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)

09 - MAI 05 - CPCM (6) - 868sq-AR,IH

Enquête sur les critères de la presse, l'intrusion dans la vie privée et la diffamation (6)

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.

Auditions de Alan Rusbridger et de Ian Hislop - 05.05.2009

Q868  Philip Davies (MP Labour) : As you may know from previous sessions I am very sympathetic to the case you put, particularly in terms of burden of proof, and I am a big fan of the American system. I think it would be much better than the current system we have. I think the freer the press the better the democracy we have. Alan, you said you were sympathetic to the switching of burden of proof but the case that always throws a spoke in the wheels in terms of changing the burden of proof is the case of Madeleine McCann and the way that the McCanns were libelled because, on that shift of burden of proof, therefore, it seems that they would have had to prove that they were not involved in the disappearance of their child, which seems to me a rather difficult thing for them to prove. So how would you answer that particular problem with changing over the burden of proof?    
Alan Rusbridger (rédacteur en chef de The Guardian) : That is a difficult one. I think the only answer is that, as Tom Crone said earlier, in all other jurisdictions I know of the burden of proof operates the other way, and generally quite well. It is rather to our shame that London has become the libel capital of the world because we have it on the other foot, so I think the McCanns are a bad case on which to make law. In the example I gave of Jonathan Aitken we were trying to prove what he was up to one weekend three or four years previously which was a ridiculous situation for us to be in because he knew what he was doing, he could have produced the documents and receipts, it would have been an easy matter and, of course, the case would never have come to court because he was not telling the truth about it. I think we can all produce particular examples of cases to buttress our own case, but I think the fact that most of the world operates to the other standard of proof is tenable. 

Q887  Adrian Sanders (MP Liberal Democrat) : Do you need your own First Amendment?
AR : Yes. I suppose Article 10 was supposed to be the equivalent of the First Amendment but it has not quite achieved that status. I would rather explore the area of public interest, the serious matter of what you are writing about, rather than get hung up on what is a public figure.
Ian  Hislop (directeur de Private Eye) : I think that is right; your point about defining what the privacy law is, I think, is sensible because it is upon us, as it were, this privacy law, and I think it is time to say what it is. I think the general public think it is the same, that the paparazzi jumping inside someone's bedroom is the same as someone asking questions about where the money has gone. They are not the same, and I think most people understand what the basis of privacy is. Certainly with the McCanns it must be fairly easy to frame a wording that stops you saying: "Well, you murdered your children, you must prove it now that you did not." We cannot use that as the basis, surely.

Q888 AS : No, but in terms of the McCann family being public figures, did they not become public figures by using the media in order to publicise the tragedy of the missing child? It is not as easy as it first looks to try and determine who is and who is not a public figure.


Auditions de Barbara Follett - 02.06.2009

Q1076  Mike Hall (MP Labour) : We have heard evidence from Gerry McCann who successfully sued the Express Group for a reported £550,000. In his evidence to the Committee, when he was asked why he did not go through the press complaints procedure, he told us he had been advised both by his lawyers and by the PCC that that would not be the most effective way. Had he gone to the PCC the Express may well have been censored, but that would have been about it.
Barbara Follett (ministre de la culture) : I listened to Mr McCann's evidence as it was given to this Committee and read it with great interest. What he wanted was the Express to stop doing what it was doing and in that case the best recourse is to the law. We have a whole series of laws in this country which do defend the individual and he used those laws. The Press Complaints Commission is very effective in getting something changed or an apology into the press. Here is one area where I personally feel more attention should be paid to, although I welcome the attention the Press Complaints Committee has given to it over the past four years, which is where the apologies are situated in the newspaper and the size of type that they are situated in. From my own personal experience, the offence can be on page two in large type and the apology basically somewhere around the ads in very small type, and that is something which I would like to see changed. The McCanns went to the law. You have two things available to you in the British system and he chose the second.

Q1077  MH : He also said in evidence to us that he was deterred from going to the PCC because it is so aligned to the newspaper industry and the editors actually serve on the PCC. Even though the Editor of the Express was in conflict with the PCC, that was one of the reasons given by Gerry McCann for not going down that route. What is your view about the fact that it is so aligned with the newspaper industry that this self-regulation can appear to be less than credible?
BF : I come back to the point that I made earlier, which is that if you are going to maintain the freedom that is done by the press they have to recognise the wrong, they have to correct it. I am glad that the Press Complaints Commission has changed the balance of professionals and lay members on the Commission. Previously it was 50:50 and now it is 66:33 and I think that is healthy. I would expect—and I think this does occur—that if a complaint is made against a particular newspaper, in this case the Express, then the editor of that paper, if he/she was on the Commission, would excuse themselves at that point and it would be dealt with by his/her peers.

