that the Committee identifies. My first
port of call here would be the Press Complaints Commission Code,
with the understanding, which I think is the caseand I
am not a defamation lawyer, Mr Farrellythat if that was
breached in a particular case, then that breach of the code, amongst
other things, would be capable of being brought to the attention
of the judge in defamation or privacy proceedings.
Q983 Paul Farrelly: I hope I am not
leaping out of the train of discussion, Chairman, but in relation
to prior notification, when we were taking evidence earlier on
I gave the example of the case of Robert Maxwell. There are stories
where time is an element, particularly in financial investigations,
particularly if people are fund raising, where prior notification
as a mandatory rule would be very difficult and would stop a lot
of serious journalism. In my experience there are two circumstances
where there would not be prior notification: the case where you
have the subject bang to rights whether it is an intrusion of
privacy or not, such as the Max Mosley with the video, or where
the newspaper does not care whether they have the facts right
because they make a judgment that the person cannot afford to
sue. Otherwise, generally, I think newspapers are careful to check
their facts. For the Daily Telegraph, I am sure they will
have checked what came out on this occasion but I am sure they
would have a very strong public interest defence and any action
against them would be undermined via government or any of its
agencieslike the German Government have paid somebody from
an America bank for stolen data on tax evaders, so I am sure those
issues are being weighed. Legal change does not happen in a vacuum.
Constitutions do not happen in a vacuum. The reality is that in
this country we have a press of a dual nature. We have, in the
vernacular, the "tabloid press" and then the more serious
press for which privacy is not generally an issue; they do not
go in for intrusion of privacy. Have you considered, in the circumstances
in which we live in this country, whether there is potentially
a trade-off between statutorily strengthening privacy so that
it is not just judge-made case law, on the one hand, but, on the
other hand, a greater protection, a stronger statutory defence
for serious investigative journalism in the public interest? Have
you considered whether there might be a trade-off here?
Mr Straw: I am open to ideas here,
Mr Farrelly. Say you do what you have suggested and you strengthen
people's privacyand I will come back to why I acknowledge
that a case is made for thatand you strengthen the right
for serious investigative journalismso you have hardened
up the rights on both sidesyou are still going to end up
with somebody having to make a judgment about the conflict. If
you take investigative journalism, the thing that has been put
to me as something that has a chilling effect on investigative
journalism is not the court's interpretation of article 8 versus
article 10 but conditional fee arrangements for defamation cases.
It is for that reason that I believed and do believe that there
was a necessity actively to look at amending the law on CFAs and
defamation cases in advance of the very thorough review that Lord
Justice Jackson is undertaking. That is why I published the consultative
document earlier this year, where the consultation is closed.
If I am presented with evidence that there is a particular problemas
unquestionably there is here: I think the argument is overwhelming,
a particular problem which needs dealing with, you go ahead and
deal with it. That is how I deal with that approach. If you ask
me as an individual what I think about the tabloid revelations
which intrude into people's private lives, I say that I am ambiguous
about this. I buynot out of expenses!tabloids on
a Sunday. I am sorry to say, if apologies are needed, that I am
sometimes entertained by them. On the other hand, I also sometimes
think, "What would it be like to have, say, details of your
total private life exposed?" None of us would want to see
our public lives gratuitously spilled over the papersalthough
the papers are getting slightly better about this matter then
they were. That is an area where I do feel very sorry for people,
and if they are people of humble means, it is not going to be
open to them to take any kind of proceedings in normal circumstances.
I think that is about trying to get the press better to set a
standard there for themselves. I think it is fairly hard to legislate
Q984 Chairman: We are going to move
on to the CFAs, but before we do, on the issue Paul raised there
is case law which is now often cited (originally the Reynolds
defence, and then came Jameel) and that is held up as being
available to newspapers who have undertaken responsible journalism
and through not their own fault might have made a mistake, and
yet the evidence we have received is that it is virtually never
used for a variety of reasons. Do you think there might be a case
for putting it in statute?
Mr Straw: We would certainly look
at that. That was the basis of the 1952 Defamation Actat
least that is my recollectionto encapsulate certain defences
into statute law. Yes, if there is a case, one would look at it.
In the conversations I have had with media organisations, they
have not said to meand it does not mean they do not believe
this, but they have not said it to me, as I recallthat
there is a problem with the Reynolds defence. They keep
saying to me, especially amongst the regional newspapers or some
of the less well-financed national newspapers, that they have
a problem about being at risk on costs in respect of CFAs or in
respect of, say, contemporary Maxwells, and that is, I think,
a real problem.
Q985 Chairman: Is that something
you are considering?
Mr Straw: I am not considering
it at the moment.
Q986 Paul Farrelly: It is the case
that the traditional concerns of newspapers regarding libel and
its restrictive nature in this country have given way to the concerns.
