The PM Privacy Commission spoke to Marcus Partington, Deputy Secretary/Group Legal Director at Trinity Mirror and chair of the Media Lawyers Association, on Wednesday June 22, 2011. The commissioners are Sir Michael Lyons, Lord Faulks QC and Baroness Liddell.
Please note the PM programme, BBC Radio 4, must be credited if any part of these transcripts are used.
NB: This transcript was typed from an audio recording. The views expressed by the witness are their own.
Because of the possibility of mis-hearing and the difficulty, in some cases, of identifying individual speakers, the BBC cannot vouch for their accuracy.
ML Welcome back to the privacy commission. Before we begin today's proceedings I'd just like to say that having received quite a lot of evidence about the role of the Press Complaints Commission and indeed the evidence of its own director. We've decided to go back to the recommendations made by the Select Committee for Culture, Media and Sport about how PCC might operate more effective regulation, and given the limited time available to us we've decided to write to the PCC asking them if they would like to share with us their reactions to those recommendations and indeed any actions that they've taken or plan to take. It's our intention to publish both the letter from the commission and their reply on the PM website. Let's now turn to today's proceedings and our first guest is Marcus Partington, Group Legal Director at Trinity Mirror. Marcus is also Chair of the Media Lawyers Association, so right at the very heart of this debate. Marcus, would you say a little bit about your role and your experience in this debate which brings together the rights of freedom of expression for the press and the rights of privacy for the individual.
MP Certainly. Thank you very much for inviting me. As you said I am the chair of the Media Lawyers Association, I'm a lawyer at Trinity Mirror. As chair of the Media Lawyers Association I represent the Media Lawyers Association as a group of in-house lawyers in both newspapers and broadcasters including the BBC and the Consumers' Association, Press Association and Thomson Reuters; to name a few. I have considerable experience in privacy cases, having been involved in A versus B and C which is known as the Gary Flitcroft case and also the Naomi Campbell case which is still ongoing as MGM versus the United Kingdom. A few years ago I got particularly interested in the procedure that was happening about injunctions; how they were obtained and how they were served on third parties such as media outlets without the third party being given an opportunity to appear in court or being given an opportunity, in some cases to see the evidence in which the injunction was based. I was also a member of the Master of the Rolls Super Injunctions Committee which has recently reported another case I was involved in Cream Holdings versus Banerjee which is a leading case on Section 12(3) and the test that the court should apply when deciding whether to grant and injunction.
ML Thank you very much; that's quite some experience for us to draw on.
ML I get the impression from an article that you wrote in The Lawyer recently that you are clear that bringing in the Human Rights act the Government legislated primarily for freedom of the press and to a much greater lesser extent for the privacy of the individual. Is that right?
MP Yes sorry to correct you, it was an article in The Legal Week. But yes, I am very clear. I think one of the things that really needs to happen in this debate is the debate that took place in the House of Commons on the 2nd of July 1998 when it became Section 12 of the Human Rights Act was introduced, I think everyone in this debate would benefit from actually revisiting that debate. What was said by the minister and I'm very clear that I think from about 2005 a case called re-es which was a House of Lords case the courts have simply balanced Article 8 and Article 10 without doing it, without looking at Article 8 and Article 10 in the way that Parliament intended. And that's where I think we have gone wrong. And I think if you look at that debate, what Parliament said and what the minister said I think we would of ended up in a slightly different position than we are now.
ML So that leaves you to conclude that Parliament needs to do more to protect the rights of the individual citizen?
MP I don't think Parliament needs to do necessarily more, I think it's a question of the courts looking at what Parliament intended.
ML But by your own comments you are suggesting that Parliament focused on the interests of freedom of expression and therefore perhaps by implication didn't give enough attention to protection of the individual.
MP No I don't agree with the implication. I think that Parliament clearly considered Article 8; the right to respect for private and family life and considered Article 10 and Parliament said, and this is the minister's own words that they were doing more to entrench freedom of expression in this country and simply bringing in the European Convention of Human Rights. I don't think they necessarily need to do more for the Article 8 right.
