Select Committee on Culture, Media and Sport Fifth Report

3. The press


41. The Press Complaints Commission (PCC) was established by the industry in 1991 in response to the conclusions of the then Mr David Calcutt's inquiry into press self-regulation. The PCC took over from the Press Council which had lost the confidence of nearly all interested parties.

Table 1 - Regulation and the press
Date Event
1695-1953 Newspapers and periodicals regulated indirectly by the generally applicable laws of libel, defamation, contempt, obscenity, sedition etc. following abolition of the Licensing Act
1931 Rt Hon Stanley Baldwin MP accused the press of exercising "power without responsibility"
1938 The think-tank, Political and Economic Planning, proposed a body to protect the press from the government and the public from the press
1949 Report of the Royal Commission on the Press under Sir William Ross recommended a general council of the press to safeguard liberties and rebuke excesses
1952 Defamation Act
1953 Establishment of the Press Council
1962 Report of the Royal Commission on the Press under Lord Shawcross recommended the appointment of lay members to the Press Council and improvement of its complaint procedures
1972 Report of the Departmental Committee on Privacy under Rt Hon Kenneth Younger
1977 Report of the Royal Commission on the Press under Lord McGregor of Durris concluded that the Press Council was failing to regulate the press industry
1984 Data Protection Act
1987-1989 Introduction of several Private Members' Bills relating to privacy and right of reply and, in 1989, comment by Mr David Mellor MP, then a Minister in the Department for National Heritage, that the press were drinking in the "last chance saloon"
June 1990 Report of the Privacy Committee, under Mr David Calcutt, to the Home Office (Calcutt I) recommended replacement of the Press Council with a statutory tribunal but that the industry should be given a last opportunity to make self-regulation work
January 1991 Establishment of the PCC in place of the Press Council and introduction of the Press Code of Conduct
1992 Code amended to ban listening devices or tapping telephones* and to make clear that editors were required to publish PCC adjudications in full with due prominence
January 1993 Review of Press Self-Regulation by Sir David Calcutt (Calcutt II) concluded that the PCC was failing and that his original proposals be implemented
1993 Mr Clive Soley MP introduced a Bill on Press Freedom and Responsibility
March 1993 Report on Privacy and Media Intrusion from the National Heritage Committee recommended inter alia a statutory press ombudsman and a privacy law
May 1993 Pressbof announced: a majority of independent commissioners for the Commission, additional independent members for the Appointments Commission, the Code to be ratified by the Commission and improvements to the Code
June 1993 PCC helpline launched for members of the public concerned about press investigations relating to them which might breach the Code
October 1993 - May 1995 Code amended to define private property more widely* in response to Calcutt II and PCC censure of intrusion relating to Countess Spencer

October 1993 - May 1995 Code amended to define private property more widely* in response to Calcutt II and PCC censure of intrusion relating to Countess Spencer
November 1993 PCC announced press industry commitment to incorporation of Code into contracts of employment of editors and journalists
1994 PCC announced the establishment of a Privacy Commissioner with responsibility for investigating prime facie gross or calculated breaches of the Code
September 1995 All relevant media codes amended to reduce the possibility of the "jigsaw" identification of vulnerable children
1995 The chairman and the director of the PCC made ex-officio non-voting members of the Code Committee
Dec 1996 Code amended to strengthen provisions on payments to witnesses in criminal trials*
1997 PCC and the Code made applicable to on-line versions of publications
Sept 1997 Death of Diana, Princess of Wales and subsequent calls for the Code to be revised.
January 1998 Revised Code: new privacy clause (reflecting ECHR) covering public places where there was an expectation of privacy*; a ban on material obtained by persistent pursuit whether by staff or freelancers; children's protection extended*; intrusion into grief and shock extended to cover publication*; "should not" became "must not" throughout.
1998 Partly to underline the seriousness with which the PCC viewed the issue of intrusion the Commission upheld a substantial number of relevant complaints during the year
1998 Human Rights and second Data Protection Acts (containing references to the Code)
December 1999 Code amended in respect of children who are witnesses to, or victims of, crime.* In the light of the Human Rights Act the section on the public interest was amended to include reference to the "public interest in freedom of expression itself"
March 2003 Code strengthened in respect of payments to witnesses in criminal proceedings and the section banning payments to criminals* was hived off to form its own clause
*Subject to a public interest exemption or "not restricting the right to report judicial proceedings"

Data source: Memoranda from the PCC (Volume II), The Editors' Code of Practice Committee (Appendix

2) and Professor Richard Shannon (Appendix 3, Volume III)


42. The key elements of press self-regulation were:

·  Press Code of Conduct which sets out the standards to which all newspapers, magazines and periodicals in the UK must conform.

·  Editors' Code of Practice Committee, made up of 16 editors and a senior industry figure as chairman, is responsible for drafting the Code. The chairman and director of the PCC are ex-officio members of the Committee. The Committee has a secretary shared with Pressbof.

·  PCC, with 16 members (of whom 7 are editors and the remainder, including the chairman, are independent of industry),[39] is responsible for ratifying the Code and dealing with complaints. The chairman of the Code Committee is an additional ex-officio member. The PCC has a director and 11 staff.

·  Appointments Commission of 5 members including its chairman who is always the chairman of the PCC, the chairman of the Pressbof, and 3 independent members. The PCC director acts as secretary.

·  Press Standards Board of Finance (Pressbof), made up of senior figures from the trade associations of the UK newspaper and magazine publishing industry, with responsibility for co-ordinating the industry's actions on self-regulation: appointment of the PCC Chairman; agreeing changes in the Code; and raising the funds for the PCC (£1.7 million in 2003 and £17 million overall since 1990) through a system of registration fees. Sir Harry Roche, Chairman of Pressbof, described the percentage of the turnover of the funding bodies that goes into the annual £1.7 million as "very, very small".[40] The Board has a secretary shared with the Code Committee.

43. The memorandum submitted by the PCC set out in impressive detail a wide range of activities undertaken by the Commission which, in addition to core business, principally includes: work overseas with comparable organisations, efforts to raise awareness of the PCC itself throughout the country, work with vulnerable groups and, perhaps most importantly, assisting in the training of journalists throughout the UK. These elements of the Commission's work were supported by a large number of submissions from its overseas counterparts and training colleges.[41] The latter evidence described the high profile of the Code within journalists' training and the supportive role of the Commission in maintaining this. However, our principal focus is on the Commission's role as a body to settle complaints.


44. The key performance indicators set out for us by the Commission showed that it resolved the vast bulk of the valid complaints presented to it without having to resort to formal adjudication and that it did so with great speed, achieving, over the last two years, an average of 32 days for conclusion of all complaints against its target of 40 days. This average rose to 62 days when resolved complaints alone were considered; in other words when the real core business of the PCC was assessed.[42] We have estimated the complete situation for 2002 to be as follows:

All complaints received:  - 32 days

Rejected complaints and complaints where no breach

was found (or not pursued by the Commission)  - 11 days

Resolved complaints (or not pursued by the complainant):  - 62 days

Adjudicated complaints:  - 70 days

  Upheld:  - 77 days

  Not upheld  - 64 days

45. The Commission was confident that its speed was not the result of simply bulldozing people. The first full customer-satisfaction survey in 2002 showed that 59% of all respondents thought that their complaint had been handled satisfactorily and this figure rose to 92% amongst those whose complaints had been resolved.[43] The Commission sees itself as "at heart an alternative dispute resolution mechanism" and not a free version of the legal service. This was in fact a recommendation in the first Calcutt report; that there should be an emphasis on achieving conciliation where at all possible.[44]

46. In 2002 the PCC received 2,630 complaints (91% of which were from ordinary members of the public). Of these only 36 went to formal adjudication with 17 being upheld. 1052 complaints were classified as "resolved" or "not pursued" by the complainant; 534 were rejected as raising no possible breach of the Code and 177 were not pursued by the PCC after it deemed an appropriate offer had been made to remedy any possible breach of the Code by the editor concerned.

