Select Committee on Culture, Media and Sport Minutes of Evidence


Examination of Witnesses (Questions 1-19)

TUESDAY 25 FEBRUARY 2003

PROFESSOR ERIC BARENDT AND MR MICHAEL TUGENDHAT QC

  Chairman: Professor Barendt and Mr Tugendhat, thank you very much for making yourselves available for this first public session of this inquiry. I have already clarified to my colleagues on the Committee the framework of the way in which we have to proceed. I would just add, I should have mentioned it to my colleagues earlier, because of the great pressure on time I shall have to ration the period of questioning for each member of the Committee fairly stringently. We will get going right away and I call on Derek Wyatt to ask the first question. Could I just make the point that we moved into this room from the main building because the acoustics for us are pretty good. On the other hand, my understanding is that people sitting behind you can find some difficulty in hearing witnesses so it would be helpful if you spoke rather more loudly than you normally do.

Derek Wyatt

  1. Good afternoon. Which is more important, freedom of speech or an individual's right to privacy?
  (Professor Barendt) Shall I go first on that, Mr Chairman? These are both absolutely crucial and fundamental freedoms. Both are guaranteed in many constitutions and under the European Convention on Human Rights but like many fundamental rights they may conflict and I think it is very difficult to say irrespective of particular circumstances where they do conflict that one freedom is more important than the other. In some cases where, for example, a story about a public figure, although it implicates his or her privacy, is of major public interest then of course the right to freedom of expression should be treated as paramount. But there are many other cases when a story in the press or a broadcasting item says things or reports things about a person, whether a person in public life or a private person, which are of no objective public interest and in those cases it seems to me that the rights to privacy should prevail. The interesting question is how should this conflict be resolved, but I imagine that is something you might want to ask further questions about.

  2. How would you place the Matthew Kelly story then in those two extremes?
  (Professor Barendt) Well, that is of course not a typical privacy case. Although it does involve privacy to some extent it is a case about the freedom of the media to report that a person in the public eye is suspected of or there are allegations of sex abuse and yet there are his own interests not to have his standing and privacy infringed in an excessive way. The law is of course that the media are free to publish details of a person who is under investigation or against whom allegations are made and that may be right. It is interesting of course that the law now takes a very different view if the person about whom the allegations are made is a child and that raises very difficult questions as to whether the law is right to take such a radically different view over child suspects on the one hand and adults on the other. I think the Matthew Kelly case is a very difficult one. There are a lot of difficult cases in this area.

Chairman

  3. Could I just intervene before we proceed. Mr Tugendhat has in fact, I think, been about to pre-empt what I was going to say, namely that I would be very happy if either or both of our witnesses felt free to answer any question which is put.
  (Mr Tugendhat) I certainly agree with everything that Professor Barendt has just said but I would like to add that it is not to be assumed that privacy and freedom of expression necessarily always conflict. In fact in many circumstances it is impossible to have freedom of expression without privacy. The most obvious examples of that, of course, are when people give information to newspapers and need to protect their identities. When people have unpopular political or religious views they can only express them in private and there are many, many other examples. It is, I think, a mistake to assume that they are in conflict.

Derek Wyatt

  4. You have both drawn on the European Human Rights and making that part of the UK law. Could you explain to me what France and Germany therefore do, as they have a privacy law. Have they opted out of part of the European Human Rights? Could you explain what that is then and how that does not conflict with Human Rights?
  (Mr Tugendhat) It does not at all because they both in their different ways have legal implementation of both rights and how they resolve particular cases where there is a conflict is to some extent a reflection of their culture and attitudes to life. So I do not think that if we had the same law as the French do, which effectively incorporates Article 8, I do not think the English courts would apply it in exactly the same way for cultural reasons but the margin of appreciation (as it is called) is not very wide and so far as Germany, Spain and other Convention countries are concerned, as I understand it they all have legal implementation of both Articles and they all have courts which have to decide each case on its particular facts.

