The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • MR HUGH RICHARD EDWARD TOMLINSON QC (affirmed).

  • Mr Tomlinson, you have given us your full name.

    Can we identify, please, the statement to which you are going to speak. It is a 29-page statement which was prepared on 7 June 2012.

    You are the drafter of it, but there have been contributions from a number of people listed on the 29th page.

    Insofar as there are matters of fact set out in that statement, are they true to the best of your belief?

  • Mr Tomlinson, I think I'm right in saying that the origin of your original proposals was a request that I made to encourage all those with an interest to consider the matter and prepare some views, and I'm extremely grateful, both to you and to the group who are identified as participants in the Roundtable, for the obvious effort and energy that has been put into the report and proposal which you have put before me.

    I'm very aware of the amount of work it must have involved.

  • Mr Tomlinson, first of all about yourself. You are a distinguished barrister. You practise primarily in human rights and media-related issues; is that right?

  • You've been Queen's Counsel for a number of years. I'm afraid I don't know exactly how many.

  • In terms of the balance of your work, as between claimants and defendant, can you help us a bit about that?

  • My work is predominantly claimant-focused, although I have over the years acted for a number of defendants and for a number of newspapers.

    I should also add, just so that it's clear on the record, that I am counsel for the claimants in the phone hacking litigation in both phase 1 before Mr Justice Vos and in phase 2, which is continuing at the moment.

  • Certainly.

    The initial proposal which you refer to in paragraph 1 of the introductory section dated February 2012 is on our system at MOD200016389, but we are going to look at this developed proposal which has undergone further consultation.

    In section 2 you outline it. Could you provide for us the essential features of this proposal?

  • I think, so that nobody misunderstands, you have correctly identified that you're acting for the claimants in this litigation. But as I understand it, this report is not at all prepared from a partisan perspective for clients. This is part of an exercise that the group, to whom I have already referred, sat down to do, as it were, without instructions, as one would normally expect.

  • Yes, that's correct. What happened was that there was an initial meeting in the autumn of last year, and the group met and we had a discussion, and I volunteered, or was volunteered, to write it up. And then we had a number of meetings after that, and various members contributed various ideas. It certainly had no contribution. It wasn't done on behalf of any clients.

  • That's the point. I think it's quite important that that be made clear.

  • The essential ingredients of the proposal, please. You are going to develop each element of it in due course.

  • Yes. Well, the essential point was, as I know the Inquiry is very well aware, the very difficult issues of balance which have to be addressed.

    What we sought to do in this proposal was, on the one hand, to balance the obvious and important public interest in maintaining public interest journalism against, on the other hand, the rights of the public to have their reputations and privacy protected, and rights of the public to fair and accurate information.

    The way that we sought to achieve this in this proposal is by the establishment of a body which we call the "Media Standards Authority", which is to be a regulator of the media, not just the press, but anybody who publishes news in the United Kingdom. A body which is voluntary in nature, but which has a number of incentives for membership, and disincentives for those who are not members.

    Perhaps the central feature is that we've sought to work in a proposal which would require anybody who wished to bring a legal claim against a member of someone who was regulated by this body, would first have to go through a process of adjudication. And the thought that we had was that very large sums of money are spent by the media on defending libel and privacy claims. A lot of money could be saved if a substantial proportion of those could be the subject of early resolution through an adjudication process.

    As I'm sure the Inquiry is aware, you can't compel people to give up their rights of access to court. That would be contrary to the common law and contrary to Article 6. But what you can do is compel them to go through an interim process first. The view that we took was that if an independent person says to either a claimant or to a media organisation, "Your case is hopeless for these reasons", that a very high percentage of people would accept that determination and move on.

    We thought that's a very powerful incentive. But there are a number of other incentives and disincentives which I'm sure you will come to, but that's really at the centre of the proposal.

  • Thank you. May we look at the ingredients of it now. At section 3, first of all, at page 00706, where you deal with the issues of independence, appointment and functions:

    "The key principles of the new body must be wholly independent of Government and politicians."

    You say at the end of paragraph 8:

    "Freedom of expression is best protected not by media self-regulation, which leaves out of account the interests of the public, but by independent regulation underpinned by statute."

    Isn't it possible, though, to devise a system of self-regulation which is independent, and therefore does take into account the interests of the public?

  • Well, by "self-regulation" I understand that ultimately, whatever the industry or the body is, it's regulating itself. And it seemed to us that actually there are two interests at play. There's the interests of the media and there's the interests of the public. And unless the regulation is independent of both, you're not going to have true and effective regulation.

    So I don't myself agree that an independent self-regulation, if that is a meaningful phrase at all, is the proper way to proceed.

  • Thank you.

    In paragraph 9 you make it clear that the governing body of the regulator should have a substantial minority of former editors and journalist, et cetera, but working editors and journalists would be involved in the formulation of the code.

    What is the objection to serving editors with contemporary valid experience being part of the governing body?

  • Well, I think there's an obvious conflict of interest for working editors to be regulating their commercial rivals. And I don't myself see how someone can truly independently regulate someone that they're in commercial competition with.

  • Your system of independent regulation has statutory underpinning and the enabling statute will cover matters such as the setting up of the body, the appointment of the relevant organs of the body and the Code Committee, as well as the provision of incentives. We see the way it might work in paragraph 11, where you've turned yourself into parliamentary counsel overnight and come up --

  • A very amateur effort, I'm afraid.

  • Before we pass on to the standard of drafting, just let me ask about this.

    You say:

    "Working editors and journalists will be involved in the formulation of the code."

    I understand why you see the value of their participation, if only that they buy in, but doesn't the same point that you make in relation to the governing body equally apply to the code? And would it not be another way of saying it to say that of course working editors and journalists should be involved, but as an advisory body to the governing body who actually are responsible for the code? I'm not insisting. I'm merely asking.

  • No, no, I understand the question.

    I mean, it seems to me that the essential distinction is to ensure that, first of all, you get -- the essential point is that you get the expertise of those who are practically involved in the media in the formulation of a code. And that those aren't the people who are making the regulatory decisions. Whether you call them an "advisory body", or whether you call them an "independent code committee" seems to me --

  • It's not quite a detail, because if they are the code committee and if they are responsible for the code, then they are responsible for the code, and the governing body which has the overarching independence to which you have rightly referred is not involved in identifying the appropriate standards.

  • I think the view that was taken by the Roundtable group, if I can put it that way, was that the two functions could be properly separated, and that the enabling statute would establish a code committee, which would draw up the code with heavy industry involvement. So the industry would have the buy-in to the code that is often talked about. But the code would be administered, as I say, separately by the authority.

    So I think it was perceived to be of value to have the two separate functions.

  • It may be you could achieve the same result by saying that the governing body have to approve the code as amended.

  • I'm merely just analysing the proposition. I'm sorry, you can revert to your drafting discussion.