47. Overall between 1991 and 2002 the PCC has received nearly 23,000 complaints. Mr Chris Frost, NUJ Ethics Committee, provided the following data.

Table 2 - complaints to the PCC 1991-2000
Year 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 Total
Total 1520 1963 1782 2091 2508 3023 2944 2505 2427 2225 22988
Third party 0 107 114 87 77 146 335 205 1071
Undue delay 46 64 97 85 91 110 93 112 698
No remit 137 232 447 427 800 1125 593 689 4450
Concluded 662 1249 1690 1957 2470 2752 2531 2601 1641 1458 19011
No breach 347 584 704 914 1026 897 914 954 942 857 8139
Resolved 72 182 231 356 413 393 514 555 650 544 3910

























Data source: Mr Chris Frost, NUJ, from a study to be published in Journalism Studies later this year, 2003.

48. The distribution of adjudications across publications has been as follows:

Table 3 (1991-2000)

(7 or more adjudications)

Number of adjudications Upheld or upheld in part Rejected or not pursued Upheld as % of adjudicated
The Sun 47 19 (1st) 28 38.3
News of the World 39 17 (2nd) 22 30.8
Mail on Sunday 39 16 ( 3rd) 24 33.3
The Mirror 29 14 (4th) 15 31.0
Daily Mail 28 6 (10th =) 22 21.4
Daily Star 25 10 (6th) 15 36.0
Sunday Times 23 6 (10th =) 17 26.1
Evening Standard 22 6 (10th =) 16 22.7
Sunday People 19 9 (7th) 10 42.1
Daily Express 19 7 (9th) 12 26.3
Today 16 11 (5th =) 5 68.7
Sunday Mail 16 6 (10th =) 10 25.0
Sunday Mirror 15 11 (5th =) 4 66.7
Daily Telegraph 11 4 (11th) 7 27.3
The Times 11 2 (13th =) 9 18.2
Daily Record 10 3 (12th) 5 30.0
The Guardian 9 1 (14th =) 7 11.1
Daily Sport 8 8 (8th) 0 100.0
Sunday Telegraph 8 2 (13th =) 6 25.0
The Independent 7 1 (14th =) 6 14.3
Independent on Sunday 7 2 (13th =) 5 28.6

Data source: Mr Chris Frost, NUJ, from a study to be published in Journalism Studies later this year, 2003.

49. Within these global figures, privacy complaints—which the PCC defined in its 2002 annual report as those relating to clauses 3-7 (privacy, photographs in private places, harassment, grief and shock and children), 9, 10 and 12 (hospitals, innocent relatives and victims of sexual assault)—have been rising, as a proportion of all complaints (to 24.1 per cent in 2002), as well as in absolute terms. According to the Commission, in 2002, 95% per cent of such complaints were made by ordinary members of the public and, of the total number of privacy complaints, half related to regional, local and Scottish and Northern Irish publications.[45] It was pointed out that, of all subjects, genuine intrusions into privacy were the least likely to give rise to a complaint in every instance because of the possibility of the process making matters worse.

50. It is difficult to draw firm conclusions over precisely what the figures tell us. The PCC, and others, argue that increasing numbers of complaints, and static or reducing numbers of adjudications, indicate that the PCC's role as a mediator, in whom the public has trust, is a great success.[46] On those terms, 321 adverse adjudications out of nearly 23,000 complaints (and 4,653 instances where a breach of the code was, or might have been, involved) is a very good result over 10 years. The converse of this is that the PCC's focus on reconciliation, in suppressing the number of adjudicated cases (i.e. reducing censure and limiting jurisprudence), has acted to reduce the full impact of the Code on the industry and its standards. The most extreme view offered was that the PCC was a positive liability in that it held up only a pretence of redress and, without it, at least people would know that their recourse was to the law.[47]

51. Sir Christopher Meyer, the new PCC Chairman, in evidence to the Committee, conceded that ever increasing numbers of complaints must eventually cease to indicate greater awareness of, and confidence in, the PCC amongst the public and start to suggest problems in the press especially if complaints continued to relate to one or two particular areas. While Sir Christopher believed that the PCC was nowhere near this point,[48] he made a commitment to new research by the Commission, saying:

"What the Press Board of Finance, that finances the PCC, does not know - because I have not actually mentioned this to them yet—is I think I need a bit more money from them actually to survey more precisely what is going on out there."[49]

52. The rationale argued for the PCC is that to maintain the freedom of the press—vital in an open and democratic society—the industry has to regulate itself; otherwise the door is open to Government influence, censorship, even control; and this spectre was raised by the PCC and editors in strong terms.[50] Even if these fears are more negotiating gambits than genuine concerns,[51] the logic behind the argument is persuasive. For self-regulation to work, however, it has to command the confidence of a split constituency. This has been a significant challenge for the PCC. As it has no authority, nor indeed resources, other than what is ceded voluntarily to it by the press industry, the PCC must command the confidence of that industry. In view of past threats to replace self-regulation with a statutory system, a proposal described as "repugnant" by the PCC and the press industry, the Commission must also command the confidence of Government and Parliament. Crucially, to meet its objectives and to be effective, the PCC must command the confidence of the public.

53. The Commission does seem to have the confidence of the industry. The PCC argues that its authority is now well established and disputes over complaints occur within the boundaries defined by the Code with no example of an editor trying to justify a decision on any other basis. The evidence we received from editors and journalists of national, regional and local newspapers and magazines was, to a great extent, extremely positive and complimentary about the impact that the Code and the PCC were having on press standards.[52] Editors, especially of regional and local papers, claimed that contact with the PCC, either as a member of the Commission or just in consultation, was extremely welcome. Mr Robert Thomson, editor of The Times, wrote that "the Press Complaints Commission is doing a valuable job and does have a clear and recognisable restraining influence on the Press", he added that editors were "conscious of its role, importance and the significance of its sanctions."[53] Several witnesses pointed to the "lawless" days of over ten years ago and some went on to say that behaviour prevalent then would be inconceivable now; attributing this, largely, to widespread acceptance of the boundaries set by the Code of Conduct.[54] Mr Piers Morgan, editor of The Daily Mirror, even managed to be affronted by the recent portrayal of tabloid journalists as "sleazy" on Coronation Street.[55]