Q1092  Paul Farrelly (MP Labour): Christopher Meyer came before the Committee and said nothing is broke and therefore nothing needs fixing. Would you share that analysis? Take the McCann case, for example.
BF: That was repeated by the Secretary of State for Justice as well that nothing is broke. I think nothing's broke, but there are a couple of cracks and I think it would be wise if they had to look at them and to repair them.

Q1093  PF : What are the two cracks?
BF:  It is going back to the facts are sacred. I know that you have also taken evidence about how the 24-hour news cycle and the cuts in journalism make it more difficult to fact check, but I do think it is essential because it is accuracy and truth on which we should base our trust. That freedom which we prize is the freedom to be truthful.

Q1094  PF : What is the second crack?
BF: I am not sure that there is a second crack. I think you just get cracks around that where you are not being sufficiently rigorous. You need rigour. I am not sure you need a law to bring in rigour. You need changes of practice and management practice.


Témoignages écrits

1) 01.2009

The Campaign for Press and Broadcasting Freedom (CPBF) 
 (...) In our view, given the enormity of the offences committed by various newspapers, the awards of £60,000 to Max Mosley, and, in the McCann and McCann-related cases, of £550,000 to the McCanns themselves, of £375,000 to the so-called "Tapas Seven", and of £800,000 to Robert Murat, Michaela Walzuch and Sergey Malinka, were nothing less than derisory. Given the incomes of the papers in question, and, more particularly, given the increases in sales which these stories generated, these damages (and the associated costs) were little more than pinpricks and were no doubt simply laughed off by the editors concerned. 
(...)  As we have argued in earlier submissions to this Committee, were the PCC to become a regulator with real teeth, the newspaper industry would simply cease forthwith to finance it. Indeed, one of the most striking things about both the McCann, McCann-related and Mosley cases has been the almost complete invisibility of the PCC—an invisibility which springs from the fact that none of those who were libelled or whose privacy was infringed thought the PCC remotely worth bothering with, a judgement with which we would heartily concur. Even so, one might have expected the PCC to institute some kind of retrospective enquiry or inquest into the McCann and McCann-related cases which, between them, involved every single popular national daily newspaper published in Britain. But no. Absolute silence.
(...)  We thus conclude in answer to the Committee's questions that news organisations have made no changes whatsoever in the light of the McCann and McCann-related cases, and that the successful libel actions against the Express and other papers arising out of these cases indicate a near-fatal weakness with the self-regulatory regime of the PCC.

2) 01.2009

National Union of Journalists
(...) The NUJ is not surprised that the PCC was not used in the McCann case, nor that the PCC did not invoke its own inquiry. It is likely that the PCC would not have upheld complaints from the McCanns since it is arguable whether there is direct evidence that the articles concerned breached the PCC Code of Practice, which does not prevent speculation.
The PCC is a complaints body. It has no other purpose. It does not investigate ethical issues of concern of its own accord. Its predecessor, the Press Council, produced a series of reports following in investigations of key reporting events, which allowed lessons to be learnt. The PCC has steadfastly refused to be so proactive and while it occasionally produces guidance, this is limited to specific advice on individuals' addresses or on photographing the UK royalty. We believe that the PCC should act proactively, investigating the coverage of major stories or stories that have sparked particular concern about the ethics of their coverage.
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 ? 
There is no protection for reputation in the PCC's regulatory code—nor in the NUJ's. The redress for the McCanns was in libel law. The NUJ's code does seek to ensure that journalists differentiate between fact and opinion. The PCC code has a similar clause.
We do not believe it would be appropriate to try to regulate for protection of reputation in the PCC code. What the NUJ has consistently campaigned for is a "conscience clause" for journalists in the code. This would allow reporters who feel they are being pressured to produce material that is not supported by evidence, or whose reporting is being stretched beyond credulity in its presentation, to refuse that assignment. This could have been helpful in the McCann case.

