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Select Committee on Culture, Media and Sport Minutes of Evidence


Memorandum submitted by Mr Alan Rusbridger, the Editor of The Guardian

EXECUTIVE SUMMARY

  The Guardian believes that effective self-regulation is the best way of resolving often complex considerations involved in policing the borderlines between respecting individuals' right to privacy and preserving freedom of expression in this country.

  Parliament has never legislated to create a separate tort of privacy: so long as the press can point to effective self-regulation it would be wrong for judges to try and create one. The process of doing so would take many years and would involve newspapers and claimants in considerable expense and uncertainty. The PCC is, by contrast, free and fast.

  The Guardian's own model of self-regulation—which involves employing a Readers' Editor to handle around 10,000 complaints and queries annually—is even more responsive to the concerns of those who read us, and about whom we write, than the PCC. A combination of local and national self-regulation may be worth considering as a model for larger newspapers.

  Notwithstanding the above, it is clear that complainants will increasingly prefer to use the courts as well as, or instead of, the PCC. The Human Rights Act has imported the right to privacy into domestic law. This will put the PCC under greater pressure and scrutiny than at any time during its history.

  There are a number of widely held concerns among journalists and editors about some of the PCC's processes. There is a feeling that it is not as open, independent and effective as it could be. The model of self-regulation it operates is rather different from that which exists in other areas of public and corporate life. There appear to be a number of widespread practices which have been investigated by the Information Commissioner and the police, but which have been ignored by the PCC.

  It is in the interests of the newspaper industry for the PCC to take notice of these concerns. A recent European Court of Human Rights judgement found that victims of privacy do not have sufficient remedies in the UK. If the PCC is not seen to be open, independent and effective there is little doubt that the courts will intervene—thus achieving the very result which the press rightly seeks to avoid.


CONTENTS

1.  INTRODUCTION

  The general context of Media Law. Why privacy matters and why the press should respect it. The freedoms and responsibilities of the press.

2.  BACKGROUND

  How privacy stands in relation to other media laws. Recent developments in society and the courts affecting debate over privacy.

3.  THE GUARDIAN'S APPROACH

  The paper's campaigns over media law. Its editorial code. Its support for self-regulation. Its independent Readers' Editor. How a Readers' Editor can work in conjunction with the PCC.

4.  PRIVACY LAW-V -SELF-REGULATION

  Difficulty of defining "public figures" and "the public interest" in legal terms. Recent attempts by judges to consider developing privacy as a separate tort. The PCC's advantages. The Guardian's support for the PCC. Reservations within newspaper industry about some aspects of the PCC's processes. Three cases—Anna Ford, Sara Cox and Geoffrey Peck—where lawyers have become involved because the PCC did not satisfy the complainant. Their implications, in legal terms, for the future running of the PCC.

5.  SUMMARY

  Annex 1 Draft Defamation and Privacy Bill (1998) (not reproduced here).

  Annex 2 Submission by Ian Mayes, Readers' Editor.

  Annex 3 Selection of articles by Ian Mayes (not reproduced here).

1.  INTRODUCTION

  A great deal of journalism is intrusive. On a daily basis newspapers inquire into, and publish, matters which cause dismay, irritation, embarrassment, pain and grief to those involved. In most cases, we are able to justify our behaviour on the grounds that some sort of public service has been performed by the publication. There is, for instance, an obvious public good in exposing iniquity, regardless of whether the subjects of reporting are angered or embarrassed by it.

  But there are other occasions when the balance between the good served by—and the pain caused by—publication is less clear cut. All editors make mistakes of judgement. Sometimes, with hindsight, it is clearer that the pain caused by publication was not justified by the public interest in publication. In other cases there was no discernible public interest in publication. Decisions taken at great speed and with inadequate information sometimes turn out to be flawed. Editors move onto the next edition, the next deadline. The effect on those affected by the flawed decision can be devastating. [1]

  Debates over how best to balance individuals' legitimate expectation of privacy with an unfettered press are not new. But a number of recent factors have added fresh dimensions to the debate. Amongst these are:

  6.  The incorporation of the European Convention on Human Rights into English law—introducing, via Article 8, a right to privacy into domestic jurisdiction.