54. There was not complete unanimity within the industry. The editors of The Independent and The Guardian were more sceptical for instance and the representatives from the PressWise Trust, the NUJ and the National College for Training Journalists suggested that standards had not risen so markedly as the press representatives were suggesting. There was also a suggestion that support for the PCC from the industry was not necessarily a positive indicator.[56] Mr Simon Kelner, editor of The Independent, drew a distinction between the PCC Code, which he described as a sound basis for an ethical newspaper industry, and its administration, which he thought was "weak".[57] This echoes an editorial from Mr Charles Moore, editor of The Telegraph, in 1997 which said that the "Code itself is not bad at all, but the same was true of Stalin's constitution of the Soviet Union: the problem was that it was not worth the paper it was written on." Mr Moore, then a new member of the Code Committee, went on to express optimism that matters could improve.[58] Mr Kelner also had worries over the level of public trust in the PCC which he said was not transparent nor open to any kind of appeal. He suggested that the Commission needed a completely independent back-stop to act as a court of appeal and a scrutineer of PCC judgements. He put forward Ofcom for the role saying that if the industry observed the Code it would have nothing to fear despite this statutory element in arrangements.[59] The Chairman of Ofcom was not obviously keen on this extra responsibility.[60] Mr Alan Rusbridger, editor of The Guardian, was critical over what he saw as some curious judgements by the Commission and a surprising lack of curiosity within the PCC in the evidence of reprehensible conduct by newspapers which had not been translated into complaints.[61]

55. As we have discussed above, the PCC does seem to have the confidence of the Government and the question therefore remains as to whether it has the public's trust. The PCC argues that recent rises in complaints coming to the Commission represent a 40% increase on the first 4 years of the Commission's existence; a sign of increased awareness and confidence on the part of the public. Certainly in terms of bare name recognition alone the PCC, at 80%, appeared to have made an impression.[62]

56. The evidence we have received from those with experience of the PCC was mixed. We were very cautious about drawing any hard and fast conclusions from the limited number of cases upon which we received evidence. Rather we felt that the submissions contributed an important qualitative element to our understanding of the procedures of the PCC and the approach of the press to complaints. We set out below some key elements of what we heard.

57. There was a great deal of praise for the staff of the Commission in assisting complainants through the process[63] but there was also a backdrop of frustration that nothing was going to change and nothing was going to happen to an offending newspaper. In one case, the witness encapsulated the feelings of many in saying that, even though she had, eventually, won the argument and got an apology, she was left with the feeling that the newspaper had "got away with it" (and no sense that someone else would not get the same treatment).[64] The PCC summary of the matter, under the heading "resolved complaints" read: "The newspaper published a full correction and apology". The complainant told us: "I never had the sense … that at any time anybody actually sat down and made any decisions about it." She described the to and fro of letters and added "I kept saying "I press you to adjudicate" … but, in fact I was pressed to accept the final offer of The Daily Mail, which was to publish an apology on page 31."[65] This experience seems at odds with the PCC's stated policy that "complainants can of course at any stage ask the Commission itself to take a formal view on their complaint".[66] Another witness described the complaints process as like climbing a staircase with "the Commission" as the "big thing in the sky". However, he told us "You get to the top of the steps, you are looking around, and "it" is not there."[67]

58. The PressWise Trust, and others, argued that the unwillingness of the PCC to hold hearings on cases laid a burden on complainants in requiring them to express themselves on paper, on some quite complicated matters, demanding skills which not everyone possessed (the Trust made the point, however, that editors can be assumed to possess these skills in abundance).[68] The PCC have pointed to the delays which hearings caused the BSC process. We believe that there are certain complicated complaints, perhaps involving conflicts over matters of fact, which might in fact be dealt with more speedily by a hearing. We note below that the Secretary of State has raised this issue with the PCC and we assume that it is under consideration.

59. The Secretary of State submitted to us, after her oral evidence, the full list of suggestions that she had put to Sir Christopher Meyer to assist his consideration of possible improvements to the PCC. Sir Christopher himself announced to the Newspaper Society a number of initial ideas as well as four "heresies" to be avoided at all costs. The table below compares these ideas in summary outline.

Table 4 - Scope for reform of the PCC
PCC ChairmanSecretary of State Comment
(i) No fines or compensation

(ii) No co-regulation (iii) No random own-volition action

(iv) No general press control

More proactive and pre-emptive action with greater collaboration with other media regulators PCC rests on its existing approach to initiating action which we believe to be capable of development.

(i) No fines or compensation

(ii) No co-regulation (iii) No random own-volition action

(iv) No general press control

More proactive and pre-emptive action with greater collaboration with other media regulators PCC rests on its existing approach to initiating action which we believe to be capable of development.
(i) A Charter Commissioner for review and appeals on procedural matters; (ii) annual health check of the Code by the PCC; (iii) annual independent customer service audit. (i) An appeals mechanism independent of both Government and industry

(ii) More formalised and regular independent scrutiny of the PCC's procedures.

The proposals of the PCC are on the whole more limited, procedural and internal exercises than what we understand the Secretary of State to be suggesting.
A more transparent and open appointment process for lay commissioners A more transparent and open appointment process for lay commissioners --
An increased majority of lay membership by one A greater majority of lay members with fixed term appointments PCC does not refer to term of appointment.
(i) Newspapers to carry PCC contact details; links to PCC website on newspaper websites

(ii) Open meetings around the UK

More effort to raise the PCC's profile and accessibility to the public --
--Hearings held in certain cases PCC does not refer to hearings
Code users' handbook for newsrooms on the background and case law related to the Code alongside notes circulated to Editors. -- The users' handbook will no doubt augment the wallet-sized copy of the Code produced by the Society of Editors for journalists
More visible censure of editors:

adjudications to have a clear and common branding

-- The Secretary of State does not refer to due prominence

Data source: Supplementary memorandum from the DCMS and speech by the PCC Chairman to the Newspaper Society, 6 May 2003

60. We see the Secretary of State's suggestions as very reasonable points for consideration by the PCC—a body that asserts it is constantly seeking to improve and increase awareness and confidence amongst the public—and not liable overly to dismay the press industry. Evidence for this is the considerable contiguity between the suggestions of the Secretary of State and the proposals of the new PCC Chairman. Where there are differences, for instance on the scope or degree of independence required for appeals or audit mechanisms, we tend to favour the Secretary of State's emphasis. We also welcome the proposals of the PCC Chairman that are additional to those of the Minister. Our own detailed recommendations are set out below. Some reflect the proposals of Sir Christopher and Tessa Jowell; some do not. All of them are aimed at what we perceive to be the twin necessities of increasing public confidence in improved arrangements whilst keeping the press industry on board and paddling in the same direction.

Conciliation versus adjudication

61. We believe that the PCC is slightly too "softly, softly". We realise the importance of preserving the confidence of the industry but the whole-hearted support for the PCC expressed to us by editors persuades us that the Commission has now got the capability, capacity and political capital to flex its muscles a bit. Notwithstanding the PCC's avowed intent to secure resolution between parties to a complaint if possible, we recommend that the PCC consider establishing a twin-track procedure. The new provision would be to respond to those complainants who did not want mediation but wanted the Commission to make a judgement in reference to the Code on their case (after the normal exchange of papers) without this insistence prejudicing the result. At the very least the Commission should make an assessment amongst complainants as to the level of demand for such an innovation.


62. There are a number of issues that arise in advance of the publication of a story that do not amount to "prior restraint" or "press censorship". We believe that the PCC should consider establishing a dedicated pre-publication team to handle inquiries about these issues from the public and liaison with the relevant editor on the matters raised. This team should also handle issues related to media harassment, including the production and promotion of guidance to both press and the public, liaison with the broadcasters and the transmission of "desist messages" from those who do not want to talk to the media. The first job for the pre-publication team should be the collaborative work with Ofcom on "media scrums" that we recommend above.

