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Former justice secretary Jack Straw has urged Parliament to amend the Human Rights Act to include a tort for breach of privacy.
“I think parliament needs to take this job on now,” Straw told the Leveson Inquiry today, adding that doing so would send a message to the public that they had “the right to have their privacy protected”.
Echoing his 2011 Gareth Williams memorial lecture, Straw said that legislating on privacy has gone “through a side door” by relying on the HRA. There is no current tort on privacy in English common law, though section 12 of the HRA says that a court must regard the extent to which a media defendant has complied with “any relevant privacy code”.
Straw, who was Home Secretary from 1997-2001 and Foreign Secretary from 2001-2006, also claimed self-regulation of the press had “palpably failed” and that regulation with statutory underpinning was the only means of compelling newspaper groups to join into a system.
“If you leave it to self-regulation we will end up with the absurd situation where they [the press] are judge and jury in their own courts,” Straw said, adding that the press “can’t go on claiming every other institution in the land needs external regulation” while it continues to regulate itself.
However he dismissed counsel Robert Jay QC’s suggestion of the possibility of state control in newspaper content as “nonsensical”.
Straw flagged newsroom culture as an area of concern, adding that the press needed to be “more examining of what they are doing” and that the Inquiry itself provided a “mirror” for journalists.
“With luck, there’ll be continuing momentum for change,” Straw said, contradicting former Downing Street spin doctor Alastair Campbell’s more pessimistic view that there was “no appetite” for media reform.
He accused the British press of being “Quixotic”, telling Leveson: “one day you’re best thing since sliced bread, next your paternity is being questioned by the same newspaper”.
He added that there was a degree of “voyeurism” among some sections of British journalism that took “no account of the responsibility of decision-making” and that there was a “willful refusal” by the press to develop an understanding of how governance works. “They reduce it so much to personality and conflict,” Straw said, adding that newspapers had contributed to a culture in which politics is seen as boring or pointless.
The Inquiry is currently focusing on relationships between the press and politicians, with Straw revealing that, during his time in the Cabinet (1997 to 2010), some newspapers were gradually “being favoured by particular ministers”.
“They had these little groups,” he said, adding that it was “very incestuous and very unhealthy” and that both sides were to blame.
Straw said one of the reasons the Blair government was too close to some of the press was because of its involvement with them during their time in opposition, a relationship it carried into Downing Street when it came to power in 1997.
“Every politician wants to have the best relationship they can with the press,” Straw said, but warned one’s own position becomes “compromised” and it could “undermine your integrity” if relationships are too close.
The Inquiry continues tomorrow, with evidence from former Sunday Times editor Sir Harry Evans and journalist Peter Oborne.
Follow Index on Censorship’s coverage of the Leveson Inquiry on Twitter – @IndexLeveson
This article originally appeared in Media Guardian
The most disparaged parliament in living memory may end its life this week in characteristic style. A small band of refusenik MPs are planning to stay behind to prevent one last piece of business from being passed.
These are plans, presented by Jack Straw, the justice secretary and a latter-day convert to libel reform, to limit the success fees won by avaricious legal firms in cases conducted under conditional fee agreements (CFAs), better known as “no win, no fee”. In one fell swoop, and somewhat hastily, Straw has sought to cut back the costs that law firms can charge the other side after successful cases – from 100% to 10%.
Reform of CFAs has been an important part of our broader campaign with English PEN and Sense about Science to change England’s hideous libel laws, which are skewed towards the rich and powerful and have helped to chill free expression in the UK and around the world. The issue is complex. The original idea behind “no win, no fee” was admirable, allowing ordinary and often impecunious people either to defend themselves or to sue for damage to their reputations. However the system is open to abuse, with law firms cherry-picking risk-free cases and wealthy individuals using CFAs to bully people into submission.
Last week, it was assumed that Straw’s plans would go through easily. But this did not take into account the small number of MPs nursing resentments over the way the media have treated them during the expenses scandal. Several of them, led by Tom Watson, a close ally of Gordon Brown, have won defamation cases against newspapers. They belong to the old school that sees the fourth estate as a feral beast needing to be tamed, rather than understanding the extent to which robust investigative journalism and fair comment have been silenced in recent years. They also ignore the significant impact of costs on NGOs investigating corruption, as well as on scientists, academics, publishers and authors.
If these malcontent MPs succeed, they will have made a small dent in the bigger campaign. The battle for free expression in the UK has become attritional. The forces of resistance have begun to organise, and they are lobbying hard in parliament, particularly targeting the Tories. While Labour have belatedly joined the Lib Dems in committing themselves to the principle of libel reform, the Tories remain unclear in their intentions, with several key figures enjoying close relations with the law firms at the heart of the problem.
Yet for every setback there is a cause for celebration. On Thursday, the scientist Simon Singh secured an important victory when the court of appeal ruled that his negative remarks about chiropractors were “honest opinion” rather than fact. In other words, he does not have to provide hard evidence to support his claims against the British Chiropractic Association. The specifics of the judgment are welcome. Arguably even more important is the language used.
In their ruling, the judges not only dismiss the arguments used by Justice Eady in his initial ruling last May. They point to broader ramifications. For nearly two years since publication of Singh’s Guardian article, they say: “it seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices.” That is a devastating indictment.