    —  The development of technology. The most famous essay on privacy—Brandeis and Warren (1890)—concerned a news story about a private wedding and warned of the impact of "instantaneous photographs . . . and numerous mechanical devices." There have been extraordinary advances since then in our ability to watch over each other. Modern technologies enable the monitoring and interception of virtually all aspects of every day life—from phone calls to bank statements and police records; from CCTV footage to medical and tax information; from emails to commercial and legal matters.

    —  A media which increasingly mixes information with entertainment and a culture of celebrity, sometimes blurring the distinction between the two.

    —  Considerable financial inducements to sell private information to news organisations; a globalised media market where a particular story or intimate picture can be worth a six figure sum to the journalist, photographer or media organisation; and an increasingly competitive scramble for viewers and readers.

  As an industry, we, quite rightly, fight robustly for the press's fundamental rights of freedom of expression. We would be betraying the efforts of all those who have fought for the same before us if we did not do so. At the same time we are too often reluctant to acknowledge the power we have over other people's lives, nor to concede the effect that careless publication may have. In our public pronouncements and behaviour we are sometimes insufficiently willing to pay respect to the rights of others. Thus the newspaper industry, in general, was keen to embrace the bit of the Human Rights Act (Article 10—freedom of expression) that suited its aims. At the same time—led by its then regulator, Lord Wakeham—it asked for an exemption from the bit (Article 8—privacy) that less obviously suited its purposes, both Editorial and commercial.

  As Professor Onora O'Neill said in her second Reith Lecture:

    "Individuals have been willing, even eager, to claim their rights, but much less willing to meet their duties to respect others' rights. In thinking about rights we readily see ourselves on the receiving end; and it is always someone else's round"[2]

  Lord Justice Sedley hinted at the same in his Hamlyn Lectures. After giving a ringing declaration of the right to freedom of expression he added:

    "But other rights are no less important. Why does experience suggest that they tend to be less frequently and less stridently claimed? May the disparity have to do with disparities of power? Is it the lion who litigates while the ox puts up with things? Access to the courts is expensive, but for those organisations which possess and depend for their prosperity on audibility, inhibitions on what they can say are important enough to justify investment in rights litigation." [3]

  This is aimed, at least partly, at newspapers. But Sedley warns also of how other powerful people and institutions will use the new rights jurisprudence.

    "Article 8 claims [under the Human Rights Act] may quite rapidly establish a rights jurisprudence of privacy rights for the famous. They are far less likely to do so for the larger number of humble people whose autonomy is endlessly compromised by a variety of processes to which public administration subjects them as claimants, clients or patients."

  So, in our view, the media should welcome well-intentioned and serious attempts to explore this issue and to hear from those at the receiving end of press attention as well as from the people who take the often difficult day to day decisions about what to publish.

  In exploring this subject, the committee will doubtless stub its toe on an initial conundrum: that victims of media intrusion rarely wish to court further publicity by complaining about it. It is similarly doubtful whether the number of complaints to the courts or the Press Complaints Commission reflects the true extent of intrusion in the press.

  A further disincentive to complaining or taking legal action is the vengeful response of some newspapers towards complainants. The treatment dished out to some people who have had the temerity to complain about, or take actions over, what they perceive to be invasions of privacy can be unattractive. There may be differing views about whether any complainant is a particularly deserving one. But all participants in this debate ought to have the humility to acknowledge that there are many different views about where the line should be drawn. It would not serve the cause of the newspaper industry if it appeared to use its own muscle to discourage debate.

  The news media have almost unique latitude both in deciding whom to target in terms of scrutiny and in the methods by which they target them. The IPPR researchers, Damian Tambini and Clare Heyward, have written in these terms:

    "Admitting that there are some cases in which a public interest defence can justify invasion of privacy by journalists places the journalistic profession in a quasi-judicial role with unclear responsibilities." [4]

  Newspapers are right to fight any attempts to licence them. Equally, the press rightly does not claim any special privileges. Paradoxically, this leaves journalists in a position of almost unique freedom. The police, for example, are now required to seek the approval of a High Court judge before they can intercept a phone call (except in cases of suspected terrorism). Journalists have only to satisfy themselves that their inquiries are in the public interest before doing so. This freedom to operate without prior licence or restraint is necessary in a democratic society[5]: but absolute freedom of this sort is only defensible if it is exercised with great responsibility and with due concern for what is genuinely in the public interest. The difficulty of defining that term is one of the problems in any consideration of this subject.