ML I think what you're suggesting, if I've understood you correctly, is the judges ought to look at what the minister actually said in the debate which would involve the Pepper and Heart rule. Now it has been suggested that the law although essentially clear enough would benefit from some further confirmation by legislation. Maybe they are repeating what's already reasonably established. Do you think that it would be useful if there was a specific privacy law as opposed to the Human Rights Act involving as it does the convention and balancing of Article 8 and Article 10?
ML Do you think there is any need for any further legislation?
MP No. I don't think, I think obviously the problem we are in, I believe, is that the courts haven't paid enough attention to what Parliament said. So if it's necessary for Parliament to re-say that, then it might be appropriate but I don't think there's a need for privacy legislation beyond European Convention.
ML So you don't think we need to change the law but it may be a good idea as it were to confirm it by legislation which says more or less the same thing but specifically sets out what perhaps is a little more elusive as you have to look at what a minister has said to find out what Parliament really intended?
MP I'm sort of rather against that because I think it will take years and years to do and I think it is just a question of, as you said at the beginning, the judges looking under Pepper Heart, Pepper and Heart, at what the minister actually said.
ML Generally speaking do you think that judges have approached the question of privacy and injunctions in a balanced way?
MP I think they have generally approached it in the way that they think they should, which is to balance the two rights, but I don't think that's in accordinance with what Parliament thought they were going to do. I think one of the problems here is so much of the case law now is based on injunctions and when Section 12 was introduced the minister was very clear that he thought X party (with only one side being there) would not be the norm. Unfortunately over the last few years they have been the norm. I just don't think people really understand that when these injunctions are granted that more often than not there's only one party in court, giving the court a one-sided version of the situation. Parliament clearly intended to look as Section 12 too that there would be no disinterested parties. Now one of the recommendations from the Neuberger Report is that the media should be given notice of injunctions before they are applied for and that's a procedure applied in the family division since, I think a number of years and I think that's exactly what Parliament intended. So I think the courts unfortunately were seduced slightly into granting injunctions and not really giving enough thought to the right of defendants and also third parties who are served with injunctions after they have been granted.
ML Now you act for defendants and newspapers. Do you think that serious stories are not being published as a result of injunctions because the courts have not sufficiently respected freedom of speech, freedom of expression?
MP Well let me tell you about Cream Holdings. Cream Holdings is a case that went to the House of Lords. That was a case about a nightclub in Liverpool that was running a secret till and not declaring the takings to Revenue. Now you would of thought that you wouldn't get an injunction for that. But the judge at first instance granted an injunction so that case was appealed to the Court of Appeal and the Court of Appeal decided 2-1 that there should be an injunction. So we had to go to the House of Lords, spent two years, considerable amount of money, before we win the right to run a story like that. Now that admittedly is a breach of confidence story, but it's the same area. But that gives you a practical example of a case where we were injuncted by the court and it took two years and a considerable amount of money before we were allowed to run a story in which I would of thought everyone agrees is in the public interest.
ML We're concerned with privacy rather than confidence although I accept there is a degree of overlap. But privacy in particular, the right to individual's private life to remain private unless there is an overwhelming public interest to publicise it in the form of a story. Do you think that is an area where the law is generally speaking right?
MP I think unfortunately terminology is very important here. It is not a right to a private life; it's a right to respect for your private and family life, yes. And freedom of expression is much wider as a concept and a fundamental right than just information that is in the public interest. Article 10 includes things that are in the public interest, things that are of interest to the public, things that are offensive. All of those things are covered and what's happened is that, I think, is that it's been far easier to get through the Article 8 gateway, if I may call it that, than it has been to get to the Article 10 gateway. And I think the courts are generally much more open to people getting through the Article 8 gateway and are being much harder on the Article 10 point than I think Parliament intended.
ML Of course a lot of these stories that we read about, or what we are allowed to read about, and concerned with footballers' sex lives; there really isn't much public interest in that is there?
MP Well I think if you look at it down the other end of the tunnel, do you think that there should be a right to restrict the revealing of an extra marital relationship?
ML Do you think so?
MP I don't think you should be entitled to stop the revelation of an extra marital relationship.
