Examination of Witnesses (Questions 20-34)
TUESDAY 25 FEBRUARY 2003
PROFESSOR ERIC
BARENDT AND
MR MICHAEL
TUGENDHAT QC
20. I am worried about the time. Michael Tugendhat,
do you agree with this view?
(Mr Tugendhat) The problem with the PCC is that unlike
broadcasting, which is licensed, the press is not and broadcasting
licences can be taken away and therefore there is a sanction which
is ultimately controlled by Parliament. I am certainly not advocating
press licensing but with the press there is no sanction and so
while the PCC has done, in my view, a pretty good job over the
last few years ultimately it is very limited and either you will
have to have interventions by the judges through development of
the common law, which is what is happening, or you will have to
have legislative intervention if the judges do not do it or you
will have to have both.
21. You seem to be saying that things have improved
in the last couple of years. Over a 10 year period I get the impression
that they got worse before you say they started to get better.
Why was that? Was it the market? Was it a difficult market for
the press?
(Mr Tugendhat) I am afraid I do not think the answer
to that is difficult at all. It is a body which was set up to
try and stave off legislation and if you have people self-regulating
they are not going to do things they do not have to do. One of
the things the PCC has set its face against, for example, is any
form of compensation and I am afraid that is quite simply due
to the fact that it represents newspaper interests and that is
inevitable. So if you want compensation you have to go to the
courts.
22. So it is the market that has overcome the
ethical—
(Mr Tugendhat) I think the judges waited because there
was a prospect of legislation. The prospect disappeared and the
judges started intervening.
Rosemary McKenna
23. Could I just follow that question up. We
have now had self-regulation for 10 years and I really want to
talk about ordinary people, our constituents. Do you believe that
standards have improved over the last 10 years?
(Mr Tugendhat) I believe they have. I also believe
that on the whole newspapers do not bother ordinary people unless
they become newsworthy as a result of choice or accident. When
they do become newsworthy as a result of choice or accident the
newspapers are often willing to pay for a story, an exclusive,
because otherwise they do not get it. If they do pay for it then
the newspaper that has paid for the story is generally prepared
to fund the defence of the legal rights of the ordinary person.
I have been involved in a number of such cases. The most famous
one is the conjoined twin, little Jodie as she was called, whose
parents were not of substantial means at all but when the exclusive
story was sold, as it was after the successful operation, the
newspaper groups who had paid very large sums of money indeed
for the story stepped in, in order to fund the protection of the
child's rights. So it is not just a question of celebrities and
non-celebrities and non-celebrities having no means.
24. But I am not talking about high profile
cases like that. I am talking about ordinary people in our constituencies
who find themselves on the front page of a newspaper, who have
not been paid for it and who do not get what I believe is the
proper right of reply. Do you think in those terms the Press Complaints
Commission is upholding the Code? I actually think today is quite
a good example, the Matthew Kelly case. Matthew Kelly is back
on the front page today because he is famous but an ordinary individual
who was accused of exactly the same could have been on the front
page at his accusation but when all charges against him were dropped
that would not have been on the front page, it would have been
buried on page 5 or page 6, at the bottom in a tiny little column.
That is the point I am making. Do ordinary people get the kind
of support that the PCC purported to bring in when it was started
10 years ago?
(Mr Tugendhat) You are absolutely right. I agree with
you. The problem is though that we have a system of law which
is hugely expensive to invoke and the area of legal aid is diminishing
and so the rights of ordinary people, I am afraid to say, are
often not protected by the law. To that extent the PCC is cheap
and quick and may be better than nothing, indeed it is better
than nothing.
25. But it is only better than nothing if all
you get is a tiny little apology. Do you not think that by agreeing
with that you are arguing that therefore there ought to be some
kind of privacy law or at least a strengthening of the Code of
the PCC to deal specifically with the ordinary people who do not
have recourse to any finance at all?
(Mr Tugendhat) I certainly believe the English privacy
law needs strengthening. The only difference between me and Professor
Barendt is whether it should be done by the judges or by legislation.
But I am afraid given the system of law that we have, which has
oral hearings which take a lot of time and require skilled lawyers,
it is going to be beyond the means of people if there is no legal
aid. If you want something which is accessible to ordinary people,
as they have in France, you will have very short hearings, no
oral evidence and it is quite cheap.
(Professor Barendt) I do not want to go over ground
I have already covered but the sort of cases you are referring
to strengthens the case for enabling the Press Complaints Commission
to make an award of compensation and also provides a powerful
argument, I think, for allowing those complainants who are not
satisfied by the PCC disposition of the case or the response of
the newspaper to the PCC findings to appeal to some ombudsman
or a content board. That might help individual claimants but I
think more importantly it might induce or persuade newspapers
to take the Press Complaints Commission more seriously.
