The SunThe reactions to the Report of the Culture Media and Sport Committee (see our post here) have provided an interesting illustration of media responsibility.  At one time, readers might have expected that the “serious newspapers” at least would have given a dry, factual, account of the report of such an august body, confining comment to a serious editorial or two.  Those days have gone.

The MPs report was heavily critical of the News of the World, taking up some stories run by the Guardian.  Perhaps unsurprisingly, that paper featured the report on its front page under the headline  “MPs verdict on News of the World phone-hacking scandal: Amnesia, obfuscation and hush money”.  In contrast, other papers in the same group as the NoW were less interested.  The Guardian drew attention to the fact that the Times had a 230 word story on page 15. It carried the MPs’ criticism of News International, followed by a statement from the company attacking some committee members’ “party political agenda”.  The Sun had 135 words under the headline “Report hijack” suggesting that the report was a party political attack on the Conservative Party’s head of communications, Andy Coulson – not mentioning that the Tory members onf the Committee had joined in with these conclusions.

The Guardian has followed up its earlier coverage with a piece by Pete Wilby entitled “Why other newspapers ignored the News of the World phone hacking story“.  Finally, there was an article by Professor Brian Cathcart, the specialist adviser to the Committee, entitled “The media’s conspiracy of silence”.  He concludes

If this report paints the popular press in a bad light, the coverage of the report makes it look even worse. The majority of British newspaper readers have either had the truth hidden from them or been cynically misled. Will the PCC do anything about this? Of course not.

The well known media lawyer, Geoffrey Robertson QC has provided an interesting critique of the recommendations of the Culture, Media and Sport Committee report under the heading “Media inquiry ducked key reforms“.  The committee, says, Mr Robertson “failed to see the wood for the legal trees”.  Mr Robertson the joint author of the leading textbook, Robertson and Nicol on Media Law so it is worth looking closely at his criticisms. He begins well:

“Politicians have had little inclination to reform media law. They have been intimidated by tabloid power from developing privacy protection for citizens”.

His next point is less convincing

“they have been content with a plaintiff-friendly libel law because they are frequently plaintiffs”.

We are not aware of “frequent” libel actions brought by MPs in general or members of the Culture Media and Sport Committee in particular.  But let us move on, after some passing congratulations for the recommendations on libel tourism, CFAs and multiple publication Mr Robertson focuses on what describes as the failure of the committee “to see the big picture”.

“They have ducked the three major reforms necessary to make the media both free and accountable, namely the reversal of the burden of proof on defendants in libel cases, the introduction of a carefully defined tort (civil wrong) that would entitle juries to award damages for gross breaches of privacy, and the total and complete abolition of the Press Complaints Commission”.

Surprisingly, we find ourselves in agreement with Mr Robertson on two of these three points.  Let’s deal with the common ground first.   Mr Robertson argues that

“The committee … misses the point when it comes to consider the need for a closely defined civil law to protect privacy. The present position is a mess: breach of confidence does not cover the worst cases; there is no jury trial and remedies offered by the PCC are valueless. The committee declined to grasp this nettle for no better reason than “the media industry itself is not united on the desirability of privacy legislation” – well, it wouldn’t be, would it?”

This accords with the argument advanced by Hugh Tomlinson QC in his post on the new law of privacy.  Secondly, Mr Robertson also disagrees with the Committee’s views on the PCC – which he describes as “the body financed by the press which pretends to supervise its ethics“.   He chides the Committee for failing to recommend its abolition.  Jonathan Coad has  argued on this blog that the PCC is “secretive, biased and weak”.

Our disagreement is with Mr Robertson’s third point.  This concerns the “burden of proof” in libel cases.  He writes

“The reason why unmeritorious libel actions – or the threat of them – so often succeed, is because, alone in civil actions, the burden of proving the defence is placed on the defendant. This is wrong in principle, because any claimant who invokes the legal process puts the defendant – often a scientist or a human rights NGO – to great expense and inconvenience and should be able to prove, on the balance of probabilities, that he or she has a good case”.

The committee irrationally rejects this crucial reform, because “Kate and Gerry McCann would have been required to prove that they had not allowed harm to come to their daughter”. But they would have done this, like any claimant, simply by going into the witness box and asserting their innocence. Their evidence would be the proof that would prevail, so what is the problem for any genuine claimant who can satisfy a jury that it is more likely than not that he is telling the truth? The MPs on this point simply fail to understand how law works in practice”.

We do not agree.   First, as Mr Justice Eady points out in a recent lecture on “Privacy and the Press“, in practice burden of proof questions are usually irrelevant:

“How many libel actions turn upon the burden of proof? I have been trying to recall one and have drawn a blank” (page 9).

Second, the placing of the burden of proof on the defendant in libel cases is far from unique – the law does this every time that there is an established interference with a legal right – the defendant then has to justify it.  This applies in actions such as trespass, conversion (interference with goods) and false imprisonment.  Why shouldn’t it apply when the defendant makes an accusation of wrongdoing against the claimant – why should the claimant have to prove he is not a wrongdoer?  The defendant makes the accusation and should prove it to be true.

Third, the suggestion that the defendant is “often a scientist or a human rights NGO” is, at best, rhetoric.  Look down the list of libel trials over the past five years – in our post here – claims against scientists and NGOs are, to say the least, uncommon.  The defendants are, most often, media corporations.  Why should they not prove that their allegations are true?  After all, if they have been acting in accordance with what Strasbourg calls “the ethics of responsible journalism”, they will have taken proper steps to verify the allegations before they are made.

Unfortunately, it is Mr Robertson who “fails to understand how the law works in practice”.   Reversal of the burden of proof is not going to have any serious practical impact.  The practical position is described by Mr Justice Eady in his lecture:

“What would happen, if the burden were to be reversed? The claimant would, at stage one, set out the words complained of, identify the respects in which they are said to be false and plead the defamatory meanings they are supposed to bear – so nothing new there. The defendant would be required at the next stage to say whether he or she accepted that or not; if not, obviously it would become necessary, in accordance with the rules, to narrow the issues in the case – and, in particular, to say in which respects it was claimed that the words were true. That sounds a bit like particulars of justification to me. Disclosure of documents would take place in the usual way and then, if the case was one of the very few that actually proceeded to trial, the claimant would go into the witness box and state that the words were untrue, as happens anyway, and go on to give an account of the relevant facts. There would be the usual opportunity to cross-examine, of course, but you would be rather unwise to count on the claimant breaking down in tears and admitting that, after all, it was all true. The defendant would, therefore, be left rather naked if no evidence was available to be called in rebuttal of the claimant’s case. So it would seem that very little had changed. The legislature might have laboured only to bring forth a mouse”. (pages 9 to 10).

So, while Mr Robertson gives the Committee 0/3 on the “big legal points” we would up its score to a still not very impressive 1/3.