The Code

63. We heard persuasive arguments from PressWise and the NUJ that the writing of the Code into journalists' contracts of employment should be backed up by either representation on the Code Committee or a conscience clause in the Code or both.[69] A number of other matters were also raised with us. We recommend that the Code Committee, Pressbof and the Commission, consider the following in relation to the Code of Conduct.

i)  The Code's ban on intercepting telephone calls should be updated to reflect the communications revolution (in line with the provisions of the Regulation of Investigatory Powers Act 2000) and should include reference to the privacy of people's correspondence by e-mail and between mobile devices other than telephones.

ii)  An additional element of the Code should be that journalists are enabled to refuse an assignment on the grounds that it breaches the Code and, if necessary, refer the matter to the Commission without prejudice.

iii)  The Code should explicitly ban payments to the police for information and there should also be a ban on the use and payment of intermediaries, such as private detectives, to extract or otherwise obtain private information about individuals from public and private sources, again especially the police. We discuss this issue in more detail later in Section 4.

Constitution of the PCC

64. The PCC seems to have been quite relaxed in its pre-appointment procedures, that is before names go to the independent Appointments Commission. Ms Vivien Hepworth, lay commissioner and former chairman of an NHS trust, gave the impression in oral evidence that she was asked to be a candidate for the Commission because she was a friend of the PCC director. Sir Harry Roche, Chairman of Pressbof, took pains to try and clarify this point[70] but, on reflection, Ms Hepworth's evidence does not seem at all unclear:

"I can tell you how I was appointed to the Press Complaints Commission. I was asked by Mr Guy Black, whom I have known for many years, whether I had an interest in the PCC, and I said yes, I did."[71]

65. Ms Hepworth emphasised that she had been told she was one of a number of candidates and had been interviewed by Lord Wakeham prior to the Appointments Commission taking a view. Her experience of the NHS had been a factor in her selection.[72] We note the view of Professor Richard Shannon that press self-regulation "cannot be other than an intimately internal debate" and "it is most unlikely that any lay person would be appointed to the PCC by the Appointments Commission who is not committed in principle to the essence of its purpose, the application of the to the press of…the Code".[73] However, Sir Christopher Meyer, the new PCC Chairman, told us that he was reforming the appointments system and would have no objection to anyone, even a former complainant, applying to become a lay commissioner.[74] We welcome the assurance of the Chairman of the PCC that the selection of candidates for the role of lay commissioner would be put on a proper, open and transparent footing from now on. We note his undertaking to have a further lay commissioner, appointed under such arrangements, in place before the end of 2003.

66. With regard to the press members of the Commission we were interested to hear from Mr Locks of the Periodical Publishers Association who accompanied Ms Jane Ennis, newly appointed Commissioner and editor of NOW magazine. He said that Ms Ennis had been selected by the PPA "to represent their interests in terms of providing a balanced view as a commissioner."[75] Mr Locks was keen on transparency and the suggestion, originating within this Committee, of an independent audit of the PCC's procedures and practices.[76] A first effort at increased transparency might be a statement clarifying to what extent, if at all, press members of the Commission were there to represent the interests of their trade associations; and how many saw themselves as independent figures in a quasi-judicial capacity.

67. We believe that the Commission would command more confidence in the independence of its membership if it adopted the following proposals:

i)  Lay members should be sought and appointed for fixed terms under open procedures including advertisement and competition.

ii)  Press members should be appointed for fixed terms from across the industry. There should be an explicit presumption that they are not there to represent the interests of their associations but to offer the benefits of their particular experience whilst acting independently as members of a quasi-judicial body.

iii)  Press members (and here we include members of the Code Committee) who preside over persistently offending publications should be required to stand down and should be ineligible for reappointment for a periodperhaps the length of a term of office. Persistence could be defined as "three strikes and you're out".

iv)  The lay majority should be increased by at least one; as provided for in the PCC's Articles and accepted by Sir Christopher Meyer, the new PCC Chairman.

v)  The Appointments Commission should appoint an independent figure, also under the new procedures, to implement the procedural appeals process to which Sir Christopher has referred. To this responsibility we would add the task of commissioning a regular external audit of the PCC's processes and practicesa version of accreditation. While the "standard" would probably be unique to the PCC, the methodology has been pretty well-established throughout the corporate world.

vi)  The Code Committee, which at the moment is composed entirely of editors, should be re-established with a significant minority of lay members.

Proactivity and third party complaints

68. The PCC argue that one of the serious defects of the former Press Council was its approach to "own volition" and "third party" complaints (between which the PCC saw little distinction). The Commission said that the old Council was simply not able to deal with the amount of work it took on, became very slow and lost the confidence of the industry.[77] In principle the PCC eschews such procedures arguing it would: create a two-tier system (with high-profile figures 'expecting' action without complaining); politicise the Commission (action involving Government ministers would have to be followed by action on behalf of the opposition); risk intruding on people's right not to complain (possibly in contravention of the Human Rights Act) and run up against their right not to cooperate; and involve a system of making choices (over matters to pursue) that would be tantamount to controlling the press. The PCC add that to be fair and effective it would have to monitor over 1,200 newspapers and 8,300 magazines (and their websites).[78]

69. However, taken together these arguments appear to be a monumental Aunt Sally in the light of the Commission's own evidence. The PCC stated that it can, and does, accept third party complaints in certain circumstances (and we understand that one such complaint has been accepted effectively from a select committee—not this one). In addition certain events and issues have caused it to undertake discussions and investigations of its own volition and it has given those examples, and set out the relevant criteria, in evidence to this Committee. And finally the Commission described the limited, private and informal media monitoring exercises that it had undertaken for its own purposes (recognising that part of the PCC's role is to do what it can consistently to raise standards of newspaper reporting).[79] We regard all this as very welcome, but believe that it sits very uncomfortably alongside the deafening volume of the PCC's arguments against being asked to do what it has been doing anyway. In any case, where a third-party complaint is regarded by the PCC as raising a matter of public interest, the Commission could ask the person on behalf of whom the complaint is made whether he or she consents.

70. We believe that the Commission could tackle the perceived inconsistency between its arguments and its activity (whilst answering many critics and without emulating the Press Council) by taking a more open and consistent approach to proactivity. During our inquiry Linda Gilroy MP raised in the House concern over rumours that news agency staff were pursuing relatives of members of HM armed forces serving in Iraq. She subsequently reported to the Committee that most media behaviour had been good. The Plymouth Evening Herald had adopted a policy of only seeking information from the MoD but had suggested to Ms Gilroy that the slow speed of response to questions may have prompted other agencies to "over-step the mark". Discussions with the local community about the media suggested a case for proactive cooperation between the PCC and the Ministry of Defence in the future and we suggest that cooperation may assist both sides.[80]

71. When we put Ms Gilroy's initial concerns to the PCC it was clear that the Commission would act on a specific complaint but had hitherto not considered the issue.[81] We believe that the conflict in Iraq was a foreseeable event that was, tragically, almost certain to involve serious injury and death to a number of members of the services. We feel that it would not have been beyond reason, outrage any principle, or have been too onerous to distribute a helpful reminder concerning the relevant rules and procedures of the Code and the PCC to the home bases of the relevant units and to the local and national media (acting in concert with the BSC). We were surprised that the new Chairman himself decided specifically to take no action.[82] We can see no harm in the measures for which we were pressing and a great deal of merit in establishing them as standard practice. The PCC, as seen very recently, finds no difficulty in intervening, justifiably, to protect the privacy of Prince William; surely there are other deserving recipients of its concern. To this end we note Sir Christopher's statement that he was open to "that sort of thing in the future".[83]

72. We recommend that the PCC, under its new Chairman, considers the case for taking a more consistent approach to foreseeable events that herald intense media activity and people in grief and shock; and for acting as soon as possible after unexpected disasters have occurred. This may be another appropriate responsibility of the pre-publication team.

