Select Committee on Culture, Media and Sport Written Evidence


Memorandum submitted by Ofcom, Office of Communications

INTRODUCTION: THE ISSUES RAISED AND OFCOM'S EVIDENCE

  1.  The Committee identified four issues on which it seeks evidence:

    (i)  Whether self-regulation by the press continues to offer sufficient protection against unwarranted invasions of privacy.

    (ii)  If the public and Parliament are to continue to rely upon self-regulation, whether the Press Complaints Commission Code of Practice needs to be amended.

    (iii)  Whether existing law on unauthorised disclosure of personal information should be strengthened.

    (iv)  What form of regulation, if any, should apply to on-line news provision by newspapers and others.

  2.  The questions posed in this inquiry are largely outside Ofcom's regulatory remit. However, as the statutory regulator responsible for protection of audiences against infringement of privacy by television and radio broadcasters, Ofcom is closely concerned with the topics raised. The questions are lent further significance by the current debate in Europe over the revision of the Television without Frontiers Directive (renamed the "Audiovisual Media Services" Directive), which proposes to extend regulation to on-demand television services, regardless of the means of delivery. This Directive will have a significant impact on UK media regulation when it is implemented in the UK. In particular, it is almost certain to require that Video-on-Demand services (VoD), currently self-regulated in the UK, be brought into a statutory or a co-regulatory framework.

  3.  The Directive does not include any requirements for protection of privacy in relation to the newly regulated class of VoD services. However, it is at least possible that the UK implementation of the Directive will include regulatory protection of privacy in relation to VoD. Such an inclusion would follow the structure of privacy protection in relation to linear services, which Ofcom regulates in the UK, but is the subject of general law in most EU countries. In that case, clarity over the respective domains of statutory regulation, and of the PCC, will be essential. We examine this issue below in section 4.

  4.  Ofcom is reviewing the efficacy of co- and self-regulatory institutions as a part of its overall programme of work on the future of regulation, and to support the process of implementing the AVMS Directive. The co/self-regulation study will seek to establish a set of criteria by which Ofcom can judge when and how it might be appropriate to delegate particular duties and functions to industry-led bodies. Specifically in relation to the first question posed by the inquiry, we have not undertaken any research into the current self-regulatory model for privacy protection in relation to the Press, and do not have a view as to its sufficiency.

  5.  However, we do note that the media industry is in a period of particularly rapid evolution at present, with innovative new services, platforms, content and new players emerging. Co- or self-regulatory institutions may be particularly well suited to such dynamic environments, because these types of arrangement involve industry and consumers taking on a central role in the delivery of public policy goals and consumer protection.

  6.  An innovative new service may both create new risks to consumers and new means through which those risks may be mitigated. Under a co/self-regulatory arrangement, the same industry players who create new services will be able to develop an appropriate regulatory framework to secure consumer protection. Typically, a statutory framework will be less flexible, and offer more limited opportunities for innovation.

  7.  The recent announcement by the PCC that it is extending its regulatory remit to cover the online services offered by the newspaper and magazine providers is an example of this. The PCC's member organisations have all committed to this new, extended regulatory framework. We comment on aspects of the PCC's proposal below; in this context, the point is that it is to be welcomed that the PCC has been able act quickly to co-opt industry into the adoption of a new expanded framework, without the need for new legislation.

  8.  In our evidence below, we respond to the inquiry with:

    —  an analysis of the current legal position in relation to privacy;

    —  an account on the role Ofcom plays in relation invasion of privacy; and

    —  comments on the boundaries of Ofcom's responsibilities and that of the PCC, before and after the implementation of the AVMS Directive.

PROTECTION OF PRIVACY IN UK LAW

  9.  The European Convention on Human Rights was incorporated into domestic law under the Human Rights Act 1998. Under Article 8 of the European Convention on Human Rights, the UK has an obligation to respect the individual's right to a private life. Although the Convention creates obligations that are owed only by the state and public bodies, judges have concluded that they must also be articulated and enforced in actions between private individuals. This follows from section 6(1) and 6(3) of the Human Rights Act 1998 under which the court, as a public authority, is required not to act "in a way which is incompatible with a Convention right".

