Written evidence submitted by the Press
Complaints Commission (PCC)
EXECUTIVE SUMMARY
1. Developments over the last two years
have reinforced the Select Committee's 2007 findings about
the undesirability of a statutory press regulator and a privacy
law (para 1.1).
2. The PCC now helps more people with privacy
concerns than ever before—but the profile of the courts'
activity in this area has increased, along with media concern
about the power of individual judges to decide what can and cannot
be published (para 1.2).
3. The PCC works well in practice. In 2008, we
dealt with the privacy concerns of nearly 1,000 people either
formally or informally. These people included high profile people
such as members of the Royal Family and television presenters,
but were mostly ordinary members of the public caught up in the
media spotlight (para 2.1).
4. It is right now—10 years after
the passage of the Human Rights Bill—to ask whether all
this work might be threatened by developments in the law. The
Government reassured the PCC and the press in 1998 that press
freedom and self-regulation would not be undermined by the HRA.
There is an argument that matters have not turned out as the Government
intended (paras 3.1 and 3.2).
5. It would be potentially highly damaging
to self-regulation for judges to make their own interpretations
about the press Code of Practice which ignore the PCC's experience
in tackling privacy cases (para 3.3). This might undermine the
advantages of the self-regulatory system, which is free, fast,
non-adversarial and discreet—and which involves the public
in its decision-making (para 3.4). Perhaps the remedy may lie
in some amendment to Section 12 of the Human Rights Act (para
3.6).
6. The PCC remains opposed to a system of
fines for breaches of the press Code because the clear advantages
of self-regulation would be lost by such a move to a quasi-legal
system of regulation (para 4.1). The Commission already provides
a range of meaningful remedies for intrusions into privacy, and,
in any case, the public does not seem particularly supportive
of fines as a remedy (para 5.1).
7. In any case, the law would not make an
effective alternative regulator of privacy: the UK is not a ring
fence-able jurisdiction in which the flow of information can be
controlled by a court; and the formality and riskiness of the
law are alienating to the public (para 6.1). Globalisation and
digitalisation of media are powerful forces favouring self-regulation
(para 6.2).
8. The PCC took an early interest in the
McCanns' situation (para 7.2), and made numerous offers to assist
(para 7.3). We helped on a number of specific occasions (para
7.4), for which the McCanns expressed gratitude.
9. But the PCC would not generally launch
inquiries into matters without the say-so of the principals involved.
Given our previous contact with the McCanns, it would have been
impertinent to have unilaterally announced an inquiry, and risked
looking like a cynical attempt to exploit the publicity surrounding
the case. That said, the Chairman of the PCC did publicly condemn
the libels (para 7.6).
10. In short, the PCC is not meant to police
the laws that relate to the press as well as the Code of Practice.
It was right that a complaint of libel should be remedied by a
legal action for libel. Although unusual, tragic, and highly publicised,
this was an episode from which it would be difficult to draw general
conclusions about the effectiveness of the PCC (para 7.7).
1. INTRODUCTION
1.1 The Select Committee's Report into self-regulation
of the press in 2007, which looked primarily at privacy and newsgathering
methods, made a number of important statements of principle. These
included the rejection of the case for a statutory regulator of
the press and a reference to the near impossibility of drafting
an effective privacy law. These findings have since been reinforced
by the changing media landscape (particularly the pace at which
digital media have developed); the confidence that the public
has in the PCC, reflected in even greater activity; and the continued
tightening of the Code of Practice, among other things.
1.2 Despite the recent profile of the law in
the area of privacy, the respective responsibilities of the PCC
and the courts have not dramatically changed over the last two
years. The PCC still deals with far more privacy complaints and
concerns (indeed, a record number in 2008) and the courts have
continued to develop the law of confidence in conjunction with
the privacy provisions of the Human Rights Act, as they were doing
up to 2007 at the time of the last inquiry. What has changed
is the profile of the courts' activity—mainly as a result
of the Mosley ruling—and, rightly or wrongly, a serious
hardening of media concern about whether in principle single judges
should have so much power over what can and cannot be published.