73. We consider proactive action on issues, rather than events, later in this report in assessing the relationship of the Code to the law (and payments by the press to the police).

74. A further beneficial reform, along the same lines, would be consideration by the PCC of a new and more explicit approach to the acceptance of certain third party complaints, perhaps after a consultation exercise. As we have said, the Commission does accept such complaints in certain circumstances. We believe that this is as important in issues of prejudicial and pejorative references to minority groups as it is on privacy matters.

75. The PCC set out evidence to us of their assistance to vulnerable groups to enable them to complain; and this included reference to the travelling community.[84] We note that Friends, Families and Travellers, a national voluntary organisation serving the travelling community, reported that it had submitted over 600 complaints to the PCC over the years regarding discriminatory references to gypsies and travellers in the press. The majority of these had not been accepted and none had been upheld.[85] Perhaps the PCC would concede that this is evidence, despite its efforts, of a problem that just will not produce a technically valid complainant, i.e. one related to a named individual—with regard to discrimination and racism this is often the whole point. We would highlight, in this regard, the PCC's emphasis on upholding the spirit, as well as the letter, of the Code.

76. The Commission should also consider revising its criteria for deciding who can complain on behalf of patients, the mentally-ill and children in certain circumstances.[86]


77. We have noted and discussed the fact that the PCC seeks wherever possible to "resolve", rather than to adjudicate upon, complaints. We are concerned that this may mean that the apologies offered to, and accepted by, complainants—where there is no formal judgement by the Commission—may fall short of the required "due prominence" either in where it is placed or how, if a complainant's letter or other invited contribution, it is edited.[87] We welcome the robust attitude of the new PCC Chairman on this issue in insisting that the profile of redress must be commensurate with the prominence of the offending story. Sir Christopher told us:

"If…there had been some hideous transgression on the front page, then I would expect the adjudication to be published, or at least to start, on the front page; depending on how long the adjudication was going to be. I think that would be entirely reasonable."[88]

78. We accept that having to publish an adverse adjudication, decided by a jury of one's peers amongst others, is not something that any editor wants to do. However, we believe that public confidence in the PCC and the press in general would be boosted by the following modest enhancements.

79. The text of a PCC adjudication should be clearly and consistently set out to ensure its visibility and easy identification as proposed by Sir Christopher Meyer, the new Chairman of the Commission. However, we urge that the design of this 'branding' must avoid duplicating the appearance of an advertisement which may cause it to be skipped automatically by some readers.

80. We accept that due prominence is not straightforward given the different layouts and readers' habits across different papers and magazines. We therefore recommend that any publication required to publish a formal PCC adjudication must include a prominent reference to that adjudication on its front pagein effect a 'taster' for the judgement.

81. In addition we recommend that the PCC's annual report contains an additional feature-something familiar and popular amongst newspapersa league table showing how publications have performed against the Code that year. We have set out an example above.[89] We also urge the PCC to look at the depth and breadth of the data set out in its report and especially the way it categorises complaints when setting out the figures. For example, we are concerned that eliding "resolved" complaints with those "not pursued" may mask a degree of frustration with the process, on the part of complainants, which has not so far been recognised. The PCC should engage in a consultation exercise to ensure that users are getting what they need out of its annual report and other published information.

82. We note that "tagging" the cuttings (to signal that a story, part thereof, or related photograph should not be recycled into a further article without checking the complaint) is "sometimes offered" by a publication as part of its effort to achieve resolution.[90] We believe that annotating press archives as to their accuracy and sensitivity should be automatic in all serious cases, and certainly all upheld adjudications, and furthermore that the publication should be responsible for removing the relevant article from publicly available databases. We note that in one case described to us the offending article was indeed not available on the press database provided through the House of Commons Library. However, the particular inaccuracy had been repeated in an article in the same newspaper on the following day and that reference was returned by a search on the general topic.

83. We accept that financial sanctions large enough to be of a genuinely deterrent and/or punitive nature cannot simply be grafted on to a system of voluntary self-regulation based essentially on professionalism, good faith and peer pressure. However, we note the view of Mr Michael Tugendhat, and others, that:

"if you have people self-regulating they are not going to do things they do not have to do. One of the things the PCC has set its face against, for example, is any form of compensation and I am afraid that is quite simply due to the fact that it represents newspaper interests and that is inevitable. So if you want compensation you have to go to the courts." [91]

84. We believe that the PCC, Pressbof and the industry would benefit, in terms of public confidence, if they formed a consensus around two new elements of the system; one gently punitive and one modestly compensatory:

i)  Pressbof should introduce a gearing between the calculation of the registration fee and the number of adverse adjudications received by a publication in the previous year; and

ii)  The industry should consider agreeing a fixed scale of compensatory awards to be made in serious cases (which in any case according to the evidence from the industry and the PCC are few and far between). If these were fixed in advance, a matter of consensus and relatively modest, we can see no reason for lawyers to be involved. Consideration could be given to the making the award to a charity of the complainant's choice rather than directly.

85. One other matter arose about which we feel very strongly. The Commission is loud and clear that complaining is free. The situation was presented differently by the PressWise Trust[92] and, indirectly, by some of the other evidence we received; especially where complaints are proved or upheld by reference to the transcript of a legal proceeding.[93] We strongly urge the PCC and the industry to consider the matter of complainants' costs and agree that, where justified complaints have involved particular financial burdens on the complainant such as the acquisition of a transcript of a trial or inquest (but not legal fees), then those costs must be met by the offending newspaper. We believe anything else to be invidious and a shifting of the burden of proof from the newspaper, which made the original claims, to the complainant who has been found to have been traduced or otherwise injured. In the light of the PCC's battle cry of "fast, free and fair" we believe this to have nothing to do with the debate over punitive or compensatory awards.


86. We trust that Pressbof will treat the request for further resources from Sir Christopher for research, first aired in front of us, with sympathy. We further urge the Board of Finance to treat any further request from the PCC for such assistance, arising out of the recommendations of this Report or from its own proposals for reform, both sympathetically and generously.

87. We were impressed by the oral evidence given by Sir Harry Roche, who told us quite frankly that Pressbof played a role in ratifying or agreeing changes to the Code of Practice. In excess of 500 pages of evidence were provided to us by the PCC, Pressbof, the lay members and the Code Committee. While the ratification of Code amendments by the PCC, with its lay majority, was stressed, nowhere was mention made of this on-going role for Pressbof.[94] If the Board and the Code Committee are totally unwilling to accept the introduction of lay members to the latter, then we believe that the industry has a sufficient input into agreeing the Code and that Pressbof should withdraw from the process. If our previous recommendation is accepted then Pressbof will be more justified in continuing its existing practice; so long as it is made clear exactly what its role is, and should, be.