  • We're not in fact going to look at the fine-tuning of the drafting. We're looking at the broad principles, Mr Tomlinson.

    But your "news publisher" can of course be an Internet publisher in the way in which you've framed this.

  • So there is inherent flexibility within the system already.

    The news publisher is anyone who publishes in England and Wales, whether or not he has a place of business in England and Wales. Then we see the principal objects of the authority in subsection 4, and there we see the balance between freedom of expression and the individual --

  • -- private interests of others.

    In terms of appointment to the body, you're looking at an independent body, modelled on the judicial appointments commission; is that right?

  • Well, an independent appointments process. It seemed to me that the media have a very deep-seated fear that the Government or politicians would somehow try and influence the composition of a body like this in a way that was adverse to their interests. And it was very important to have a guarantee that that wouldn't happen, that there wouldn't be political inference. How realistic that fear is, is a matter on which different views are possible.

    But I notice in the recent Australian system, they propose having the heads of three great universities as the independent appointment body. Perhaps going a little far.

    But it seems to me it's got to be a body like the judicial appointments commission, which is demonstrably and unarguably independent of political influence, and that's the important point.

  • And independent of media interests?

  • And independent of media interests as well.

  • Thank you.

    The guarantee of media freedom. I mean, one could argue about the drafting, but we're not. It is paragraph 13 of your statement. These are akin to the sort of guarantees we see in section 3 of the Constitutional Reform Act; is that the idea?

  • Yes, it was modelled on that.

  • Can I ask you, please, what obligations --

  • Did you come to that independently, or is that because I raised it? I'm not seeking credit.

  • I came to it -- it was independent.

  • What obligations are on the Secretary of State in practice though? We see in subsection 1: he must uphold the freedom of the press and its independence from the executive. But what does that mean?

  • It's partly intended as a statement of, as it were, quasi-constitutional principle. Like the independence of the judiciary is a fundamental constitutional principle, so the independence of the media should be as well.

    What that means in practice is that if the Secretary of State of is making decisions which will impact on the way the media operates, the Secretary of State must be guided by this principle. And there are circumstances in which one could envisage situations where that would force the Secretary of State to go in one direction rather than another.

  • So in terms of executive decision-making, it could have an impact, and one perhaps beyond, is this correct, Article 10 of the ECHR and analogous principles of common law, otherwise there wouldn't be any need for it?

  • Yes, it's interesting that Article 10 is often not remarked, but Article 10 actually makes no reference to the media, save there's a provision in 10.1 about the regulation of broadcasting and so on.

    The common law doesn't either. The common law understanding of Article 10 are really about freedom of expression, and media freedom comes as an essential component of that. This is intended really to put in the clearest terms media independence.

    It's all part of the balance, the quid pro quo, that the media is afraid of statutory regulation. And I think what we were trying to say here is you needn't be afraid of statutory regulation, and here is a statute which actually will, for the first time, set out the fundamental importance of media independence.

  • In subsection 3:

    "The interference with the activities of the media shall be lawful."

    And then there's the standard qualifications. But to whom is this addressed? Is this addressed to the courts or is it addressed again to the executive?

  • Well, it would be an obligation placed in public law. So it would be on public authorities which would include the courts.

  • The functions of the authority you enumerate in paragraph 14.

  • But you are not in subparagraph 3 intending in any sense to inhibit the proper use of the criminal law?

  • No. It's not intended to. We did have a long discussion about the position of the criminal law. And I think the view we all took was that the issues are complex and are not really best dealt with in the context of this kind of exercise.

  • Functions now. The authority establishes a code committee, a system of regulation, sets out rules for participation, establishes dispute resolution tribunals, et cetera.

    Have I correctly understood it, it's not an express function of the MSA to monitor or enforce the code?

  • Well, that may be just another failing of the drafting. It's one of the intentions that that's exactly what it will do.

  • I understand. So that's a small drafting point which might be addressed?

  • Okay. You are contemplating in paragraph 15 a contractual system -- of course there's statutory underpinning for the bodies, but participation is going to be created in practice by individual contracts drawn up by the MSA with the individual regulated entities?

  • Have I correctly understood?

  • What are the advantages of having such a contract?

  • Well, I think it gives flexibility in the sense that the body is established by statute. The body consults and decides exactly -- the precise details of its functions are not laid down in the statute. And they're not laid down by the executive. They're something that's decided on independently by the members of the authority.

    So a statutory framework gives greater flexibility. Although we do say in paragraph 15 that it may be that the statute could refer to the contracts and make it clear that there's some -- I think they were debated earlier in the week in this Inquiry -- some subtle issues of contract law that may arise in the context of such a contract. The position could be made clear by the statute.

  • The powers of enforcement, or rather investigation calling for documents, et cetera, those only arise under the contract. They don't arise in the statute?

  • What would be the objection to encapsulating these powers within the statute, so one wouldn't need to have to go to court and get an order for specific enforcement?

  • Well, I don't think you could avoid having to go to court to get an order whether the powers were in the statute or in a contract, because if someone refuses to co-operate, you are going to have to compel them to.

    But the purpose of having them in the contract rather than in the statute is, as I say, flexibility and balance to -- it's not a system that's imposed, as it were, from the outside by the statute. It's a system that the members agree to and sign up to.

  • Under paragraph 15 you see:

    "Participants would be required to give the MSA investigative powers."

    So that requirement would have to come from somewhere. So you would need to look to the statute, wouldn't you, which places that on the participant, or is it entirely a voluntary matter?

  • Well, no. The MSA would say -- how you spell this out in the statute is a matter of fine detail, but the MSA, it's contemplated, would say, "Well, in order to perform our functions which are set out in the statute, we need powers of investigation. So the contract of membership must include an agreement to submit yourself to investigation if required."

  • Dispute resolution is obviously a key aspect of this system. You explain it in two places in the document. First of all, in paragraphs 16 to 25, and then subsequently. If we look at the diagram, at page 9, our page 00710. Can I just invite you to talk us through this: differentiating between the pure breach of code case on the one hand, and the complaint of a legal wrong case, which may or may not involve as well a breach of the code on the other. Perhaps we can do it in the order we see it here.

    Complaint of a legal wrong. How is this going to work?

  • Well, if someone read something in the newspaper and said, "That defames me. I have an action for defamation," what is contemplated, first of all, they would go to the MSA and say, "I have a complaint about your member. I'm defamed by this," and the MSA would try and mediate that complaint.

    If that failed, then they would be required to put the complaint to an adjudication, which would be a quick, relatively informal system, with a legally qualified adjudicator, who would then say, "Yes, this is defamatory," or, "No, it isn't defamatory," or, "It's defamatory, but it's comment," or, "It's defamatory but it looks to be true," and make a determination.

    At that stage the complainant could have a choice. They could either accept the adjudication, or they could decide that they didn't like it, and they were going to go to court.