  The debate about what is legitimately in the public domain and what is reasonably private is a complex one. Recent legal textbooks[6] reflect not only the growing external interest in the subject in this country, but also the radically differing approaches of courts in two dozen and more countries. It cannot be for the press alone to determine those bounds. And it would be unwise of the press to dismiss the genuine concerns among judges and legislators as well as among the general public. As Lord Wakeham conceded in a recent essay, the most recent PCC figures show a record number of complaints—520 out of 3,030—relating to some aspect of privacy. [7]So we welcome the Committee's attempts to take evidence from a wide variety of people in helping to develop the debate in this country.

2.  BACKGROUND

  The media's attitude to privacy should ideally be seen in the context of other laws affecting what it publishes or broadcasts. Privacy and defamation laws have often been considered reverse sides of the same coin. Louis Blom Cooper QC, a former Chairman of the [now defunct] Press Council, once asserted: "The libel law contains the seeds of a public desire to protect by legal remedy the privacy of the individual." [8]He was suggesting that—in the absence of a tort of privacy/defamation—juries used libel damages to "punish" newspapers.

  Most editors in this country have legitimate complaints about what are widely seen as amongst the most restrictive defamation laws in the developed world. But attempts to reform those laws have usually foundered on legislators' unwillingness to make it easier for newspapers to expose public figures and their families to more prurient scrutiny. So a licence to publish intrusive stories about people in public life can, paradoxically, inhibit the work of investigative reporters trying to publish stories with a genuine public interest. Similarly, campaigners for greater Freedom of Information know that their drive to obtain greater access to public documents is only likely to succeed if guarantees are offered that this new freedom will not be misused to gain access to material that is reasonably private.

  During the mid-to late 90s—when The Guardian was fighting a succession of high profile libels cases under laws which most legal scholars regarded as unfairly stacked against defendants—we floated the notion of a new Defamation and Privacy Law which could balance the widespread wish to achieve something closer to the American Sullivan libel law[9] with assurances that it would not be misused to herald a new era of intrusive journalism about the private lives of public figures. That draft bill is appended at Annex 1. (not printed)

  Since then a number of things have happened:

    —  The PCC has toughened its Code of Conduct on privacy and has signalled a new determination to take privacy issues seriously.

    —  The Government has incorporated the European Convention of Human Rights into domestic Law (the Human Rights Act). This balances Article 8 (privacy) against Article 10 (freedom of expression) and requires courts to pay particular regard to regulatory bodies within the media.

    —  The Law Lords' ruling in Reynolds v The Sunday Times has, in the opinion of many journalists, improved the libel laws in respect of responsible reporters working on stories with a clear public interest element. Interestingly, this judgement places as much emphasis on the professional methods of the journalist as on the content of the story.

    —  The courts have begun the process of (in Lord Justice Sedley's phrase) "re-inspecting the law of confidence and [asking] whether it is still what it was or is something new; and if something new, whether it ought to have a new name . . . [and] whether the ECHR makes a difference, and if so, what difference. [10]

    —  The Government has passed a Freedom of Information Act, due to come into full effect in 2005.

3.  THE GUARDIAN'S APPROACH

  The Guardian has been proud to play a leading part in campaigning for press freedom over the past few years. These battles include:

    —  Fighting and winning a number of high-profile libel cases.

    —  Arguing for reforms in the libel laws.

    —  Leading a campaign for Freedom of Information legislation.

    —  Leading a successful campaign against the more draconian provisions of the Regulation of Investigatory Powers Act.

    —  Resisting (along with other newspapers) attempts to be forced to reveal a source in the Interbrew case.

    —  Successfully challenging orders over police demands for email addresses and photographs.

    —  Successfully challenging the Treason and Felony Act.

    —  Successfully challenging a blanket rule dictating that every hearing of the government's surveillance watchdog be held in secret.

