Memorandum submitted by Professor Eric
1. There is now a strong case for legislation
to protect individuals against intrusion on their privacy by the
media. Privacy is an important human right protected in many European
and other jurisdictions (for example, France, Germany, most states
in the USA, and some Commonwealth countries). Further, it is guaranteed
by the International Covenant on Civil and Political Rights and
the European Convention on Human Rights and Fundamental Freedoms,
now incorporated in UK law by the Human Rights Act 1998 (HRA).
So it is anomalous that it is not protected under English or Scots
2. The courts have not yet held that the
HRA requires them to recognise a right to privacy, either generally
or in particular against the media. But judges have said that
the law should be developed to respect the rights protected under
the HRA, including the right to respect for private life. The
well-established action for breach of confidence will in most
cases protect privacy: see Lord Woolf CJ in A v B plc.
But some judges, notably Lord Justice Sedley in the first Douglas
v Hello! case (2001), have been prepared to suggest that the
law does now recognise a discrete privacy right. It is likely
that the House of Lords, if not the Court of Appeal, will declare
in an appropriate case that the law does protect a right to privacy;
it is artificial to leave its protection to the breach of confidence
action and other remedies.
3. It would be much better for Parliament
to establish a right to privacy than leave this entirely to the
courts. Judicial development of the law would inevitably be slow.
Newspapers and other media would face a period of uncertainty
in which they would not know whether it was safe to investigate
or report a current scandal. Press fears about the "chilling
effect" of a privacy right may be exaggerated, but they are
not entirely groundless.
4. Legislation can, and should, define the
scope of a right to privacy. It should also provide defences for
the media, including a broad public interest defence and a defence
that the information is no longer private because it has already
been put in the public domain. The law should probably contain
provisions about the measure of damages and specify the situations
in which it might be appropriate for a court to award punitive
damages for a deliberate or persistent infringement of privacy
rights. Although it would be silly to pretend that a privacy statute
could be so precise that the result in any case would be predictable,
it would give the law more certainty than could be expected from
a series of court rulings.
5. The press and the Press Complaints Commission
(PCC) argue that the PCC provides more effective protection for
privacy than the courts could. It is true that recourse to the
Commission is quicker than legal action, and of course it is available
to people who could not afford the expense of going to court.
Moreover, in the last few years newspaper compliance with the
Code and PCC rulings has been good. The PCC should certainly continue
to consider privacy complaints, even if legal privacy rights are
recognised by the courts or provided by statute. There is a role
for a speedy informal complaints system as an alternative to legal
6. However, the present system of press
self-regulation could be improved in a number of respects. Some
of the weaknesses are institutional and procedural, others concern
the adequacy of the Code and its interpretation. Among the institutional
and procedural weaknesses are the following:
The Committee which draws up the
PCC Code of Practice consists of newspaper editors; there should
be some non-press members.
The Appointments Commission which
selects members of the PCC is chaired by the PCC Chairman. That
may give one person too much authority.
The PCC never conducts oral hearings.
As a result, it cannot always resolve factual disputes in privacy
and related complaints.
It cannot award compensation, impose
a fine, or even request an editor not to publish a story which
would clearly infringe privacy without any conceivable public
interest defence (the "hot-line" procedure recommended
by the National Heritage Committee in 1993).
There is no formal system of independent
scrutiny or review of the PCCeither by a body such as Ofcom
or by a Parliamentary Committee.
7. The following criticisms can be made
of the Code as interpreted by the PCC:
Too much weight is placed on whether
a photograph of the complainant was taken when s/he was on private
or public property. The PCC has rejected complaints brought by
people photographed without consent on beaches, public highways,
or in or just outside a hotel.
Decisions often fail to distinguish
reporting which is objectively in the public interest and reporting
which the public finds interesting. Complaints regarding the publication
of photos of hospitalized victims of criminal assaults and regarding
detailed news reports of suicide victims have been rejected on
the ground of public interest.
The PCC often accepts too readily
the "public domain" argument: in its view the complainant
loses any right to privacy because the information has already
been disclosed, even if that disclosure was made only to a few
people. The Code should be tightened in this respect.
8. One difficulty is that we do not really
know whether complainants are really satisfied by the treatment
they receive from the PCC. It should be encouraged to commission
independent research so that its claim that it now enjoys public
confidence can be checked. At the moment the PCC is able to make
such claims without any external scrutiny or review: see the point
in paragraph six above.
9. The complaints system operated by the
Broadcasting Standards Commission (BSC) does not suffer from the
drawbacks of the system of self or voluntary regulation operated
by the PCC. It is clearly independent, under statute may hold
hearings for the consideration of privacy and fairness complaints,
and broadcasters are required under terms of their licence or
under statute to transmit its findings: see Broadcasting
Act 1996, s 119.
10. The BSC Code is much more detailed than
that of the PCC, and moreover it was issued after a period of
consultation on a Draft Code. It is less inclined to accept the
public domain argument (see paragraph seven) than the PCC. Further,
on a number of occasions it has upheld complaints brought by the
victims of traffic accidents who have been filmed on the road
immediately after that accident and who are then identifiable
in the broadcast of a news item or documentary. Although it is
clearly impossible to make exact comparisons between the approach
of the two complaints bodies, my impression is that the PCC would
be less inclined to uphold complaints against comparable press
11. The jurisdiction of the BSC is to be
assumed by Ofcom and the statutory Content Board under the Communications
Bill. It is provided in the Bill that Ofcom should impose on broadcasters
appropriate terms to ensure that they observe the fairness and
privacy requirements in the Code issued under the 1996 legislation.
That Code is now being revised by the BSC, subject to Ofcom approval.
12. I suggest that the Committee might consider
the following points in this context:
Making a recommendation that the
Communications Bill should be amended to allow the Content Board,
or a committee of that Board, to take decisions on privacy and
fairness complaints. (At present it is unclear whether the Content
Board will have more than advisory functions.) It would be wrong
in principle for Ofcom to take decisions on these complaints,
when in practice they would be fully considered by the Board or
by a committee of that Board.
Recommending that the Bill be amended
to allow a complaint of privacy to be made in respect of intrusion
by broadcasting journalists, for instance, by persistent telephone
calls or door-stepping, whether or not material connected with
these activities is actually broadcast or not. (At present, the
BSC can consider a complaint only if material is broadcast.)
Perhaps recommending that the Bill
be amended to require that initially complaints should be addressed
to the broadcaster, so that the Content Board only consider more
serious complaints only where no apology has been forthcoming
from the broadcasting body.
17 February 2003