The judges go further, saying of Singh’s piece: “The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth.”
This ruling just may be part of a pattern. Already one or two cases that might have been brought by foreign litigants – using the UK, as ever, for what has come to be known as “libel tourism” – have been rejected on grounds of jurisdiction.
Judges are sensing the public mood and moving with it. Yet it could all unravel quite quickly with an incoming government asking for yet another review, giving time for the law firms’ lobbyists to cash in and wreck reform. The litigant companies will move back on to the offensive, sniffing their chance to regain lost ground, and lost profits. The battle for libel reform has barely begun.
John Kampfner is Chief Executive of Index on Censorship
This article originally appeared on Comment is free
Jack Straw’s announcement yesterday on libel law reform marks a significant sea change. Ten months ago, the justice secretary told the select committee inquiry on libel, privacy and press standards that he had yet to be convinced that there was a significant problem with libel tourism – where foreign claimants bring their cases to English courts. He is now proposing to limit the ease with which foreign claimants can be heard in this jurisdiction, as well as introducing a single publication rule and considering a statutory defence to protect publications that are in the public interest. He has, in short, acknowledged that the balance was tipped too far in favour of protecting reputation at the expense of free expression.
His support for reform is testament to the lobbying power of a rarealliance of campaigners who provided compelling evidence that libel reform was not simply about protecting the interests of the media establishment, but about safeguarding the free speech of the public as a whole – whether it’s the freedom of a cardiologist to critique a surgical device or the freedom of a science writer to question the efficacy of alternative medicine. Proposals for reform that seemed unpopular and unfeasible just a year ago now sound like common sense. The select committee’s whole-hearted support for reform in its report on privacy, libel and press standards last month was, without doubt, an important endorsement and the final push for change.
This is not, however, the end of the story. One of Straw’s more controversial changes – slashing lawyers’ success fees in conditional fee agreements – is now being threatened with judicial review and it’s likely that his latest proposals will meet with further resistance. Nor are all the justice secretary’s proposals secure: Straw has announced that no more than “consideration” will be given to one of the most important reforms of all – creating a statutory public interest defence. For NGOs investigating corruption and scientists criticising treatments, this remains a much-needed protection. Over the past few months, NGOs (Index on Censorship, English Pen and Sense about Science) have sent evidence to the libel reform campaign that details the extent to which fear of libel action is inhibiting publication of research that is clearly in the public interest.
Furthermore, while the welcome introduction of a single publication rule goes a long way towards rescuing the internet from the tyranny of a 19th-century precedent, which has ensured that every download of a story was a new publication and therefore potentially a new libel suit, there is still need for enlightened reform. Mr Justice Eady, much reviled for being the bane of free speech, wisely suggested last month that there was need for an international agreement that would address the new challenges posed by the internet. Let’s hope that Labour can follow through its promise of a libel reform bill in the next parliament. While Dominic Grieve dismissed the proposals yesterday as “pre-election posturing”, Jack Straw’s blow for free speech prompted the Conservative party to declare its strongest support to date for reform. Let’s hope they all mean it.
The Justice Secretary, Jack Straw, will today announce reform of English libel law at a mass lobby of Parliament organised by The Libel Reform Campaign led by English PEN, Index on Censorship and Sense About Science.
The Justice Secretary will outline the Government is committed to a single publication rule; a consultation into whether a statutory public interest defence can be developed in a way which balances competing interests concerning freedom of expression and reputation; procedural changes around rules and practice in relation to service out of the jurisdiction, to deal with “libel tourism” and work on other procedural issues e.g. early resolution of meaning and strengthening the pre-action protocol to stop lawyers running up unnecessary costs.
The commitment by the Labour Government comes after Nick Clegg committed the Liberal Democrats to radical reform on 18 January. Campaigners and now asking David Cameron whether the Conservative Party will commit to reform.
The Libel Reform Campaign is “pleased that action is being taken” but has asked for a commitment from the government to reform:
- A clearer defence of “fair comment” in law;
- Removal of internet chat and interactive online services like blogs from liability
- Preventing corporations and associations from using libel law , restricting them to malicious falsehood.
Jo Glanville, the Editor of Index on Censorship said
Labour have shown a commitment to freedom of expression, albeit a late one, by clearly stating they will reform our libel laws. We’re pleased Jack Straw has taken our recommendations seriously, and has come up with some significant proposed reforms, though we would like to see a clearer fair comment defence and an exemption of corporations from libel law.
Tracey Brown, the Managing Director of Sense About Science said:
It would be ludicrous for any party to suggest we should continue with these unfair and ridiculed libel laws that’s why we’re glad Labour have announced a commitment to reform. We need freedom of speech that we can exercise confidently, to discuss science and medicine or any other subject of public interest. Not semi-feudal laws that tie people up in court for two years and chill public discussion.
Jonathan Heawood, the Director of English PEN said:
We still haven’t heard from the Tories who claim to be championing individual liberty. We hope David Cameron will listen to the 44,000 people who have signed the libel reform petition. The level of popular support for reform shows that this law is not just about journalists but human rights activists, scientists and academics, even mothers chatting online: free expression really is an issue for everyone.
The Libel Reform Campaign is a coalition of English PEN, Index on Censorship and Sense About Science.