Chairman

  5. Following on from what Mr Wyatt has been putting to you, could I just ask you about the anomalous situation, certainly in the United States where some states do have privacy laws, of the general assumption in the United States that a public figure has less right to privacy than a private figure and therefore it is much more difficult for a public figure to win a libel action. Is there not a problem here, namely that a public figure may be a public figure for one purpose but then it is assumed that his openness to intrusion should be general? For example, if you take a footballer, a famous footballer maybe, he is a footballer, he is famous as a footballer. It is then assumed and has been assumed in the courts recently that he therefore must assume the role of being a role model as well although he may not wish to be a role model, he may just wish to play football and possibly getting very great rewards from it. To what extent would you say that that criterion in the United States is one that is viable there and ought to be viable here or not?
  (Professor Barendt) It is the case, Chairman, that in the United States following a series of libel decisions in the 1960s the courts have drawn a sharp line between the position on the one hand of public officials and public figures and on the other the position of private individuals and that development, which first occurred in the context of libel cases, has been applied to privacy both by federal and by state courts. My view, and it is the view of some commentators in the United States, is that that sharp line is to some extent wrong, that even public figures and even politicians have a right to have their privacy respected and I think there are good arguments for that. Many people may not choose to go into public life or may be hounded out of political and public life because they have been the victims of or fear they may be the targets of excessive media intrusion. That is an argument which I think should be taken seriously by all people, whether Members of Parliament or anyone concerned with standards of public life and the preparedness of people to go into public life or remain in public life and the distinction drawn by the American courts in my view is unfortunate because it means that public figures, particularly politicians, in effect surrender their privacy rights as well as to some extent their rights to claim damages for libel.

  6. What about the families of such people? A Member of Parliament volunteers to be a Member of Parliament, indeed volunteers is an understatement; not one of us is a Member of Parliament other than because we have made very great efforts to get here. But what about the son or daughter of a Member of Parliament who has not chosen that her or his parent should be an MP and yet if something happens to them it may well be that they will get publicity which the boy or girl next door doing the same thing would not get simply because their parent is—I choose an MP but I am not choosing that because we wish to be considered in some special protected category. Ought not a child, who has got no say over whether his parent is a public figure, to get some kind of protection when he is involved in some incident which would not get that kind of publicity if it was not "MP's son" or "Showbiz son", or whatever, that was the headline?
  (Professor Barendt) I think the position is that if a story is written about a relative, particularly a child of someone who holds public office or is in public life, and that is a story about the child or relative then that person is not categorised, him or herself, as a public figure and is entitled to bring a privacy action and indeed that is the perspective of the Press Complaints Commission when applying the PCC code. I refer the Committee to clause 6 in this context. But of course it is the case that children and other relatives, particularly spouses, will be caught up by media stories intruding on a public figure's life and will themselves be indirectly therefore the victims of that story and in many cases may suffer considerable emotional damage and distress.

  7. But what ought Parliament to do about this, because that in the end is what we are looking into. Ought Parliament to do anything about it or simply say, "Oh, well, that's too bad. It goes with the territory"? Take another example before I hand over to Mr Doran, a trade union leader involved in a controversial industrial dispute. Fair game in terms of the industrial dispute. The press probes into his private life. "Mr X, love rat." Is it tolerable in any kind of civilised community that somebody, however controversial he or she may be in their public activities, should then be vulnerable to gross intrusion on their private activities which have got nothing whatever to do with the reason why they are public figures?
  (Professor Barendt) I can give a very short answer to that question, Chairman. The answer is that it is not tolerable and the argument which the media, particularly the tabloid press, make that everything is relevant to how a public figure or official conducts his office and that therefore this gives us a right to know about their current or past private life, particularly sexual affairs, seems to me to be a thoroughly bogus and terrible one.

Mr Doran

  8. Speaking as someone who had previously practised as a solicitor, now as a Member of Parliament, I never considered a possible role model until I started reading the case law. It has come as quite a shock to me. You both have opposing views on the need for a privacy law and reading through some of the evidence which has been submitted to us by one of our witnesses who will appear later he tried to summarise from the press point of view how he saw the situation and he said: "The press in this country works under some of the most stringent and powerful laws of any western democracy. The libel laws, contempt of court, the provisions of the Youth Justice and Criminal Evidence Act, the Children Acts, the Law of Confidence, the body of law restricting the reporting of certain cases in court, the Protection from Harassment Act, the Copyright laws, the Data Protection Act, the Human Rights Act, the Sexual Offences Act, the Representation of the People Act, the Access to Justice Act," and a whole host of others. Regardless of your views on whether or not we should introduce a privacy law, it does seem to be a bit of a morass and if you add on top of that what seems to be a recent change in the courts of previously denying that there was any right to privacy, certainly in England and Wales, and now with the introduction of the Human Rights Act, what seems to be a slow edging in that direction. How do we resolve that? Regardless of whether or not you are in favour of a privacy law, does it not need to be rationalised and cleaned up?
  (Mr Tugendhat) Speaking as somebody who is not at the moment advocating legislative intervention, it has actually been cleaned up and is being cleaned up. The position in other countries is not as dissimilar as the passages you have read out might be intended to suggest. English law does not use the word "privacy" very much but there is and always has been massive protection of privacy under English law. What has gone wrong over the last century is that English protection of privacy did not catch up with the means available for reproducing and storing information about private individuals but all the privacy laws in America and on the Continent can be traced back to our own leading case of Prince Albert v Strange. So I do not accept that there really is that much difference. The difficulty I have with legislation is that legislation does not finally answer questions any more because it has got to be interpreted in accordance with the Human Rights Act, but so has case law and until there is a problem my view is, if it ain't bust don't fix it. At the moment it is not bust. I agree you have a lot of conflicting decisions, for example you have different opinions about role models expressed in the footballer case and in the Naomi Campbell case but you are going to have that if you legislate as well because the legislation can only be in general terms. So I would say that if you give it a little bit of time to settle in, it probably will come right in much the same way as other areas of the law have.

