OUR RESPONSE TO DACRE'S CHILLING LEGAL THREATS
Following the letter before action from RPC this is the response of Byline and its lawyer
Yes, you read it right.
Byline, a small crowd-funded journalism site committed to investigating the stories the mainstream press won't touch, is being threatened with a crippling libel action from Paul Dacre, Editor-in-Chief of the Mail Group.
But he's not the only Associated News big-wig lining-up against us. Dacre is joined in the fray by two other powerful Daily Mail executives - Editor Emeritus and IPSO Complaints Board member Peter Wright, and Liz Hartley, Head of Editorial Legal Services.
Their lawyers have served a letter citing these three articles as defamatory.
Read them yourself. We believe these articles are accurate and justified under public interest.
Before we published, Byline gave the Mail more rights than they accord many others in respect of a right-to-reply. We gave them 24 hours to respond to the allegations contained in both 1 and 2.
We published their comments in Part 3.
Dacre, Wright and Hartley have not sought corrections, or referred us to our regulator, Impress.
Instead they have demanded we remove these articles, apologise, or face damages.
We are too small to afford the array of in-house lawyers and external law firms that the Mail group employ. Instead, as a crowd funding site, we rely on pro bono legal advice and the good will of our supporters.
Every penny you donate (including processing fees) will go to fight these libel threats and fund our Investigations Team to fearlessly pursue wrongdoing.
We believe in speaking truth to power and not succumbing to bullying media barons.
THE MAIL'S LETTER BEFORE ACTION
17 March 2017
Byline articles of 3, 4 and 7 March 2017 (“the Articles”)
1. We act for Byline Media Limited (“Byline”).
2. We are instructed to respond to your letters dated 10 March (“the First Letter”) and your letter of 13 March (“the Second Letter”).
3. In the first sentence of the First Letter you inform our client that you are instructed on behalf of (inter alia) Associated Newspapers Limited (“ANL”). However, there is no reference to ANL in the Second Letter. Please clarify whether or not you are instructed in this matter on behalf of ANL.
The Context of your Clients’ Threatened Claim
4. We refer to these two paragraphs at the commencement and conclusion of your Second Letter:-
“Our clients have instructed us to write this formal Letter of Claim with the utmost reluctance because they believe passionately in freedom of expression and fully respect your rights as journalists to examine these issues. However the inaccuracies in the articles complained of… are so serious and defamatory that they feel they have no option but to defend their rights.”
“As we explain above, our clients are passionately committed to press freedom and the principles underpinning the importance of preserving an unfettered and independent news media and we emphasise again that they fully respect your right to write about these matters. Notwithstanding this, they cannot reasonably allow false and seriously defamatory statements about them to remain online.”
5. Your clients’ public commitment to the protection of freedom of expression and resistance to what Mr Dacre has referred to as “the power of suppression” are well known; as are their oft repeated criticisms of the “draconian” libel laws on which they now seek to rely. These are doubtless matters which can be explored at trial in due course.
6. Our client believes that the facts that your clients have threatened a small, IMPRESS - regulated publisher with libel proceedings, demanded take down of all three publications in their entirety, rather than corrections of any errors and/or the publication of a right of reply, and sought an apology of significantly greater prominence than is ever offered or provided by ANL titles and/or their regulator (IPSO), are of themselves matters of substantial public interest.
7. We also note that by threatening libel proceedings you/your clients have chosen not to make an accuracy complaint to Byline under the IMPRESS scheme as per the invitation on the Byline website; which would have been the proper and proportionate way to deal with the issues raised in the Letters. This would also have complied with the guidance to parties set out in the Pre-action Protocol for Defamation.
8. Our client will therefore publish the Letters along with this response sent on our client’s behalf because of the very obvious public interest in its content. Our client will also publish your response to this letter.
C. The defamatory meanings ascribed to the Article in the Second Letter
9. Your letter identifies the articles to which your clients’ complaints relate. However, in further breach of the Pre-Action Protocol, it fails to identify the words complained of. It is, as a result, very difficult to relate the “meanings complained of” to the actual content of the Articles.
10. In the Second Letter the defamatory meanings that you ascribe to the Articles are as follows:
“1. that each of our clients deliberately buried or suppressed relevant information from ANL's evidence to the Leveson Inquiry to avoid the true extent of ANL's use of Steve Whittamore from being exposed;
2. that this was a contempt of the Leveson Inquiry;
3. and in the case of Ms Hartley, that this was also a breach of her professional conduct obligations as a solicitor to such an extent that she is not fit to practice and should be struck off the solicitors' roll.”
11. We are unable to reconcile the defamatory meanings that you ascribed to the Articles with the actual words in the Articles. For example, none of your (individual) clients are mentioned by name in the Third Article and it is impossible to read that article as making the defamatory allegations against them that you allege.
