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 (8) - Rapport Final (2è partie)

Enquête sur les critères de la presse, l'intrusion dans la vie privée et la diffamation (8)


Rapport final  - Session 2009-2010 -  extrait



Aux entités et autorités appelées à déposer sur l'affaire MC, le Comité parlementaire posa deux questions auxquelles répondre par écrit. 
1) Pourquoi le régime d'auto-régulation n'a-t-il pas été utilisé, pourquoi la PCC n'a-t-elle pas eu recours à sa propre enquête et quels changements cette affaire a-t-elle donné lieu dans l'industrie journalistique. 
2) L'action pour diffamation gagnée par les MC contre l'Express Group et d'autres journaux  indiquait-elle que le régime d'auto-régulation accusait une sérieuse faiblesse.


The events 
333. On 3 May 2007, just before her fourth birthday, Madeleine McCann went missing from her family’s holiday apartment in Praia da Luz, Portugal. British-born Robert Murat, who lived locally, was named as an ‘arguido’ (a suspect in Portuguese law) (1) on 15 May 2007, and Kate and Gerry McCann were named as arguidos on 7 September 2007. The arguido status was lifted from all three on 21 July 2008.
334. The case, which remains unsolved, attracted media attention of an intensity rarely seen. The activities of the McCann family, of Mr Murat and of the Portuguese police were subjected to the closest scrutiny. Numerous alleged sightings were reported across Europe and in North Africa. (2) Many appeals were made, and several milestones in time, such as one month and 100 days from the disappearance, were marked in the media. The coverage, notable from the outset by its speculative character, became increasingly so once the McCanns were named arguidos, often implying, with little or no qualification, and certainly no evidence, that the couple bore some responsibility for their daughter’s disappearance.
335. On 19 March 2008, about 11 months after Madeleine’s disappearance, Express Group Newspapers became the first of several groups and titles to apologise for publishing repeated falsehoods in their coverage of the case, and to pay substantial damages to the victims.
336. The McCanns had sued Express Group for libel in relation to 110 articles which appeared in the Daily Express, the Daily Star, the Sunday Express and the Star on Sunday between September 2007 and February 2008. The McCanns’ solicitor, Adam Tudor, told the High Court:
“The general theme of the articles was to suggest that Mr and Mrs McCann were responsible for the death of Madeleine or that there were strong or reasonable grounds for so suspecting and that they had then disposed of her body; and that they had then conspired to cover up their actions, including by creating ‘diversions’ to divert the police’s attention away from evidence which would expose their guilt [. . . ] Many of these articles were published on the front page of the newspapers and on their websites, accompanied by sensationalist headlines.” Q213
337. Express Group Newspapers apologised for publishing “extremely serious, yet baseless, allegations concerning Mr and Mrs McCann over a sustained period of what will already have been an enormously distressing time for them, and at a time when they have been trying to focus on finding their daughter” and agreed to pay a reported £550,000 in damages to the Madeleine Fund (set up to publicise and fund the search for Madeleine McCann). (3) Following the apology and statement of regret in open court, the Daily Express, Daily Star, Sunday Express and Sunday Star also published front page apologies to the McCanns.
338. Besides the McCanns, the group of friends with whom they had been on holiday, referred to as the ‘Tapas Seven’ (4) were also the subjects of libellous reports over a number of months, as were Mr Murat and two associates. (5) Here is a summary of court actions and complaints resulting from the case:
  • * The McCanns sued the Daily Express, Sunday Express, Daily Star and Star on Sunday over 110 articles published over five months and received apologies and a reported £550,000 damages.
  • * They complained to Associated Newspapers about 67 articles that appeared in the Daily Mail and Evening Standard (then owned by Associated) over five months, and over 18 articles on the Standard’s ‘This is London’ website. This complaint was settled by private agreement.
  • * The McCanns also took legal action against the News of the World for asserting that it had permission to publish extracts from Kate McCann’s diaries when it did not. They received an apology.
  • * The Tapas Seven sued the Daily Star and Daily Express over approximately 20 articles and received apologies and a reported £375,000 damages.
  • * Robert Murat and associates sued the Sun, Daily Express, Sunday Express, Daily Star, Daily Mail, Evening Standard, Metro, Daily Mirror, Sunday Mirror and News of the World over almost 100 articles described as seriously defamatory. They received apologies and a reported £600,000 damages.
  • * Mr Murat also received apologies from The Scotsman and Sky News website. 
339. The publication of serious falsehoods seems to have been even more widespread than this list suggests. Gerry McCann told us: “Undoubtedly, we could have sued all the newspaper groups.” Q213 Peter Hill, editor of the Daily Express, agreed: “I was surprised that the McCanns at that time sued only the Daily Express for libel [...] they would have been able to sue and still could sue any newspaper at all.” Q604