  The Guardian has welcomed many of the recent developments in the laws affecting the media, though not without reservations. The Reynolds judgement is helpful, if flawed: and we still consider that the libel laws have a "chilling" effect on serious investigative reporting. The Freedom of Information Act is a step forward, though it falls short both of what Labour promised in opposition and of what other mature democracies now think workable and appropriate. The HRA cases testing the developing law of confidence/privacy have not always been the most worthwhile ones and the responses of the judges have, so far, been inconsistent. But, broadly, we feel that there have been some positive developments in the legal framework governing the media.

  The Guardian has its own Editorial Code which reminds all journalists that they are bound by the PCC's Code of Conduct. In addition there are a number of clauses relating to privacy-related matters. These include

    —  Children: Special care should be taken when dealing with children (under the age of 16). The editor must be informed when children have been photographed or interviewed without parental consent.

    —  Grief: People should be treated with sensitivity during periods of grief and trauma and, wherever possible, be approached through an intermediary.

    —  Payment: In general, The Guardian does not pay for stories, except from bona fide freelance sources. Rare exceptions must be approved by the editor or his deputies.

    —  Privacy: In keeping with both the PCC Code and the Human Rights Act we believe in respecting people's privacy. We should avoid intrusions into people's privacy unless there is a clear public interest in doing so. Caution should be exercised about reporting and publishing identifying details, such as street names and numbers, that may enable others to intrude on the privacy or safety of people who have become the subject of media coverage.

    —  Subterfuge: Journalists should generally identify themselves as The Guardian employees when working on a story. There may be instances involving stories of exceptional public interest where this does not apply, but this need the approval of a head of department.

    —  Suicide—journalists are asked to exercise particular care in reporting suicide or issues involving suicide, bearing in mind the risk of encouraging others. This should be borne in mind both in presentation, including the use of pictures, and in describing the method of suicide. Any substances should be referred to in general rather than specific terms if possible. When appropriate a helpline number (eg Samaritans 08457 90 90 90) should be given. The feelings of relatives should also be carefully considered. [11]

The Guardian and internal self-regulation

  In addition to these guidelines The Guardian has, since 1997, employed an independent Readers' Editor whose job is to act as the main conduit to readers dissatisfied with what we print—either because it's wrong, or because it raises ethical issues. Such independent figures are increasingly common in other countries. The Organisation of News Ombudsmen has more than 100 members and a website, with links to weekly columns. [12]

  The initiative to appoint a Readers' Editor came about through a recognition that journalism—while utterly necessary to the working of a mature democracy—is inevitably a flawed process. The starting point on The Guardian is that the newspaper we produce each day is, like all newspapers, imperfect. We do our best to achieve the highest standards, journalistically and ethically. We try to get our facts right and we aim for proper balance and appropriate tone. But, if we're honest about it, we don't always succeed. We cannot better the words of David Broder, the distinguished Washington Post columnist, in a speech he made honouring Pulitzer Prize winners in 1979:

    "I would like to see us say—over and over until the point has been made—that the newspaper that drops on your doorstep is a partial, hasty, incomplete, inevitably somewhat flawed and inaccurate rendering of some of the things we have heard about in the past 24 hours—distorted, despite our best efforts to eliminate gross bias—by the very process of compression that makes it possible for you to lift it from the doorstep and read it in about an hour. If we labelled the product accurately, then we could immediately add: `But it's the best we could do under the circumstances, and we will be back tomorrow, with a corrected and updated version'." [13]

  Many American papers appreciated some time ago that an honest admission by editors of the flawed nature of the journalistic process would find an advantageous response in the courts. The Sullivan judgement certainly acknowledged that speakers and writers on public affairs must be allowed a reasonable margin for honest error. But if the press is going to argue for this kind of "breathing room"—as British newspapers have done in their prolonged battle to extend the notion of qualified privilege—then the corollary must be that they systematically correct errors when they occur.

  In virtually every other walk of life modern organisations—whether they're hospitals, gas companies, local councils, hotels or banks—positively encourage their customers, clients or users to report back on the service they're getting. Many newspapers—while advocating accountability and transparency for others—find it difficult to adopt the same procedures themselves.