12. The meanings you ascribe to the Articles are strained in the extreme. The Articles do not allege that your clients deliberately “buried” or “suppressed” relevant information or were in contempt of, the Leveson Inquiry. The contention the Articles allege that Ms Hartley was in breach of her professional conduct obligations does not bear serious examination. There is no trace of such an allegation in any of the Articles.
13. We therefore invite you to set out in response to this letter the basis on which you assert that the Articles bear these meanings, which we ask you to do so by citing the actual words complained of which you contend carry these defamatory meanings as against each of your clients.
“The True Facts”
14. We note your exposition of what you described as “true facts” in relation to this matter. You have, again, ignored the Pre-Action Protocol by failing to set out the alleged “factual inaccuracies” in the words complained of. We confine ourselves to two points at this stage.
(i) The Inquiry did not publish the Section 21 (2) document request to which you refer. Please provide us with a copy.
(ii) We note your complaint that our client has obtained ledgers in breach of confidence. Our client will not comment on its sources, but observes that ANL titles routinely deploy confidential material when it considers that there is a public interest in doing so. Neither you nor your clients appear to appreciate the inconsistency between your client’s assertion of confidentiality in the material which is the subject-matter of the Articles and the methods which ANL titles used to obtain confidential material via Mr Whittamore.
15. It is, however, plain on the face of the Articles that substantial reliance is placed on the invoices themselves – which are displayed in the Articles and the authenticity of which you do not appear to challenge – which were not provided by your clients to the Leveson Inquiry. This is of itself something which the public is entitled to know.
“Individual allegations against your clients”
16. We will comment only briefly at this stage on the points which you raise under this heading:
(i) The sub-heading of the first article states that ANL editors, including your client Mr Dacre, “face questions over ‘buried’ £150,000 payments”. There is no allegation made against your clients in the Articles of deliberate concealment or suppression of material from the Inquiry, but rather a raising of legitimate questions about their election not to disclose the true extent of these payments in their own evidence. The raising of this issue is an entirely proper and non-defamatory element of the Articles.
(ii) The reference to material presented by your client to the Inquiry being “buried” is an obvious comment on the facts and an honestly expressed opinion about the way in which the evidence was or was not made available by your clients both to the Inquiry and to the public generally.
(iii) You accept that Mr Dacre did not mention the relevant figure in his evidence. Though he was not asked about the figure, he did provide five witness statements to the Inquiry in which this issue could have been addressed. These were not written by Counsel to the Inquiry but contained Mr Dacre’s own evidence including responses to questions in relation to this crucial matter. None of those you represent giving written and oral evidence mentioned any figure for payments by ANL to Mr Whittamore; or any private investigators.
(iv) Mr Dacre’s first witness statement says this:
“46. In anticipation of questions that would be raised by this Inquiry (and have been raised in the s 21 notices addressed to myself and others), ANL has attempted to find out how extensive the use of inquiry agents was in the period prior to the ban and in particular the nature and extent of our relationship with Steve Whittamore, who was the subject of the Information Commissioner’s Operation Motorman investigation in 2003. Our findings are set out in the witness statement of Liz Hartley.”
(v) Your clients therefore knew that there was an issue as to payments made by ANL to Mr Whittamore. But they elected not to deal with these matters in their witness statements. Mr Dacre was not questioned specifically about sums paid to Mr Whittamore. But was he was questioned about the extent and scale of ANL’s use of Mr Whittamore’s services.
(vi) The Articles do not say that Mr Dacre claimed ignorance of the sums paid to Mr Whittamore and the use by Daily Mail journalists of his services after conviction. The Articles fairly deal with Mr Dacre’s responses to questions concerning the illegality of Mr Whittamore’s activities and his statement that he did not realise they were illegal.
(vii) Mr Wright was asked about figures and dates concerning ANL’s engagement of Mr Whittamore. He did, indeed, give inaccurate figures to the Inquiry. He agreed the figure of “£20,000 over several years” but went on to say that this was for transactions which “might be illegal”. On the ICO figures the sum of £41,132 was spent by ANL on transactions which were definitely or probably illegal – and that is a narrower category than Mr Wright’s formulation. Subsequent analysis by ITV news – which we are not aware of your clients having contested – is that the true figure for definitely or probably illegal transactions was significantly higher than even the ICO’s figure and is at least £62,000.
(viii) As to Ms Hartley’s evidence; her witness statement says this under the heading “Operation Motorman”; “19. As Paul Dacre has explained in his witness statement, we have tried to ascertain the extent to which inquiry agents were used by ANL journalists prior to the 2007 embargo”. Her witness statement does not provide any information whatsoever on payments to inquiry agents or even to Mr Whittamore
“Other Misrepresentations of your clients’ evidence”
17. Again, we will at this stage comment only briefly on the points which you raise:
(i) The thrust of the Articles is that your clients knew or ought to have known that Mr Whittamore had used, and might be continuing to use illegal methods to obtain material for publication in ANL titles. This was wholly justified based on the material on which the Articles were based. Your client’s response to the issues raised in the First Article is set out in the Second Article.