    But the crucial thing is that they would be required first to go through the adjudication system, which, as I said earlier, one would hope would save very considerable legal costs.

  • There's another possibility. Instead of going towards the right -- complainant not satisfied, court proceedings -- he can go towards the left, which applies to either party, and go off to dispute resolution tribunal, which is a form of statutory tribunal. Have I correctly understood?

  • No, what we had in mind there is effectively an arbitration function. I notice quite often when this is discussed, people get confused about the -- not the Inquiry, but the media, and laypeople get confused about the distinctions.

    Arbitration is of course always possible. Anybody can arbitrate now, because all you have to do is sign an arbitration agreement and appoint an arbitrator.

    So disputes between the media and individuals could always be arbitrated.

    But of course, you can't force people to arbitrate. It requires the agreement of both sides. So the idea is that the MSA would provide an arbitration function in effect through the dispute resolution tribunal, but that would have to be consensual.

    Sorry, and the second part, as it were, is if it's a complaint of a code breach -- let's say inaccuracy. Some form of inaccuracy or unfairness, which is not actionable in civil law, or only in part -- then the idea would be, again, make a complaint, mediation. And then, if the complainant isn't satisfied with the result, or it can't be resolved, then to have the tribunal resolve that complaint.

    The third level is, it seems to me, vital that the MSA must be able to initiate complaints itself. If the MSA perceives that some newspaper or other publisher is behaving in a way that's unfair, inaccurate, in breach of the code, to bring a complaint itself, and the third process is designed to resolve that.

  • In relation to the hybrid complaint, which involves both an allegation of a violation of legal wrong and of breach of code, how does it work, Mr Tomlinson? Does it in fact fall within the second category?

  • Well, the position would be that the complainant -- perhaps the complainant doesn't formulate it very often, doesn't formulate it whether it's a cause of action or a breach of the code. They bring it to the attention of the MSA, and the MSA says, "Well, you are complaining about both a legal wrong and a breach of the code. We'll deal with it by way of mediation."

    Ultimately, the two would have to be separated because only legal complaints can go to the court.

  • Indeed, unless both parties were agreeable to the hybrid complaint being dealt with by the dispute resolution tribunal.

  • In which case it would be arbitration, as could happen now.

  • In this system -- I suppose this much must be obvious -- if you have a voluntary system, where some newspapers are participating and some are not, the complainant would, in one case of a participating journal, be able to pursue this route. But in the other case of a nonparticipating journal, it would only be able to pursue the legal route?

  • And obviously he would have no rights whatsoever if the newspaper did not sign up to the code --

  • -- and it wasn't a legal wrong?

  • Yes, they simply have the rights that they have under the general law in any event.

  • Thank you. If we look now at section 4 and the Code, which is page 1100712.

    You have explained that you see no difficulty with there being working editors on the Code, as well as journalists and independent figures. Would you expect there to be a majority of working editors, or would you expect their voice, numerically at least, to be counterbalanced by a majority of journalists and lay members?

  • I wouldn't expect there to be a majority of working editors, no.

  • So that you see as being the best balance between complete independence on the one hand and the expertise and living knowledge which working editors could bring on the other hand. Have I correctly understood it?

  • Yes, and also what you might call "buy-in". You've got to have, it seems to me, balance on the one hand. You have got to have a code which makes sense to the editors and which they feel is operable. On the other hand, you can't give them a veto over its contents.

  • The public interest defence, this applies to civil proceedings, save for proceedings for defamation. Could I ask you, please, to explain two matters.

    First of all, defamation is not included, because there are separate defences of course to defamation claims, which are not related to the public interest, save in the limited context of qualified privilege and the Reynolds defence?

  • Yes. It's thought, as a matter of public policy, that the mere fact that something is in the public interest, if it's defamatory, is not sufficient to provide a defence. Something more is needed. And that something more was developed by the House of Lords in Reynolds and in subsequent cases. So you need, put simply, responsible journalism added to public interest.

  • The second point is that this public interest definition could be used within the code itself for determining whether or not there's a breach of the code in appropriate cases.

  • Yes. The idea was that this serves two functions. First of all, as a general public interest defence in civil proceedings, and secondly as guidance for the contents of the code. The code could be more elaborate, depending on what the Code Committee wanted to do.

    But the idea is that this defence could be used in, for example, breach of confidence proceedings, misuse of private information proceedings or other proceedings in the courts.

  • This is the most developed public interest defence which the Inquiry has seen to date. Just one or two points, if I can raise them, about it.

    Unlike paragraph 10 of the existing PCC code, there is no stated public interest in freedom of expression itself. Is there a reason for that exclusion?

  • Well, I'm afraid I think that the suggestion that there's public interest in freedom of expression itself is incoherent. The idea that a person who subjects another to racial abuse, they're exercising freedom of expression, but there's plainly no public interest in that.

    The public interest must only -- I mean, a blackmailer is exercising freedom of expression, but there's no public interest in that. Freedom of expression is in the public interest in some circumstances, but not in all circumstances.

  • I think in my opening submission I described that as argument which pulled itself up by its own bootstraps. But you have a more elegant way of explaining the flaw in it.

    I'm also interested in subparagraph (f) on the next page. This is an area which vexes all of us really. But your definition is interesting:

    "Exposing misleading public claims made by individuals or organisations."

    Might there still be debate there as to what is a claim? Could there be a misleading implied claim, for example? In other words, to go back to my footballer who claims to be happily married, almost implicitly and/or makes money out of that cachet, then does something which is inconsistent with that, are you intending to cover that sort of case, or are you intending to narrow the --

  • No, the intention is to narrow it. It seems to me that once you get into the land of misleading implied claims, then that opens up a can of worms. It means that it can be really open season on anybody, because you can say, "Well, look, by implication, by walking down the street with your wife, you are implying that you're a faithful person, and therefore your sex life can be exposed by the newspapers if it's not entirely in accordance with the expectations of the editor".

  • In line with --

  • Would it cover the attempt to protect the commercial saleability of famous people? In other words, their image rights, that is often used as the explanation why some people pursue actions as opposed to others?

  • Well, I am, from my own professional experience, very sceptical as to the whole area. It's actually almost unheard of for people to have image contracts that depend on a particular sort of image, and actually it's usually more valuable to appear to be bad than to appear to be good.

    So -- but --

  • That shouldn't be taken as an encouragement.

  • But the idea of this is to focus on -- if people say publicly, "I am a happily married man, this is why you should vote for me in this constituency", that's a misleading claim, and there's a public interest in exposing that.

    I myself -- and I'm not sure this is the collective view of my colleagues -- I myself would be very unhappy about spreading the exposure of misleading claims any wider than explicit express claims.

  • In line with recent Strasbourg jurisprudence, might you have to differentiate between types of individual, those who choose public life either because they're politicians or something similar, and those who are, if I can put it this way, merely celebrities?

