Select Committee on Culture, Media and Sport Minutes of Evidence

Memorandum submitted by Professor Eric Barendt, UCL


  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 law.

  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 redress.

  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 PCC—either 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 publications.

  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

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