Grâce à la liberté dans les communications, des groupes d’hommes de même nature pourront se réunir et fonder des communautés. Les nations seront dépassées.
Friedrich Nietzsche (Fragments posthumes XIII-883)

10 - CPCM (7) - Rapport Final (1è partie)

Enquête sur les critères de la presse, l'intrusion dans la vie privée et la diffamation (7)


Rapport final  - Session 2009-2010 - (extraits)




Sommaire



Le Royaume-Uni valorise la liberté de sa presse dans les reportages et les commentaires sur les événements, les figures publiques et les institutions, ses points de vue critiques et sa fonction de plateforme pour des visions divergentes. Ces importantes libertés n'existent pas partout. En retour le public attend des protagonistes de la presse qu'ils respectent certains critères, prennent en compte les droits de ceux sur lesquels ils écrivent et, autant que faire se peut, soient exacts dans ce qu'ils rapportent.
Le système actuel d'auto-régulation de la presse, sous les auspices de la Commission des plaintes contre la presse (PCC) (1) est arrivé en force en 1991,  à la suite du rapport Calcutt de 1990. Depuis lors il y a eu des moments où des événements ont amené le public et le corps politique à questionner l'intégrité des méthodes utilisées par la presse et la compétence de la PCC comme régulateur de l'industrie de la presse.
L'enquête a été motivée à l'origine par les diffamations persistantes de la presse britannique contre la famille MC et d'autres personnes, à la suite de la disparition de leur fille Madeleine au Portugal en mai 2007, par l'intervention limitée de la PCC et son incapacité à lancer une enquête sur les failles de l'industrie de la presse dans cette affaire. Nous avons aussi cherché à répondre aux craintes que les lois sur la diffamation en Angleterre et dans le Pays de Galles et l'impact des coûts n'asphyxient la liberté de la presse au Royaume-Uni et nous avons pris en considération l'équilibre entre la vie privée et la liberté de la presse.
Ce rapport est le produit de la plus longue, la plus complexe et la plus vaste enquête jamais entreprise par la Commission parlementaire. Notre objectif a été de formuler des recommandations qui, si elles étaient mises en œuvre, contribueraient à restaurer les équilibres délicats associés à la liberté de la presse. Les propositions individuelles que nous raisons seront critiquées, c'est inévitable, mais nous sommes convaincus que, dans l'ensemble, nos préconisations représentent une manière constructive de promouvoir une presse britannique libre et saine pour les années à venir. 

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Libel and press freedom
In this section we focus on the operation of libel law in England and Wales and its impact on press reporting. We consider important recent cases and developments since the 1996 Defamation Act, including 'responsible journalism', the government's consultation on the issue of 'multiple publication' in the internet age and legislation to abolish criminal libel.
We consider the fairness of the 'burden of proof' being on the defendant, but in relation to individuals conclude that in order to satisfy natural justice the defendant should still be required to provide the proof of his allegations. However, with regard to corporations and defamation, we recommend that the Government should consider reversing the general burden of proof.
We discuss the damage 'libel tourists' have caused to the UK's reputation as a country which protects free speech and freedom of expression, especially in the United States, where a number of states have enacted legislation to protect their citizens from the enforcement of libel settlements made in foreign jurisdictions. We also comment on bills currently before the US Congress which are designed to afford similar protections. We conclude that it is a humiliation for our system that the US legislators should feel the need to take steps to protect freedom of speech from what are seen as unreasonable incursions by our courts. We note that neither the Lord Chancellor nor his officials have sought to discuss the matter with their US counterparts, and urge that such discussions should take place as soon as possible. We further suggest that, in cases where the UK is not the primary domicile or place of business of the claimant or defendant, the claimant should face additional hurdles before being allowed to bring a case.
We consider whether the statute of limitations and the multiple publication rule are fit for purpose in the internet age, and recommend that the Government should introduce a time limitation of one year for defamation cases relating to publication on the internet, subject to the test of when the claimant could reasonably have been aware of the article's existence.
We welcome the Lord Chancellor's establishment of a 'Working Group on Libel' to consider reform of the defamation laws. We also urge the Government to consult further, in particular over placing a broadened defence of 'responsible journalism' on a statutory footing.