  • Well, I mean, there's two ways of coming at it. People who live their lives in the public realm have a different expectation of privacy to those who don't. And then the people who live their lives in the public realm take on responsibilities of various sorts, depending on what kind of public role they perform.

    The Strasbourg jurisprudence, is, I think, relatively clear. If you're a public political figure, then your expectations are very different from if you're someone who is a mere celebrity, if I can put it that way.

    Could I just draw attention -- I don't know if you are going to move on from this. Were you moving on from this?

  • Draw attention to what you want to draw attention to.

  • The particular innovation is subclause 2.

  • Which is:

    "... must have been authorised and approved by the media in accordance with appropriate internal procedures."

    The idea of that was to encourage the media, before publishing a story, to have a procedure -- as indeed the broadcast media do, as you're probably aware -- for assessing whether it's in the public interest or not.

    So somebody sits down and considers the issues of proportionality, the nature of the public interest and so on, in accordance with an established procedure, rather than an ex post facto justification, publishing the article without thinking about it, and then afterwards trying to say it's the public interest.

    The idea here was to make it an element of the public interest defence that there be proper procedures in place.

    We go on to say that this is intended to apply generally to all the media, not just to participants. But obviously, if the participant has followed the provisions of the code, then those will be appropriate internal procedures.

    It's not intended to be exclusive, but there may be other ways of doing it. As, for example, one has with the broadcast media. It seemed to us to be an important feature which doesn't, at the moment, find its way into the PCC code.

  • This deals with one of the concerns we heard earlier in the Inquiry, about decisions being made which were essentially unchecked, unvalidated, unaudited by somebody in some appropriate means, and that deals with this --

  • Yes. And that seems to us to be an important feature. And if you're saying, "I'm acting in the public interest," then one aspect of that is you've got to demonstrably think it through, and justify, before you do it, why it is in the public interest to yourself.

  • There's no reason why this should be particularly onerous, because it won't apply to every single story, or indeed anything like every single story.

  • It's only relevant to those stories where you're obviously impacting upon the individual rights of others.

  • Yes. One sees it. I have some experience of cases, both for broadcasters and against broadcasters. And of course broadcasters are effectively governed by codes which require them to do this anyway. One sees in the case of broadcasters that they do go through those processes and do go through stages of thinking it through before they come to the stage of publication.

  • Procedural provisions now.

  • Just one moment. (Pause)

    You deal with pre-notification in paragraph 30. But we're going to come back to it at 49 to 51. So maybe we can deal with it then.

  • In my understanding, prior notification is going to be part of the appropriate internal procedures, is it?

  • Yes. Yes, and prior notification is obviously a vital element in protecting privacy interests. Without it the person whose interests is interfered with are left with really a remedy which is of very little value. And of course, prior notification is absolutely the norm in terms of the broadcast media.

  • Your procedural sections, these will deal with matters such as internal investigation and systems which participants should have in place for ensuring compliance with the code.

    It's largely self-explanatory, but can I ask you what the role of the regulator is to ensure that systems of internal governance, as it were, are properly in place and functioning?

  • Well, the participant would obviously have to satisfy the regulator that they had such systems in place, and if they didn't, then the regulator would take appropriate steps to ensure that they did.

  • Thank you.

    Dealing with alleged breaches of the MSA code now, paragraphs 33, you would need, presumably, an express provision in the statute which would make it clear that complaints can be made by groups rather than persons necessarily individually impacted by a breach.

  • Well, I'm not myself sure you need it in the statute. You need it in the governing instrument in the contract. But I don't think it's -- who can complain is essentially a mechanism question which depends on the contract.

    I'm sure it's clear, but the question as to whether non-victims can complain is one that's been around since the Second World War. It did seem to us that it's a very important feature to be clear about, because it goes to the question of whether the press are serving the public interest.

    But one thing that we thought was inappropriate is that there should be any question of compensation in such cases. Compensation for victims, yes. Compensation for non-victims, no.

  • In what circumstances in a victim case would the MSA be expected to order compensation?

  • Well, take a not atypical case, where a newspaper writes about, let's say, a dead family member in a way which is extremely upsetting to the family, but is not actionable in law because the person who is being written about is dead, or there's no cause of action.

    In those circumstances it seems to me a newspaper that wrote something very unpleasant and intrusive about a dead family member ought to be expected to pay compensation. What we've said here is the compensation levels wouldn't have to be in accordance with the way that the courts do defamation damages. They could be much more modest. Particularly as the code violations would be linked in to what are sometimes called "real remedies". In other words, publications of corrections and apologies. But it does seem to me inappropriate. There are cases in which compensation is right, is the right thing to do.

  • How do you cope with the argument which has been deployed in the Inquiry, that as soon as you introduce the remedy of money, then you will discourage attempts to resolve complaints, to mediate complaints directly, on the basis that they're going to lead to requests for money, and also bring lawyers into a process which is better served by being swift, inquisitorial in its manifestation and provide the immediate remedy of rectification, rather than create a damages culture.

  • Well, I think there are two points. First of all, I wouldn't envisage costs being awarded, and I wouldn't envisage large sums, very substantial sums being paid.

    So the idea that people are going to be employing teams of lawyers to claim these sums seems to me to be unrealistic.

  • Or equally, teams of lawyers to prevent. I mean, they wouldn't be teams. They would be in-house lawyers, who are doing this against presumably litigants in person in those circumstances.

  • Yes. But the position is I am not aware of any research which suggests that in other areas where compensation is available, it inhibits the mediation process.

    I mean, someone comes along and they say, "You have made an unfair statement in your newspaper. It's inaccurate. It's been very distressing to me," and the MSA in its mediation process says eventually, "Well, look, the newspaper will publish an apology, and they'll pay you GBP200 in the recognition of your distress". As might happen if you have complained against a bank for mistreating your account in some way, which caused you distress.

    Such systems happen throughout the commercial world, and I don't see any reason why they shouldn't operate effectively in the context of the media as well.

  • Section 5 now, Mr Tomlinson.

  • If you're moving on from these people, there is a distinction, isn't there, between the example you gave of a deceased family member and a complaint being made by someone about the way in which a third person has been treated, who is able to pursue a complaint if he or she wishes, but who chooses not to?

  • In those circumstances, what would you say about that attempt?

  • Well, I would say that there's no compensation -- a non-victim complaint would necessarily not attract --

  • But should that be taken on board, where the victim --

  • Yes. I think even if there is a victim, if the victim chooses not to complain, the MSA should still consider it. Either it's a breach of the code, or it's not. And people often don't complain for all kinds of reasons. Not just because --

  • It may be because they feel, "Well, it's rather more than was necessary, but by bringing attention to it, I'm only going to aggravate the problem dramatically".