What went wrong ?
340. For a number of reasons, it was always likely that this case would have prominence in the news media: the McCanns were an attractive family; the case was a distressing mystery, with few clues, and took place in a holiday location; and some of the most important phases of the story were in the summer, when the supply of rival news was relatively thin.  
341. Kate and Gerry McCann were also determined to keep the case in the public eye across Europe, with a view to increasing the chance that Madeleine would be found. They and their supporters issued appeals, gave press conferences and interviews, released photographs and posters and took part in well-publicised events as part of a strategy to give the case a high media profile. The couple sought and received professional advice on how to handle their relations with the media.(6)
342. The intensity of the coverage was also a reflection of a very unusual level of public demand for information. (7) In consequence, newspapers which printed prominent Madeleine McCann stories, almost whatever their content, could expect to see their sales rise. Clarence Mitchell speculated to us that running a Madeleine McCann story increased newspaper sales by 40,000 or 50,000 copies a day. Q201 Gerry McCann told us: “Madeleine, I believe, was made a commodity and profits were to be made.” Q171 
343. This phenomenon was also commented on by press industry witnesses. Peter Hill told us: “It certainly increased the circulation of the Daily Express by many thousands on those days without a doubt.” Q620  Paul Dacre, editor of the Daily Mail, commented:
“I do not remember a story for some time now that actually increased circulation like the McCann story. I remember the furious rows we used to have in our office at time because other papers, opposition papers possibly, were putting the McCanns on the front page and you could see the next week their circulation had gone up that day and there were great recriminations about whether we should engage in that and carry those kinds of stories.”. Q561
344. In this context London newsdesks were extremely eager to secure competitive daily stories on the case. Jeff Edwards told us:
“I know from talking to colleagues, not just colleagues at the Daily Mirror but colleagues across the business who were out there, that there was intolerable pressure brought to bear on some of them to produce results at any cost.” Q307 
345. He added:
“Essentially reporters, I know, will have been congregating in Portugal over breakfast, and saying, ‘What the hell are we going to do today to resolve the situation?’ Thus a huge amount of recycling of information, and I have no doubt that some of what went on strayed beyond the boundaries of what was acceptable and some newspapers paid the price for that.” Q307
346. When we put this to Peter Hill, he was adamant that he had not initiated that sort of pressure, telling us: “This is not the way that anyone works as far as I know.” Q626
347. There seems to be no dispute that British journalists, accustomed to being updated on an inquiry by official sources, were frustrated by the position of the Portuguese police, who were by law prevented from commenting publicly. In the absence of official information, journalists turned to less authoritative sources.
348. Peter Hill told us he thought the Portuguese police were partly to blame for inaccuracies in reporting:
“The Portuguese police were unable, because of the legal restrictions in Portugal, to make any official comment on the case. What happened was that they resorted to leaking things to the Portuguese press. We did our best to check up on these things but of course it was not very easy to do so.” Q614
349. Gerry McCann told us:
“The worst stories that were printed in this country were based on articles that had been directly published within Portugal. Often what we found was that they had been embellished and a single line that was very deep in an article within a Portuguese newspaper, usually from an unsourced source, was front page and exaggerated to the extent where we had ridiculous headlines and stories.” Q173
350. Clarence Mitchell said he saw this happening in Praia de Luz day after day:
“They would get the Portuguese press each morning translated for them, with mistranslations occasionally occurring in that as well. Then, no matter what rubbish, frankly, was appearing in the Portuguese press from whatever source, they would then come to me and I would either deny it or try and correct it or say, ‘We are just not talking about this today.’ That was effectively a balancing of the story and there was no further effort to pursue any independent journalism as we might recognise it.” Q181
351. Undue pressure on journalists, wherever and whenever it occurs, must tend to increase the risk of distortion, inaccuracy and unfairness in reporting. 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.
352. 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.
353. 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. (en gras dans le texte)