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Press standards
In this section we discuss press standards and the level of public confidence in the press, which we explore through two recent cases - Madeleine McCann's disappearance; and the suicides in and around Bridgend in 2008. We also consider the impact of the Guardian's revelations regarding phone-hacking and blagging - the practice of obtaining information through deception.
With regard to the McCanns we conclude that competitive and commercial factors led to an inexcusable lowering of standards in the gathering and publishing of "news" about the case. 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. We conclude that in this case self-regulation signally failed.
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Self-regulation of the press
Finally we consider the future viability of self-regulation of the press, and set out a considered programme of reform aimed at making regulation of the press in the UK more effective.
We recommend that the PCC should be renamed the Press Complaints and Standards Commission, reflecting its role as a regulator, not just a complaints handling service, and that it should appoint a deputy director for standards. We further recommend that the PCC should have the power to fine its members where it believes that the departure from the Code of Practice is serious enough to warrant a financial penalty, including, in the most serious of cases, suspending the printing of the offending publication for one issue.
In the future the PCC must also be more proactive in its work. If there are reasonable grounds to believe that coverage of a case means that serial breaches of the Code are being made or are likely to take place, then the PCC should not wait until a complaint is received before it investigates and makes contact with the parties involved. We suggest that a convenient test as to whether a proactive inquiry is appropriate might be that three lay members of the Commission had indicated to the Chairman that, in their view, a proactive inquiry would be in the public interest.
We suggest 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, that there should be lay members of the Code Committee and that one of those lay members should be the Code Committee's Chairman.
We recognise that there must be some incentive for newspapers to subscribe to the self-regulatory system, and suggest that the Government should 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.

1  Introduction


1. A free press is a vital component of a healthy democracy. Our history shows, and current experience in many other countries confirms, that this freedom must not be taken for granted. It cannot be achieved without effort and sacrifice, nor preserved without vigilance. Long experience has also taught us that the freedom of the press has to be held in balance with other freedoms and rights, such as the right of citizens to privacy and to protection from libel. Moreover, the public has a right to expect high ethical standards in the press, so for more than half a century we have had press self-regulation in various forms. Freedom of the press is therefore a complex matter. Difficult balances must be struck, and since the cultural, legal, economic and technological context in which the press operates changes constantly, the balances change too. There are no once-and-for-all solutions; every age must maintain the balances as best it can.
2. This inquiry was prompted by concerns expressed by many, both inside and outside the industry, that the necessary balance was being lost. On the one hand, it was argued that the freedom to report was being unjustifiably curtailed, and on the other that press self-regulation was failing and standards were falling. These concerns related to a number of recent events and developments. Chief among the events were:
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·  the coverage of the disappearance of Madeleine McCann and its aftermath;
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4. We therefore launched our inquiry on 18 November 2008 with the following terms of reference:
·  To establish why the self-regulatory regime was not used in the McCann case, why the Press Complaints Commission had not invoked its own inquiry and what changes news organisations themselves have made in the light of the case;
·  Whether the successful action against the Daily Express and others for libel in the McCann case indicates a serious weakness with the self-regulatory regime;
·  The interaction between the operation and effect of UK libel laws and press reporting;
·  The impact of conditional fee agreements on press freedom, and whether self-regulation needs to be toughened to make it more attractive to those seeking redress;
·   The observance and enforcement of contempt of court laws with respect to press reporting of investigations and trials, particularly given the expansion of the internet;
·  What effect the European Convention on Human Rights has had on the courts' views on the right to privacy as against press freedom;
·  Whether financial penalties for libel or invasion of privacy, applied either by the courts or by a self-regulatory body, might be exemplary rather than compensatory;
·  Whether, in the light of recent court rulings, the balance between press freedom and personal privacy is the right one.
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6. On 8 July 2009, after we had concluded oral evidence sessions, the Guardian reported that the publisher of the News of the World, News Group Newspapers, had paid £700,000 to settle legal actions brought by three individuals who alleged that they had been the victims of unlawful telephone message interceptions by the newspaper.
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7. Each time, indeed, we sought to draw this enquiry to a close, fresh developments occurred which warranted examination and inclusion.
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3  Libel and Press Freedom