There are also serious questions about whether the law can actually
be particularly effective going forward, for reasons that this
submission will explore in paragraph 6.
1.3 In the context of this latest inquiry,
it is clearly important to bear in mind what the PCC is actually
meant to do. Before it was set up in 1991, there were already
numerous laws that applied to the press—such as libel, contempt
of court, copyright and so on, which have since been joined by
numerous others. The PCC was not set up as a general regulator
of all press behaviour to police these laws as well as take complaints
under the Code of Practice. Rather, it was primarily meant to
deal with issues, both ethical and practical, that the law cannot
capture. It therefore complements the law rather than competes
with it.
1.4 It was for good reason that it was left
to the press to create its own independent body to balance the
public's right to know with respect for individuals' privacy.
There was an understandable reluctance on the part of politicians
to empower a state agency to decide what sort of information should
be published or discussed in a democracy. Despite widespread discussion
in the 90s of the merits of a privacy law, similar objections
of principle applied, as well as those relating to the practical
difficulty of drafting legislation. Additionally, it was noted
that bodies like the PCC were able to take account of evolving
culture, wider context, public expectations and industry practices.
2. EFFECTIVENESS
OF THE
PCC
2.1 These arguments retain their force today.
But has the PCC worked in practice? Our last submission to the
Select Committee in 2007 detailed the range of activity we
undertake to protect the privacy of individuals, including pro-active
and pre-publication work aimed at preventing problems before the
need for any complaint arises. Inevitably, a lot of this work
is conducted away from the public gaze—which is the PCC's
central appeal to people genuinely trying to protect their privacy.
Privacy trials in court will by definition attract far more attention,
in the process giving further publicity to the very information
which in the plaintiff's view should never have been published
in the first place. But high profile cases of this kind, of which
Max Mosley's was the most striking in 2008, are relatively few
and far between: they should not be allowed to obscure the rapidly
growing recourse of the public to the PCC in this area. In 2008,
we dealt with the privacy concerns of nearly a thousand people,
either informally or formally. This broke all records for the
PCC. We made 329 formal privacy rulings, resolved (that is,
successfully mediated) 131 cases, issued 55 private
advisory notes to the UK press on behalf of individuals, and helped
hundreds of people with pre-publication advice—so removing
the need for a formal complaint.
2.2 To give a flavour of our work, the people
we helped ranged from an 82 year old lady, whose grandson
was involved in a financial scandal, but who herself wished to
be left alone by reporters; to families of people who had killed
themselves in the Bridgend area; to high profile individuals such
as Natasha Kaplinsky and members of the Royal Family (and their
girlfriends). Following our intervention on behalf of a lady from
Bridgend, whose son had killed himself, a national newspaper apologised
for its actions and removed material from its website. She said:
"Thank you very much it means so much to
my family and I. I will accept their apology now that I have it
in black and white … I just can't thank you enough
and hope now perhaps my family can start to move forward".
Natasha Kaplinsky said:
"When I had my baby last year, I didn't
want to be followed around by photographers every time I left
the house, as happened when I was pregnant. We asked the PCC to
issue a private request to photographers to stop following us,
and to newspapers and magazines not to use pictures of me taken
when I was with my family in private time. The degree of compliance
was very impressive, and I would recommend this service to anyone
in a similar position".
There are of course numerous other similar examples
of our work. Members of the Committee are always welcome to come
to the Commission to talk to us in more detail about how we deal
with privacy complaints.