  • Why should they be the subject of having that aggravation when they don't wish it? Because some other person feels that there is a breach of the code? I'm only testing it.

  • One can think of all kinds of practical examples, where there's been coverage of particular incidents which the individuals involved want to put behind them. But if that shows that there's systematic, or not even systematic, failure by a newspaper to behave in a proper way, it seems to me it's important that that's brought to the regulator's attention and dealt with.

  • Section 5, "Promoting ethical and responsible conduct". Page 00715, page 14.

    This is largely going to be achieved by making appropriate provision in the code of conduct itself. But by what process are these principles going to be embedded in the code? Is there going to be enabling legislation which permits it or requires it? In other words, how are we going to know that these very sensible principles are going to ever see the light of day?

  • Well, what is envisaged is that there be general guidance in the legislation, and then it's up to the Code Committee to decide exactly how they are embodied in the code.

  • The Code Committee may take a rather different view then of the necessity for all or any of these requirements, because they're not self-evident.

  • Well, again, I keep using the word, but there's a balance to be struck between on the one hand providing statutory guidance, and on the other hand letting those responsible make the decisions as to the detail. I certainly wouldn't envisage the statute laying down in great detail what the provisions of the code should be. They seem to me to be inimical to the whole model.

  • Are you envisaging a separate code for journalists or are they going to be subject to the same code as the MSA code?

  • Do you see any merit in the point made by the NUJ, who we heard evidence from on Tuesday, that although they are overlapping Venn diagrams, there may be differences in the obligations journalists should be subject to compared with those editors should be subject to?

  • Well, I think that in the drafting of the code, that would need to be made clear. I mean, certain obligations obviously can't be obligations that fall to journalists. But it seems to me that there are a number of fundamental principles which must apply across the board.

  • Thank you. Pre-publication steps. This is a point that we are going to pick up. It's paragraphs 49 to 51. This deals with the appropriate internal procedures which are in the Act.

    What you are contemplating here is that the MSA is going to provide a form of advisory service in addition to its other obligations. Have I correctly understood that?

  • Yes. It's been mentioned on a number of occasions. I think indeed in evidence to this Inquiry. There may be occasions -- in practice I haven't come across them myself, but one can certainly envisage them theoretically -- situations where a publisher may be in doubt as to where the public interest balance lies in a case of difficulty, and what's envisaged in that circumstance, the MSA could provide advice.

  • But if the court were going to take that into account in relation to a privacy claim, in other words the fact that advice was given, and either accepted or rejected, would one need enabling legislation for that to take place?

  • Well, what's envisaged later on is that that be written into a public interest defence. So yes, is the short answer.

  • Can I put this to you. Is there not an objection in principle to a regulator giving free advice or assistance to the public and to publishers, particularly if there's an element, as there might be here, of state funding?

  • No, I don't think there's any objection in principle. Indeed, I think it's essential that a regulator is able to guide the regulated entities as to the direction they ought to be going in.

  • Thank you.

    In terms of funding, most of it is going to come from the participants themselves. You don't rule out the possibility of state funding, particularly to cover start-up and transition costs. But that wouldn't be vastly expensive. Can I ask you, though, about paragraph 53, and the application of the polluter pays principle, where you say:

    "Participants who breach the code will be required to pay enhanced annual subscription."

    Effectively, that's fining them in another way, isn't it?

  • Well, fining is a slightly emotive issue, it seems to me, and I think we make clear somewhere that fining would be a matter of last resort.

    But it may be that if someone breaches the code in a particularly outrageous way, the appropriate way to deal with them is a fine, as one sees in other areas.

    On the other hand, if there are a succession of minor breaches, where a particular publisher -- and there are notorious examples in relation to the PCC, where particular publishers are constantly being found to be in breach of the code in minor respects, and don't do anything about it. Then in those circumstances, where we're not talking about fining them for the particular breaches but because of their continuing conduct, then an enhanced subscription. That was the idea.

  • The ability to levy the enhanced subscription, that could be built into the contract?

  • Can I ask you now about the handling fee, which you say complainants and respondents could be charged in appropriate cases.

    Is it being contemplated that the general rule would be that access to your system would be free of charge to the claimant, or is it that the respondent will usually pay? In which circumstances will a handling fee be payable?

  • It's contemplated in general it will be free of charge to the claimant. However, there's always the concern about frivolous claims, and a small fee may be an appropriate way of deterring -- I say "a small fee". GBP50, or whatever it is, may be an appropriate way of deterring frivolous complaints.

  • In what circumstances, turning the other way round, would a respondent be paying the handling fee? When its behaviour was particularly egregious? How would you see it?

  • Yes, I think if the position was that there was a clear code violation and the participant had no credible explanation, then they would be required to pay the costs of the process.

  • Section 7, voluntary participation. You come to the conclusion that no one would or should be compelled to join. You advance three fundamental reasons for proposing such a voluntary system.

    The first is problems of principle in credibility.

    Can I ask you, please, to develop the Article 10.2 ECHR point? Why, if this system were deemed to be in the public interest, particularly if other systems had been considered by this Inquiry and rejected on the grounds that they did not fulfil the public interest, would a compulsory system not survive Article 10.2 of the Convention?

  • It's interesting that the Convention contemplates in Article 10.1 the licensing and regulation of broadcast media, but not of the print media.

    I do not myself think that regulation of the print media of itself is incompatible with Article 10. The question must always be proportionality.

    Just take as an example at one end of the scale -- I'm not suggesting for a moment this is what the Inquiry has in mind -- but if it were said nobody can publish news in the United Kingdom unless they have a news publishing licence, it would seem to me that that would probably be something you could not justify under Article 10.2.

    On the other hand, if there was a system that said, "If your sales of a newspaper are more than 50,000 per issue" -- or whatever the figure is -- "if so, you must subscribe to this system of regulation," I think that probably would be justified.

    Anything in between, then I think there are potential arguments. The closer you get to licensing, the more difficult it will become.

  • The case you referred to is a case in the Inter-American Court of Human Rights. Are they applying there the principles enshrined in the first amendment to the US convention, or are they applying --

  • Probably a constitution, Mr Jay.

  • Sorry, the US Constitution. Are they applying some different --

  • No, they're applying a provision which, in material terms, is identical to Article 10. It is the Inter-American Convention on Human Rights. And what they said was that the system which was then prevalent in Latin America, that you could not practise as a journalist unless you were a member of the College of Journalists, effectively a licensing system for journalists, was a breach of effectively Article 10.

  • Who is responsible for the licensing in that case? Was it the state?

  • From memory, there were professional bodies, like the Law Society, or there were "collegios" or something, and they were self-regulating bodies of the profession, but you had to be a member to practise.

  • You refer to compulsory regulation as being backed by compulsory registration. Would it make any difference if there were a system of general authorisation which you would, as it were, trigger if you carried out certain activities? In other words, it wouldn't be expressly licensing or registration. It would be indirect.

