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MPs recommend prior-notification in privacy cases

24 February 2010

A group of MPs reviewing the operation of privacy and libels laws in England have ruled out mandatory pre-notification but have called for journalists to voluntarily notify individuals before publication.

The proposals were made by the Commons' Culture, Media and Sports Committee after a year-long investigation triggered by the libelling of the McCann family in the British press following the disappearance of their daughter in Portugal in 2007.

In its 'Report on Press Standards, Privacy and Libel', “the longest, most complex and wide-ranging inquiry” it has undertaken, the committee slammed the Press Complaints Commission for failing to launch an inquiry into the industry’s failings in the case.

Among the solutions proposed, MPs said the PCC should amend its code to include a requirement that journalists “should normally notify the subject of their articles prior to publication, subject to a ‘public interest’ test”.

They also recommend that failure to pre-notify should be an aggravating factor in assessing damages.

More generally, the committee expressed concern about so-called super-injunctions, in particular as featured in the recent Trafigura case, and urged Parliament to embed into law the “important element” of freedom of speech in the context of parliamentary proceedings.

MPs also considered a number of libel rules. One particular recommendation would see the reversal of the burden of proof from the defendant to the claimant where the claimant is a corporation.

Looking at the issue of libel tourism, they recommended the introduction of additional hurdles where the UK was not the claimant’s or defendant’s primary domicile or place of business.

Finally, the committee suggested that there should be a one-year limitation period for defamation cases relating to publication on the internet.

MPs used particularly strong words when it came to the issue of costs in libel cases, remarking that there were “no doubt that there are problems which urgently need to be addressed in order to enable defamation litigation costs to be controlled more effectively”.

Responding to arguments by claimant lawyers that defendants, including media defendants, could control their costs by settling cases more promptly, MPs said the suggestion was “an extraordinary one”.

Based on the evidence they had heard, they said success fees paid to lawyers acting under conditional fee agreements (no win, no fee) should be capped to ten per cent. This would be in line with recent recommendations by the Ministry of Justice. Last month, however, Lord Justice Jackson, in his review of costs in civil litigation, said there was no need for any cap on success fees in libel actions.

The committee agreed with Jackson LJ that after the event insurance premiums should not be recoverable.

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