CHAPTER 5: Better Regulation of news
152. A key part of the process of ensuring the
correct balance is struck between privacy and freedom of expression,
and of ensuring that where injunctions are granted they are upheld,
is played by the media themselves. Often it is the decisions of
editors on whether to publish a story that are argued in court;
and the media who are parties to injunctions. To prevent cases
going to court it is in their interests to have robust procedures
in place to ensure individuals' rights to privacy are respected,
and that where they rely on the public interest in justifying
publication of a story there is sound evidence for that.
The Press Complaints Commission
153. The Press Complaints Commission (PCC) was
established by the industry in 1991. The Commission has 17 members:
10 lay members
and seven editors. The PCC is funded by newspapers and magazines
paying an annual levy to the Press Standards Board of Finance
(Pressbof). The chair of the PCC is appointed by Pressbof. During
our inquiry the Rt Hon Lord Hunt of Wirral was appointed as chair
of the PCC.
154. The PCC has two main functions. The first
is to maintain and promote the Editors' Code of Practice, which
is written and revised by the Editors' Code Committee. The Committee
comprises editors of national, regional and local newspapers,
alongside the chair and director of the PCC (though the chair
of the Commission is not chair of the Editors' Code Committee).
The second function is to deal with complaints from members of
the public about potential breaches of the Code by newspapers
155. Clause 3 of the Editors' Code of Practice
is about privacy (see Box 5). Other clauses, such as those relating
to intrusion into grief and harassment, also have privacy aspects
to them. Clause 3, and other privacy-related clauses, are subject
to exceptions where they can be demonstrated to be in the public
interest. The Code's guidance on the public interest is in Box
2 in Chapter 3.
PCC Editors' Code of Practice clause on
i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
ii) Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information.
iii) It is unacceptable to photograph individuals in private places without their consent.
NotePrivate places are public or private property where there is a reasonable expectation of privacy.
156. The PCC is not a statutory body. The Government
have no control over its powers, procedures or membership. There
are no legal means of enforcing its rulings or compelling membership.
Rather, its remit is given to it by the industry.
The need for reform of the PCC
157. On 13 July 2011 the Prime Minister announced
that an independent public inquiry, led by the Rt Hon Lord Justice
Leveson, would be set up to consider the culture, practice and
ethics of the press. This followed ongoing revelations about phone
hacking at the News of the World. In setting out the remit
of the inquiry, the Prime Minister said
"He [Lord Justice Leveson] will make recommendations
for a new, more effective way of regulating the pressone
that supports its freedom, plurality and independence from Government,
but which also demands the highest ethical and professional standards."
158. It is expected that Lord Justice Leveson
will report on the first half of his inquiry in autumn 2012.
159. It is almost universally recognised that
the system of oversight or regulation of the press needs major
reform. It was a point repeatedly recognised by our witnesses.
The PCC recognises the pressure for it to change.
In March 2012, shortly before we reported, its chair announced
that the PCC had agreed to disband, to be replaced by a successor
body. In this chapter we consider how privacy issues are managed
by the PCC, and offer recommendations on how the future system
of regulation can best be equipped to provide protection of privacy
and redress when it is infringed.
160. The Press Complaints Commission was not
equipped to deal with systemic and illegal invasions of privacy.
In this chapter we set out what a reformed media regulator should
look like and do.
Privacy and the PCC
161. Witnesses from the press offered a strong
defence of the PCC. Arguments in its favour include the fact it
is well known to the public and its services are well used.
It was suggested that the vast majority of the PCC's work goes
unseen, except to the public who are involved in cases with the
PCC and to the press. The PCC's role in arbitration was said to
162. Several editors of regional newspapers explained
that they used the PCC for pre-publication advice, on an informal
basis, on privacy issues.
Regional newspapers viewed it as a mark of shame to have a PCC
ruling against them, and would do everything possible to avoid
one. They also
explained that they were not typically interested in the "celebrity"
privacy stories which have been the subject of much of the debate
in this area.
