A coalition of national newspaper publishers has called on the Government to introduce a requirement for privacy claimants to prove “serious harm” as they already must in defamation cases.
The publishers of the Mail, i, Telegraph and Times clubbed together to produce a response, seen by Press Gazette, to the Government’s consultation on reforming the Human Rights Act and replacing it with a Bill of Rights.
Their response comes as Justice Secretary Dominic Raab seeks to give free speech a “different status in the pecking order of rights” in the legislation.
The publishers also asked for individual journalists to be protected from intimidating “SLAPP” libel actions, for journalistic exemptions in the Data Protection Act to be strengthened, and for privacy cases to have the same one-year limitation period as defamation.
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The publishers said Section 12 of the Human Rights Act 1998, which states courts must give “particular regard” to the right to freedom of expression, “has been emasculated by the courts” and that the balance between freedom of expression and privacy therefore needs to be “reset”.
They suggested this could be done using a provision in the Human Rights Act adding the need for privacy claimants to meet a “threshold of actual or likely serious harm to a core aspect of their private life” – similar to the threshold needed to sue for defamation.
This would not include harm “calculated solely by reference to the loss of control over information”, damage to reputation (as this would be covered by the Defamation Act 2013), or harm suffered by a dead person or anyone other than the claimant themselves.
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The provision should also, the publishers said, place a burden on the claimant to prove that their right to privacy outweighs the defendant’s right to freedom of expression.
It should also include a new defence to claims for misuse of private information, with the burden on the publisher to prove they had a “reasonable belief” publication would be in the public interest.
The Society of Editors agreed with the proposal, with executive director Dawn Alford saying in a separate consultation response: “…the courts have directly applied Strasbourg’s expansive approach to Article 8, and in doing so, journalistic activity has been subjected to a proportionality assessment whereby no ‘particular regard’ is now given to freedom of expression. Given this failure by the courts, it is now necessary to introduce specific provisions to strengthen the protections for freedom of expression.”
SLAPPs and interim injunctions
The Government has already announced plans to crack down on heavy-handed Strategic Lawsuits Against Public Participation (SLAPPs) but the publishers suggested a specific measure could be introduced to the Bill of Rights to protect individual journalists, making sure such cases are usually only targeted towards an editor or publisher.
Recently Financial Times investigative journalist Tom Burgis and ex-FT Moscow correspondent Catherine Belton have both separately been targeted alongside book publisher Harper Collins, while Observer journalist Carole Cadwalladr was pursued alone by Brexit donor Arron Banks.
The publishers also want it to be harder for claimants to be granted interim injunctions banning stories from being published, saying they are currently “too easily accessible” and have a “severe chilling effect” on reporting.
They said: “Where an interim injunction is obtained, this will often be dispositive of the action, as the delay in waiting until trial (and consequent damage to the news value of the information) and the cost of defending a claim will often mean that publishers agree to give undertakings in cases where they might otherwise succeed at trial. Moreover, by the time of trial, the topicality is often lost.”
Currently claimants only need to show they are “more likely than not” to succeed at a hearing. The publishers want this to be changed so interim injunctions “can only be granted in clear cases where the claimant can prove that the respondent has no real prospect of succeeding in their defence at trial or where interim holding relief for a brief time is necessary to achieve a fair hearing”.
Again the Society of Editors agreed, stating that “often the threat of an interim injunction is enough to stifle reporting of a public interest story and this has a chilling effect on the public’s right to know.
“There is an urgent need for the introduction of a provision whereby interim relief is only granted – in the presence of the respondent or their representative – in cases where a claimant satisfies the court that the respondent has no real prospect of defending the claim.”
Data protection ‘bolt-ons’ misused
The publishers said one of the other “most important” things that could be done to protect freedom of expression would be to strengthen the journalism exemptions in the Data Protection Act 2018.
They said data protection claims are being routinely misused as “bolt-ons” to defamation or privacy cases, which rarely changes the outcome of a case but adds unnecessary costs that have a “potential chilling effect”.
They added that data rights are “increasingly being weaponised for the purposes of reputation management by wealthy individuals who find themselves the subject of published or prospective stories”. Although the journalistic exemptions often apply, publishers must carefully consider each request taking time and money in a way that is “disproportionate and divert[s] resources from journalism”.
Currently data processed for the publication of journalistic material is exempt from certain provisions in the law but only where the data controller “reasonably believes that publication would be in the public interest” and “reasonably believes that the application of those provisions would be incompatible with journalism”.
The suggestion was to add a line to the Data Protection Act exempting recognised news publishers, a term that will be defined in the upcoming Online Safety Bill, from processing personal data for the purposes of journalism. The Society of Editors said this would “vastly reduce the current burden that has been placed on publishers by data protection law”.
Government to ‘strengthen and reinforce’ media rights
The Government specifically asked how it could better ensure journalists’ sources are protected with a provision in the new Bill of Rights.
The publishers said the current wording in the Contempt of Court Act 1981 that journalists could be forced to disclose sources “in the interests of justice” was an “inherently uncertain concept, which creates its own chilling effect” as it can be used by private individuals to justify an order.
They said this should therefore be strengthened to say journalists could only be required to disclose sources if it is “established to the satisfaction of the court on the basis of clear and cogent evidence that disclosure is necessary in the interests of national security, for the protection of individual liberty, or for the prevention of disorder or crime”.
Their proposed wording also suggests judges must properly consider the public interest, the potential impact on the journalist and source, and “the potential adverse effect which such relief may have on journalistic sources more generally”.
It comes after journalist and ex-MP Chris Mullin was pursued by West Midlands Police for the confidential sources that helped clear the Birmingham Six of any involvement in the 1974 IRA pub bombings. Mullin won on Tuesday after a judge failed to find “an overriding public interest to displace the journalistic source protection right”.
Justice Secretary Dominic Raab told the House of Commons on Tuesday that the proposed Bill of Rights will “strengthen and reinforce freedom of expression and media rights as critically important”.
[Read more: Does Meghan case signal judge-made privacy law or did Mail on Sunday just go too far?]
Several days later, in an interview with the Daily Mail, Raab said: “Effectively, free speech will be given what will amount to ‘trump card’ status in a whole range of areas.
“I feel very strongly that the parameters of free speech and democratic debate are being whittled away, whether by the privacy issue or whether it’s wokery and political correctness. I worry about those parameters of free speech being narrowed.”
The Government’s consultation stated that it did not believe the principles balancing freedom of expression and privacy “should be merely left to the courts to develop. Instead, it believes there should be a presumption in favour of upholding the right to freedom of expression”.
In December a Cabinet minister criticised “judge-made laws” after Court of Appeal judges ruled that the Mail on Sunday was wrong to publish half the contents of a letter from the Duchess of Sussex to her father, Thomas, on both privacy and copyright grounds. They told the Daily Mail: “The balance between privacy and free speech is clearly wrong. If this is what the law says then it needs to change.”
In the consultation, the Government again said EU judges had “shown a willingness to give priority to personal privacy” whereas freedom of expression in the public interest should be given “great weight” in the courts.
The Society of Editors’ Alford said that because journalists in the UK are regulated, or at least adhere to a high standard of professional codes of conduct, “it should always be for others to prove that their right of privacy trumps the right to freedom of expression when considering how best to balance these competing rights”.
The Government’s consultation to reform the Human Rights Act 1998 ends on 19 April.
Picture: Ben Stansall/AFP via Getty Images
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