88. We accept the offer to the Committee made by Sir Christopher Meyer to return in a year's time to report on progress. This offer will not, however, substitute for action on our own initiative and we therefore recommend that the PCC make itself available to give evidence to this Committee at regular intervals for discussions on progress with its agenda for change.

The PCC and the law


89. The relationship between the PCC and the law is a complex one and has three facets of interest to us:

a)  conduct banned by the Code, with or without public interest defences, that is also the subject of either criminal or civil law;

b)  references to the Code in statute which require the courts to have regard to it in certain cases; and

c)  the Human Rights Act 1998 and the case for, and against, a privacy law.

Criminal and civil offences and the Code

90. Part of the rationale argued for the PCC is to provide an alternative to the courts for people with grievances against newspapers. The Code sets out what the press industry has decided is a practical and fair standard of conduct and against which it must accept the judgement of the Commission. It would be surprising if there was no coincidence at all between what the industry has ruled unacceptable and what could be a cause of action under civil law or even an offence under criminal law. However, the PCC told us that the "Code of Practice does not cover matters which are appropriately dealt with by the law".[95] We believe some obvious examples to be: serious cases of inaccuracy and the libel laws; persistent doorstepping and the Protection from Harassment Act; the interception of telephone calls and the Regulation of Investigatory Powers Act 2000; the removal of documents and photographs without consent and laws on theft; and, explicitly, the clause on identifying the victims of sexual assault.[96]

91. The old Press Council required complainants to sign a legal waiver in view of the increased liability of newspapers in a subsequent court action should the complaint be upheld. The PCC does not require a waiver but it does not actively pursue a complaint while it is the subject of legal proceedings and has a rule that matters cannot be dealt with "for which there was a legal remedy available through the Courts to the complainant, such as defamation, unless there is a good reason to do so".[97] The BSC also has the right to refuse a case with an available legal remedy but told us "as the BSC is designed to offer a remedy that is affordable and normally speedier that court proceedings, it rarely exercises this right."[98] The PCC director also said occurrences were rare—a dozen a year usually relating to copyright, contractual matters or defamation—and, whether the complainant could afford a lawyer or not, the Commission could not deal with the matter.[99] It appears to us that under Clause 1 on Accuracy the more serious breaches of the Code are likely to run up against this rule. We believe that in the light of the PCC's role as an alternative to the courts the Commission should re-examine the effect of this rule on complaints; especially those made under Clause 1.

92. We raised with the PCC the issue of the evidence given by the editor of The Sun, Ms Rebekah Wade and the editor of The News of the World, Mr Andrew Coulson, regarding payments for information to the police. Ms Wade told us: "We have paid the police for information in the past."[100] When asked whether the practice would continue in the future, Ms Wade said "It depends" and Mr Coulson intervened saying, "We operate within the Code and within the law and if there is a clear public interest then we will. The same holds for private detectives, subterfuge, a video bag, whatever you want to talk about."[101] Despite Mr Coulson's reference to the law, it appears clear that, when they feel it is demanded by the "public interest", the editors of The Sun and The News of the World remain ready to make payments to the police in exchange for information. As far as we are aware this practice is illegal for both parties and there is no public interest defence that a jury could legitimately take into account.

93. Mr Les Hinton, Chairman of News International and of the PCC Code Committee, appearing subsequently, reported to us that Ms Wade had since told him that she had "not authorised payments to policemen" and Mr Hinton suggested that her evidence was that "there have been payments in the past".[102] In addition to many press witnesses referring to the "lawless" days of 10 or 20 years ago (statements that echo evidence given to our predecessor Committee in 1993), references to the improper and intrusive gathering of data have appeared from time to time in the press itself (and a few more appeared the day after the evidence from Ms Wade and Mr Coulson).[103] Examples have been:

i)  In October 1997 The Observer reported that a private detective had pleaded guilty to12 offences under the Data Protection Act whereby she had extracted ex-directory phone numbers and telephone bills out of BT. The article reported her clients as The News of the World, The People, The Sunday Express and The Mail on Sunday.

ii)  In January 2002 The Daily Telegraph reported that a solicitor's employee had stolen sensitive documents relating to a murder case from work and sold them to The Sun, The Daily Mirror and The Express (and was only prevented by arrest from keeping an appointment with The Daily Mail). The Guardian reported that The Sun was accused of prompting the man to steal the documents.

iii)  In September 2002 The Guardian reported that there was a data "black market" and referred to a private detective agency called "Southern Investigations" which had been found to be selling information from police sources to The News of the World, The Daily Mirror and The Sunday Mirror.

iv)  In December 2002 The Sunday Telegraph reported that private detective agencies routinely tapped private telephone calls for the tabloid press, with some agencies deriving the bulk of their income from such work and such clients.

v)  In January 2003 The Times reported the Human Resources directorate at the Inland Revenue admitting that there was evidence that some employees had sold confidential information from tax returns to outside agencies (but without identifying which agencies).

In addition:

vi)  The 2002 Case Digest from the Police Complaints Authority stated that "Every year sees complaints alleging the unauthorised disclosure of information from the Police National Computer. Forces have reviewed their methods of preventing unlawful entry but there will always be a few officers willing to risk their careers by obtaining data improperly."

vii)  Finally, Baroness Scotland told us that she understood from the Criminal Prosecution Service that there had been an increase in the wrongful disclosure of police information (although neither the Minister nor the Police Complaints Authority gave an indication about to whom disclosures were being made).

We regard this as a depressing catalogue of deplorable practices.

94. Mr Alan Rusbridger, editor of The Guardian, suggested that the PCC had a "lack of curiosity" about these practices which was not how other regulators behaved.[104] We asked the PCC whether the Commission felt the need to investigate the matter. The PCC told us that this was a matter for the law and outside the Commission's remit which was defined by the Code of Practice. Oddly, this does not appear to chime with the Commission's written evidence on previous action. The PCC memorandum states that it does have the power to raise its own complaints and had done so in a number of cases. It went on to say that:

"…[The PCC] was happy to act of its own volition on the back of third party complaints - but only once it had satisfied itself that (a) there were broad matters of public interest at stake and (b) nobody directly involved could complain. (In case of payments to criminals and witnesses, and of financial journalism, this will always remain the case—as those directly involved are likely to be people who have actually benefited from any breach of the Code.)"[105]

95. We cannot see how the matter of illegal payments to policemen can fail to fall within the criteria set out by the PCC for taking the initiative, or how the issue is different to the example of illegal telephone-tapping highlighted by the Commission itself. We believe the PCC must investigate. This may be best accomplished in cooperation with the Information Commissioner and the Police Complaints Authority and, if necessary, result in an addition to the Code (such as occurred on intercepting telephone calls).

96. On the other side of the fence, we recommend that the Home Office and police authorities also take note of the evidence from the editors of The Sun and the News of the World to us regarding payments to police officers for information and take steps to review and overhaul, if necessary, the guidance and measures aimed at preventing such behaviour by the police and media.

97. It is for the Information Commissioner to make sure that all public and commercial entities are aware of their responsibilities under the Data Protection Act and put in place adequate training, guidance and other mechanisms to ensure that those responsibilities are fulfilled.