3)  01.2009

News International Ltd

9.  When a child goes missing, the press and the media play a vital role in helping to raise publicity and aid the search. The McCanns recognised this and were proactive in keeping the story at the top of the news agenda. However, the circumstances of their case were rare, if not unique. The combination of factors that were relevant to the way the media in general responded included: that the events took place abroad; that the local police had issued a blanket ban on media coverage; that at the same time the local police were leaking information to the local press; that the case had attracted massive public interest in this country and was therefore rightly being followed closely by all of the media, that the hunt for Madeleine went on for so long and that there was a lengthy time lag before any of the published stories were challenged.
10.  The fact that the McCanns chose to pursue complaints against the Express Group titles through the courts does not, in our view, have any bearing either way on the system of self-regulation. The Editors' Code does not replicate or compete with the law of libel. It is quite separate and distinct and deals with accuracy, not "reducing people's reputations in the eyes of right thinking people".
11.  In any case, it is hard to see where and when the PCC could have intervened. An enormous amount of factual material was being put out for publication by those involved. No formal complaint was made to the PCC by the McCanns or any other party. And, in the circumstances of an ongoing police investigation, how could the PCC take unrelated action to intervene?
12.  News International strongly supports the system of press self-regulation administered by the PCC. It has proved itself robust and adaptable. The Code continues to evolve and the remit of the PCC itself has expanded to meet the challenges of the digital age.
13.  At News International, our commitment is demonstrated by the in-house training we provide for our journalists. Not only is the Code of Practice in all our journalists and editors' contracts, but our titles regularly run training/revision programmes on a wide number of editorial issues. This ensures that everyone contributing to our papers is clear about the meaning and intention of the Code and the wider legal framework within which we operate. In addition, senior editorial staff check any PCC-related issues and advise the editors to make any changes in coverage to make sure we meet code requirements.
14.  In spite of this, we acknowledge that sometimes mistakes are made. But as Lord Nicholls observed in Reynolds v Times Newspapers Ltd 2001: "Historically the common law has set much store by the protection of reputation ... There must be exceptions. At times people must be able to speak and write freely, uninhibited by the prospect of being sued for damages should they be mistaken or misinformed. In the wider public interest, protection of reputation must then give way to a higher priority." In this case the "higher priority" was trying to find Madeleine or the person responsible for her abduction. Given what the House of Lords has said about "higher priorities", in this increasingly fast-paced, highly competitive media world, self-regulation is the best tool for ensuring that standards are upheld.
15.  At the end of its last inquiry into press self regulation in 2007, the Culture, Media & Sport Select Committee concluded: "We do not believe that there is a case for a statutory regulator for the press, which would represent a very dangerous interference with the freedom of the press. We continue to believe that statutory regulation of the press is a hallmark of authoritarianism and risks undermining democracy. We recommend that self regulation should be retained for the press, while recognising that it must be seen to be effective if calls for statutory intervention are to be resisted".
16.  These conclusions remain valid today. (...)

4)  02.2009

Media Standards Trust

 1.1  The self-regulatory regime of the press was not set up to monitor standards or to keep a check on poor reporting. It is a complaints body that seeks to mediate complaints made about the press on behalf of the public. If the public do not complain, it does not react. This compromises its role as a "regulator". Neither the McCanns, Robert Murat, or the so-called "Tapas Seven", chose not to complain about accuracy in the press, and therefore the self-regulatory system was not used.
1.2  The PCC has not been provided by the industry with the resources to conduct major inquiries. Its budget is far lower than other comparable self-regulatory organisations. In 2007, for example, its budget was £1.82 million, compared with the Advertising Standards Authority that had a budget of over £8 million. This is only slightly higher than its initial 1991 budget of £1.5 million. According to the outgoing Chairman even these meagre resources are now under threat (comments made at Society of Editors conference).
1.3  When the PCC does invoke an inquiry, as it did after the conviction of Clive Goodman (the royal correspondent at the News of the World), its powers are limited and its remit narrow. In that inquiry, for example, it did not interview Goodman's editor, Andy Coulson, and focused almost all its attention on the News of the World, even though the Information Commissioner had given evidence to the PCC showing hundreds of journalists were using subterfuge to gather confidential personal information (from "What Price Privacy?" and "What Price Privacy Now? ", ICO).
1.4  Not working within a news organisation it is very difficult to judge whether any changes have been made as a consequence of the McCann coverage. There have been, however, no obvious public changes made as a consequence. Indeed in the case of the Daily Express, "Madeleine McCann" remains the most searched for term on Express's website, despite the fact that many of the Express' McCann articles had to be removed because they were defamatory.
2.  The successful action (against Express Group and others for libel) does give an indication of serious weaknesses in the existing system of self-regulation.
2.1  The successful action shows the public are increasingly liable to take serious action to the courts rather than to the PCC. We expect celebrities and billionaires to go directly to the courts. But when the public choose lengthy, expensive legal action over "fast, free and fair" redress from self-regulation, there is clearly a serious weakness in the self-regulatory system.
2.2  The action shows that the courts are also liable to oblige. Traditionally, in industries where there is an effective self-regulatory body the courts will defer to that body. If the body is not effective, the courts become an alternative form of redress.
2.3  As Lord Wakeham wrote in 1998 when discussing the opportunity of the PCC becoming a "public authority": "The opportunity is that the courts would look to the PCC as the pre-eminently appropriate public authority to deliver effective self-regulation fairly balancing Articles 8 and 10. The courts therefore would have to intervene only if self-regulation did not adequately secure compliance with the [European] Convention [on Human Rights]". The courts have since intervened.
2.4  The action also indicates that the current system of self-regulation is unable to restrain or discourage newspapers from printing defamatory content. The editor of the Daily Express, Peter Hill, was a member of the PCC throughout the paper's coverage of the disappearance of Madeleine McCann, and even remained a member after the court had found much of the newspaper's coverage to be defamatory. (1)
2.5  The current system is structured in such a way that any possible educational value of complaints is almost entirely lost. Unlike Ofcom or the ASA, the PCC does not make public the number of complaints it has received about particular articles or coverage in a timely fashion. Indeed most of them remain unknown unless they are adjudicated on or resolved. If, for example, hundreds of people complain about the reporting of a public figure, the PCC does not make that public. Contrast this to the BBC, that gives contemporaneous information about complaints (eg about the BBC refusal to broadcast the DEC appeal), or Ofcom (eg about Celebrity Big Brother), or the ASA (eg complaints made against AMI billboard campaign, "Want longer sex?"). Such information may encourage news organisations to reflect on their coverage, and sometimes to adapt it.