  That this is counterproductive in terms of the press's relationship with its readers is dawning on editors. The distinguished American journalists Bill Kovach and Tom Rosenstiel, [14]recently wrote:

    "Journalists like to think of themselves as the people's surrogate, covering society's waterfront in the public interest. Increasingly, however, the public doesn't believe them. People see sensationalism, exploitation, and they sense journalists are in it for a buck, or personal fame, or, perhaps worse, a kind of perverse joy in unhappiness. To reconnect people with news, and through the news to the larger world, journalism must re-establish the allegiance to citizens that the news industry has mistakenly helped to subvert." [15]

  The Guardian's Readers' Editor, Ian Mayes, was appointed by the Scott Trust, owners of The Guardian, which has the sole power to dismiss him. His contract stipulates that he has guaranteed space on the paper's main editorial page every day in order to correct and clarify material that has already appeared in the paper. In addition, he writes a weekly column in which he reflects on issues of concern raised by readers. These have included issues to do with privacy. In some instances readers have raised matters which have, in consultation with staff, led to a revision of editorial practices. On several occasions Mr Mayes has indicated that, based on the response of readers, he disagreed with particular editorial decisions. These columns have been printed without any editorial interference.

  The PCC supports the developing work of The Guardian's Readers' Editor. The High Court has also praised the paper's initiative, even capping the amount of damages a claimant sought in recognition of the seriousness with which Mr Mayes approached the case.

  Mr Mayes's own description of his work—including matters to do with privacy—is included at Annex 2. The chart below indicates the sort of workload he and his assistant have handled since he was appointed in November 1997.

TOTAL CORRECTIONS AND CLARIFICATIONS—THE GUARDIAN
Yearcalls/emails correctionsratio
One 11-97—11-985,283 1,1761 : 4.5
Two 1998-997,3001,449 1 : 5
Three 1999-20006,369 1,4321 : 4
Four 2000-017,6341,508 1 : 5
Five 2001-0210,2321,570 1 : 6.5
Total39,0267,476 1: 5


  A comparison with the rate of complaints handled by the PCC—dealing with nearly 20 national titles, more than 450 regional titles and numerous magazines, national and local—across Britain indicates how this system is extremely responsive to Readers' concerns.

THE GUARDIAN AND PCC—COMPLAINTS
2001Complaints/inquiries Corrections/adjudications
The Guardian10,232 1,570
PCC3,03341 adjudications, 19 upheld.


  The two operations are, of course, not strictly comparable. Many of the complaints to The Guardian concern comparatively minor matters such as spelling and grammar. But these figures do suggest that a combination of the two mechanisms—independent self-regulation at both local and national levels—may be a fruitful way forward in terms of serving our readerships responsibly and responsively.

  For the system to work the Readers' Editor needs to be as independent as possible. True independence—in the sense of outsiders with no previous connection with the newspaper—may never happen. But the following four conditions should be observed in every case:

  7.  The editor may have a role in appointing the Readers' Editor, but he/she should not be allowed to dismiss him or her. On The Guardian only the Scott Trust—the paper's owner—can dismiss him.

  8.  The existence of the Readers' Editor should be advertised prominently in each edition of the paper, together with contact details.

  9.  The Readers' Editor contract must allow him/her daily guaranteed space, together with an undertaking from the editor that he/she will not interfere with anything the Readers' Editor writes.

  10.  The contract and conditions of the Readers' Editor—with full details of their terms of reference—should be publicly available on the paper's website. [16]The corrections column should appear on a prominent page in the newspaper.

  The Readers' Editor should rapidly become the point of contact for all editorial complaints and queries. In 99% of cases—if The Guardian model is anything to go by—they should successfully mediate conflicts, deal with complaints of intrusion and breaches of ethical guidelines and negotiate clarifications and corrections. Only where the Readers' Editor fails to negotiate a satisfactory outcome should the PCC become involved. It may not be entirely coincidental that there have been no PCC complaints upheld against The Guardian since the appointment of Ian Mayes.

  The PCC, meanwhile, would be able to get on in a better-defined role of acting as backstop in the comparatively rare cases where self-regulation at a local level has failed. It would spend less time in mediation and more on adjudications which should be respected by editors, the courts and the general public.

4.  PRIVACY LAW-V -SELF-REGULATION

  Two of the most difficult issues in many areas of media law are what constitutes a public figure, in whose lives we may legitimately take a close interest; and what constitutes the public interest.

