Select Committee on Culture, Media and Sport Minutes of Evidence


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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