163. However, a significant body of opinion believes
that the PCC ineffectively deals with privacy issues. This increases
the likelihood of legal options being pursued. For some individuals,
legal options are not affordable; a better regulatory provision
is therefore required.
164. The reformed media regulator needs to
play a leading role in resolving privacy complaints. For this
to happen, the regulator needs to have recourse to far more effective
and timely sanctions than the PCC has. It needs to be, and be
seen to be, independent of the newspaper industry. All major news
publishers, including online publishers, should come under its
jurisdiction. These views inform our subsequent recommendations.
165. The PCC is perceived as not independent
of the press.
166. At the start of 2011 Northern & Shell
Ltd, which owns the Express and Star newspapers,
withdrew from the PCC. This technically happened by it ceasing
to pay subscriptions to Pressbof. Since then its newspapers have
no longer been regulated by the PCC. One of the main reasons behind
their decision to withdraw was their lack of confidence in the
independence of adjudications. Richard Desmond, chairman of Northern
& Shell, suggested that some members of the PCC were "hypocritical"
and that Northern & Shell had been unfairly singled out for
criticism by competitors.
Private Eye has also not subscribed to the PCC, partly
because it views it as lacking independence.
167. There is a strong argument for the industry
having high-level representation on any new regulatory body. Knowledge
and experience of the industry is important for any new regulator.
One suggestion was to divide the whole concept of the Press Complaints
Commission into two sections, the section that makes the rules
and the section that enforces them. There would be no objection
to an editor being on the part that makes the rules, but the part
that enforces them should be entirely independent.
168. Lord Hunt of Wirral outlined to us his emerging
proposals for reform of the PCC. In addition to the complaints-handling
function currently undertaken by the Commission, a second standards
or compliance arm would be added, proactively to uphold standards
across the industry. Where severe breaches of the Code were found
to have occurred, it would be possible for the Commission to issue
fines against publications.
169. The management board of the new commission
would have an independent majority but, Lord Hunt suggested, would
still need close knowledge of the industry.
The board would comprise around five people, three of them independent
of the industry. The complaints-handling function of the Commission
would be delivered in much the same way as at present.
170. We believe that the reformed media regulator
must be demonstrably independent of the industry and of government.
171. Knowledge of the industry, however, will
be essential to the good operation of the reformed regulator.
We recommend that industry representatives form a substantial
minority of the body that determines complaints. These representatives
should have considerable experience of working in the print media,
but should not be a full-time employee of any news publisher or
have a demonstrable conflict of interest.
172. Lord Hunt suggested that, under his proposals,
the body which sets the rulescurrently the Editors' Code
Committeewould continue to comprise mainly editors, but
with some independent members.
The importance of journalistic representation on this body was
referred to by witnesses.
Adherence to the Code is often included in contracts of employment
173. It is important that the body that draws
up the code of practice of the reformed regulator benefits from
the knowledge of those working in the industry. There should be
some members, including its chairman, drawn from outside the industry.
Inclusion of all major publishers
174. As outlined above, Northern & Shell
publications are not part of the PCC structure. Richard Desmond
indicated to us that Northern & Shell publications could re-join
the reformed regulator.
It is notable, however, that Northern & Shell were able to
leave the PCC unilaterally and without any sanction. It undermines
the credibility of the regulator if major publishers are able
to opt out of regulation.
175. Proposals have been made for a "kite-mark"
system, which would denote that publications are members of the
new regulator. Such a kite-mark would be a symbol of quality and
standards, demonstrate that there are established grievance procedures
for subscriber publications and perhaps confer benefits on subscribers.
Publications that are not kite-marked could be penalised in terms
of their advertising rates.
176. Lord Hunt of Wirral suggested that "there
could be a badge of respectability, of accuracy", and suggested
that he would consider how a kite-mark system could be tied into
A way to achieve that might be found through working with the
Incorporated Society of British Advertisers, the representative
body for British advertisers.