  • Well, I think myself it's a distinction without a difference. If you have a rule which applies to all news publishers, defined in some way, if you are a news publisher, you're subject to those rules, and if you don't obey those rules, you are sanctioned for not obeying them. Whether you have to have an explicit licence is in a sense a matter of form, rather than substance.

  • So you're putting down a marker really in the form of a warning: beware of Article 10 of the Convention. But I dare say, you're not prepared to quantify how high the risk is in terms of a breach of Article 10 if there were a compulsory system. The devil would be in the detail?

  • Exactly right. It's a marker. It's clearly possible to envisage systems of compulsory regulation which are compatible with Article 10.

  • Your second point in relation to compulsory regulation is more a practical one, that you think people go offshore in effect, to avoid it. But in real terms, is that a risk? Do you see the large publishing houses here, whether it's Associated News International, Trinity Mirror, whoever, going off to Calais, or wherever?

  • It's not unknown for the owners of large media corporations to go offshore to avoid paying tax.

    It seems to me that if you have a tough regime, which is tough enough so that the media don't like it, and it's compulsory, they're going to take steps to try and avoid its application to them.

    And I think one of the, it seems to me, absolutely fundamental questions is now -- we refer here to the fact that the big Internet companies, Google, Twitter, and so on, don't have a commercial base in the UK. And it would be very easy for someone who is commercially publishing on the Internet to have nowhere in the UK where they can be regulated. And it seems to me increasingly, as everyone says, news publication is moving online, and it will become increasingly difficult to regulate on a national basis, if it's compulsory.

  • It's all a question of balance, isn't it? If you make it tougher and tougher and tougher, then people will look for more and more ways to avoid it.

  • The trick is not to be governed by the threat; to try and get the balance right.

  • Yes. Well, I'm sure that that's right. Obviously there's an alternative model, which involves balanced compulsory regulation.

    Of course, one can raise practical issues, and doubtless you will in a minute, but the idea of this is for it to be sufficiently attractive to attract people in. So it becomes a positive as well as a negative. So that people actually want to join up because it gives them positive advantages.

  • But part of being sufficiently attractive may be that the system is not robust enough, because the more robust it is on one level, the less attractive it is, and other things being equal, the less inclined newspaper publishers may be voluntarily to participate.

  • Well, there's a subtle balance of sticks and carrots. I'm sure you are going to come on to it, but one part of the proposal was to have a few big sticks towards the end, which newspaper publishers might wish to avoid.

  • The other aspect of this -- and we're still on the theme of compulsory participation -- this is paragraph 63 of your statement -- where you address the Desmond problem, which after all is a somewhat fundamental problem. You think there will, in any event, be a two-tier system of news publication:

    "A small and diminishing number of large regulated newspaper and magazine publishers and a large and increasing number of unregulated publishers."

    The latter, of course, all being Internet publishers are out of the jurisdiction anyway. Is that your point?

  • Well, or -- I mean, I'm not an EU lawyer, so I'm not purporting to give an opinion on the subject, but it does seem to me that if you were printing your newspaper in France or Ireland or another EU country, there would be considerable difficulties in preventing someone doing that from importing it into the United Kingdom.

    So in other words, if your business centre was in another EU country, you wouldn't be regulated by a compulsory English domestic system.

  • Positive benefits of consent, paragraph 64.

    You think that a voluntary system itself has substantial positive benefits. In particular, a voluntary system would have to be designed to obtain the fullest co-operation of the media. But that may be at the price, might it not, of having too lenient a system?

  • It might. Obviously we've discussed this with newspapers and some newspapers are absolutely adamantly opposed to any kind of statutory underpinning, and their current official public position is that they will not join in if there's a statutory underpinning. But some newspapers are in general happy, and favourably disposed towards this kind of idea.

  • Can you tell us those who are favourably disposed?

  • Without giving away any confidences, I think it's already been said in evidence to the Inquiry that -- I think Lord Black made the point that there were favourable editorials about statutory regulation in the Financial Times and the Guardian and the Independent. Those kind of newspapers are obviously not averse to this kind of system.

  • Underpinning rather than regulation.

  • Yes. But a system of incentives, as I'm sure the Inquiry well knows, as Lionel Barber, the editor of the Financial Times, before this process began, made a speech making suggestions on those lines.

    And you see that there are people from the Financial Times and the Guardian in a personal capacity as members of the Roundtable.

  • I'm not going to ask you to develop the point on partial registration, but the point on a compulsory system of media tribunals, which you reject, what in essence is the issue there?

  • Well, the issue is that if you had a media tribunal which was like an Employment Tribunal, which effectively just decided on causes of action against newspapers, you would have all the advantages and disadvantages of a tribunal system.

    In other words, you would have potential inequality of arms issues. You would have, as with the Employment Tribunal, a very large number of cases, a lot of litigants in person, and it is bound to be quite costly.

    The other side of it is that, it seems to me, one of the big issues in relation to media regulation is not the individual complaints at all. It's systemic failings. If you are going to deal with systemic failings through a system of media tribunals, you have to have a media law which enables you to bring action in relation to systemic failings in a tribunal, which itself is not straightforward.

    I'm not saying it's not possible. I mean, I think the Calcutt recommendation was along those lines.

  • Would it assist if the system was inquisitorial, so that effectively one arranged for an arbitrator or mediator, whichever route you're going down, to have sufficient experience within the field of law with which we are concerned, to be able to run a hearing in such a way that it did not advantage one side or the other to have extremely expensive lawyers to assist them? Not that I've got anything against extremely expensive lawyers. Actually, since I ceased to be one, I suppose I have.

  • I'm always slightly sceptical about the value of inquisitorial systems. It's often suggested as a kind of shortcut to saving legal costs and so on.

    I mean --

  • Perhaps not a bad example -- I hope it's not a bad example -- is how we have spent the last nine months.

  • Yes. I mean, I think an inquiry is necessarily inquisitorial, but a tribunal system that's dealing with essentially individual complaints is a slightly more difficult process.

    I mean, it's often mentioned as a way of solving the terrible costs problems that the law experiences.

    I have not seen any example of it actually working in practice. Our legal culture is so different from legal cultures where they have more inquisitorial systems. I'm very hesitant about -- I suspect we would end up with a system which looked rather like our usual adversarial system, even if we tried to be inquisitorial.

  • What you are proposing is a series of incentives -- call them "carrots" and "sticks" -- and they can operate in two different ways: commercial incentives and legal incentives in relation to proceedings.

    Is it your view that the commercial incentives you outline in paragraph 72 would by themselves not be sufficient, but they need to operate in conjunction with the legal incentives?

  • Yes, I don't think they would be sufficient.

  • For example, the MSA Kitemark, which would be a badge of quality, I suppose. Some people may say it's a badge of honour not to have to wear it.