26. But even then it is still not going to be
reported in the same way that the original report was made and
I think to ordinary people that matters more, that their neighbours,
their community see this accusation and they really do not see
the retraction.
(Professor Barendt) If this happens of course that
is in itself really a breach of the spirit of the Press Complaints
Commission Code because newspapers are required to publish PCC
adjudications with due prominence and if they bury them inside
the paper where they are not so conspicuous to ordinary readers
then they are breaking the spirit of the Code.
Miss Kirkbride
27. I wonder if I could ask Mr Tugendhat, he
presumably favours that judges should take forward a privacy law
in the light of the Peck case and perhaps other things and I wonder
what kind of form he would expect this to take in his considerable
experience in this area.
(Mr Tugendhat) It is actually happening all the time
but it does not get reported very often. Regularly my colleagues
and I are contacted, usually on a Friday or a Saturday, about
a story that is going to be published and in the past you could
do nothing about it because you could not get libel injunctions.
Now if you ring up the in-house lawyer of a tabloid and say, "I
hear you've got a story about Miss So-and-So going into a clinic,"
you will get sworn at but they will not publish it.
28. What is it about the present law that prevents
that then?
(Mr Tugendhat) There has been a sufficient number
of decisions in recent years which prevent it. The most dramatic
one was the decision in the Venables and Thompson case to keep
their identities private. The reason for that was because everybody
knew that if their identities and whereabouts were not kept private
their lives were at risk. So the judges developed an unprecedented
injunction against all the world and the newspapers cooperated
in it. That is the major decision. There has been a couple of
others since which have attracted a lot of attention like Naomi
Campbell and the unfortunate footballer who may or may not be
a role model. But there is in fact a considerable number of these
things happening, I will not say every weekend but very, very
regularly. They are not reported, as I say, because the judges
do not give formal judgments but you get on the telephone and
there is a duty judge and very often the newspaper simply will
not publish long before you get on the telephone to the judge.
29. I am fascinated by what you say but I am
still left scratching my head because I read the newspapers every
weekend and it seems to me that the level of sort of prurient
titillation in them of things about other people which I have
no business knowing but which inevitably one reads because it
is there and it is in gory detail does not seem to bear out what
you are saying. We have still got the trade union man or anybody
else, or any of us round this table, who might have a secret lover
and that would be it, the front page of the newspaper, thank you
very much. Are you telling me that now I just ring you and it
will all be all right? Not that I am about to!
(Mr Tugendhat) It is not always going to be all right,
of course it is not, but the reason you see what you do see is
two-fold. One is that not everybody actually minds their private
lives being disclosed. A lot of people exploit their private lives.
There is nothing which some people will not sell, that is one
thing. The other is the problem I mentioned before, which is that
this is a very expensive country in which to get legal advice
and representation and so there are plenty of people who cannot
afford to do it and that is the reason. But if you can afford
to do it and you do want to do it and there is a sufficient case,
because that is important too, then you can do it. But very often
what the newspapers report is in the public interest.
30. So what is the nature of the privacy to
which we are entitled then? That is a very broad question, I can
see, but where you are not a law maker are you entitled to have
it? Would you assume that you are entitled to have extramarital
affairs which you are entitled to keep quiet or if you are someone
in the public eye and you have got a predilection for something
which is perfectly legal but very pruriently interesting is that
something you are entitled to keep quiet? What is it you are entitled
to keep private in this area of the law, which I have to say I
am interested in what you say but which I cannot really feel and
touch because it is all behind closed doors?
(Mr Tugendhat) Well, it is not as bad as that actually
because we do have a privacy law. It is called the Data Protection
Act. It is almost unreadable but it is there and if you look in,
I think it is section 2 or 6, you will find a list of things which
are sensitive—sex, political opinion, past involvement with
crime, and things like that. Professor Barendt did a study on
this across Europe and he found that these are in fact a list
of things which are generally regarded as private and although
the press never thought it was going to be subject to all this
legislation in fact, as the Campbell judgment has held in the
Court of Appeal, the press is subject to the Data Protection Act
because they use computers and you can invoke that right. You
do have a privacy commissioner. He is not called that, he is called
an information commissioner, but under section 58 of the Act he
can support people who do not have legal advice and representation.
He gave a speech, which I listened to just before Christmas, to
a group of people which included newspaper lawyers. He is a newly
appointed man and he said, "I am here. I have these rights
and duties. I am aware of what the press do. I am willing to take
on cases." It is very much a question of things happening
which people have not heard of.