ML Of any sort? In any circumstances?
MP Well it's dangerous to say "always" but I think it's important to remember that when people get married they make a public vow that they are going to be true to their spouse. By having an extra marital affair they break that marital vow and that public vow. They didn't have to make that public vow; you don't have to get married in this society; and if you take that step I'm not sure that you should be entitled to obtain off the courts protection under right to respect for privacy and family life to stop that being published. I mean a lot of these injunctions don't involve people coming along to court with their spouse saying I've had a relationship and I've told my spouse and I'd like to have privacy for that to repair the family. These are people who actually want to stop other family members, under something that's called respect for private and family life, learning about what's happened.
ML So your view is if they misbehave or commit adultery then they must live with the consequences?
[Question and answer omitted]
HL Can you, I'm not a lawyer, can you explain to us what the Pepper and Heart rule is?
MP The Pepper and Heart rule is that when a court is considering the Parliamentary intention behind legislation they can look at the minister's comments in the House of Commons, sorry when in Parliament when the legislation was introduced. It's an ambiguity or to understand the Parliamentary intention.
HL Now let me take you on to more bread and butter issues perhaps using your involvement with Media Lawyers Association. In terms of the climate that exists within newspapers, what advices are given to editorial about the legal framework in which they must operate? How often are stories legalled?
MP Stories are legalled everyday. I mean most major publishers, I would of thought all national publishers have in-house lawyers, like myself, who spend their time looking at stories. The BBC will have lawyers who look at stories before they are published, both in radio and Television, so it happens all the time.
HL So someone will be sitting on the newsdesk legalling every story that comes through?
MP Well I'm not sure, I can only speak about the company I work for, Trinity Mirror, as I don't have experience in-house at any other company. But we have lawyers, they don't sit on the newsdesk but they look at stories that come in and they are involved in discussions with the journalists and the editors.
HL It is assumed in some quarters that the rules have changed in recent years, it used to be that when a story was legalled it was to stop the newspaper from getting into trouble. Now the parlance in the pub is when a story is legalled is to see how far the newspaper can take it. Would you accept that?
MP No, I don't think it has changed in recent years and I think stories are legalled to try and ensure that there isn't a legal problem post-publication.
HL Can we talk a little about, you talked about the difficulties of people who are in illicit relationships who are stars and have taken a public vow in a church or in a registry office. Can we talk a little bit about the man in the street who might find himself suddenly in the eye of the storm? Now the models that you have talked about involve access to the courts and I can always remember as a young undergraduate that justice in Britain is open to all like The Ritz; and from some of the evidence that we've received that is certainly the case. You know, Max Mosely talking about the first actions he took cost me somewhere up to around a million pounds. What possible freedom does the man in the street have to protect himself in this kind of environment? Or indeed the woman in the street who might be caught up in one of these stories?
MP Well your question raises a number of issues. The problem about legal costs is a huge problem, it's not just a problem that bedevils this area of the law but it is particularly bad in this area of the law. I mean to give you an example which everyone knows about; Naomi Campbell's case to the House of Lords was taken by her lawyers on the conditional fee agreement with 100% success fee it operated. It involved two days of the court's time; we were presented with a bill, having lost that case, of £594,000. And that I stress is only for the two days in the House of Lords, that's not for the hearing in the Court of Appeal and nor is that for the hearing at first instance. One of the things that the Media Lawyers Association has been campaigning for is compulsory cost-capping so that the judge in any case looks at what's involved in the case and for want of a better phrase, just grabs it by the scruff on the neck including managing the costs. Now the problem is, the is a power under the court rules to cost-cap, but under the practice direction to the court rule it's only to be operated in exceptional cases; which obviously it's pointless having the power to cost-cap. You then say it is only in exceptional cases as you need to remove the exceptional cases provision to allow cost-capping. As to the second part of your question about the ordinary man or woman in the street, I'm afraid I have very little experience of "them" in terms of people complaining; most of the people who are complaining to us tend to be public figures. Yes? Now I think the PCC is available, obviously it's a free system, it doesn't involve any charge. It also operates with both pre and post-publication. I think many people don't understand, or maybe don't know, about the amount of work the PCC does behind the scenes before publication and in terms of... That is a system where people if they need some advice, they can go to the PCC.