2.3 The graphs below, showing how our work
has mushroomed in recent years, reflect both the volume of our
work on privacy and also the extent to which the public generally
continues to have confidence in us:
Figure 1
NUMBER OF PRIVACY RULINGS 2004-08
Figure 2
TOTAL NUMBER OF RULINGS UNDER THE CODE 2004-08
Figure 3
NUMBER OF ALL RESOLVED COMPLAINTS, 1996-2008
3. IMPACT OF
THE HRA AND
ROLE OF
JUDGES
3.1 But could this service—which is
for "ordinary" members of the public as well as public
figures—be threatened by the developments in the law? It
is right for the Select Committee to consider the matter. It is
now 10 years since the passage of the Human Rights Bill,
when numerous warnings were made about the possible impact on
the PCC's work and freedom of expression. Responding to these,
Jack Straw—then Home Secretary—said:
"There was a concern in some sections of
the press that the Bill might undermine press freedom and result
in a privacy law by the back door. That was not the Government's
view. On the contrary, we have always believed that the Bill would
strengthen rather than weaken the freedom of the press … I
am glad that we have been able to frame an amendment that reflects
the Government's stated commitment to the maintenance of a free,
responsible press, and the consequent need for self-regulation … if
for any reason, it does not work as we envisage, and press freedom
appears at risk, we shall certainly want to look again at the
issue".[3]
3.2 Ten years on, there is a case for arguing
that on matters of privacy things have not turned out as the Government
intended. In their implementation of the Human Rights Act the
courts have shown their willingness to restrict the flow of information
or punish the media, where judges believe that Article 10 of
the Act (freedom of expression) is trumped by Article 8 (protection
of privacy). Many of these cases, especially where they have gone
all the way to the House of Lords, have demonstrated how difficult
and controversial it can be to make a judgement on where the line
falls between the public and private spaces.
3.3 It is now a fact of life that two parallel
jurisdictions are issuing rulings on privacy cases: the courts
and the PCC. Self-evidently, the PCC must operate within the framework
of the law. But the requirement of Section 12 of the HRA
that the courts take account of the PCC's Code of Practice—the
amendment to which Mr. Straw referred in the quotation above,
intended to buttress self-regulation and the freedom of the press—has
become progressively hollowed out as judges make their own interpretations
of the Code without reference to the PCC's case law. Not only
is this potentially highly damaging to self-regulation, it ignores
the vastly greater experience of the PCC in tackling privacy cases—an
experience which long pre-dates the passage of the Human Rights
Bill. To take one example: the PCC has developed "jurisprudence",
which, on privacy matters involving celebrities, takes proper
account of the extent to which a celebrity complainant has sought
publicity in the past; and whose complaint has more to do with
image control than genuine privacy. This is not (yet) spelled
out explicitly in the Code of Practice. As a result, judges are
under no obligation to take account of PCC decisions which might
well inform their own judgements.
3.4 It is worth setting out once again the
advantages of our self-regulatory system; and what is at stake.
We are free; we are fast; and there is none of the adversarial,
and sometimes intimidating, argument of public hearings in court.
Our flexible, non-statutory basis guarantees common sense decisions
that take account of external developments. We involve the public
in our work, for instance by having 10 lay members on the
board of the PCC (and the staff have never been employed by the
press); by commissioning research into public opinion; and by
regularly meeting members of the public all round the UK who are
affected by our work. This is something that commands public support.
When asked who should consider complaints about editorial standards,
45% of the public said that such matters should be considered
by a committee including both members of the public and senior
journalists, while just 12% said it should be for judges.[4]
3.5 While operationally independent of the
industry, we have to be aware of the realities of journalism,
so that our rulings are relevant and respected in the press. The
realities have been transformed over the last few years. Deadlines
are constant because of digital publishing, and journalists are
overwhelmed with information in an unprecedented way. Just five
years ago the picture editor on the Sun received up to
2500 new images every day for consideration for publication.
Now the figure is between 10,000-15,000 each day. This is
one reason why a small number of serving editors sit on the PCC.
3.6 There must be a danger that the good,
but lower key, work that the PCC does in the interests of the
public at large will be undermined if the parallel system of privacy
jurisprudence does not take account of the PCC's own adjudications.
This will result in confusion among the industry about what standard
is required; "double jeopardy" for editors; and the
development of a two-tier system. It was clearly never the intention
for such a state of affairs to develop. The remedy may lie in
some amendment to Section 12 of the HRA.