114. In this section we discuss how the UK's libel laws operate in practice and the effect they have on press reporting. We consider important recent cases and developments since the 1996 Defamation Act, including the defence of 'responsible journalism', the Government's consultation on the issue of 'multiple publication' in the internet age and legislation to abolish criminal libel. We also examine the international context, including the controversy surrounding so-called 'libel tourism' or 'forum shopping'.
115. Throughout this discussion we remain mindful of the over-arching concerns about the costs of mounting and defending libel actions, and the 'chilling effect' this may have on press freedom.
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116. We also recognise that the UK does not have a written constitution with a First Amendment protecting freedom of speech as the US does, nor in the foreseeable future is it likely to have one. Our recommendations in this section are therefore aimed at being practical and influencing the law as it stands in the UK.
The development of our libel laws
117. In an action for libel the claimant has to prove that the statement is defamatory, a term defined by Lord Atkin in 1936 thus: "A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society." The claimant must also prove that the statement refers to him or her and that it was published to a third party. Significantly, the claimant does not have to prove the statement is false. The burden of proof now shifts to the defendant, who must prove that the defamation was justified by the facts - i.e. that it was substantially true - or else employ another defence, such as that it was fair comment or that the statements concerned attract privilege (see paragraphs 130 to 145).
118. A claimant - be it an individual or company - does not have to prove actual damage to reputation, nor financial loss. Some damage is presumed to have been suffered. It is, however, open to a claimant to seek 'special damages', in order to recover actual financial loss.
119. Libel actions are heard in the High Court, with libel being one of the few areas of civil litigation with the right to a jury trial. For many years libel in England and Wales could also be a criminal matter, but this had become extremely rare and in November 2009 criminal libel was removed from the statute books.
120. The law in this area has largely developed case by case and Parliament has been reluctant to legislate, but the Defamation Act 1952 made a number of changes, including an 'offer of amends' procedure where the defamatory statement was 'unintentional'. An offer of amends procedure allows for a swift apology without trial. If the offer is not accepted, then the fact the offer was made may mitigate any damages. Aiming to encourage "swift and less costly disposal of defamation claims", the Defamation Act 1996 extended the availability of the offer of amends procedure to all defamatory statements. It also introduced summary disposal of claim where judges could find 'no realistic prospect of success'. The Act also created an 'innocent publisher' defence, giving protection to internet service providers.
121. According to Ian Hislop, editor of Private Eye, the Defamation Act 1996, together with the Woolf reforms on civil litigation, have benefited the media:
    "A lot of amendments were made about ten years ago [...] and a number of elements of the libel lottery were changed I think greatly to the good of the whole system, so it is possible to change things and to get them right and I would say I am less sued now for libel."
122. Damages in libel cases are much lower than in the past. Until the mid-1990s juries in libel trials were free to set the level of damages and this resulted in some very high payouts. In 1989, the wife of Peter Sutcliffe, the 'Yorkshire Ripper', was awarded £600,000 against Private Eye, though that figure was later reduced by the Court of Appeal, which described it as 'so unreasonable as to be divorced from reality'. In 1995, the Court of Appeal held that juries in libel trials should be given approximate upper and lower limits for financial awards by judges during the summing up. The highest award in recent years is £200,000, which was awarded in 2002 to two kindergarten teachers falsely accused by a local council of having sexually abused children. The judgment noted that the award was "now generally recognised to be the maximum amount for compensatory damages in libel proceedings".
123. Details of out-of-court settlements are frequently not disclosed but it is clear they can be higher than this. Robert Murat is reported to have received £600,000 from 11 newspapers over allegations that he had been involved in the disappearance of Madeleine McCann. It was reported that Madeleine McCann's parents received a similar amount from Express Newspapers.
124. Libel claimants may recover exemplary damages where the court awards 'punitive' rather than 'compensatory' damages. These are rarely awarded since proof of guilty knowledge on the part of the defendant is required, coupled with the motive of making money out of the libels.