(Professor Barendt) But of course recourse to the
information commissioner will not stop the story appearing in
the press and of course your statement brings up another point
and that is that the PCC has never taken on board previous recommendations
that they should introduce a hotline procedure under which the
chairman or an official of PCC should tell a newspaper, "We
don't see there is any justification for this story. We must warn
you that if you go ahead and publish this you are likely to attract
a complaint which we are likely to uphold."
John Thurso
31. I would like to follow up a bit on some
of the previous questions regarding the PCC. It seems to me that
basically what any newspaper company is setting out to do is actually
maximise its circulation and make as much money as it possibly
can and the fact that it is part of the democratic process is
a happy accident rather than a prime purpose! But if one comes
back therefore to the operation of the PCC, if a story comes up
which is of sufficient excitement that it is clearly going to
add hugely to circulation, it is going to be on of those "Freddie
Starr ate my hamster" type headlines, then there must be
a temptation to say, "Let's print this and to hell with the
consequences." So what you come back to with the PCC is really
whether the sanctions are sufficiently effective to have any deterrent
effect in those kind of situations. Could I explore with you both,
please, that particular side of it, the sanctions and whether,
for example, it would be wise to envisage the PCC having some
ability to sanction in a way which really did make a newspaper
company think twice about incurring a cost such as a percentage
of the day's sales and a fine or something of that order and ask
you, therefore, whether you feel that strengthening and improving
sanctions could achieve the objective of giving the PCC sufficient
teeth to avoid having to go to law, which I rather agree with
you it would be better not to do.
(Professor Barendt) I think again this is another
very difficult question because if you grant the PCC power to
impose sanctions which have a real bite then the argument of the
press that their freedom is being seriously eroded becomes a stronger
one. Nevertheless, I think there are some circumstances in which
the PCC, if granted power to award damages at all, ought to have
the power to award higher damages. I hesitate to contemplate in
this area exemplary or punitive damages for what one might call
persistent and deliberate infringements of privacy when, if you
like, a newspaper harasses through a persistent course of conduct
a particular person whom it chooses for reasons of its own, perhaps
commercial profit, to make a victim. I am not saying that this
is, all things considered, the best course to take but if you
were to go down that course then I think you would have to introduce
some right of appeal not just of course for the disappointed complainant
but also for the press itself. One disadvantage of that course
is that you would inevitably lose one of the advantages of the
PCC system, which is that it is very quick and expeditious and
reaches a result in something like thirty to forty days. Once
you contemplate the introduction of awards of compensation which
are more than a few hundred pounds then the press, particularly
local papers, will want to have a right of appeal and the process
becomes longer drawn out.
(Mr Tugendhat) There is no doubt about that. First
of all, the PCC would never be an effective body for imposing
sanctions because they are appointed by the publishers. Secondly,
what matters to people is not compensation, which never is adequate
in these cases, it is that the publication should not occur at
all. So you need something which is either an injunction or the
equivalent of it and as soon as you have that you are straight
into the limiting freedom of expression and that is something
which cannot be dealt with otherwise than by judges.
32. Could I put it to you that really you have
put your finger on the problem, which is that because it is a
self-regulatory system run by the industry itself it is never
ever going to have that kind of sanction. But that is the very
problem because, as you rightly say, what people are after is
for whatever it might be, the untruth or whatever it is, not to
be published in the first place. But if it looks juicy and will
make a good story then at the moment surely the temptation is
to publish and be damned because at the end of the day that is
better for business?
(Mr Tugendhat) I meant to pick you up on that actually
before. There are many, many scandalous cases which we all know
about but I do have to say I do not agree with you that journalists
publish anything and be damned. On the whole I find that with
journalists, like everybody else in society doing a difficult
and responsible job, some of them will say anything but most of
them are actually conscientiously trying to do a good job.
33. Could I just interrupt to say I agree with
you and it is not the 99% who are good I am talking about, I am
only talking about where it goes wrong.
(Mr Tugendhat) Yes, and we must never underestimate
the asset we have in the free press and I am afraid a free press
is bound to be one that occasionally gets it wrong either by malice
or mistake.
34. I do not know if you would agree with this
but it does seem to me that actually the local and regional papers,
certainly in my part of the world, seem to be generally regarded
as being pretty fair and it really tends to be more at the national
level that these kind of things happen?
(Mr Tugendhat) That is my understanding and equally
it is my understanding that these revelations sometimes can cost
people their lives and their livelihood.
Chairman: Thank you very much indeed.
I am most grateful to the Committee for the self-discipline. I
am extraordinarily grateful to you for what has been a very valuable
session. Could I just make this point. Hugh Cudlipp for whom I
worked at the Daily Mirror wrote a history of the Daily
Mirror called Publish and be Damned and it was therefore
assumed and is widely assumed that it is the newspapers who say
that but that actual statement came from a victim of the press.
Thank you.
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