177. Other benefits could flow from voluntarily
signing up to the regulator, or to a kite-mark system. It was
suggested that only those who sign up would receive analyses by
the Audit Bureau of Circulations (an industry body that independently
verifies and reports on media performance, including circulation
might also be incentives in terms of privileged access to information,
such as membership of the parliamentary lobby or government press
178. We discussed in the last chapter the difficulties
of enforcing injunctions against bloggers and users of social
media compared to the relative ease with which they can be enforced
against print newspapers and their online editions. It might be
possible in future for bloggers voluntarily to sign up to a code
of practice. However,
Martin Clarke, publisher of Mail Online, thought that it would
not be possible to compel bloggers to join a regulatory system
without requiring it by law.
Theoretically, a kite-mark system could be a means of bringing
major bloggers into a system of regulation in future, given that
some bloggers obtain around 50% of their income from advertising.
179. It is essential that membership of the
reformed media regulator extends to all major newspaper publishers.
It should no longer be possible for a title unilaterally to opt
out of regulation with no sanction forthcoming.
180. We recommend that significant penalties
be imposed on news publishers who are not members of the reformed
media regulator. For example, major advertisers should require
membership as a condition of advertising in news publications,
including on blogs.
Status of the regulator
181. The most certain way to compel membership
of the regulator would be to require it by statute.
An Act could grant the reformed media regulator legal powers over
all publishers, thereby not allowing the possibility of opting
out of regulation. A statute would also give full force to the
sanctions levied by the regulator.
182. There is concern about the notion of a statutory
regulator of newspapers. Some fear that a statutory regulator
would overly encumber freedom of expression.
Some fear it would chill the free press and even put newspapers
out of business.
There is concern that any Bill proposing statutory regulation
could be a vehicle for political interference with the press.
183. The status of the successor to the PCC under
Lord Hunt of Wirral's reforms would be underpinned by a series
of rolling commercial contracts signed with publishers, lasting
perhaps for five or ten years.
He was confident that all major publishers would sign the contracts.
Once they sign they would be legally bound by the new system.
That would involve having to comply with the sanctions of the
regulator, including fines.
184. Comparisons can be drawn between the PCC
and Ofcom, a statutory body established by the Communications
Act 2003. Some thought that the regulatory functions of the PCC
should be vested in Ofcom.
Broadcasters, however, opposed having the same regulatory framework
for broadcasting and print media, arguing that different media
provide different offerings to the public, so should be regulated
185. An option short of a full-blown statutory
regulator would be to have a self-regulating body undertaking
day-to-day regulation, but backed up by a statutory body with
overall responsibility for regulation.
This is a regulatory model used in other fields. The Solicitors
Regulation Authority exercises day-to-day self-regulation of solicitors,
but is backed up by the Legal Services Board, an independent statutory
Ofcom has a statutory duty to maintain standards in broadcast
advertising, but has devolved to the Advertising Standards Authority
day-to-day responsibility for broadcast advertising content standards,
including responsibility for writing the relevant code.
186. Regulation of the press must be independent
of government. But it is clear that the current system of self-regulation
is broken and needs fixing. The industry must play a key role
in establishing reformed structures, and we welcome the initiative
taken by Lord Hunt of Wirral in bringing forward industry-led
proposals for replacing the Press Complaints Commission.
187. To be successful Lord Hunt of Wirral's
proposals must create an independent, powerful regulator which
governs all major publishers and has the confidence of the public.
However, decisions on the future of media regulation cannot be
left to the industry alone to determine. At this stage we do not
recommend statutory backing for the new regulator. Instead, assuming
Lord Hunt's proposals are adopted by all publishers, we recommend
that a standing commission comprising members of both Houses of
Parliament be established to scrutinise the process of reform
over the coming years. The standing commission will report annually
to Parliament on the progress of reform and the effectiveness
of the reformed regulator. The annual report should be debated
in both Houses. The standing commission must have the power to
call for papers and summon witnesses.