Bringing and defending a libel action in the UK
EARLY HEARINGS ON MEANING
125. Establishing whether the meaning of a word or phrase is defamatory is frequently at the heart of the libel process. A statement can be defamatory in two ways. The 'natural and ordinary' meaning of the words may make it so, or it may be defamatory by innuendo, meaning that readers with special knowledge would interpret it that way. When bringing a case, the claimant is required to set out the words complained of and the defamatory meaning he or she believes they convey. If the defendant disputes this, the task of determining whether the words bore the meaning alleged by the claimant falls to a jury at trial, unless the parties have agreed to its determination by a judge.
126. Resolving the issue of meaning can take a long time and be expensive. Alan Rusbridger, editor of the Guardian, told us that one of the changes to the current framework that would be "top of his list" was "early ruling[s] on meaning which could be taken by judges not juries".
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5  Press standards

Introduction
310. Press standards are a matter of perennial public debate, and one which this Committee and its predecessors have periodically addressed. In recent times some new elements have been added to the arguments. Long-term changes in reading and advertising patterns are challenging the viability of the printed newspaper, something which we are investigating in our concurrent inquiry into The future for local and regional media. The global economic recession is also putting new pressures on the industry. Meanwhile, Nick Davies, in his 2008 book, Flat Earth News, charged the industry with neglecting ethics in the drive to cut costs and prop up sales. And the case of the McCanns raised questions about editorial standards and the industry's willingness to enforce them.
311. Discussion of standards often turns on the question of whether they are in decline, but that is too subjective a judgment to admit to a meaningful answer here. It is more fruitful to ask whether press standards meet current public expectations. This, too, can be difficult to measure: for example, the undisputed decline in the circulations of national newspapers might be taken as evidence of public disapproval of their contents, but it has several other causes too and the relative importance of disapproval is impossible to gauge. However, we do have the evidence of opinion polls, and they indicate that public trust in journalists is at a worryingly low level.
312. The Committee on Standards in Public Life's most recent report on public attitudes to the press, published in 2008, surveyed over 2,000 people. It found that 89% thought that tabloid newspapers were more interested in getting a story than telling the truth; 19% thought this was true of broadsheet papers. The survey also found that the people surveyed thought tabloid journalists were least likely of the 17 professions covered in the survey to be trusted to tell the truth.
313. In a 2008 YouGov poll, journalists were the least trusted of 23 professions, and, troublingly, trust in journalists had fallen the most overall of all groups. In research commissioned by the Media Standards Trust for its report A more accountable press, 70% of respondents disagreed with the statement: 'We can trust newspaper editors to ensure that their journalists act in the public interest'.

Financial pressures
314. The industry was under economic pressure even before the recession. In the past five years, the circulation of the ten major national daily newspapers has fallen by more than 13 per cent:
Newspaper average net UK circulation figures May to October 2004 and 2009
May 2004 to October 2004 May 2009 to October 2009 Change% change
Sun3,345,195 3,063,667-281,528 -8.42%
Daily Mail2,419,612 2,177,600-242,012 -10.00%
Daily Mirror1,812,942 1,321,044-491,898 -27.13%
Daily Express945,575 721,111-224,464 -23.74%
Daily Star889,505 865,388-24,117 -2.71%
Daily Telegraph905,889 812,906-92,983 -10.26%
The Times654,913 580,324-74,589 -11.39%
Financial Times428,643 406,185-22,458 -5.24%
Guardian377,589 323,393-54,196 -14.35%
Independent263,020 192,383-70,637 -26.86%