  10.  The effect of this is that citizens can only invoke Article 8 directly in actions against public bodies but not in actions between private parties in private law. In the absence of a domestic law tort of privacy, judges have had to enforce the Article 8 right in private civil actions by adopting the long-established action for "breach of confidence" as a vehicle. Whilst this is still not a fully-fledged "right to privacy" in the sense recognised in many other legal systems, it is spreading to cover a substantial proportion of the "privacy" field. To this end, the four elements of breach of confidence have each undergone some modification and as a result,[5] the concept of a right to protection from the misuse of private information has developed. This has now become clearly established in English law. This new cause of action involves the following elements:

    (i)  The information must be "private"—in other words, there must be a "reasonable expectation of privacy" in relation to the information concerned.

    (ii)  The defendant knows or ought to have known that the information is private.

    (iii)  There is an actual or threatened misuse of the information.

    (iv)  The Article 8 "right to respect for private and family life" of the claimant must outweigh the Article 10 "right to freedom of expression" of the defendant. This is determined by carrying out a "parallel analysis" of the position under each Article on the facts of a particular case and then looking at the balance between them (the "balancing exercise").

  11.  This right to protection from the "misuse of private information" was first formally established in the case of Campbell v MGN Ltd [2004] 2 AC 457 which went to the House of Lords in May 2004 and is spreading to cover an increasing scope of the individual's personal life and continues to be a rapidly developing area of law. Under this new action, a claimant is able to apply for both interim and final injunctions pre-publication as well as damages for distress, anxiety and inconvenience at full trial.

A "reasonable expectation of privacy"

  12.  In Campbell, Lord Nicholls stated that "Essentially, the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy" (§21).

  13.  There are three important points to note about this test. Firstly, Lord Hope in Campbell stressed that the mind that must be examined is not that of the reader in general, but of the person who is affected by the publicity (§99). Secondly, in considering what falls within the scope of a "reasonable expectation of privacy", the courts will not only look upon the nature of the information itself but also at the personal circumstances of the claimant and his or her past conduct. In Douglas v Hello 2006 QB 125, the Court of Appeal added that "private information is information that is personal to the person who possesses it, and that he does not intend shall be imparted to the general public. The nature of the information or the form in which is it kept may suffice to make it plain that the information satisfies these criteria". Thirdly, the courts have now made clear that a reasonable expectation of privacy may arise not only in private places but also in public spaces (such as a park, beach or restaurant).

  14.  The main principle surfacing from case law however is that "private life" is context-dependent and that its nature may differ between individuals and their particular circumstances ("It is a broad term not susceptible to exhaustive definition" (Peck v UK (2003) 36 EHRR 41 at 57)). Nonetheless particular categories of information have been recognised by the courts as attracting protection by Article 8, such as: gender identification, name, sexual orientation, sexual life, a person's psychological experiences, address, health and diet, personal relationships, finances, weddings and other private occasions.

"The defendant knows or ought to have known that the information is private"

  15.  Unlike an action for breach of confidence, which requires a "pre-existing relationship of confidence" between the parties, an action for the misuse of private information relies on the actual or imputed knowledge of the defendant that the information is private. An obvious example of this is where the defendant has acquired by unlawful or surreptitious means information that he should have known he was not free to use. This means that the primary focus will again be on the nature of the information because it is the defendant's perception of its private nature that imposes the obligation on him (McKennitt v Ash [2006] EWCA Civ 1714 at §15).

The balancing exercise

  16.  In Campbell, it was clearly established that neither Article 8 nor 10 has as such precedence over the other. The test for balancing these two articles in specific cases was refined in the House of Lords in In Re S (A Child) 2005 1 AC 593:

    "First, neither Article has, as such, precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience, I call this the ultimate balancing test."

  17.  There is no limit on the type of factors that may be considered in carrying out the balancing exercise and therefore the outcome of this stage will depend entirely on the particular facts of each case. This could involve considerations such as the public interest in the dissemination of the information, public domain arguments, the triviality of the information and the status and conduct of the claimant. In the recent case of CC v AB [2006] EWHC 3083 Eady J emphasised that the considerations under the balancing exercise could extend to matters such as the defendant's motives for publication and even the feelings of individuals who are not parties to the action.

  18.  The broad concept of "public interest" has been considered a suitable justification for media intrusion of privacy under appropriate circumstances. However, there is no single definition of public interest. Article 8(2) of the Convention identifies some considerations itself, including:

    "[...] the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder and crime, for the protection of health and morals, or for the protection of the rights and freedoms of others."

  This list is not exhaustive and the courts will be careful to have regard to the media's duty to inform the public on matters of legitimate public interest, and the public's right to receive such information. The media plays an important role in putting matters of public interest onto the political agenda and in bringing about necessary changes.