  9. One obviously significantly recent decision is the case in Strasbourg involving Mr Peck, Peck v UK, and that is very critical of the protections which are offered to individuals in this country in respect of privacy, particularly the remedies. I would be interested in the views of both of you on whether you see any need for the Government to respond to that decision or is that simply something which should be left to the individuals involved, the PCC or whoever?
  (Mr Tugendhat) It depends what the courts do. If the courts respond by developing legal remedies, as it seems to me they are compelled to do by the decision in Peck, then we will be all right. If the courts do not respond then legislation will simply be essential, otherwise we will continue to have humiliating judgments against us in Strasbourg.

  10. How long do we need to wait for that?
  (Mr Tugendhat) I would have thought not long because while in my experience there is not a huge number of privacy claimants there are more than there used to be and there is a steady stream of cases. Most of them do not get reported. There is a steady stream of cases and the information I am being given by in-house lawyers of newspaper publishers and broadcasters is that the broadcasters always did respect privacy because they had to, because their licences required it. The press did not but now they do more and more. There are quite simply pictures which are being offered to newspapers that would have been bought and published two years ago which are unsaleable now, so I am told.
  (Professor Barendt) Could I, Chairman, offer a different perspective without wanting to disagree with much of what Michael Tugendhat has said. I think there is a case for Parliament legislating partly because one reason the courts give in some cases for not formulating in explicit and clear terms a right to privacy is that this is a bold step which courts should hesitate to take against a long background of there not being such a right and that this is more appropriate for Parliament to decide. This has been said in a number of cases, some of them media cases but others involving telephone tapping, strip searching, and so on. The courts have said: "This is a matter for Parliament. To formulate a right of privacy would be too radical a step for us to take, although we recognise that this is an interest which cries out for protection." That is one reason why I think there is a case for Parliament stepping in. Another reason is, to take up the Peck case, of course it is correct that the courts will, if a case comes before it, fill the gap in English law revealed by the Peck decision. But such a case may not arise for some years even though invasions of privacy on facts similar to that may recur. If you leave it to the judges it depends upon individuals bringing appropriate cases and of course having the appropriate funds to do so. A third point for legislation is this: I think legislation has considerable what you might call declaratory quality. Take, for example, the provisions on incitement to racial hatred. These are important provisions not because there are many prosecutions brought on them, there are very few despite what happened yesterday. The point about such a statute is that it declares that society sets its face against an abuse of freedom of speech. Equally, it seems to me that there is a powerful case for a privacy law so that society through Parliament can say without reservation that privacy is an important fundamental right and that is something which Parliament can more effectively do than any court decision. I think that constitutes a third argument for saying that there is a strong case for formulating a right to privacy. If I could just go on for one moment, I think another important feature of legislation is that this would enable statute to provide defences of public interest, public domain, and to circumscribe the ambit of privacy in ways which would recognise that the press and the media also have powerful interests here.

Ms Shipley

  11. Sex. If it ain't bust don't fix it. The dealings I have had mainly since I have been in Parliament have been to do with child abuse, rape, that sort of nasty sex. I would like to put on record that I think the media have done an absolutely super job in part, particularly to do with child abuse, in putting it on the political agenda and keeping it there and a lot of really important things have been written in the media, including the tabloid press. However, there is a side to it which I would say is extremely dangerous. You have the potential for lynch mobs, that sort of really genuinely dangerous. "If it ain't bust don't fix it," I would suggest to you, does not apply. It is bust in this instance. There is a really clear problem on child abuse, and indeed rape cases. There is a real problem that has to be addressed. Professor, you said it is a difficult area and you did not really address it, you ducked. So I am going to give you a second chance. How do editors really seriously address this? I am going to be really pleased to ask the editors the same question because I think that the good work they can do can be seriously unravelled if we do not get this one right.
  (Professor Barendt) I am not quite sure what you think I have ducked.

