CMS Committee recommendations on libel and privacy – at a glance
- New press requirement for prior-notification in privacy cases
- No need for new privacy law
- Reynolds public interest defence could be enshrined in law
- New curbs on corporatons suing for libel
- Action to end libel tourism
- Urgent need to end high libel costs under CFAs
MPs have called for a new requirement that journalists notify the subjects of their articles in advance to be enshrined in the Editors’ Code.
And they said that failure to do so in advance of a critical article being published should exacerbate costs in the event that the subject of a story sues for breach of privacy. But they stopped short of calling for a new privacy law.
The recommendation in the Commons Culture, Media and Sport committee’s report on Press Standards follows testimony from Formula One boss Max Mosley who complained that the News of the World did not talk to him in advance of making its revelations about his extra-marital sex orgy.
MPs said: “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.
“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.”
MPs also recommended that the Ministry of Justice changes the Civil Procedure Rules which govern the conduct of libel cases to make “failure to pre-notify an aggravating factor in assessing damages in a breach of Article 8 [privacy]”.
MPs rejected arguments brought to them by editors saying that Mr Justice Eady was creating a judge-made privacy law saying this was “misplaced and risks distracting from the ongoing national debate on the relationship between freedom of speech and the individual’s right to privacy”.
But they were critical about the “enormous costs of libel cases in the UK” and said that the fears of the medical and science community about Simon Singh being sued over a Guardian article which criticised chiropractic medicine were “well-founded”.
They also suggested that the Reynolds libel defence of responsible journalism could be enshrined in the statute book – possibly by amending the 1996 Defamation Act – to toughen up legal protections for journalism which is in the public interest.
They said: “There is potential for a statutory responsible journalism defence to protect serious, investigative journalism and the important work undertaken by NGOs” and recommended a detailed Government consultation on changing the law.
Noting the long-running McLibel case from the 1990s and the Tesco libel action against The Guardian in 2008, which left the paper with a costs bill of £800,000, MPs called for measures to shift the libel law balance in cases involving big corporations.
MPs suggested that Parliament could create a new law of “corporate defamation” which would require companies to prove actual damage to their business before they can sue.
They also suggested that the burden of proof should be reversed in such cases so that companies have to prove that they have been wronged.
Looking at the ongoing trend for foreign claimants to choose to sue for libel in the UK courts, libel tourism, MPs suggested that the MoJ changes the Civil Procedure Rules “to introduce additional hurdles” for claimants who don’t live or work in the UK.
The MPs also called for an end to the current rules which say that every time an article is downloaded from a website it is published again. Instead they recommended that a one-year limitation period should apply.
Tackling the issue of the high legal costs faced by publications which are sued by libel claimants under no win, no fee deals the MPs said “there are problems which urgently need to be addressed in order to enable defamation litigation costs to be controlled more effectively”. And they suggested that success fees awarded to claimant lawyers should be cut from 100 per cent to 10 per cent, as the MoJ has recommended.
Noting that some publications are now forced to settle cases they could win, simply to control the costs, the MPs said: “If a defendant is in the right, he should not be forced into a settlement which entails him sacrificing justice on the grounds of cost.”
The MPs said: “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.”
The MPs said they hoped that their recommendations, the Ministry of Justice consultations on libel and the Lord Justice Jackson report will together provide “the impetus for a fairer and more balanced approach to costs in publication proceedings”.