NHH, both our code of conduct and, to an extent, our recently introduced conscience clause, deal with this. We can invoke the code to expel people if there's a move instigated to do so. It's quite unlikely the people behind the latest NOTW stuff are members though - we are talking about a company that's fairly aggressively tried to chase the union out of the building over the years after all. News International prefers instead to have a toothless pseudo-union 'staff association', whose effectiveness on ethical and industrial matters is, well, evident.

E10 Rifle wrote:The death of newspapers to be replaced by - what? A dedicated army of fearless independent web start-ups dedicated to forensic exposure of the truth - exists more in techie-evangelists' frenzied imaginations than fact. It's the economic model that's wrong, not the method of delivery.


A cooperative-type model would be much better than press barons, of course, but why should that have to appear in print and not electronically?

I did an electronic publishing course in 2002. If techie evangelism were to take hold anywhere, I'd have expected it to be there. But there was loads of discussion about how content should be paid for to fund proper journalism. I didn't see anyone with any importance doing evangelism.

You're going to dig up a report by "an influential think tank close to the government" and refute me, aren't you?

Nah I'm not really talking think-tanks - I'm talking more about a certain breed of media commentator and blogger obsessed with form rather than substance, eager to proclaim the Death Of All Types Of Old Media other than, well, them and their mates really. Roy Greenslade sometimes falls into this category.

It doesn't really matter whether content is delivered electronically or on paper - it's an irrelevant, divisive and overcooked debate that generates 20 times more heat than light - it's who does it, how good it is, and for what purpose. And of course, how it's paid for.

There's an argument for saying that digital and social media have slightly mitigated the power of the 'press barons'*, but no more than slightly.

(* I'm also, and this is a slight diversion, wary of this analysis of the media that sees it as run by a handful of 'barons' who dictate editorial lines down the phone every half-hour to cowed editors. Crap journalism is more commonly the product of a reductive short-term profit-obsessed economics, which naturally lends itself to a conservative, power-cosy journalism rather than editorial lines being dictatorially set out, Lord Copper style)

MPs back Guardian line, condemn News International, PCC and libel law. The recommendations on privacy and super-injunctions are pretty tame, but there's some interesting stuff on libel.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
134
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
135
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)
136
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
137
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)
138
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)

Given the chairman of the committee, that's quite good. I thought he was of the "In Britain we have the worst TV and the best newspapers" persuasion.

Perhaps one day it'll dawn on even the Tory front bench that most people actually don't like how tabloid newspapers carry on.


E10, didn't notice your Roy Greenslade reference there. Unaccountably, he was appointed a Professor of Journalism at City University. I'm not suggesting you waste your time reading his book "Press Gang: How Newspapers Make Profits From Propaganda", but if you ever want an example of a book that doesn't live up to it's title, it will serve you very well.

There are people in media punditland who annoy me more than Greenslade (Googlewhore Jeff Jarvis, for example), but he's a bit easily swayed by whoever he's just had lunch with.

Thinking about the whole issue, part of me thinks: What if the NOTW had phone-hacked to uncover something that was genuinely alarming and in the public interest - some corporate or government abuse? Would we be automatically still be condemning the very act of hacking in the same way?

The committee's recommendations on libel, however, and on the utter uselessness of the PCC are genuinely very welcome though.

Shouldn't be shocked, but still am, NYT story.

On top was Neville Thurlbeck, whose fervor for scoops was legend. He was acquitted of bribing a police officer for information. But in another case, the paper was found to have violated the privacy of the subject of his front-page story headlined “Sick Nazi Orgy.” The paper’s parent company paid a 60,000 pound settlement, and Thurlbeck retained his title as chief reporter.


Some nice dancing around the subject there.

As for the article as a whole, it covers a lot of old ground. The most interesting part by far, it seems to me, is Sean Hoare going on the record and flatly accusing Coulson of lying. Presumably this is going to end up with Coulson having to back up his story under oath one way or another, either in a libel trial or a judicial inquiry. There's some good detail on the police cover up as well. Heads really must roll over this.

Yeah, the article was very much written for a US audience that has no idea of what has already been reported or who any of the main characters are (other than the Royals).

If Coulson survives this, it's time for David Blaine to move over.

If I were one of the "targets" on the list and had spent a decent amount of time in the US during the period in question, I would seriously evaluate the viability of bringing a suit in the US. The potential punitive damages would make Uncle Rupert very unhappy.

It's kind of remarkable he's survived so far. His plausible deniability is so thin you could take a paparazzi snap through it. Yet apart from the Graun, none of the other papers have wanted to push very hard on it, even since the parliamentary hearings. I can only guess that Murdoch has been strategically holding back some dirt on their owners, a la Rothermere vs Desmond. Or they're up to their necks in the phonetapping mess too.

Well, it's really only the Telegraph and the regionals who would have a shot isn't it? The article makes it quite clear that all of the tabs are implicated, which isn't at all surprising given the exchange of staff among them, and the Times is obviously compromised. And I can't see the regionals being willing to take on Rupert.

It's tailor made for old school Panorama, but this ain't the old BBC.

Panorama really is shit now, isn't it?

You'd have thought the Indy would have had a pop at least.

Tom Watson says in a comment on the Grauniad piece that he will raise the issue in Parliament next week.

Jack of Kent has quite a few posts up about this.

According to Kelvin The Cunt on Newsnight, Andy Coulson has paid a high price for having 2 people out of control on his watch.

£140,000 a year jobs for the Prime Minister, that's suffering.

It took me a moment, after the previous post's mention of Jack of Kent, to work out that Kelvin The Cunt wasn't another political blogger's name. It should be, though.

E10 Rifle wrote:
Replace the words "pipe" with "cup of coffee in a cafe on a day off" and you could be describing my life, now. And what a pleasure it remains - and I'm under 40.

You smoke cups of coffee, E10?

Nah, I mainline them now. The smoking them was just a gateway drug.

From the Graun's story today:Farrelly also criticised Andy Hayman, former head of the Met's special operations unit, now a Times columnist, who had been in charge of the Mulcaire inquiry.

That's quite some coincidence.