Total12,042,883 10,464,001-1,578,882 -13.11%
Source: Audit Bureau of Circulation (ABC)


315. To make matters worse, traditional staple income generators such as classified advertising and the advertising of property, cars and holidays have been migrating from print to specialised internet sites. And despite considerable investment and ongoing costs, the press has failed so far to make online news services profitable. The traditional business model supporting print journalism appears to be failing in many cases, prompting consolidation, job losses and other cost-cutting measures. Recession has accelerated this process.
316. Professor Brian Cathcart, adviser to this Committee, describes the current situation as the industry's 'worst crisis in 150 years' and Tim Bowdler, former Chairman of the Press Standards Board of Finance (PressBof), has been quoted as saying that they are 'extraordinarily challenging times' for the industry.
317. Jeff Edwards, the former crime correspondent of the Daily Mirror, described to us a long-term change at the paper:
    "I can only speak about the organisation I was with for the last 20 years, which was the Daily Mirror, but during that period I have seen the staff shrink year on year, and when I left in December it was probably about 50% of the strength it was when I joined in the late 1980s."
318. Speaking more generally about the industry, he added:
    "Its back is to the wall at the moment. We have seen shocking cuts and economies being made wholesale. Especially in the tributary system through the regional and local paper system, we have seen huge job losses. I think that, inevitably, the overall effect will be a poorer standard of journalism."
319. Nick Davies argued that, while newspapers have been cutting costs by reducing the number of journalists they employ, they have not generally cut the volume of journalism they publish, "because the more pages you print, the more advertising you carry and therefore the more money you can earn". In consequence, journalists no longer had time to do their job properly, and could not check facts and research stories as thoroughly as they should. Mr Davies suggested that fewer original stories were published and more was recycled from news agencies, press releases and articles in other publications, a process he calls 'churnalism'.
320. His views received support from the NUJ[ and the Media Standards Trust in their written submissions to us. The Media Standards Trust makes a direct correlation between the financial pressures faced by the industry and the quality of editorial content:
    "Newspaper publishing has always been a competitive industry, but the current financial and structural crises are unique and are placing intense pressure on the press to capture the public attention. The need for more sensationalism and more scoops can have undesirable consequences for standards."
321. Roy Greenslade, Professor of Journalism at City University, argued that news was being generated from behind desks rather than by active reporting in the field and described the modern newsroom as a "factory of words rather than an industry which is dedicated to telling the truth".
322. One witness who defended the industry against such charges was the crime and security editor of The Times, Sean O'Neill, who said the industry was more conscientious now and journalism 'a more professional business' than in the past. He told us that there was still the opportunity to undertake serious journalism:
    "You just have to look at some of the agendas over the last year to see […] that people do have the time to get out there and still dig into a story. If you look at my own paper's coverage of the Eddie Gilfoyle alleged miscarriage of justice case, one of our reporters spent months and months on that. He has had plenty of time to work on that. Ian Cobain at the Guardian, in the work he has done on alleged British complicity in torture, took months and months to pursue one topic. I myself have a 3,000 word piece in The Times today which has taken weeks and weeks to do. There is time. Absolutely. If you have the right story, you will get time to do it."
323. Problems of standards may not only be to do with the rise of 'churnalism'. Ben Goldacre, of the Guardian, told us that, in the case of health and science reporting, sometimes an editorial decision is made that the article should be written by a journalist with no specialist knowledge. He did not believe it was pressure on journalists to produce results in a short timeframe which led to inaccuracies, but rather the lack of subject knowledge:
    "One of the stories I have covered, for example, the media's MMR hoax - as I believe it will come to be known, effectively - is not an example of people being hurried. It is also quite a good example of how, even though there are people in newspapers who are well trained (for example, specialist health and science correspondents who are often very good at what they do), commonly when a story becomes a big political hot potato, it is taken out of the hands of the specialists and put into the hands of journalists. In the case of MMR that was very clear. There is study from the Cardiff University School of Journalism from 2003 which shows that of all the science stories in 2002, which is when the coverage of MMR peaked, the stories about MMR were half as likely to be written about by science and health correspondents as stories about GM or cloning. I think that is very problematic because, suddenly, the people who normally would be writing about a funny thing that happened to the au pair on the way to a dinner party were giving people advice about epidemiology and immunology, which is plainly never going to work."
324. 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.