5) 24.02.2009

Media Lawyers Association (MLA)

(...) A number of the MLA members' organisations (for example the broadcasters) are subject to a different regulatory regime from the newspaper publishing members and they are not in a position to comment further on the specifics relating to the PCC. Nonetheless, the MLA as a group strongly supports a system of self-regulation for the print media. The MLA believes that the PCC offers a quick, cheap, flexible and effective remedy for the general public across a wide range of areas that it would be entirely inappropriate to regulate by legislation (for example intruding into grief / the covering of suicides / children / financial journalism). We understand that there was early and on-going offers of assistance and dialogue between the McCanns and the PCC but that, ultimately, the McCanns chose not to complain to the PCC, who accordingly had no basis on which to get more deeply involved. That case does not, in our view, have any bearing on how the PCC system of self-regulation works in practice for most people who choose to use it. It would be wrong to seek to review a system based upon the perceived experience of one particular case, which appears to be unique on its facts, as it could lead to a knee-jerk response. (...)

From the outset, I wish to clarify that I am making the below submission as an individual, and not on behalf of the McCann's who, as you may be aware, are clients of Carter-Ruck. For professional reasons, I cannot comment on any of the specifics of the McCann case.
I would point out that the PCC, set up and funded by the media, does not award compensation for damage to reputation, make declarations of falsity, issue penalties, or grant injunctions. Indeed, the PCC does not want to exercise these functions. The PCC either mediates to provide for publication of apologies or, in rare cases, issues an adjudication that the newspaper must publish, although recently a newspaper publicly disagreed with the content of a PCC adjudication.
In claims for defamation, the most effective form of vindication is an award of damages and a substantial award sends the message to the world that the allegations are untrue and should not be repeated.
Accordingly, whilst the PCC sets a minimum standard of conduct for journalists and the PCC code has improved considerably over the years, in my view, it does not provide effective remedies for libel or for invasion of privacy. This is also the view of the European Court of Human Rights in relation to privacy.
Reputation is an important right which is now guaranteed by Article 8 of the European Convention on Human Rights (ECHR). It takes a long time to obtain a good reputation and a short time to lose it; it is therefore essential for an individual to have access to the courts and to have effective remedies that effectively restore his or her reputation.
Where a newspaper or broadcaster reports allegations that are in the public interest, and where the newspaper or broadcaster has acted responsibly, they will have a defence to any claim in libel, even where the defamatory allegations are untrue. This development in the law is significant protection for the media. However, where defamatory and untrue allegations are made in error, the claimant should have a right to vindicate his reputation by legal redress. The media also have the advantage of the offer of amends regime brought in by the Defamation Act 1996, which has reduced libel awards.
These developments mean that responsible press reporting is much less vulnerable to legal claims. On the other hand irresponsible, defamatory and intrusive reporting are, and have always been and deserve to be, vulnerable to legal claims. Newspapers, in particular tabloid newspapers, have huge circulation and therefore huge power to affect people's live. They also have huge resources.