References to the Code in statute and in Court

98. The PCC illustrated the growing authority of the Code and the Commission by reference to its relationship to statute and the Courts.

i)  The media exemption within the Data Protection Act 1998 (Section 32) provides a defence for newspapers against action by the Information Commissioner and others if the publication was in compliance with the Code. It is not a matter of the PCC certifying compliance but rather the Court itself having to take account of the Code in coming to a judgement.[106]

ii)  The media exemption within the Human Rights Act 1998 (Section 12) also requires the Courts to take account of a newspaper's compliance with the Code in assessing any defence based on the right to freedom of expression.[107] The most recent example of this was in the Approved Judgment in Douglas v. Hello! where Mr Justice Lindsay explained:

"Where the Court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression, then the Court, where the proceedings relate to material which is claimed, or appears, to be journalistic, must have particular regard, inter alia, to any relevant privacy code."[108]

iii)  In addition there are the occasions when amendments to the Code, or other PCC guidance, have been made effectively as substitutes for legislative change (for example, to protect children who are victims or witnesses in a criminal trial and to prevent payments to witnesses in criminal trials). Baroness Scotland, Parliamentary Secretary, Lord Chancellor's Department, described the debate with the PCC over payments to witnesses as "trenchant" but told us that the Commission's eventual amendment to the Code was as "fulsome" as the Department had wanted (new Clause 16). She said that if the PCC had not been minded to change the Code to "stamp out" the "vice" of witness payments there would have been legislation. She added "there has to be judicious use of the sort of encouragement we are giving [the PCC] over witnesses".[109]

iv)  One further area is the matter of payments to criminals and/or their families for the stories of their crimes. This is banned by the PCC Code, subject to a public interest exemption, but the matter has been under consideration within the Home Office for some time now as to whether there are other steps that can be taken within the terms of Article 10 of the Human Rights Convention.[110] We received indications of cases where criminals had made extremely unwelcome contact with their victims with a view to gaining information to assist the production of accounts of their crimes.[111] We regard this as abhorrent and urge the Home Office to bring forward its long awaited proposals; seeking the cooperation of the PCC if necessary.

v)  The PCC point out that on two occasions applications for Judicial Review of PCC decisions have been rejected.[112]

A privacy law

99. The debate over whether there should be a privacy law has never been simultaneously colder and hotter. The Government has stated clearly that it has no intention of bringing forward proposals for a privacy law and the PCC, the press industry and others argue strongly against the proposal.[113] At the same time the European Court of Human Rights (ECHR) has been critical of the UK in this respect and the subsequent introduction of the Human Rights Act has led to a number of judgments in the English Courts indicative of pressure towards a privacy law.[114]

100. Mr Paul Dacre, editor of The Daily Mail and Editor-in-Chief of Associated News, wrote that: "The press in this country works under some of the most stringent and powerful laws of any western democracy. The libel laws, contempt of court, the provisions of the Youth Justice and Criminal Evidence Act, the Children Acts, the Law of Confidence, the body of law restricting the reporting of certain cases in court, the Protection from Harassment Act, the Copyright laws, the Data Protection Act, the Human Rights Act, the Sexual Offences Act, the Representation of the People Act, the Access to Justice Act, and other numerous restrictive laws already add up to a huge body of legal controls. To add more would add to the burden, not only on a free press, but on the courts and force ordinary people into the onerous and expensive process of going to law to exercise their rights."[115] Mr Alan Rusbridger, editor of The Guardian, told us that, while his newspaper had sponsored the Privacy and Defamation Bill in 1998, he had since changed his mind. He said he was against any privacy law but, on balance, would prefer a statute going through Parliament to case law being developed ad hoc in the courts.[116]

101. The PCC cited Lord Wakeham, speaking during the passage of the Human Rights Bill, who argued that privacy law would be a law for the rich and could make the press industry withdraw effective cooperation with the PCC, thus depriving ordinary people of an avenue for redress without giving them anything useful in its place.[117] The PCC said that the redress available under the law would be: slow (measured in years not days); expensive (even taking into account new provision of conditional fee arrangements); and exposing (with cross-examination and the reporting of proceedings combining to repeat and extend the original cause for complaint).[118] The PressWise Trust said that a privacy law aimed specifically at the media would be "inimical to press freedom" but a law of general application might actually be helpful to the press if it clarified more precisely what protection individuals could expect.[119] The Commission cited Mr Justice Silber (ruling in Anna Ford's application for Judicial Review of a PCC decision) who said that the "Commission is a body whose membership and expertise makes it much better equipped than the courts to resolve the difficult exercise of balancing the conflicting rights … [of] privacy and of the newspapers to publish."[120]

102. This view was however firmly rejected by Mr Rabinder Singh QC, and Mr James Strachan, who pointed out that the courts are in fact required to carry out this very exercise in the application of the Human Rights Act, including with reference to the PCC Code.[121] However, Mr Michael Tugendhat QC told us that at present the situation was not "bust" and therefore should not be "fixed". There was massive protection for many aspects of privacy in English law, principally flowing from law on breach of confidence and data protection (an issue at stake in Campbell v. MGN Ltd), as well as the Human Rights Act (although the latter also created uncertainty). Existing law had to be interpreted by the courts, but so would any new legislation which could not be anything other than in reasonably broad terms.[122] This was echoed by Baroness Scotland who told us that under any new privacy law

"...the courts…would have to interpret any new privacy law and make that balance between…Article 8 and Article 10…the ballast [for] which is given by Section 12 of Human Rights Act, which says that you have to consider freedom of expression as being a very important issue."[123]

103. The case for a specific act was also put by a number of witnesses. Professor Eric Barendt said that it was "anomalous" that privacy was not protected in England and Wales, it being artificial to rely on breach of confidence (as Catherine Zeta-Jones has done) and other remedies. He said while case law was bound to develop on the subject there would be an extended period of uncertainty which itself could chill investigative journalism.[124] A number of witnesses said that they saw no reason why the law and the PCC could not co-exist and the new PCC Chairman has made the same point in another context.[125] Sir Louis Blom-Cooper. Chairman of the PressWise Trust, told us that a "law which said "unwarranted invasion of privacy" [will make] every editor who makes a decision about publication…stop in his tracks before he actually published." Sir Louis added that this was the best remedy that a free society can provide".

104. Professor Barendt said that the reason that the courts often gave for not acting was the boldness of the departure which was something for Parliament to decide although "this is an interest that cries out for protection". He made a further point that legislation had a declaratory quality and, despite the prospects for few actions, there was value in society declaring that privacy was a fundamental human right.[126] Mr Mike Jempson, from the PressWise Trust, wrote that the real weakness of human rights legislation in the UK was the absence of a Human Rights Commission to offer assistance and resources in particular cases where important principles are at stake. Mr Chris Frost, NUJ Ethics Committee, agreed that this was a lack but said that the NUJ was not in favour of a privacy law.[127]

105. The findings of the European Court of Human Rights in the case of Peck have been much discussed in evidence to us. The case's effect is confusing because the introduction of the Human Rights Act intervened between the original events and the final judgment of the ECHR (and the fact that the Government attempted to argue an old case on new law does not help). In Peck the ECHR found the UK to have deficient arrangements to provide remedy or relief to the complainant. The deficiency was highlighted by the fact that Mr Peck's cause of action did not engage the breach of confidence law that has long stood as proxy for a privacy law. That being so, there was no recourse, as the law then stood, nor to the media regulators who could provide no remedies; either of restraint or of damages.[128]

106. The question is whether the Human Rights Act 1998 rectifies this deficiency. The PCC, Mr Tugendhat, and presumably the Government, amongst others, appear to think it does. Professor Barendt, Mr Singh and Mr Strachan, amongst others, believe that relying on the courts and cases to develop the law sufficiently in reasonable time is not enough.