HL You talk about cost-capping and I can see the attractions of that model, but if you are someone like a school janitor or a school teacher or a crossing patrol attendant, you're not even going to have several hundred pounds, let alone several thousand pounds. So there needs to be some sort of model that allows people like that some sort of redress. Could you see a way that the PCC could impose publication on circumstances; have greater powers to allow that kind of person to be protected?
MP But the PCC helps that sort of person now.
HL If someone has a complaint against the newspapers, and the PCC fine against the newspaper, do you find it acceptable, as Hugh Grant pointed out to us when he had a complaint against the PCC, that the apology was something like on page 74?
MP No, but that doesn't happen where we, we had an adjudication against us by the PCC and by agreement it appeared on page three. I think it's important, it's very important in this debate to get at the facts and terminology. People bandy a lot of things around like Hugh Grant. You know, there is adjudication by the PCC and it appears on page 74? I'd like to see that. I'd like to see that exact example. Yeah?
HL There are a number of cases, I'm a former Member of Parliament and there are a number of cases that I have dealt with the PCC, not issues of great national importance, but issues that are very important to individuals. And I have to say I always said difficulty working with PCC who are extremely helpful encouraging editors to publish an apology in a position of equal prominence. It is an issue that people have to confront. But let's not get hung up on that one. I want to take you again with your Media Lawyer's hat on towards the illegal activities that we've become aware of in recent years; not just phone hacking but the blagging of bank account details and access to medical records. What is the nature of the debate that's taking place within the Media Lawyers' Association because all of you as legal professionals I know would not countenance anything illegal? But what's the nature of the debate; action that can be taken to make sure that that doesn't happen again?
MP Well I think it's an issue that's being dealt with at the moment by the police and I think that's the right thing and pending what happens in terms of any criminal proceedings, I really don't want to say anymore about it than that.
HL So has no advice been given to newspapers about how they should be conducting themselves at the moment?
MP Well I'm...sorry, I'm not going to waive privilege on advice I've given, I'm not going to waive legal professional privilege on advice I've given, but obviously everyone knows that you should obey the law and you don't need to give people advice on that.
HL Do you think there are circumstances where legal departments of newspapers would of known that these activities were going on?
HL You can be absolutely categorical?
MP No I can't, obviously I can't. I can only speak from my own experience; I can't be categoric about anything. You are asking my opinion and I am giving it to you.
HL Do you accept that some of the huge issues in this country that are hugely in the public interest; I believe The Guardian was involved in one, the Trafigura, which is an incident of real significant where ill health happened; not necessarily people in this country, but elsewhere. If you conflate that with stories about footballers' sex lives, do you except that the man and woman in the street begins to loose respect for newspapers when the emphasis is on the sex life of a footballer that will sell more newspapers than the activities of a company that may jeopardise the health of people?
MP I'm not necessarily sure; obviously people are interested in different things. I mean I don't think it necessarily involves a loss of respect for newspapers, no.
HL Do you think there has been a loss of respect for newspaper over recent events?
MP I think there's always been a healthy disrespect for newspapers, politicians, the law, the judiciary; I think that's to be almost encouraged. I think newspapers are having a tough time because of the changing market in the world of advertising in various other things but I don't think that that is happening because they are focusing on footballers or other public figures as opposed to focusing on Trafigura.
HL But it does, the very fact that circulation is dropping in many respects quite dramatically does suggest that there is greater pressure on editorial departments to break the kind of stories that will cause a increase in circulation in the short term. Does it not?
MP Well I think people often talk about how there will be some story that will have a tremendous spike for circulation and I don't think that is the reality. Newspapers are under pressure at the moment; they have a lot of economic pressures on them and there's always pressure to try and break stories and there's always pressure on all journalists to try and get some exclusive line. But that's always existed and I suppose it always will.
HL So newspapers don't put on what's called a box-out to increase circulation if they've got a big story about Ryan Giggs or Wayne Rooney?