  • Yes. Well, quite. I don't think that that would be a very powerful incentive in most cases. Although the idea is that this could be available to bloggers, to much smaller publishers, and as an indication of a small publisher, as it were, a badge of responsibility, it may be that people think, well, if this blogger or this small publication is a member of this body, it shows that they're serious and that they are committed to serious journalism, and therefore they're more worth reading than someone who doesn't have that commitment.

  • Journalistic accreditation, that would give you some preferential access to material, but it couldn't be to such an extent that it would amount to licensing?

  • No. At the moment, as I'm sure has been discussed before, under the new system for access to the family courts, you have to have a form of accreditation to be able to report on the family court as a journalist.

    At the moment it's done through the press card system, which is a privately-run system which lacks transparency. And the idea here would be that if you were working for a participant body, that would give you a level of credibility and a level of, as it were, a certificate of responsibility, a badge of responsibility, which would allow you to be given greater access than you would have otherwise.

  • So the incentives in relation to legal proceedings, they fall under four different subcategories.

    The first one you have already outlined for us, because it's a cheaper and faster system of adjudication --

  • -- and dispute resolution, whose attributes you have explained with reference to your diagram earlier on in the --

  • Yes. I mean, effectively forcing people into a quick, cheap, alternative dispute resolution system, which one would hope would dispose of the large majority of complaints, at low cost.

  • The others, though, would require statute, and they --

  • Sorry, so would that. The adjudication system --

  • Of course it would.

  • -- would clearly require statute.

  • At paragraph 83, page 00725: enhanced defences in libel and privacy proceedings.

    In libel proceedings there would be a new defence of regulated publication. A participant who was sued for libel, who published a prompt suitable correction and sufficient apology, and paid compensation, and gave other redress as ordered by the MSA, would have a complete defence, unless the material was published maliciously.

    So that would presuppose that everybody has gone through the arbitration dispute resolution system, compensation has been ordered as appropriate, everybody has complied with it. That would work as a complete defence. How would that stand against the Reynolds defence and anything in the current version of the Defamation Bill?

  • Well, it would be slightly different from Reynolds in the sense that Reynolds is directed towards effectively looking at whether your journalism is responsible or not, whether you have taken appropriate steps to verify and so on.

    This would be, if the position was that the adjudicator had said, "You need to do this, this and this to put things right," and you did it, that would be a complete defence.

    So it would be an additional defence.

    I mean, Reynolds -- again, I don't doubt this is something the Inquiry has looked at before. Reynolds suffers from the difficulty of uncertainty. It's very difficult to know where the boundaries are, and it therefore has a negative effect on publishers.

  • Can we be clear. Under the dispute resolution procedure, is it being contemplated that the mediation process or adjudication process, where there's a legal claim, will always result in the award of compensation?

  • Well, if the position is that defamation is a tort actionable per se, and therefore, if defamation is established, damages are always awarded, even though they may only be nominal, if the adjudicator decides there's been a defamation, then the adjudicator will make an award of compensation in accordance with common law principles. That's the idea.

  • Do you visualise this at whatever level?

  • So in other words, this litigation, this argument could be massive. A large number of enormously lengthy libel proceedings. So --

  • Well, they're relatively uncommon. My own professional experience is I once did a construction adjudication which lasted a week, which resulted in an award of payment of several hundred thousand pounds, and then the other party didn't like the result, went to litigation, and there was then a four-week trial where the opposite result was achieved.

    So that is possible in the system of construction adjudication, but in construction adjudication there is no dispute too big to be adjudicated.

  • I know. Do you visualise the same for this?

  • Yes. In reality there are, these days, something like half a dozen libel trials a year, of which most are certainly less than a week or less than a fortnight.

  • Don't you think that might be because it's become so expensive for everybody that that particular form of litigation has become rather unfashionable, unless you have an extremely large amount of money, or a deep pocket?

  • The reasons for the decline in the number of libel trials are complicated. One of them certainly is the case law which limited damages effectively to GBP250,000. So now the most you can get is GBP250,000, and if you conduct a long libel trial, the costs are in the millions. That's certainly had a deterrent effect.

    But there are still libel litigants with deep pockets. There are still some newspapers with deep pockets.

    Cases involving the media fight rarely, and they fight rarely partly for cost reasons and partly because people form early views as to the merits.

  • So we go back to your diagram, which is on page 007109 on the internal numbering. We have the complaint of a legal wrong.

    If the matter is mediated, then the issue will not arise because there will be a settlement agreement which will preclude any subsequent legal claim. If the matter is adjudicated, and the adjudicator orders -- would this be right? -- suitable correction and an apology --

  • -- and the payment of compensation, then under this system there would be the ability to enforce that.

    Moreover, when we look at the box going down -- "the complainant is not satisfied with the adjudication" -- there would be very rare circumstances in which there could be court proceedings, at least in a libel case, because it would almost always be met by the defence of regulated publication, unless you could show malice.

    Have I correctly understood it?

  • But in harassment proceedings it would be different. In privacy proceedings the issue, again, is subtly different, because the defence is not regulated publication. It is public interest publication?

  • And there you would have to show adherence to the public interest requirements of the code. Determination of the MSA, in other words the adjudicator on that point, would not be conclusive but would be persuasive.

  • I understand. I'm not sure I had understood it when I first read this, but now I do.

    A matter of principle though, why would the decision of the adjudicator be persuasive only in a privacy case, but virtually conclusive, subject to proof of malice, in a libel case?

  • Well, I think different considerations apply in the different causes of action. The intention is that if a publisher is engaging in public interest publication, gets it wrong and gives appropriate redress, they shouldn't have further claims against them.

    In relation to privacy, I think the view that was taken was it was appropriate in the end for the final decision about public interest to lie with the court, so that the court has the final decision, but not the --

  • But guided by the determination of the adjudicator.

  • Okay. So you could put all that in a statute, and you have done all that for us, but again, the precise drafting is not going to be critical here.

    But one additional carrot, or maybe it's a stick, is additional damages. That in court proceedings nonparticipants in the MSA could be required to pay statutory additional damages, which would be akin to either aggravated or exemplary damages, I suppose?

  • Well, the phrase "additional damages" is used in the copyright context. It regards it as a statutory version of exemplary damages. It's Lord Devlin's third category in Rookes v Barnard for exemplary damages, and there's a specific statutory provision.

  • Or you can put it another way, because when I asked a question about that possibility earlier, somebody accused me of wanting to punish papers for not entering the scheme.

    Could you say that it is a form of aggravation if you are not either in a regulated scheme with which you have complied, or any regulated scheme, or alternatively have systems, which you would then have to prove to the hilt, that are the equivalent of regulated schemes?

  • Yes. And indeed, the draft at 87.1, one of the factors to be taken into consideration is the extent to which the conduct in question was not in accordance with the code. So the idea would be that a nonparticipant publisher, if they behaved in a way which had they been a participant would have been a breach of the code, is liable to pay additional damages.