It is the operation of CFAs, but there is a double effect. What
the Chairman is trying to get to is whether, given the evidence
that we have received that the responsible journalism defence
is not really working in practice and it becomes a trial of the
journalist and the journalism, any consideration might be given
to putting that on a better standing.
Mr Straw: On that one, I would
certainly be very happy to look at it.
Q987 Chairman: It would require you
probably to put into a statute a definition of public interest.
Is that possible?
Mr Straw: It is possible. We have
thought about it in respect of the Freedom of Information Act.
Ultimately, if you have a public interest test, you can say that
these matters need to be taken into accountcertainly, in
a discrete area like investigative journalismbut, however
detailed you are, you will come to a point of how you apply those
general principles to a particular set of circumstances and that
is a job for the courts. In the Freedom of Information Act we
gave guidance to the tribunal and the courts by the nature of
the exemptionsso some things were not exempt, some things
were completely exempt. On other things, for example, matters
under policy consideration, that is a guidance to the courts and
they have to make the judgment.
Q988 Rosemary McKenna: The Committee
has received a lot of evidence on the recent phenomenon known
as libel tourism, where foreign nationals use UK courts to sue
non-UK companies or individuals for libel. Should the Government
issue statutory guidance on jurisdiction in those circumstances?
Mr Straw: As the Committee will
know, Chairman, there has to be some connection with this jurisdiction
otherwise the court will not hear it. I think it was before your
Committee that one of the witnesses was asked for details about
the number of cases which arose and the answer was that you would
wish the data to be obtained from the court service. If that is
not already in hand, I will make sure that it is. There are criticisms
of our defamation and privacy jurisdiction. One is that it is
very expensiveand until the opposite is proved, that is
also my view. The second is about so-called forum shopping. On
that I have yet to be convinced that there is a significant problem.
I am not ruling it out; I just want to see what the evidence is.
Some of us face situations where people have a bee in their bonnet
in a particular case, they think they have been unfairly treated,
but when you go to it you find that, although they may have some
cause for concern in that case, it does not make an argument for
a change in the general law.
Q989 Rosemary McKenna: We were given
evidence that a case was based on a book published in America,
brought by a Middle Eastern businessman with Irish citizenship
which was heard in the UK courts.
Mr Straw: And only 23 copies of
that book were published in this country, as I understand.
Q990 Rosemary McKenna: But then it
is in case law, is it not?
Mr Straw: On the face of it, the
circumstances of that case were something of a surprise to me.
Picking up something the Master of the Rolls said about the media
strategy of the courts, I have always found it wise to read the
small print of judgments before rushing to comment on them myself.
Sometimes you find there s a judgment at court which, even after
you have read every word, remains slightly eccentric in your opinion,
but usually, whether you agree or disagree with it, you think
there is a good argument here.
Rosemary McKenna: We are looking forward
to reading the evidence of cases.
Q991 Chairman: You say you are not
persuaded necessarily that there is a problem here. Are you concerned
that the US Congress is about to pass law effectively allowing
American courts to overturn UK court judgments?
Mr Straw: The American Congress,
subject to the other states of that realm, is sovereign in these
areas. We could do the same here, if we wished, to make judgments
unenforceable abroad in this country. I do not have any particular
comment on that.
Q992 Chairman: Obviously we could,
but is it not a matter of concern that this has already been passed
in New York and Chicago, I believe, and now in Washington? Congress
is essentially saying that they no longer have faith in the UK
courts and the judgments they are reaching.
Mr Straw: There is a reputational
issue about defamation proceedings in England and Wales. I cannot
speak for Scotland. Part of that is to do with the costs. Let
me say there is a reputational issue in other areas of proceedings
which are equally of concern to me. Say in medical negligence,
the costs which are payable to the plaintiffs are typically on
an upward trajectory and very difficult to control within the
existing system, whilst the defendants' costs can be controlled,
not least by a proper client/lawyer relationship and bidding them
down. There is that problem. I would simply say, Chairman, on
this issue of fraud shopping that I have not seen sufficient evidence
myself at the moment to suggest that there is a major problem
here, but I await, amongst other things, your Committee's response
on this because you will have the evidence, and you have seen
a lot more evidence than I have.
Q993 Chairman: I do not think it
is about costs.
Mr Straw: I understand your point.
Q994 Chairman: We talked to lawyers
in New York and in Washington, and the concerns they express are
very serious. They are essentially saying that the Act became
known as the "Libel Terrorism Act" because it was being
used, they said, to protect people who were financing terrorism
from exposure. The book by Rachel Ehrenfeld was going to reveal
the links between a particular Saudi businessman and al-Qaeda
and it was his attempt to use the UK courts to suppress that which
meant it was quoted in America as being libel terrorism. Surely
that must be of some concern to you. That is a view being taken
by legislators across America.