The role of the PCC 
354. Two days after the disappearance of Madeleine McCann, the Press Complaints Commission contacted the British Embassy in Lisbon and asked the consular service to inform the McCanns that the PCC’s services were available to them. Gerry McCann told us that he did not recollect receiving such a message and that if he had it certainly was lost in the furore of the other information I was bombarded with at the time. Q199355. On 13 July 2007, two months later, Gerry McCann met Sir Christopher Meyer, the then PCC Chairman. The meeting was by chance; Mr McCann had visited Lady Meyer, who runs a charity concerned with missing and abducted children. Sir Christopher took the opportunity to explain how the PCC could help the McCanns and pass on some PCC literature. Q369 Sir Christopher held one further brief meeting with the McCanns on 29 February 2008 during which he ‘repeated that the PCC stood ready to help, if need be’.
356. The PCC was able to provide some help, and Gerry McCann expressed to us his gratitude for this :
Aspects with the PCC have been helpful in terms of protecting privacy particularly for our twins, which was a major concern for us. They were continuing to be photographed and we wanted that stopped. Very quickly that was taken up by the press and broadcasters within the UK. We are thankful for that. There was also help in removing photographers from outside our drive after what we felt was a very over long period, when news had really gone quite quiet and we were still being subjected to camera lenses up against our car with the twins in the back, which was inappropriate. Q188
357. The McCanns did not, however, make a formal complaint to the PCC about newspaper reporting, of the sort which would have prompted a formal inquiry. Mr McCann told us that an informal conversation he had held with Sir Christopher suggested that legal action would be the best way to deal with the libels, Qq 189–91 and that the advice from both the PCC and our legal advisers was that the PCC was not the route. Q188
358. The McCanns’ lawyer, Adam Tudor, explained the advice he had given to the couple:
We had a conversation about the PCC when Kate and Gerry first came to Carter- Ruck. It was quite a short conversation. The PCC is perceived, to a considerable extent still correctly, as being wholly media-friendly. It lacks teeth. It cannot award damages. It cannot force apologies. As soon as there is any dispute of fact between the newspaper and the victim of the libel, the PCC backs off and says, ‘This needs to go to law. Q195
359. Mr McCann also told us that it was a cause of concern to him that the editor of the Daily Express, which he regarded as the worst offender, was on the board of the PCC. Q194360. Had the McCanns at any time made a formal complaint about press coverage to the PCC, the PCC would have been obliged to investigate it. Paul Dacre told us of his disappointment that they had not done so: I deeply regret that the McCanns, if they felt they were being portrayed in such an inaccurate way, did not immediately lodge a complaint with the PCC. Q561 This sentiment was not shared by Sir Christopher, who told us:
It seems to me perfectly normal that if you feel that you are defamed or libelled and you want damages for that, punitive damages for that, you obviously go to court, but there is a whole range of other things that we could have done and could do for the McCanns which are of a quite different nature. The McCanns are an interesting case of people who chose both ways; they went to the courts on the matter of defamation and they came to us for the protection of their children and their family from the media scrums when they returned to the United Kingdom. It seems to me a perfectly normal way of proceeding. Q343
361. The PCC did not publicly criticise the actions of Express Group Newspapers until the conclusion of the McCanns’ legal case against them. Sir Christopher denied that this was too little, too late:
You are looking at this with 20:20 hindsight, forgive me for saying it, but what is obvious now was not obvious at the time. On 19 March [2008] when the judgement became public I rose from my sickbed, stuffed myself with paracetamol, staggered out to a radio car and on the PM programme castigated Peter Hill and Richard Desmond for a bad day for British journalism. There was no question of us remaining silent; I said it was a bad day for British journalism, that Peter Hill should consider his position and that Mr Desmond should make a greater effort to ensure higher journalistic standards across all his publications. Q379
362. The PCC, in written evidence to our inquiry, cited a number of reasons for not taking action in the McCann case on its own account:
The PCC does not generally launch inquiries into matters without the say-so of the principals involved. To have done so in this case would not only have been an impertinence to the McCanns in the light of our previous contact, it would have risked looking like a cynical attempt to exploit the publicity surrounding the case. Without the involvement and instructions of the McCanns, it would also have been very unlikely to have achieved much. 
The PCC is not supposed to investigate every example of alleged malpractice by the press. Breaches of the laws of libel, copyright, data protection, contempt of court and so on in relation to published material should be considered by the courts.
363. We asked Gerry McCann whether he would have found it impertinent of the PCC to invoke their own inquiry. He told us: I would not have found it impertinent. I certainly would have been open to dialogue if it was felt to be within the remit of the PCC. Q188
364. 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.
365. 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. (en gras dans le texte)