107. We regard the pragmatic arguments against introducing a privacy law to be quite seductive, especially with regard to the question of limited access to the law for people of ordinary means. However, it seems that the right to respect for private life, introduced into English law by the Human Rights Act 1998, has indeed sown the seed of privacy law. If so, the really pragmatic question is whether its growth should be under the care of the courts, on a case-by-case basis, or of the Government and Parliament subject to the extensive consultative processes now available for legislative proposals: Green Paper, White Paper, draft Bill, Bill and passage through the two Houses. Evidence from the PressWise Trust stated that

"By demanding that the elected legislature should not define the electorate's rights and the courts should not adjudicate on whether the law has been breached, the [press] industry lays itself open to the charge of arrogance and the sort of abuse of power against which the Human Rights Act is designed to protect the public."[129]

108. The PCC were clear that the Human Rights Act should not, and would not, become a "privacy law by the back door" and rather scorned Mr Justice Sedley's sole finding, in the first Douglas v. Hello! case that English law did now recognise a discrete privacy right.[130] In contrast, in Peck, the fact that only one judge out of three made this observation, contributed to the ECHR's rejection of the Government's argument that the UK now had an adequate remedy in "development" by the courts; i.e. the law of confidence. Mr Singh and Mr Strachan suggest that the PCC and the press were in a bind because the alternative to a privacy law (whether by the back or the front door) fully to satisfy our Convention obligations was a tough new statutory media regulators with powers to impose prior restraint and award damages.[131]

109. In the most recent relevant judgment brought to our attention (Douglas v. Hello!) Mr Justice Lindsay articulated the issue with great clarity:

"So broad is the subject of privacy and such are the ramifications of any free-standing law in the area that the subject is better left to Parliament which can, of course, consult interests far more widely than can be taken into account in the course of ordinary inter partes litigation. A judge should therefore be chary of doing that which is better done by Parliament. That Parliament has failed so far to grasp the nettle does not prove that it will not have to be grasped in the future. The recent judgment in Peck v. United Kingdom in the ECHR, given on the 28th January 2003, shows that in circumstances where the law of confidence did not operate our domestic law has already been held to be inadequate. That inadequacy will have to be made good and if Parliament does not step in then the Courts will be obliged to. Further development by the Courts may merely be awaiting the first post-Human Rights Act case where neither the law of confidence nor any other domestic law protects an individual who deserves protection. A glance at a crystal ball of, so to speak, only a low wattage suggests that if Parliament does not act soon the less satisfactory course, of the Courts creating the law bit by bit at the expense of litigants and with inevitable delays and uncertainty, will be thrust upon the judiciary. But that will only happen when a case arises in which the existing law of confidence gives no or inadequate protection; this case now before me is not such a case and there is therefore no need for me to attempt to construct a law of privacy and, that being so, it would be wrong of me to attempt to do so."[132]

110. This supports the opinion of the Information Commissioner who felt that the courts were cautiously moving towards a common law concept of privacy similar to the law of confidence. He told us that the Court of Appeal was very close to recognising that "in an appropriate case, and on particular facts, a "breach of privacy" would be found; as opposed to a "breach of confidence".[133]

39   The new PCC Chairman has confirmed the appointment of a further lay commissioner by the end of the year. Back

40   Q 646 Back

41   Ev 34-58, 63 and 65 Vol III Back

42   Ev 166 Vol II Back

43   Ev 167 and 171 Vol II Back

44   Ev 158 Vol II Back

45   Ev 185 Vol II Back

46   Ev 153 Vol II Back

47   Q 1009 Back

48   Q 999 Back

49   Q 1000 Back

50   For example Q 378 and Ev 13 Vol II Back

51   Ev 21, 34 and 51 Vol III and QQ 237, 260 and 274 Back

52   Ev 11, 31, 352 and Q 869 and Q 425 Back

53   Ev 79 Back

54   QQ 323, 345 and Q 427 and Ev 15ff and Ev 69ff Back

55   Q 379 Back

56   Ev 21, 34 and 51 and QQ 257, 260 and 274 Back

57   Q 285 Back

58   The Daily Telegraph, 18 September 1997 Back

59   Q 288 Back

60   Q 816 Back

61   Q 510 Back

62   Ev 278  Back

63   Ev 131, 132, 135, 136, 400 and Q 1008 (Mr Idun) Back

64   Q 1050 and Ev 411 Back

65   Q 1049 Back

66   Ev 159, paragraph 12 Back

67   QQ 1034 and 1035 Back

68   Ev 52 and 58 Back

69   Ev 53 and QQ 254 and 257 Back

70   QQ 655-657 Back

71   Q 601 Back

72   Q 601 Back

73   Ev 21 Back

74   Q989 Back

75   Q 902 Back

76   Q 886 Back

77   PCC submission, passim Back

78   Ev 227ff Back

79   Ev 167, 173, 208, 227 and 231 Back

80   Letter to the Chairman of the Committee Back

81   QQ 560-564 Back

82   Q 970 Back

83   Ibid Back

84   Ev 210 Vol II Back

85   Ev 144 Vol III Back

86   Q 1003 and Ev 400ff Vol III Back

87   For example see Q 1003 Back

88   Q987 Back

89   The best indicators of performance need careful consideration. Back

90   Ev 210 Vol II Back

91   Q 21  Back

92   Ev 52 Vol II and Q 217 Back

93   Ev 177 Vol III and Q 1057 Back

94   Q 661 Back

95   Q 585 Back

96   See Annex A Back

97   Ev 397 Vol II Back

98   Ev 305 Vol II and See Q 571 Back

99   Q 582 Back

100   Q 467 Back

101   Q 468 Back

102   Q 590-592 Back

103   12 March 2003 Back

104   Q 510 Back

105   Ev 227 Vol II. The issues given by the PCC were: identification of the winner of the first rollover jackpot of the National Lottery; payments to criminals and to witnesses; and inappropriate share-dealing by financial journalists. Also see B(2), paragraph 2 on illegal telephone-tapping, Ev 173 and 179 Vol II Back

106   Ev 182 Back

107   Ev 182 Back

108   op. cit., 11 April 2003 Back

109   Q 767 Back

110   Ev 190 Back

111   Ev 178 Back

112   Ev 233 Back

113   See for example Ev 32, 337 and 251ff Back

114   Annex - Informal meeting with the Information Commissioner Back

115   Ev 29 Back

116   Q 493 Back

117   Ev 204 Back

118   Ev 204ff and 251ff Back

119   Ev 47 Back

120   Ev 204 Back

121   Ev 12ff and Q42 Back

122   Ev 4, Q 8 and Q 30 Back

123   Q 746 Back

124   Ev 1ff and Ruled by Recluses, IPPR, 2003 pp 15ff Back

125   Speech to the Newspaper Society, 6 May 2003 Back

126   Q 10 Back

127   Ev 71 Back

128   See Ev 175 Back

129   Ev 56 Back

130   Ev 204, paragraph 4 Back

131   QQ 36 and 39 Back

132   Approved judgment, Douglas v. Hello!, 11 April 2003 Back

133   See Annex D Back

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