"Public figures"

  The difficulty of defining a public figure has been demonstrated by the history of the Sullivan judgement since it was handed down in 1964. That judgement—founded on the first and fourteenth amendments to the US Constitution—held that a public official cannot recover damages for libel relating to his official conduct unless he can prove that a statement was made with knowledge of its falsity or with reckless disregard as to it truth.

  US judges have struggled to define public figures since the Sullivan judgement. A subsequent Supreme Court judgement by Justice William Douglas sums up the problem:

    "If free discussion of public issues is the guide, I see no way to draw lines that exclude the night watchman, the file clerk, or, for that matter, anyone on the public payroll. And how about those who contract to carry out governmental missions? Some of them are as much in the public domain as any so-called officeholder . . ." [17]

  Anthony Lewis, who wrote the definitive book on Sullivan, also notes the troubled history of trying to work out who qualified as a public figure:

    "And of course the definitions of "public figure" are not exact and cannot be. In the years after Gertz[18] the Supreme Court several times rejected arguments that a libel plaintiff was a public figure, making clear in the process that one cannot be made into a public figure merely by attracting involuntary notoriety. The Court held that Mary Alice Firestone, a society figure involved in a much publicised divorce proceeding, was not a public figure. Neither was a scientist researching the emotional responses of monkeys whose federal grants were ridiculed by Senator William Proxmire in what the senator called his Golden Fleece Award. Nor was a man who had pleaded guilty to contempt of court for failing to appear in response to a subpoena from a grand jury investigating Soviet espionage. But over the years lawyers and judges got used to the categories of public and private figures, and the new constitutional law of libel settled down on those terms.

  All the same, intellectual doubts persist . . . Carol Burnett, the entertainer, sued the National Enquirer over a gossip item saying that she had had a row with Henry Kissinger in a restaurant and implying that she was drunk. Ms Burnett was undoubtedly a public figure. But what did the Enquirer item have to do with the uninhibited debate on public issues that the Sullivan case was meant to protect? Why should she have to meet a constitutional test in order to recover damages for a lie in a sleazy tabloid? (Ms. Burnett won $800,000, proving reckless or intentional falsehood on the Enquirer's part.) Movie stars are among the most famous Americans and therefore qualify as public figures in law, yet they are not usually at the center of debate on public policy. Why should inaccurate gossip about their private lives deserve an especially high standard of First Amendment protection?" [19]

  In The Guardian-sponsored Privacy and Defamation Bill, 1998, we attempted the following definition of a public figure:

    "A public figure includes:

    —  public officials or persons discharging public functions or duties;

    —  persons who have roles of special prominence or influence in the affairs of society; and

    —  persons who have thrust themselves into the forefront of particular public controversies in order to influence a resolution of the issues involved."

  But, on reflection, it may be that this definition would run into many of the same problems affecting the Sullivan judgement over the last 39 years.

  The whole issue of who constitutes a public figure is further complicated by the rise of the celebrity. Some celebrities—though only some—play a cynical game of using the media when it suits them. Some go further in mis-using or abusing the media—often with the help of professional agents and sometimes with the connivance of individual editors. It is possible that this category of celebrity is less deserving of protection, though—without knowledge of what deals have been done by who, and when—it is difficult for a third party to make sensible judgements.

  Does someone who straightforwardly uses the media to promote themselves thereby put their whole lives in the public domain? Is there a time-limitation on certain categories of information? If Celebrity A talks about his/her marriage one year, does that mean that any aspect of his/her marriage is thereby in the public domain for ever? Can he/she ever retreat into a private sphere? Can the tap be switched on or off at will? Is the wisest course for anyone in the public eye never to speak to any journalist about any aspect of their private life for fear of crossing some "public domain" threshold? If more and more public figures and celebrities adopted that rule would it be good or bad for newspapers?

  The PCC has, in its judgements, tried to resolve some of these issues. But the difficulty of framing clearly understood guidelines can be illustrated by tensions even within the same judgement. In adjudicating on a recent complaint from the Formula 1 boss, Bernie Ecclestone, the Commission ruled:

    "The previous publication of matters into the public domain dealing with a person's private life does not necessarily disentitle that person to any right of privacy. Intrusions must be justified by the newspaper concerned."