Lessons learned? 
366. We received many submissions from newspapers and press organisations suggesting to us that the McCann case was unique. The case was described as “atypical”  by the Newspaper Publishers’ Association and PressBof, as “rare if not unique” by News International, as “unique” and “unprecedented” by the Express Group and as “highly unusual” by the Guardian.
367. This rarity was presented, broadly, as grounds for making no changes to newspapers’ procedures or to the PCC Code. The Society of Editors suggested to us that it would be wrong to undermine a system that is clearly working by reference to the tiny number of cases each year that raise special issues.
368. It is far from clear that the McCann coverage was really so freakish. On the evidence we have heard, the press reporting of the suicides in and around Bridgend (discussed in paragraphs 381 to 398 below) bears similarities in the intensity of the coverage and the repeated breaching of the PCC Code. Further, we found strong echoes of the McCann case in a report by the Press Council, Press at the Prison Gates, on the coverage of the Strangeways riot of 1990. (8) Here was another instance of a dramatic story, a great public hunger for news and a limited supply of reliable information, where much of the press went badly astray. As that report observed, in the absence of a ready supply of hard information, “newspapers fell into the serious ethical error of presenting speculation and unconfirmed reports as fact”. (9)
369. We also raised another example of a high profile story after the McCanns: the case of Josef Fritzl, the Austrian sex abuser, who imprisoned and fathered children by his daughter Elisabeth. In March 2009, just before Fritzl’s trial, the Daily Mail published the name of the new location to which she and her children had moved. Since we raised this, the village’s name has been removed from the newspaper’s website. Qq 576–78
370. We suggested to Peter Hill that reporting on the McCanns held similarities with the repeated publication in the Daily Express of conspiracy stories, also since proved to be false, about the death of Diana, Princess of Wales. He replied:
The inquest on Princess Diana, for me, was pretty much the end of the matter. I think you will find that after the inquest we published hardly any, if any, reports or stories, about Princess Diana. Up to that time it was a similar situation but not as intense a situation as the McCanns. Our readers were absolutely avid for news about the death of Princess Diana because there certainly was a theory that Princess Diana might have been murdered. Q654
371. We have heard no evidence to suggest that newspapers have taken action on their own account to ensure that the mistakes of the McCann coverage are not repeated in future, much less that editors and journalists responsible for the publication of so many falsehoods have been asked to account for their decisions, or have faced disciplinary action.
372. When we asked Peter Hill whether anyone at the Daily Express was reprimanded or sacked because of the McCann coverage, he replied: “I have reprimanded myself because I was responsible.” Q644 Asked whether he offered to resign, he said: “Certainly not. If editors had to resign every time there was a libel action against them, there would be no editors.” Q645
373. 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.
374. 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.
375. 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. (en gras dans le texte)
376. We return to the role and structure of the PCC (...)  

Conclusions and recommendations
(...)
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 (8). 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 (9). 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)
(...)

Self-regulation of the Press
(...)
 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)
 (...)

 

(1) Le recueil de témoignages a commencé fin février 2009 et le rapport a été publié en octobre 2010. Sur le sens de "arguido".
(2) En Amérique du Nord et du Sud, en Océanie, en Asie aussi.
(3)  Gerry McCann and Kate McCann v Express Newspapers Statement in Open Court 08/0278, 19 March 2009 (note du rapport)
(4)  Jane Tanner, Dr Russell O’Brien, Fiona Payne, David Payne, Matthew Oldfield, Rachael Oldfield and Dianne Webster (note du rapport)
(5)  Sergey Malinka and Michaela Walczuch (note du rapport)
(6)  Press Council, Press at the Prison Gates: A report by the Press Council, booklet number 8, January 1991 337  (note du rapport)

(7) Ibid., p 25 
(8) Cette phrase est amusante. On pourrait comprendre que rien n'assure que les articles incriminés aient produit des contre-vérités, ce qui serait exact (par exemple rien n'indique que Madeleine soit vivante), mais la fin de la phrase dissout cette interprétation : rien n'assure que les contre-vérités aient été produite sous la pression des rédactions.
(9) Voilà un jugement bien inconsidéré, même s'il sert les besoins de la démonstration : Le Portugal était une juridiction étrangère où le mépris des cours de justice n'était pas clair et où on ne tenait pas compte de la façon dont l'information pourrait nuire à tout futur procès.