  12. You outlined the fact that it was difficult without suggesting any way through.
  (Professor Barendt) The balance between privacy and free press in a particular case may well be difficult. There are easy cases and there are hard cases. If you take the question about how far the press should be free to publish allegations about someone who is suspected in a local community of being involved in child abuse that may raise very, very difficult questions and I do not think it is always possible to say yes, the press should always be free to publish or they should not be free to publish.

  13. So how should editors make their decisions?
  (Professor Barendt) These are difficult decisions for editors—

  14. I think we are all agreed on that but how should they do it?
  (Professor Barendt) They should determine what is the public interest in this, how much evidence is there to substantiate these allegations, is it appropriate to go public rather than to give the informant's evidence to public authorities, local authorities, the police and so forth.

  15. So give me an example when information about sex abuse by a man should be in the press before the police have investigated?
  (Professor Barendt) There might be a case for such press coverage if the media believe on good grounds that the law enforcement authorities are for one reason or another, particularly if there is any suspicion of collusion between the police and the suspect, are not doing their job. The media do have a valuable essential role as the ultimate watchdog to, if you like, ferret out abuse of power or incompetence, whether that is by a local authority or by the police.

  16. Do you think that is what they have done in Operation Ore?
  (Professor Barendt) I do not think I could comment on that particular case.

  17. Operation Ore was interesting because there were so many names which were clearly leaked and then were in the press prior to the people being investigated or taken to court and now subsequently some of the names are allegedly being obfuscated and other powers being brought to bear on the various newspapers, and what have you. In that situation how does your reasoning work, and perhaps you would like to comment too?
  (Mr Tugendhat) It is a decision which I have spent a lot of my life advising newspapers on, whether you can publish something or not. It has become more difficult. Child abuse is particularly acute as a difficulty because the damage to the child if the allegation is true and not properly disclosed is catastrophic and correspondingly the damage to the individual if the allegation is ill-founded is also catastrophic and that is why it is very difficult. But ultimately the solution to the problem depends on whether the evidence supports the allegation. If it does then there is no doubt that if you want a free press you will have to put up with them publishing it.

  18. So do you think in the case of Operation Ore, in which a very large number of names were leaked to the press prior to the police actually arresting the person or bringing them to court, that that still has to happen?
  (Mr Tugendhat) No, I do not think that leaks from public authorities to the press are inevitable or always justified but what I am saying is that journalists are not private detectives. If they find a story they will publish it and that is, I am afraid, the price of a free press. They will, of course, be conscious of their legal obligation but it is no good saying to a journalist, "All you need do with this story is take it round to the local police station," because that is not, I am afraid, how you can have a free press. What you have got to do is to make sure that if the press get it wrong there are adequate sanctions but the sanctions must not be so great that you have a press that is frightened of publishing even allegations that ought to be published.

Alan Keen

  19. Professor Barendt, you would like legislation. If you do not get it, what changes would you make to the PCC and its operation to try to fill the gaps, what it explores? That is a difficult question.
  (Professor Barendt) I have outlined some possible changes in my paper. The PCC overall I think does a fairly good job but there are some significant changes which could be made both, if you like, of a structural or institutional character and then into the Code and its interpretation. Any system of self-regulation has to enjoy the confidence of both the industry which is being regulated, the press itself, on the one hand and that of the public, in particular complainants, on the other. I am not sure that all aspects of the PCC necessarily give me the belief that it does or should enjoy public confidence. For a start, I think the Code Committee, that is the legislator in this area, should have some independent non-press representation, although I think it is entirely understandable that it largely consists of press representatives. Secondly, I think it is unfortunate that the Press Complaints Commission never conducts an oral hearing. There are many cases, to judge from the reports of their adjudications, when the Press Complaints Commission just cannot find the facts and therefore cannot reach a satisfactory conclusion. That might be improved if in some cases, like the Broadcasting Standards Commission, there was provision for oral hearings. That of course does have the defect that it might lengthen the course of the proceedings by a few weeks or a couple of months. But the third point I would make of this institutional sort is that the PCC acts entirely on its own. It produces an annual review and it publishes its adjudications but there is no system of scrutiny or appeal from PCC decisions. There is, I think, a strong case for saying that there should be a right of appeal or an opportunity to appeal either to a press ombudsman, as the National Heritage Committee recommended I think 10 years ago, or to the Content Board, which will take decisions in this area under the Communications Act when that is on the statute book. Secondly, I think there is a case for the PCC reporting to the public not just through an annual review which is read by those who are interested in such things but by making a statement and taking questions from either Ofcom or through a Parliamentary Committee. With regard to the Code, I do not know whether you would like me to continue?


 
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