188. However, should the industry fail to
establish an independent regulator which commands public confidence,
the Government should seriously consider establishing some form
of statutory oversight. This could involve giving Ofcom or another
body overall statutory responsibility for press regulation, the
day-to-day running of which it could then devolve to a self-regulatory
body, in a similar manner to the arrangements for regulating broadcast
189. Whatever form of regulation there is, the
regulator must be able to be held to account. It is common practice
for bodies exercising a public function to publish an annual report.
In many cases an annual report enables the relevant parliamentary
body to examine the effectiveness of the institution and to question
those responsible for running it. The reformed media regulator
should adhere to such corporate governance standards.
190. The reformed media regulator must publish
an annual report. In order to provide an appropriate level of
ongoing accountability, the chairman should appear before the
standing commission at regular intervals.
Access for complainants
191. One of the key strengths of the PCC is that
it is free of charge for complainants.
Access is easy, and a 24-hour hotline is available for those wanting
to raise urgent concerns with the Commission. The PCC thought
that the response rate for complaints was fast.
Witnesses from the newspaper industry highlighted the advantages
offered by a service that is free of charge to users.
192. The fact that the PCC offers a cost-free
service is one of its biggest strengths. The reformed regulator
should ensure the service is free of charge for users.
193. Apologies are one of the principal tools
available to the PCC when seeking to remedy grievances. In any
cases where a published apology is negotiated, prominence must
be agreed in advance by the Commission. The PCC stated, "The
vast majority of all corrections and apologies negotiated by the
Commission are published on the same page or further forward than
the original transgression."
Whilst this may be so, one of the complaints we heard was that
apologies were usually of a much smaller size than the original
194. In most cases, it is difficult to provide
an appropriate remedy for a breach of privacy through an apology.
Whilst an apology may satisfy those who have been the victims
of inaccuracy or defamation, it cannot make private information
private once again.
195. Where the reformed regulator is involved
in negotiating an apology, it should have the power to determine
the location and size of the apology the newspaper is required
to publish, and the day of publication.
196. If the PCC finds there has been a breach
of the Code and is unable to negotiate an appropriate remedy with
the offending publication it may issue a critical adjudication.
As well as the PCC publishing the ruling itself, it requires the
newspaper concerned to publish the adjudication in full, with
due prominence and a headline reference to the PCC.
197. We were told that regional editors saw it
as a matter of professional pride not to have a PCC adjudication
against them and that most editors would seek to avoid a referral
to the PCC. Richard
Desmond's withdrawal of Northern & Shell newspapers from the
PCC following criticism from the Commission over stories regarding
Madeline McCann illustrates that criticism from the regulator,
whether by published adjudication or other public means, can have
an effect upon newspaper editors and proprietors.
198. Where a newspaper has been found to be
in breach of the industry code, we consider public criticism from
the regulator, including negative adjudications, to have a significant
effect in providing rebuke and modifying behaviour. However, we
do not believe this is sufficient.
199. The PCC does not at present have the power
to fine newspapers or to require them to pay damages to victims
of breaches of the Code. It can, in some circumstances, negotiate
donations to charities or ex gratia payments, but only
if the publication in question wishes to do so. This is in contrast
to the broadcast regulator Ofcom, which can levy significant fines
and, in extremis, can revoke a broadcasting licence.
200. It has been suggested that giving the reformed
regulator the power to fine publications would imperil the current
cost-free service, as it would add complexity to the system. Disputes
would become more protracted, and more time would be taken to
resolve them. Lawyers could become involved, and newspapers might
have to take out insurance.
201. However, there was widespread support amongst
our witnesses for the reformed regulator to be able to levy fines
upon those who breached the Code.
Lord Hunt of Wirral said that fines should form a part of the
new regulatory system, being set at a proportionate level and
perhaps added to publications' annual subscriptions.