Mr Straw: Of course it is of concern,
but it is also the case that the substantive law in America in
some of these areas, because of the First Amendment, is different
and their perspective is different. I do not know the details
or the evidence against this Saudi businessman. I am all in favour
of people against whom there is overwhelming evidence of involvement
in terrorism being named. I am not in favour, unless it is a really
serious charge, of media organisations effectively convicting
people of terrorism. I think the bar has to be pretty high if
what the media is seeking to do is to make the most substantial
allegations of terrorism against somebody. But I say I am open
to look at what you have to say.
Q995 Chairman: Is the British Government
making any representations to the US Government about the measures
that are currently under debate in Congress?
Mr Straw: I have not myself seen
any instructions. I will check on that because it could be that
elsewhere in the entirely seamless system of British Government
this has happened. It is not within my knowledge or that of my
Q996 Paul Farrelly: On this point
of libel tourism, there is one step that the UK could take which
would rule out some of the more extreme cases, which is to move
on with the times and the internet and move on from the Duke of
Brunswick and the institute of single publication. Mr Justice
Eady, in one recent judgment allowing jurisdiction here, said
that in due course an international agreement might be reached
as to the appropriate way of resolving claims arising out of internet
publication. But we do not need international treaties; we could
institute that into UK law as one sensible step, would you not
Mr Straw: I am about to publish
a consultation document on defamation and the internetwe
will certainly publish it before the summer recesswhich
can deal with this issue, and it also deals with issues of liability
of the internet service providersthis problem which these
days is repeatedly raised by the media of so-called repeat publication
by online archives. We are having to consider this ourselves in
the context of online access to court data, to convictionswhich
I am very keen on, because I think that the public have a right
to know whether X or Y has not only gone to court but what happened,
but of course there is then an issue of proportionality about
how long that stays on immediately accessible to a far greater
degree than it would be just in the files in the public library.
Q997 Paul Farrelly: Clearly there
is a focus on the problem and that is very welcome. There is a
second issue to do with jurisdiction. We have received evidence
not only from media companies but from very serious non government
organisations that the UK libel laws, because of the potential
for forum shopping, are having a very restrictive effect on what
they can publish. I will give you an example. Here in the UK,
of course, any minor council document attracts qualified privilege.
Mr Straw: Council? Local authority?
Q998 Paul Farrelly: Pronouncements
by local councils, individuals, but there are non government organisations
that cite the findings of serious panels from the United Nations
about the activities of arms dealers, for example. There is one
very well-known arms dealer, whom I will not name under privilege
here but I have asked you about him in relation to Zimbabwe when
you were Foreign Secretary years ago, and action has since been
taken by him, but that sort of individual has the facility to
suppress some of the legitimate activity of NGOs. There is a clear
issue here. Clearly it can be addressed by statutory protections
for responsible journalism, responsible publications, but there
is not just a reputational issue. From the evidence we have had
it is a substantive issue for the work of serious organisations.
Mr Straw: I accept what you say.
Again I will await your inquiry. You are going into aspects of
the operation of the law of defamation as well as of privacy,
frankly, in greater detail than I have done. Funnily enough, I
have considerable faith in making Parliament work better. If we
end up in a position where your Committee, Chairman, has initiated
a series of changes which we then accept and get into legislation,
I think that is a good way of handling it. All I need is the evidence.
I had the evidence on the CFA thing, so I acted. The evidence
is there. That issue, although it does not for a second mean that
it is not an issue, has not happened to have been raised with
Q999 Philip Davies: Following on
from where Paul was, the biggest difference, of course, for America
and Britain is that they place much higher weight to freedom of
speech, and that is reflected in their libel laws, where the burden
of proof is the other way round in America compared to Britain.
It is something I would like to see, but, given where the burden
of proof is, is it not a surprise to you that, given that the
onus in our system is on the defendant to prove that what they
have said is true, and the claimant has no burden of proof at
all, the legal fees for the defence side tend to be considerably
lower than the legal fees on the claimant's side? Would you not
think, given it is the defence side which has to prove everything
that they have printed is true, that their fees would be higher?
Mr Straw: I do not make any comment
on the hourly rates or overall fees charged by the lawyers for
the defendants, except to say that there is or should be a broad
equality of arms between the newspaper organisation and the solicitors'
firm with whom they strike a deal over costs. And they can control
it. And I think they donot least by saying, "If you
continue to charge costs of this scale, we will move our work
elsewhere." This is happening now in respect of NHS litigation.
The legal firms on the other side are in a very different position.
They face none of that kind of natural economic pressure to keep
their costs down from their client because the client has agreed
a CFA arrangement with them. This document, as you know I basically
agree with it. I have no comment to make about the level of fees
for defendants, but I think that the level of fees for plaintiffs'
lawyers is too high. That will remain my view unless and until
they are able to advance a case to your Committee or to me, based
on the public interest, for them to continue to charge rates at
this level, with the uplift at this level. I am not yet convinced.