(ii) Our clients have not seen the terms of the “assurances” that were given by Mr Whittamore to ANL that he was operating within the law in undertaking enquires for the Mail titles – which “assurances” were presumably secured in writing because of their obvious importance. Please therefore provide us with copies of any documents which evidence those “assurances”.
(iii) The question as to whether or not Ms Hartley gave oral evidence on this point – which in any event is not suggested by the Articles – is irrelevant. Her evidence is contained in her first witness statement. She admitted that “in a few cases the word ‘blag’ was used”. This evidence is properly summarised in the Article.
(iv) Mr Wright’s evidence on this matter is fairly summarised in the Articles. He told the Inquiry in his witness statement that payments to inquiry agencies for research and information were classed with “payments for taxis, flights, accommodation etc”; and that he had rebuked his managing editor, Mr Wellington, for failing to alert him to the practice of employing inquiry agents. Mr Wright presumably did this because he regarded this as an important issue and raised ethical questions – a view shared by our client.
(v) The Articles fairly summarise Mr Dacre’s evidence to the Inquiry. He did say on more than one occasion that he did not recall matters relating to his newspapers’ use of Mr Whittamore. On the further point you raise, he was specifically asked by Mr Jay QC whether it was his position that “friends and family numbers” could be obtained “not in breach of section 55” of the Data Protection Act and responded; “I would say that that information could all be obtained legally, but it would take time”.
(vi) So it is that Mr Dacre concedes that ANL has been the recipient of illegally-obtained material, but appears to exonerate his titles because (as he claims) the material could be obtained legally. This was not an argument that commended itself to Lord Leveson when it was deployed by the Times lawyer Alistair Brett in defence of his title obtaining information unlawfully.
(vii) Furthermore it is clear from the context that what is being referred to is the specific list of 10 numbers “that cost £500” – that is the list of “friends and family numbers” which is information which is only available only by blagging material from BT.
(viii) You suggest that ANL provided examples of requests for blagged phone data or car registration reversals which comprised information in which there a genuine public interest justifying its collation. The two examples which you give are, at best, of highly dubious public interest; and this by contrast reinforces the point about genuine public interest in the content of the Articles.
(ix) You also refer to “ANL’s Submissions to the Inquiry” in relation to providing these examples. You do not make it clear what document(s) you are alluding to. Please provide us with a copy the relevant submission.
Extent of Publication and “serious harm”
18. We note your comments on this point, and the fact that you give no evidence of the “serious harm to reputation” which you allege has been caused to your clients by the Articles, which given the period between their publication and the Second Letter should have emerged it was ever likely to. In view of the approach of your firm to complaints against ANL’s publications this is, to say the least, a conspicuous omission.
19. Your clients must also demonstrate that any “serious harm” which they contend that they have suffered has been caused by those elements of the Article about which issue is taken in the Letters; rather that the undeniable fact that both your clients and ANL continued to employ Mr Whittamore long after they were on the very clearest notice of the likelihood that the means whereby he was securing data for use by the Mail titles were likely to be unlawful.
20. Despite its length, the Second Letter is entirely silent on the crucial issue which – whatever the position on meaning and truth - would effectively determine the outcome of any defamation claim brought by your clients against ours; namely whether our client is entitled to rely on the “public interest” defence under section 4 of the Defamation Act 2013 concerning its publication of the Articles.
21. This is despite the fact that this defence prima facie presents an insuperable obstacle to a successful defamation action by your clients. The Articles plainly both comprise a statement which “was, or formed part of, a statement on a matter of public interest”; and our client undoubtedly and with every justification “reasonably believes that publishing a statement complained of was in the public interest”.
22. It is therefore very hard to conceive of how the Articles do not enjoy the benefit of the Section 4 defence in the face of the libel action threatened in the Letters. We would be grateful therefore if in response to this letter you would set out in detail on what basis your clients consider – as we assume - that our client is not entitled to the protection of the Section 4 Defence concerning the Articles.
23. In the interim, and with reference to the last three paragraphs of the Second Letter:-
(i) Our client will not remove the Articles from its website – at least pending your comprehensive response to this letter;
(ii) Our client will comply fully with its disclosure obligations, invites you to confirm that your client will do likewise;
(iii) Our client offers no undertaking as sought from your numbered paragraph 2;
(iv) Our client will not “publish a full retraction of the allegations complained of and an apology to each of [your] clients in words to be agreed with [you] in advance to be published prominently on the top of the home page of Byline’s website:..”. We also note now and for future reference your demand for a degree of prominence and publication which is much greater than usually afforded by ANL to those who are defamed in its publications.