325. 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.

Newspaper headlines

326. The relationship between newspaper headlines and the content of the article has prompted much discussion during our inquiry. Jonathan Coad, of Swan Turton solicitors, gave us the example of an article in the Daily Star about Peaches Geldof. The front-page headline was: 'Peaches: spend night with me for £5,000', implying that she was offering sexual favours for payment, but the article inside merely asserted that she was receiving fees to attend celebrity events. The PCC adjudicated on the case and described the misleading headline as 'sloppy journalism'. When the newspaper declined to publish a retraction and apology on the front page (where the headline had appeared), Ms Geldof brought proceedings for libel. The newspaper apologised in the High Court and agreed to pay costs and substantial damages.
327. Newspaper headlines are normally written by sub-editors and not the author of the article. Both Jeff Edwards and Ben Goldacre told us that they were not consulted on the headlines that were attached to their articles, and were conscious of the risks that ensued. Mr Edwards told us that the only time he had been sued for libel it had been as a result of the headline rather than the story content: "My copy was not libellous but the headline was."
328. Gerry McCann told us about his experience of misleading headlines:
    "I know that Clarence [Mitchell, the McCanns' media spokesman] has had apologies from journalists and there has been, 'I wrote this but the headline was done by the news desk.' There is clearly pressure on the journalists on the ground who are being funded on expenses and are under pressure to produce copy. There is pressure from the news desk to write a headline which does not necessarily reflect the factual content available for the story."
329. The PCC provides some guidance on headline-writing in its Editors' Codebook, a guide for editors as to how the PCC interprets its Code of Practice. The guidance however, in the section on crime reporting and court stories, is limited to one example of a misleading headline.
330. Current defamation law does not draw a clear distinction between the headline and article, but tends to assess both together. We heard conflicting evidence as to whether there should be more focus on headlines. Jeremy Clarke-Williams, of solicitors Russell, Jones and Walker, suggested that in the age of the internet more and more people read the headline but not the story itself, making the accuracy of the headline more important. He told us that his clients were often frustrated to find they were unable to pursue a case even where the headline was clearly inaccurate:
    "They cannot understand why a headline which is patently defamatory and untrue does not give them a cause of action simply because you can pick through the rest of the article and find a correction to it. If you asked the man in the street, the man on the Clapham omnibus, they would say, 'Yes, that is something which one ought to be allowed to bring a claim on', because it is what strikes the viewer in the eye."
331. Mr Coad told us: "The reality is that millions of people see the front page who do not buy the newspapers, that is all they get and at the moment neither the law nor the PCC provides an adequate remedy for that." But Mark Thomson, then of Carter-Ruck, warned of the difficulties of suing on the basis of just a headline, believing that it was reasonable that a defamation case should be based on the whole of a newspaper article: "I think it is presumed that viewers read the whole article [...]. It would get quite technical to just sue on a headline. Everyone knows newspapers sex up the headline to sell newspapers."

332. 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.


(1) La PCC a fermé ses portes le 8 septembre 2014 et a été remplacée par l'Organisation Indépendante des Critères de la Presse (IPSO). 


 (8) Rapport final (2è partie)