MP Well I think newspapers obviously their sales go up and down to a certain extent but I don't think they go up to the; if they do go up I don't think they go up to the extent that people think. I think people think that if you run some sex exposure about some footballer you are going to have a massive massive spike in sales, and that sometimes is not the case.
HL Will it increase the print line if they have a story on footballers?
MP I don't know. I mean they may or they may not.
HL So you don't take circulation into account when you are advising editorial?
EF Can I just ask you about notifying people in advance of a story that you are going to run? In your department do you as a matter of course advise if there's a question of a story that you should notify those who are affected or defamed or their privacy is invaded to be given the chance to comment and if necessary take action?
MP I think you are asking me to waive legal professional privilege aren't you?
EF No but I'm asking you as a matter of habit.
MP I think you are and you know you are. I can't, I'm quite happy to help you but I'm not prepared to go into things that I do in my day job in terms of giving advice which is covered by legal professional privilege.
EF I'll rephrase the question if you like. Do you think in general terms it's a good idea that those who are responsible for stories that may defame or invade privacy should give those who are affected a chance to take action, to comment, or otherwise to contribute to the story?
MP I think it all depends on individual stories. I think you can't have a general rule. I think it's very interesting the European Court of Human Rights in the UK Max Mosely case has just decided for three reasons a compulsory pre-notification right was not appropriate. One; because of the chilling effect on freedom of expression, Two; because it was unworkable, and three; because of the margin of appreciation which was given to this country, and I agree with all of those.
EF Well we won't go into those. If fact that case is going to go further I think; that's the plan at least.
MP Well, as you say, that's the plan. I think Mr Mosely would like to take it further. I haven't heard, you may have, but I haven't and I'm not sure whether the application to take it further has been successful.
EF Pretty slowly
MP Well I didn't actually interestingly for that case because that case started along time after MGM versus United Kingdom about Naomi Campbell and it was and remains a mystery to me how that case jumped to the top of the queue so quickly, I'd be very interested. Do you know?
EF I don't know I'm afraid no. But generally speaking there are long queues and sometimes things go....
MP Naomi Campbell, our cases were 2004 and 2006 and they only came to judgement in January this year and I think the Mosely case may have been 2008; it maybe 2008 or 2009.
EF We touched on the difficult economic circumstances facing newspapers. Is it the case that popular newspapers depend upon publishing scandal to survive?
MP I think, I wouldn't call it scandal but I think that popular newspapers depend on publishing material which the public's going to be interested in and unfortunately I don't think putting on the front page of popular newspapers stories about Trafigura is necessarily going to increase sales.
EF I accept that that may not be for the whole population but is it your experience that over your career that the pressure, the economic pressure encouraged popular newspapers to spend more time searching out the salacious rather than dealing with cases like Cream Holdings for instance?
MP I think popular newspapers over time have become like the population; more interested in information about public figures rather than investigations. I think it has got to be remembered the defamation laws we have in this country mean that investigations and the difference between a story being true and you being able to prove it is true mean that you have to devote a lot of time and money to investigations to make sure that they are safe from attack. And obviously when you are in a position where economic factors are bearing down on you then I think it is sometimes much harder to justify lengthy investigations, but I think that applies to all the media. I really dislike this focus on tabloid newspapers because I think it applies to newspapers generally and I think it applies to broadcasters too.
EF Public appetite that you have spoken of, is there any sense in which that has been created by the behaviour of the press or is it the press responding to what it perceived as public desire for more?
MP I don't know; I don't know the answer to that. I think it is a bit of both probably.
EF Moving on to regulation, do you have any anxieties about whether the PCC represents an effective regulator?
MP No I think the PCC generally gets a steady kicking and I think sometimes that's out of place. I think one of the questions before referred to it. In terms of helping, for want of a better phrase, ordinary people, I think that they are very effective; a free service. I think the whole debate about injunctions is being swayed. The people who apply for injunctions are public figures. They are people who are in the business of controlling their reputation. That's what a lot of these injunctions are about. They are about public figures controlling the information that's revealed about them. I think the PCC does do a good job. I think obviously from time to time things get modified under the PCC code which I think is appropriate. I mean some of the things change over time like the thing about suicides and I think that's quite healthy. And I think one of the things that's good about the PCC is they can move when there's pressure to move.