4. FINES AND
COMPENSATION
4.1 The PCC naturally wishes to prevent
self-regulation from being undermined. But the answer is not for
the PCC to be more like the law. Our 2007 submission set
out why a system of fines and compensation would be undesirable.
It would actually amount to the death knell for self-regulation.
We are opposed because:
— It would be impossible to fine newspapers
and magazines without legal apparatus compelling them to pay.
Such a legal basis alone would completely change the nature of
the system, which is based on industry buy-in and collaboration
between the parties where possible. It would alienate the industry—which
is encouraged to work with rather than against the self-regulatory
system in the interests of delivering results for complainants.
— It would inevitably import the worst features
of the compensation culture: delayed justice, antagonism and legal
wrangles through lawyers.
— The PCC's popular (with complainants)
conciliation service would be destroyed as editors would refuse
to offer corrections or apologies for fear of admitting liability
and exposing themselves to a fine later on.
— There would be little incentive for editors
to work with any such statutory press council (which is what it
would be) to minimise problems before publication.
— The industry has already made a substantial
financial investment in the system in order to ensure that it
costs nothing and is risk-free for complainants. Faced with further
financial penalties, many groups may simply choose to leave the
system.
4.2 We therefore urge the Select Committee
not to be seduced by the superficially enticing argument in favour
of giving the PCC the power to fine—ie that it would look
"tougher"—and bear in mind the significant downsides
attached to any such proposal. In short, we believe that it is
not possible to combine the virtues of press self-regulation with
a system of fines.
5. MEANINGFUL
REMEDIES
5.1 It is also the case that—while
it may seem counter-intuitive—fines are not particularly
popular as a remedy either with the public or with PCC complainants.[5]
Hardly any complainants ask the PCC for money, or for the publication
to be fined. Rather, people seem to want problems dealt with quickly,
sometimes privately, and in a meaningful way. The PCC offers a
whole range of remedies to complaints about privacy intrusion,
which would be lost if we moved to a formal, fines-based system
of regulation. In addition to all the work aimed at preventing
intrusion in the first place, the PCC can:
— Quickly negotiate the removal of intrusive
material from websites so that it does not get picked up elsewhere.
— Organise legal warnings to be tagged to publications'
archives to ensure private information is not accidentally repeated.
— Encourage the destruction or removal
of intrusive information from databases or libraries.
— Obtain personal apologies from editors,
and undertakings about future conduct.
— Secure prominent public apologies.
— Help negotiate agreed, positive follow
up articles.
— Use the power of negative publicity by
"naming and shaming" a publication's conduct in a critical
ruling (which must be published in full and with due prominence
by the editor).
— Organise a combination of the above,
or, depending on the circumstances, the purchase of specific items
in order to make amends (a wheelchair, for example), ex gratia
payments, or donations to charity.
6. THE FUTURE
OF PRIVACY
REGULATION
6.1 In section 3 above we have rehearsed
some of the potential problems that may arise for self-regulation.
But there is a fundamental question about whether the law could
ever on its own become an effective general mechanism for dealing
with privacy. Numerous structural flaws present themselves:
— The effectiveness of the law depends
on the UK being a ring fence-able jurisdiction within which the
flow of information can be controlled. This is not the case. Information
from anywhere in the world is available in an instant. Ordering
a UK newspaper not to publish something will be meaningless if
a widely-read English-language website, based abroad, publishes
it anyway.
— Similarly, the focus on the traditional media
in relation to privacy overlooks the reality of commercial media
existing in a new landscape alongside many successful non-commercial
publishers online.
— The process of using the law is formal,
slow, alienating, risky, and potentially extremely costly.
6.2 Clearly the globalisation and digitalisation
of the media have presented new challenges to regulation. But
these are surely powerful forces favouring deregulation of formal
structures and a greater reliance on self-regulation, which is
particularly appropriate with its emphasis on self-restraint,
swift remedies, and collaboration.
6.3 The PCC has evolved constantly over
its 18 year history, and is now actively thinking about how
it can further adapt and use its expertise, in light of the legal
developments and the rapidly changing structure of the media.