  • It actually goes further than that, because that only brings the code into the damages regime. I'm rather putting a slightly different suggestion to you: to create an incentive to join the scheme by saying, "If you don't and you then are sued, you will have to prove that you have systems" --

  • -- "that are the equivalent of" --

  • No, that's a refinement which, I would agree, is a helpful one.

  • And if you don't prove that you have equivalent systems, then you expose yourself to the claim for additional remedies.

  • And the other sticks and carrots, the statutory right of reply or correction, paragraph 89.

    I think we can understand this best by looking at your proposed drafting at paragraph 90. This will only apply to nonparticipants. Complainant sends a demand for a reply or correction. If that's rejected, the rejections and the reasons for it should be notified to the complainant within seven days. The complainant then has the right to submit the issue of whether the preconditions for the right of reply or correction have been met by -- well, he submits the issue to the court. And then the court may order the news publisher to comply with its duties under this section.

    What exactly is the issue the court is adjudicating on?

  • Whether it's an appropriate reply or correction. So if a newspaper publishes an article to which the complainant takes objection, the complainant says, "That's inaccurate, I require you to publish this correction", and the publisher says," No, I stand by my article", in which case the complainant has the right to go to court for the court to decide whether that is an appropriate correction or not.

    Can I say, it's modelled on the system in Finland, which is included in the relevant Finnish media statute.

  • How does this differ then from an action in defamation? Because the court will have to decide whether or not the original article was inaccurate or misleading. If the court says, "No, it was accurate", well, then the right of reply falls to the ground, doesn't it?

  • Well, the right of correction. It may be if there's a dispute about the facts that a reply is the appropriate way to deal with it, and very often there's no dispute about the facts. But if there were to be a dispute about the facts, the court would say, "Well, we're not going to enter into that, but you can have a reply. You can set out what your version is."

    The court may say -- I mean, of course if the position is the -- it is said by a newspaper of a notorious criminal, "They are a notorious criminal", and the notorious criminal asks for a correction, the newspaper says, "No, because what we said was right, and we're not going to give you a right of reply", and the court says, "We're not going to give you anything because you are a notorious criminal."

    It's not an absolute right. But again the idea behind this is that -- to enhance the rights of individuals against non-participants, so that non-participants can't get off scotfree with inaccurate reporting, so that there's some additional remedy that individuals have against non-participant publishers.

    As you know from the history of Clive Soley's bill and so on, this is exactly the kind of provision that the media don't like. It's something that they find uncomfortable, being forced to publish replies or corrections, and the idea is to make it uncomfortable.

  • So if you have an absolutely cut-and-dried case of your notorious criminal, where there's really no answer to it, and therefore there's nothing to reply to, the court will say, "End of story, there's no right of reply". But in most cases there will always be another side of the story, and the court will say, "We are not really interested in the rights and wrongs here, but we can see there's an argument the other way. The complainant has the right to reply in an appropriate and proportionate manner."

  • I understand. You say from experience that this sort of obligation will be, if I can put it in these terms, very irritating to news publishers, and therefore will be an incentive to join the voluntary system, from which of course, if they do join, they are exonerated from the duty?

  • They're exempt from the duty, yes.

  • I understand. Then the other whip, if that's correct characterisation, is the conditional fee agreements and qualified one-way cost shifting.

    Do I understand though -- this is paragraph 89, second bullet point -- this proposal was one that Lord Justice Jackson in his review recommended for defamation cases -- is that right -- but the Government rejected?

  • Lord Justice Jackson made two recommendations. One was to very much reduce the size of the success fee, which the Government accepted. The other was to abolish the recoverability of after the event insurance premiums, but to replace it with qualified one-way cost shifting.

    The Government agreed to abolish the recoverability of the insurance, but didn't introduce in defamation and privacy cases the qualified one-way cost shifting.

    So the provisions will be, when these provisions come into force, that someone who brings a defamation or privacy case with the benefit of a conditional fee agreement isn't able to protect themselves against exposure to the other side's costs by after the event insurance.

  • They're able to protect themselves; they're just not able to recover the premium.

  • You're entirely right. They can, of course, take out the insurance, but what they can't do -- but it's a cost that they must bear, come what may.

  • But on your proposal there's no need for after the event insurance because there's one-way cost shifting.

  • Yes, and one of the points that Lord Justice Jackson made, which I'm sure is right, is that from a defendant's point of view qualified one-way cost shifting makes more economic success because the amount -- the amount you recover when you win from insurance policies is much less than the amount that you pay out when you lose to cover insurance premiums.

  • So on this system, if the claimant wins, the claimant recovers obviously his damages. He also recovers his costs with a success fee up to 75 per cent?

  • If he loses, he's at no risk as to costs because there's qualified one-way cost shifting?

  • Yes. And this is a rather reduced version of what currently applies, and the idea is to make this, as it were, to continue to apply to non-participants, so that -- again so that members of the public have remedies against non-participants, because against participants they have remedies through the MSA system.

  • If one says, "What about the vexatious claim?", the answer is the vexatious claim can be struck out either under rule 3.5, I think it is, or part 24?

  • So there's that safeguard in the system?

  • Another way of doing it would be to say if you're in the system, then you have a free-to-use potential remedy.

  • That's for the newspaper. So claimants have a straightforward route. If you choose not to participate, there's absolutely no reason why you shouldn't pay the costs if you lose, and there may be good reason why you shouldn't recover your costs even if you win, because if you'd been in the system you could have done it all for nothing.

  • And your point is, Mr Tomlinson, that if you take all these aspects together and aggregate them, the commercial and the legal, you have such a strong system of incentive that only an irrational news publisher would fail to sign up on the dotted line.

  • Is that it?

    Yes. Those are all my questions. Thank you very much.

  • Is there any aspect of the work of you and your colleagues that you feel you've not had the chance to elaborate upon?

  • I don't think so. I mean, it is -- certainly my professional experience over the last 20 years is that the -- there are many occasions on which the media has abused its position, particularly in relation to privacy cases, which are -- I've had a lot of involvement in over the past two or three years, and without some more effective form of regulation, the remedies available through the courts are both expensive and not wholly effective.

    Without some more effective form of regulation, the practical position is that privacy rights are simply not protected, as one has seen in notorious cases over the past two or three years.

    This is an attempt to try and square the circle and --

  • Could I ask, were any of your participants of tabloid of mid-market experience within journalism?

  • I think the -- I can't speak for -- Mr Peppiatt, of course is --

  • You know about him. Those of editorial experience, I think it's fair to say, come from the broadsheet or the BBC end of the market.

  • Thank you very much. We will take a break.

    Mr Tomlinson, thank you.

  • (A short break)

  • The last witness today, and this week indeed, is Lara Fielden, please.