EF The Select Committee for Culture, Media and Sport
EF in their 2010 report
EF put forward a series of recommendations for the PCC to toughen up its regulation of the press. Do you agree that those are all needed?
MP I'm sorry I can't remember off the top of my head what those recommendations were. I mean, I had a look at one yesterday which was the recommendation for the court to take in Section 12 properly as Parliament intended. But I can't remember those off the top of my head.
EF Let me move you onto definitions. You're either personally or through your staff advising editors and editorial staff every day are you?
EF On issues of what public interest is and the term that you have used a lot is a public person. What is a public person?
MP Well it is a very useful definition which is given by the Parliamentary Assembly Resolution for Council of Europe. This is a resolution which is often referred to by the courts but not on this point. And they describe, this is from 1988, "public figures are persons holding public office and or using public resources and more broadly speaking all those who play a role in public life; whether in politics, the economy, the arts, the social sphere, sport or any other domain". Now that's a Council of Europe resolution and I think that is quite a good one.
EF It's very broad isn't it?
MP Yes I think so but that's interestingly, as it is in a document which is headed "Right to privacy".
EF But it is so broad that it not only encompasses people who have chosen to put themselves in the public realm, but actually become find themselves in the public realm because they become of interest to the newspapers. It's a bit circular isn't it?
MP Well if you don't like that definition what would you suggest?
EF Well that is something for me to reflect. I'm asking you what you think.
MP Well I think that is a good definition yes. And I think you obviously are going to have people at the margins of that who may feel that they shouldn't be in that. But you are always going to have that for any definition I think,
HL Can I ask where the McCann family would fit into that; the parents of Madeleine McCann? And the parents of the little school girls who were murdered in Soham?
MP I think the parents of the little girls who were murdered in Soham do not fall into that category. I think the parents of Madeleine McCann do because I think the difference is that the McCann family have decided in the hope that it will help recover their daughter, find their daughter to take a much more active role in the debate about the whole issue and have disclosed information and have, I think she has written a book. So they have consciously taken a different step to play a role in public life on the issue. Whereas I don't think the parents of the murdered girls in Soham fall into that category.
HL But the parents of Madeleine McCann were the subject of a lot of this publicity before they had launched their campaign to get high public profile for the disappearance of Madeleine. Do you think that's acceptable?
MP Well I think you've put your finger on where it changed. I don't think you become a public figure just because something happens to you or something happens to a member of your family. I think the transformation happens when you take a more active role in the way that they have.
EF Well that's interesting as the case we had in front of us yesterday was Helen Wood and she was very clear that she did not seek to become a public person, to share any of her experiences publicly until she had what she saw was a dreadful experience at the hands of the press.
MP I'm sorry I haven't heard what she said so...
EF It's probably unfair to go any further on that not being able to share all the details as it would take up too much time.
ML- Can I go back to the PCC and the Select Committee's recommendations which included the suggestion that the PCC should be able to levy financial penalty for newspapers who broke the code. Of course the code is the editor's code which has come by agreement from the press itself. It doesn't seem an unreasonable proposal.
MP I don't support that.
MP Because I think a system of self regulation is much better without fines. I think fines just involves changing it to a system which will invariably lead into legal proceedings and involve too many lawyers. I speak as a lawyer but I mean I think you should try and have a system of self regulation which is separate and distinct from the mechanics of the law.
ML- So self regulation, no penalties?
MP Yes. Not no penalties, but no fines.
ML- So what penalties do you have in place of fines?
MP Well no, sorry I am just picking you up on penalties, because obviously the PCC can adjudicate against you and you have to publish that and many claimant lawyers say that the one thing they want is an apology or they want something put right. They don't concentrate on financial compensation. That's what I always hear from claimant lawyers; they say they want you to put it right, it's never about money they say, but when the debate changes they say "can we have some fines as well for the PCC".