  19.  The court will consider whether the reasons adduced to justify the disclosure were relevant and sufficient and whether the measures were proportionate to the legitimate aims pursued. In assessing the issue of proportionality, the courts may limit the extent of disclosure by removing parts of the publication to which no public interest attaches. The publication may be narrowed down to include only aspects of the claimant's private life which it is in the public interest to know (see for example, McKennitt v Ash in which injunctions were granted in relation to specific passages of the defendant's book that were particularly intrusive).

THE PROTECTION OF PRIVACY ON TV AND RADIO

  20.  In addition to the developing law of misuse of private information, there are two sector-specific regulatory institutions responsible for considering and adjudicating on complaints relating to unwarranted infringement of privacy: Ofcom, and the PCC. This section describes the scope of Ofcom's responsibilities and powers, and identifies the key differences between Ofcom and the PCC.

  21.  From the 1960s concerns over media invasions into privacy resulted in a number of draft privacy bills being promoted; since the early 1970s, a number of committees have published reports which have recommended greater regulation of the media. Following this pressure, the Broadcasting Complaints Commission was created, which was replaced by the Broadcasting Standards Commission and whose functions were subsumed into Ofcom.

  22.  Under section 3(2) of the Communications Act 2003, Ofcom has a duty to apply standards that ensure an adequate protection from unwarranted infringements of privacy resulting from activities carried on for the purposes of television and radio services. Among the considerations to which Ofcom is required to have regard in applying such standards are the vulnerability of children and others whose circumstances put them in need of special protection. Ofcom must also have regard to the need to apply these standards in a manner that guarantees an appropriate level of freedom of expression.

  23.  Ofcom's remit covers all UK television and radio broadcasters including all commercial services, S4C and the BBC (in certain areas including privacy). These broadcasters are subject to a broad range of commitments relating to issues such as potentially harmful or offensive content, due impartiality in news, and the need to ensure that any infringement of privacy is warranted,[6] whether in programmes, or in connection with obtaining material to be included in programmes. The conditions of the licence relating to privacy are laid out in section 8 of Ofcom's Broadcasting Code and related guidance notes. The relevant sections of the Code are appended to this evidence (Appendices 1, 2).

  24.  When considering and adjudicating on a complaint of unwarranted infringement of privacy Ofcom's starting point is always whether a complainant has a "reasonable expectation of privacy". Ofcom then determines whether in its view (and on the evidence available) that person's privacy has been infringed. Finally, Ofcom determines whether any infringement was warranted. The greater the pubic interest in the disclosure of the information the more the scales tilt against protecting the person's right to privacy.

  25.  Ofcom's adjudications are normally published fortnightly in a bulletin on its website. If a complaint is upheld or partly upheld, then Ofcom may also direct the broadcaster to broadcast a summary of its adjudication. Ofcom will normally make such a direction where there has been an unwarranted infringement of privacy in breach of the privacy section of the Ofcom Broadcasting Code and where a complainant's legitimate interests have been seriously damaged and Ofcom determines a remedy over and above publication in the Ofcom broadcast bulletin to be appropriate.

  26.  For the most serious cases, Ofcom may consider imposing a sanction on the broadcaster. This might include a direction not to repeat a programme, imposing a financial penalty and ultimately, in the case of commercial broadcasters, Ofcom may consider revoking the broadcaster's licence.

  27.  It should be noted that Ofcom also provides complainants and broadcasters with the opportunity to resolve the complaint without the need for adjudication by Ofcom provided the complainant is willing to consider an immediate proposal for redress. Examples of such redress might include, but are not restricted to, the editing of a programme for future broadcasts, an undertaking not to repeat the programme or an apology or correction in writing and/or broadcast.

  28.  Another important point to note is that Ofcom does not have jurisdiction to deal with privacy complaints prior to a programme being broadcast. The complainant would use the courts for an injunction if they are seeking prior restraint.

Broadcasting regulation and press regulation

  29.  The role that Ofcom plays in relation to broadcasters is very different to that played by the PCC. As noted above, Ofcom oversees a very broad range of content guidelines, through which it seeks to hold broadcasters to a different type of editorial standards than applies for the press. Most important among the differences is the requirement that news is presented with "due impartiality". This is in contrast to the press—where, for example, a newspaper may actively campaign on a matter of political controversy.

  30.  The PCC is therefore considering complaints, whether of accuracy or invasion of privacy etc., in a wholly different context to that which Ofcom's Fairness and Privacy review process operates.