We hope the Select Committee will recognise that there has never
been a more suitable time for self-regulation of the media. Indeed,
there are indications from UK and European politicians that there
should be a wider reliance on self-regulation going forward, providing
that the media can be persuaded to buy in to such systems.
7. MCCANNS
7.1 We would not normally comment on contact
we have with private individuals, but note that the Committee
has called for evidence on the McCanns and the media. In particular,
it has asked why the McCanns did not complain to the PCC over
the libellous stories in the Express titles, and why we did not
invoke our own inquiry after the matter was settled.
7.2 The Committee should be aware that the Commission
took a very early interest in the McCanns' situation, contacting
the British Embassy on 5 May 2007 (two days after Madeleine's
disappearance, and way before the story assumed its subsequent
prominence). We have attached in an appendix the exchange of correspondence
with the embassy,[6]
in which it is clear that the PCC pro-actively offered its services.
7.3 Subsequently, on 13 July 2007,
the Chairman of the PCC, Sir Christopher Meyer, met Mr McCann
and his then press adviser, Justine McGuinness, in London. He
told them how the PCC could help—if necessary—and
gave them some of our literature. There was a further, briefer,
meeting with Mr and Mrs McCann on 29 February 2008 during
which Sir Christopher repeated that the PCC stood ready to help,
if need be.
7.4 Additionally, the PCC had a more formal
role in advising the McCanns' representatives over how to ensure
that their twins' birthday party could take place away from the
media glare, something that was successfully achieved. We also
spoke to the local council in Charnwood about how the McCanns'
neighbours could be assisted (vans and cars from TV, radio and
press journalists were allegedly blocking the entrance to their
road, preventing some of them from getting to work). In a radio
interview, the McCanns' spokesman Clarence Mitchell—while
explaining why the McCanns took the legal action—said about
this work:
"the PCC have been very helpful towards Kate
and Gerry—they've been very pleased with their advice on
the more practical aspects of dealing with the press, such as
having the constant presence of photographers outside their home
and the harassment … ".[7]
7.5 This will demonstrate that there was
a clear line of communication between the Commission and the McCanns,
and illustrate that the PCC was actively seeking to help them
if possible.
7.6 But the PCC does not generally launch
inquiries into matters without the say-so of the principals involved.
To have done so in this case would not only have been an impertinence
to the McCanns in light of our previous contact, it would have
risked looking like a cynical attempt to exploit the publicity
surrounding the case. Without the involvement and instructions
of the McCanns, it would also have been highly unlikely to have
achieved very much. That said, Sir Christopher Meyer did give
a number of interviews at the time of the settlement in which
he condemned the libels, and took the opportunity to draw the
distinction between the role of the PCC and the role of the law
in considering matters of libel.
7.7 To reiterate the point made in paragraph
2 of this submission, the PCC is not supposed to investigate
every example of alleged malpractice by the press. Breaches of
the laws of libel, copyright, data protection, contempt of court
and so on in relation to published material should be considered
by the courts. The PCC applies different tests and, in any case,
has different sanctions. Where there is any conceivable overlap
between the jurisdiction of the PCC and the courts, it must be
for the complainants to decide which forum to use. While this
was a highly unusual, tragic case that attracted enormous publicity,
the use of the libel laws to remedy a complaint of libel was hardly
unprecedented. It would therefore be difficult, in our submission,
to draw any broader conclusions about the general effectiveness
and record of the Press Complaints Commission from this highly
regrettable episode.
January 2009
3 Hansard, 2 July 1998, cols 535 and 541. Back
4
A further 11% thought members of the public only should decide;
8% chose lawyers and 8% government appointees; while just 4% thought
senior journalists alone should be responsible. 12% did not know.
Ipsos MORI September 2006. Back
5
As we have told the Committee previously, research into public
opinion shows that the most popular form of resolution for a possible
breach of the Code would be a published apology, followed by a
private apology. Less than a third supported a fine in the September
2006 Ipsos MORI survey. Back
6
Not printed. Back
7
Clarence Mitchell interviewed on the PM programme, 19 March
2008. Back
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