ML- If you want to change behaviour, if you believe that behaviours are inappropriate, their more likely to be changed by economic sanctions than by judgements against someone.
MP I disagree. I mean one of the cases that's always referred to as the 1990 case of Gordon Hay in a hospital bed, that sort of thing would never happen now. That change has come about not because there is the existence of fines because of the change the PCC has bought about to newspapers. That sort of thing would never happen now
EF-- He had to go to court though
EF-- He had to go to court I guess?
MP He had to go to court but the court didn't grant a remedy to Gordon Hay.
ML- Are you entirely satisfied that we have one regulatory system for broadcasters which does include financial penalties and another regulatory - self regulatory system for the press?
MP Well my own view is it would be better if there was a self regulatory system for the entire media but obviously I think that involves a dismantling of a current mechanic. But I think that a self regulatory system is better. I think Steven Abell said when he appeared before you that was the norm across European countries.
ML- That's at least consistent given that...
ML- It is at least consistent, I give you that. Let me just come back to the issue of injunctions. Why is it across the majority of the recent injunction cases that there has been no evidence of appeals by the newspapers concerned? It seems a bit surprising? No attempt to evidence the public interests which is at the heart of the investigations they've been undertaking
MP Well I don't think that's quite right. I mean they have been appeals. I mean newspapers on behalf of The Sun have taken various steps to try and appeal the Fred Goodwin injunction and CTB Ryan Giggs, so there have been steps but
EF The problem is what I said to you earlier about Section 12. The whole intention of Parliament was when these injunctions were sought they should be noticed to people. If you go to court with only the claimant being there and you get an injunction, on any appeal against that injunction, it's not a 50/50 situation because the courts have already granted an injunction and their much much more likely to hold the injunction than overturn it. Because overturning it has the implication that it was wrong to grant it in the first place. Second reason is the cost of appealing injunctions, we took action in 2007 in the case called "X & Y versus persons unknown", about a couple who had sold their wedding, sold their honeymoon to magazines which paid for it, and then they applied for an injunction and we challenged that on the grounds that we hadn't been given notice and they hadn't told the court the truth as it is an obligation of full and frank disclosure on these injunctions as there is in every application for injunctions to tell the court the truth. And we took action and the court said "well the claimant haven't really done as well as they should of and councils should of done better and the solicitors should of done better. But we're still going to hold the injunction and you the newspapers can pay for it". So just to finish, we having challenged and injunction, even though the court was critical of the claimant's legal team, we are left with a large bill. Now in current economic climate, newspapers can't keep making applications like that and being landed with huge cost bills.
HL So the newspapers should be notified if there is an application for an injunction, but the subject of the story shouldn't be notified that a story may appear about them?
MP Well the difference is I think that they are asking the court to stop the newspaper. Yes?
HL It's one law for the newspaper and a different law for the subject?
MP No I think one is a procedure involving a public authority which is the court, and before asking the court to interfere with a third party I think it's accepted now following the Neuberger Report that they should give notice to third parties. Now obviously you're going to write to the PCC and they need to look at the issue of pre-notification. But we've just had the Neuberger Report which says that newspapers should be given notice before injunctions and we've just had the European Court of Human Rights say a compulsory right to pre-notification isn't workable for the reasons that I gave earlier and I think that's the position and the correct position.
HL So in layman's language you're saying it's not fair that the newspaper does not know about the injunction, but in the other hand you're saying it is fair that the subject of the story should not be notified?
MP No, a point to remember, Parliament decided that newspapers should be given the rights to be heard; Parliament decided that newspapers and broadcasters should be given prior notification of applications for injunctions. I'm not saying its fair, it's what Parliament has decided on and that is the issue. I'm not saying people shouldn't necessarily be given notice, I'm just saying that the European Court has already decided that there shouldn't be a compulsory right of pre-notification and I think that's right.
EF We've heard that there have been quite a few cases where the media have actually been present and haven't contested and injunction, but nevertheless have said correctly that they have been gagged. But they haven't actually contested the gagging. Are you aware of this?
MP Can you give me an example?
EF Well nobody of course gives examples but a number of people who are in good position to tell us about this, lawyers involved and others have said that's the case. So in your answer that you are unaware of this ever happening?