7) 24.02.2009

We take these questions together (why the self-regularoty regime wasn't used in the MC case and does the successful action against the Express Group and others indicates weakness of that regime). We do not intend to comment on the PCC and the McCann's issue specifically, but will say that the starting point is that our self-regulatory authorities (in particular the PCC) do not adequately protect Article 8 or reputational rights.
The PCC is seriously inadequate since it cannot:
—  make findings of fact or declarations of falsity of allegations;
—  make a monetary award of compensation in appropriate cases;
—  compel witnesses or order disclosure; and
—  deal effectively with pre-publication disputes.
There is also a general public perception that the PCC is too favourable to the media; accordingly there is a lack of public confidence in using this route to resolve serious complaints against the media. (...)

8) 24.03.2009

Press Complaints Commission (PCC)

8.  The PCC took an early interest in the McCanns' situation (para 7.2), and made numerous offers to assist (para 7.3). We helped on a number of specific occasions (para 7.4), for which the McCanns expressed gratitude.
9.  But the PCC would not generally launch inquiries into matters without the say-so of the principals involved. Given our previous contact with the McCanns, it would have been impertinent to have unilaterally announced an inquiry, and risked looking like a cynical attempt to exploit the publicity surrounding the case. That said, the Chairman of the PCC did publicly condemn the libels (para 7.6).
7.1  We would not normally comment on contact we have with private individuals, but note that the Committee has called for evidence on the McCanns and the media. In particular, it has asked why the McCanns did not complain to the PCC over the libellous stories in the Express titles, and why we did not invoke our own inquiry after the matter was settled.
7.2  The Committee should be aware that the Commission took a very early interest in the McCanns' situation, contacting the British Embassy on 5 May 2007 (two days after Madeleine's disappearance, and way before the story assumed its subsequent prominence). We have attached in an appendix the exchange of correspondence with the embassy (pas imprimé..) in which it is clear that the PCC pro-actively offered its services.
7.3  Subsequently, on 13 July 2007, the Chairman of the PCC, Sir Christopher Meyer, met Mr McCann and his then press adviser, Justine McGuinness, in London. He told them how the PCC could help—if necessary—and gave them some of our literature. There was a further, briefer, meeting with Mr and Mrs McCann on 29 February 2008 during which Sir Christopher repeated that the PCC stood ready to help, if need be.
7.4  Additionally, the PCC had a more formal role in advising the McCanns' representatives over how to ensure that their twins' birthday party could take place away from the media glare, something that was successfully achieved. We also spoke to the local council in Charnwood about how the McCanns' neighbours could be assisted (vans and cars from TV, radio and press journalists were allegedly blocking the entrance to their road, preventing some of them from getting to work). In a radio interview, the McCanns' spokesman Clarence Mitchell—while explaining why the McCanns took the legal action—said about this work:
"the PCC have been very helpful towards Kate and Gerry—they've been very pleased with their advice on the more practical aspects of dealing with the press, such as having the constant presence of photographers outside their home and the harassment  …  "(Clarence Mitchell interviewed on the PM programme, 19 March 2008)
7.5  This will demonstrate that there was a clear line of communication between the Commission and the McCanns, and illustrate that the PCC was actively seeking to help them if possible.
7.6  But 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 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 highly unlikely to have achieved very much. That said, Sir Christopher Meyer did give a number of interviews at the time of the settlement in which he condemned the libels, and took the opportunity to draw the distinction between the role of the PCC and the role of the law in considering matters of libel.

18.  It is against this background that the atypical and tragic case of the McCanns needs to be viewed.
19.  In part because of the international nature of their case, the McCanns used lawyers to assist them throughout their ordeal; but this inevitably impacted on the manner in which grievances against the press—abroad as well as in the UK—were pursued. In some areas where no legal redress was easily or swiftly possible (such as harassment—where the PCC has an excellent record) the Commission was able to assist, as the PCC's submission will detail.
20.  As far as a number of stories in one particular group of newspapers was concerned, the McCanns had to make a judgement about the nature of the redress they sought. It is arguable that, had the McCanns made use of the PCC's services earlier to complain about inaccurate reporting, this problem would not have arisen. However, it seems that some form of compensation was understandably important to them because of the financing of the Madeleine McCann fund—it should be remembered that they regarded the media as "important partners" in the search for Madeleine, according to their press spokesman, Clarence Mitchell[9]—and they therefore had a strong motivation to pursue a libel action.
21.  To imply that this indicates a weakness in the self regulatory system is fundamentally to misunderstand its nature. The PCC is at heart a complaints resolution and adjudication process which meets the needs of the overwhelming majority of people with a grievance against a newspaper or magazine: it is not a substitute for the law, but sits alongside it.

(1) Comment la cour de justice a pu découvrir que le contenu des articles en question était diffamatoire s'il n'y a pas eu de jugement, mais un accord hors tribunal ? 

 (7) Rapport final (1è partie)