On-demand TV Services

  31.  The Communications Act 2003 excluded video-on-demand services from Ofcom's statutory control, in the expectation that industry would take responsibility for oversight of such services. The VoD industry subsequently created a self-regulatory institution, the Association for TV on Demand (ATVOD), which oversees consumer protection issues in relation to VoD services. The Association's code does not refer explicitly to invasion of privacy, but does require that content be provided "[...] in accordance with the Broadcasting Regulatory Codes prevailing [...]" ATVOD might, in principle, therefore consider complaints about invasion of privacy.

  32.  In practice, because virtually all of the programming provided on VoD services today will also have featured on a broadcast channel, the issue may not arise: complainants would be able to seek redress from Ofcom, in relation to the broadcast of the relevant programme. In the event that a complaint was upheld by Ofcom, ATVOD members would be required by the ATVOD code not to offer on-demand access to the offending programme. ATVOD has not to date received any complaint relating to invasion of privacy, to Ofcom's knowledge.

AVMS Implementation and on-demand TV

  33.  The AVMS Directive is a modernisation of 1989's EU Television without Frontiers Directive, developing and extending the same basic framework. The goal of the 1989 Directive was to protect some minimum standards for all TV services across Europe, in areas including the protection of minors, and the requirement of clear separation between advertising and programming. These common standards were to apply all across Europe hence fostering the development of a pan-European content market.

  34.  The new AVMS Directive will clarify some of these basic objectives and, critically, extend the Directive's scope to include Video-on-Demand services. Under the current proposals for the new Directive VoD services must in future be subject either to statutory control—for example by Ofcom—or to a co-regulatory model. The UK's self-regulatory approach to VoD services is not consistent with the likely requirements of the Directive.

  35.  There are two aspects to the co-regulatory models allowed under the Directive, which distinguish them from the current UK approach:

    (i)  The state must have a formal role in relation to the regulated services. The details of this can vary. One model is illustrated by the regulation of broadcast advertising today. Ofcom has formal powers in relation to advertising, but has contracted out the management of its day-to-day regulatory responsibility to the Advertising Standards Authority. In the main, the ASA handles all broadcast advertising complaints and directions to remove such advertising, however, Ofcom retains backstop powers, for instance in areas of more serious sanctions (eg fines) and approval of broadcast codes. Alternatively, the state's role can be more limited—for example, defining the duties of the relevant co-regulatory body, and granting accreditation to a satisfactory institution.

    (ii)  The co-regulatory system must be comprehensive. ATVOD is a voluntary body—a UK on-demand service-provider is under no legal obligation to join, and may simply decide not to do so. A co-regulatory architecture must capture all relevant services, either through some direct legal requirement that operators join an accredited co-regulatory body, or though a backstop requirement—for example that operators who do not join an accredited body will be subject to direct statutory regulation.

  36.  We anticipate that the debate over how the Directive will be implemented in the UK will start early in 2007, and run through into 2008. Implementation must be completed by late 2009, assuming that the Directive is in place in early 2008, as seems most likely.

  37.  One of the issues which must be resolved during the implementation debate is over the approach taken over content regulation in relation to VOD services and in particular relating to complaints of unwarranted infringement of privacy. The AVMS Directive does not cover privacy infringement, possibly because most EU states protect privacy through general law rather than sector-specific regulation. This means that the new regulatory arrangements need not cover privacy for the Directive to be appropriately implemented.

  38.  However, it will be necessary to choose what privacy protections should exist in relation to on-demand services. There are three options:

    (i)  Privacy protections could be limited to those arising from case law findings (possible whatever approach is taken to AVMS implementation generally).

    (ii)  Privacy issues could be included among the responsibilities of an on-demand co-regulatory body, if one is created.

    (iii)  Privacy issues could sit with Ofcom, even if other aspects of the regulation of on-demand services were the responsibility of a co-regulatory body.

  39.  This is one of the many difficult issues which must be addressed during the Government's examination of AVMS implementation options, over the next year.

THE PROTECTION OF PRIVACY IN RELATION TO ONLINE NEWS

  40.  Ofcom's privacy remit is defined in the Communications Act 2003 to include only television and radio services, however they are delivered. It does not therefore include non-broadcast services like online news. The Act defines Television Licensable Content Services (TLCS) and Radio Licensable Content Services (RLCS), as the subject of Ofcom's oversight. For the purposes of this analysis, we will focus on TLCS, although the same broad framework applies in respect of radio.