MP Sorry I might be missing, I might be being a bit slow here misunderstanding. You're talking about newspapers who are being present in court and they haven't objected to the injunction being sought or contended but then the courts granted the injunction and they then said they are gagged?
EF Which is entirely correct that they are gagged but on the other hand they've consented to be gagged. Are you unaware of anything like this happening?
MP No, well I can understand somebody saying they've been gagged because they have been gagged. As you say it's completely correct so I
EF its misleading isn't it? Because it rather suggests if your newspaper says we're gagged that they have been prevented to despite championing freedom of speech or some other argument by a court for publishing was in fact they haven't actually objected to the story.
MP But the court has still granted an injunction so they have been gagged. So I think it is slightly dancing on a pin head isn't it?
EF Well that's your view. But the court clearly didn't have the opportunity to hear the public interest defence that presumably motivated the newspaper?
MP Well, I'm sorry, in what circumstances?
EF In those circumstances, where the
MP Going back to what I said earlier about I believe the courts are coming from this from a point of view, as I said, it's very easy to get through the Article 8 gateway and its very hard to get through the Article 10 gateway and there isn't any confidence that the court will find for the Article 10 right. I mean to give you an example, John Terry, he applied for an injunction without any notice yeah? Even though the judge eventually decided that there shouldn't be an injunction, for a week he granted a super injunction. There was no one present in court, he thought that notice should have been given and even though the tests and all the rules under Section 12 on a super injunction were still put in place, yes for a week. Give you another example of one of your other witnesses, Zac Goldsmith. Zac Goldsmith applied for an injunction in respect of his email correspondence. For reasons which I still don't understand, he was given anonymity. So instead of it saying Zac Goldsmith has obtained an injunction he had anonymity and the problem is the courts have been far, and this has been recognised by the Supreme Court, an outbreak of anonymity has gripped our court system and even though the Supreme Court has criticised it, it still prevails the system. You know, lawyers are having confidentiality injected in them from an early stage. And so the natural tendency I think is to give people anonymity into granting injunctions.
EF Can I just ask you one last question Marcus?
[Question and answer omitted]
EF Do you personally have any misgivings about the range of behaviours we see exhibited by the popular press in this country?
MP Do I have any misgivings about...um, from time to time things will happen that step over the mark, that's undoubtedly the case. And yes, that's wrong. But I think it's far too easy to refer to certain things and generally say that's exactly how the popular press behaves. I think obviously misbehaviour takes place and has taken place but I think it's wrong to extrapolate that sometimes in the way that it has done.
EF And if those excesses become marked, that is a job for Parliament is it?
MP No I said earlier that if behaviour is against the criminal law, that is for the police.
EF We always end these sessions by inviting a witness, as it were, to speak directly to the listener to summarise their view on balance of rights on freedom of speech and public privacy. Do you want to take the opportunity?
MP Thank you. I think in this debate it is important to remember that Parliament has already decided on how to draw the line between Article 8 which is important thing to remember the right to respect for private and family life as opposed to a right to privacy. And Article 10 which is the right of everyone, not the media, the right of everyone to freedom of expression. Parliament did this when they passed The Human Rights Act and in particular Section 12. The courts in my view have not done and are not doing what Parliament guided them to do when it passed that Act as they are not looking, as I explained earlier, at the Parliamentary debate when that Section was discussed and passed. In addition the courts haven't adhered to the procedures Parliament said they should follow in terms of any hearings for injunctions. Something that hopefully now will change as a result of the Neuberger Report super injunctions. That reports conclusions and recommendations may help to explain in part why there has not been any applications for injunctions that I'm aware of in the last month since that report was delivered. Lastly although I am obviously, I only know of the injunctions that have been served on our company, as far as I'm aware, almost everyone who has applied for an injunction in the last few years is a public figure. Furthermore, almost invariably what their injunctions have been about reputation management dressed up in the close of Article 8. Thank you very much.
EF Thank you for that. Thank you for coming and speaking frankly to us and for taking us deeper into the issue of injunctions and the decisions made within newspapers