The power to levy fines would give the regulator considerably
more leverage pre-publication.
202. We recommend that the reformed regulator
should have the power to fine newspapers for unwarranted breaches
of privacy. This will encourage publishers to consult the regulator
on potentially controversial stories before publication.
Arbitration and mediation
203. As it is costly to pursue privacy claims
in the courts, it has been suggested that they could be more quickly
and cheaply resolved through arbitration or mediationa
process sometimes known as alternative dispute resolution. The
new regulator could provide pre-publication mediation of privacy
issues. Another (not necessarily incompatible) suggestion was
for a mediation or arbitration body to carry out a similar function
to that of the courts when considering applications for privacy
204. An arbitration body, comprised of independent
assessors, could receive representations from the media party
looking to publish a story, and from the party claiming their
privacy would be infringed by publication. The body would weigh
and analyse the claims, before giving a ruling as to whether publication
should go ahead. The process would be conducted in private, and
would be less formal than court processes.
205. Lord Hunt of Wirral explained that he was
contemplating a mediation or arbitration body as part of his own
proposals for reform, but that further work was needed. He compared
the likely work of such a body with that of the financial ombudsman
206. It might be possible for a formally established
arbitration body (for example as part of the reformed media regulator)
to be recognised as part of the legal process. Failure to seek
resolution through arbitration prior to litigation might be taken
into account by the court in awarding damages or costs.
207. There might however be some practical difficulties
with a new arbitration body. Newspapers are usually in a race
against rivals to publish stories. They may find it very difficult
to wait until the arbitration is over because of the risk of a
208. There are other issues to address in establishing
any new arbitration body that has jurisdiction pre-publication.
These include the question of whether the decisions of the body
will be binding and, if so, how that could be done without ousting
the jurisdiction of the courts. Editors may understandably be
reluctant to allow another body to decide on what can appear in
their publications. It would be necessary for them to have confidence
in the body.
209. One of the principal tasks of the reformed
regulator should be to play an increased role in arbitrating and
mediating privacy disputes. This would reduce the likelihood of
recourse to the courts, with all the attendant costs, and will
therefore benefit newspapers and claimants. It will also help
achieve the other objectives set out in this report.
159 Lay members are appointed by a nominations committee
of the Press Complaints Commission, comprising three lay members
and an independent assessor who monitors the process. Back
HC Deb, 13 July 2011, col 312. Back
For example, Professor Steven Barnett said that the PCC has "completely
failed as a regulator, as a self-regulator." (Q 136) Back
Q 1594. Back
Newspaper Society. Back
Q 228. Back
QQ 211-2 and 228. Back
Q 226. Back
Q 210. Back
Q 623. Back
Private Eye para 1. Back
Q 720. Back
Q 1617. Back
Q 1618. Back
Q 1619. Back
Q 828. Back
QQ 624 and 689. Back
Q 1593. Back
QQ 1604-5. Back
Q 422. Back
Q 428. Back
Q 1294. Back
QQ 1348 and 1353-4. Back
QQ 329-35. Back
Q 420. Back
Newspaper Society. Back
Q 1599. Back
Q 1601. Back
Q 1609. Back
Sky; ITV; Channel 5; QQ 305 and 309. Back
QQ 136-7. A similar arrangement operates for the Bar. Back
Q 413. Back
Q 826. Back
PCC para 5. Back
Q 246. Back
QQ 707 and 744. Back
Q 707. Back
Q 226. Back
Up to £250,000 or 5% of a licensee's "qualifying revenue",
whichever is greater. Back
Q 246. Back
Q 1120; Barnett; Petley; National Union of Journalists. Back
Q 1609. Back
Media Standards Trust. Back
The establishment of such a body was supported by Alex Hall, Alastair
Brett, Max Mosley (Q 748) and Gillian Phillips, Director of Editorial
Legal Services at the Guardian (Q 44). Back
Q 1608. Back
Q 102. Back