  41.  The definition of TLCS is set out in sections 232 and 233 of the Act (below in Appendix 3). The table below lays out the criteria as a decision tree.


  42.  The account of these sections most relevant to the current debate comes in the Explanatory Notes, section 526:

    "The aim of these provisions is, broadly, to maintain licensing obligations in respect of services which are or equate to broadcasting while excluding Internet services, such as websites or web-casting, from Ofcom's regulatory powers."

  43.  It is possible that there could be a service offered exclusively on the internet which is captured by the TLCS criteria, and which therefore does require licensing. In practice Ofcom has not yet identified such a service (even though there are many online services which market themselves as "television"). Generally, it is clear that the Government's intention is that online services should not be subject to statutory oversight unless they are actually television channels as defined by the TLCS criteria. Of course, it is possible that an existing television channel is also distributed on-line—but in that circumstance the service is already under an Ofcom licence and subject to Ofcom's code.

The PCC and on-line news

  44.  In this context, we welcome the PCC's recent announcement to extend its self-regulatory oversight to include on-line news services provided by newspaper and magazine operators, as it provides an additional layer of privacy protection in a domain which is currently covered only by the provisions of case law discussed above.

  45.  We also support much of the detail of the PCC's proposal, particularly the points made in relation to regulatory overlaps. The PCC states that "[...] content pre-edited to conform to the on-line or off-line standards of another regulatory body [...]" will remain outside its oversight. For example, it is possible that a newspaper publisher creates and distributes a TLCS, as defined in the Communications Act—as stated above, this would clearly be subject to Ofcom's statutory control whether it were distributed online or on a traditional television platform.

  46.  The position is slightly different in relation to a video-on-demand service developed by a newspaper publisher. At present, both ATVOD and the PCC are voluntary schemes, and the publisher could in principle choose whether to operate under the PCC code or that developed by ATVOD.

  47.  In practice, these issues may not arise, because the services presently offered by newspaper publishers are clearly neither TV channels nor on-demand services.

  48.  In the future, however, this situation will change as a result of the implementation of the AVMS Directive discussed above. All video-on-demand services, including any offered by a newspaper publisher, would necessarily fall under statutory regulation or under a co-regulatory body, but not the PCC in its current form. This would, of course, have no other impact on the reach of the PCC, which could continue to cover all services from newspaper and magazine publishers other than those singled out for specific oversight by the Directive.

The PCC Code and Live Video

  49.  Finally, Ofcom has identified a particular issue in the framework proposed by the PCC, relating to live services. The current draft of the PCC framework states that it excludes from their oversight, and therefore from their privacy rules, services which may be "streamed or broadcast or otherwise disseminated live, and incapable of the sort of controls editors normally apply".

  50.  It is clear that a live camera feed on television or on the Internet presents particular risks to a broadcaster or publisher—the video distributed is not easily subject to editorial review, and may therefore include material which infringes an individual's privacy or is otherwise inappropriate. Nonetheless, under Ofcom's guidelines for broadcasters, live coverage of an event does not create a blanket exemption from compliance with the Broadcasting Code. In considering a complaint, the fact that the issue arose as part of live coverage of an event can be a mitigating factor, but is not an excuse for a breach of the Code. It must be the case that an editorial decision has been taken to redistribute a live camera feed; in doing so, an editor is making some form of editorial judgement, and should take into account the risk that privacy-infringing content be distributed.

  51.  The issue is that the same live camera feed might be treated differently if offered on a newspaper website, under PCC oversight, and on a TV service under Ofcom control. We have raised this issue with the PCC, who were sympathetic to our concerns. Ofcom have agreed with the PCC that further work will be required to ensure that there is appropriate consistency on relevant boundary issues such as this.






5   As set out in Coco v AN Clark (Engineers) [1969] RPC 41 at p 47. Back

6   In fact, under the Television Without Frontiers Directive (Directive 89/552/EEC, as amended by 97/36/EC) television services available in the UK will either be licensed by Ofcom (or in the case of the BBC and S4C operate in accordance with Ofcom's regulatory oversight) or be regulated by the originating EU member state's national regulatory authority (NRA). In practice, all but around 20 of the 500+ channels on Sky, in the largest UK TV platform, are OFCOM licensees or covered by the BBC Trust. Furthermore, channels operating from EU states will typically be covered by legislative rights to privacy, as exist in Germany, France, Italy etc; or where such protection is not in place, as in Ireland, through a specific duty of the regulatory authority. Back


 
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