  But later in the same adjudication the PCC also noted:

"The Commission has always made clear that if people speak about private matters in their own terms, they must expect that others will discuss the same or related subjects in greater depth and in terms that may be less welcome. But the further coverage and context must be reasonably related to matters put into the public domain by the person concerned. [20]"

  In one of the first privacy cases to reach the Court of Appeal since the passing of the HRA the judges appeared to accept a very broad interpretation of what constituted a public figure. A footballer for a struggling premier division football team was, said the judges, a role model to the young. Because of this, the public was entitled to know of his sexual behaviour. [21]

  As if this was not complex enough, the position is further complicated by the general zeitgeist elsewhere in publishing and the media, which sees more and more people willing to talk about what might previously have been considered intimate matters to do with themselves and their relationships.

  This is a confessional age. Autobiographies and biographies now concentrate much more on the sex lives and intimate relationships of the subjects. New trends in criticism acknowledge little distinction between an artist's life and his/her work: each (because, in some views, related) is a legitimate subject for inquiry. Talk shows—from Oprah and Jerry Springer to Graham Norton and Richard and Judy—increasingly rely on celebrities and ordinary members of a studio audience or panel—talking frankly about what would once have been considered their private lives. Each successive Reality TV show pushes back the boundaries of the public consumption of private actions and thoughts. Many of these confessions may infringe the privacy rights of the current or former partners or family members of the authors or participants. Who is to balance Partner A's right to freedom of expression against former Partner B's right to be let alone?

  The problem with a privacy law is less—as sometimes claimed—that a rich and powerful crook such as Robert Maxwell might use it to suppress legitimate reporting. The courts have generally demonstrated that they will "trump" Article 8 with Article 10 when the subject matter is plainly of serious concern. The real difficulties lie in cases where the "public interest" is harder to argue.

"Public interest"

  If it is difficult to define what is meant by a "public figure", it is equally difficult to reach a reasonable definition of information that might reasonably be published "in the public interest".

  Judges are fond of saying that what is of interest to the public is not necessarily in the public interest. [22]Free marketeers would disagree: they would argue that what the public is prepared to pay for is a very good indicator of what is in the public interest. If a newspaper goes too far in writing prurient stories about people in the public eye it may alienate readers, who may turn to another title.

  The PCC's own definition of the public interest[23] is intentionally partial and non-exclusive. It is, perhaps, a workable sketch rather than a definition, and might not stand up to very testing legal scrutiny. Lord Nicholls, in Reynolds, preferred the term "of public concern", perhaps in order avoid the ambiguous meaning of "interest".

  It is difficult, in many if not all cases, to consider what is in the public interest without also considering the nature of the person under examination. Sex in a private place between consenting adults might be thought a private matter. Sex involving a catholic priest or a "family values" MP may not be a private matter. It was evidently the view of Lord Woolf in A v B & C that it is in the public interest to know of consensual sex acts by a footballer—even though the exposure of his behaviour did not meet the PCC's definition of public interest: what he did was not a crime, it did not involve public health or safety and it would be stretching a point to argue that he was misleading the public.

  Is a media which takes it on itself to "out" homosexual people against their wishes performing a public service? It might be in the public interest to know that a Church of England vicar is gay (though many would, of course, dispute that). Is it in the public interest (as recently happened) to be told that a particular television executive is gay? Is that public interest greater or lesser if the television executive has commissioned programmes to do with same-sex relationships? Is a drama executive—who might be accused by some of using the medium to promote homosexuality—less deserving of protection than a documentary executive? Does it matter whether he/she is personally happy for the information to be made public? Perhaps they have not told even the closest members of their families: should this make a difference? In cases of dispute, who should decide these things?

  In the case of public figures submitting themselves for election, it is more difficult to see why judges should be the arbiters of what information a voter should take into account in deciding how to vote.

  The distinguished American legal scholar, Prof Ronald Dworkin, put this difficulty in these terms:

    "If people are entitled to vote, they are entitled to decide what's pertinent to their vote. We may hate it, we may think they are laughably stupid and prurient in what they think is pertinent to their particular decision, but it seems to me contrary to the notion of democracy if you make it a justiciable issue what they ought to take into account." [24]

  This approach potentially threatens a situation (in Louis Blom Cooper's phrase) whereby "private life ends where public life begins" (in his view "an unacceptable proposition"). If anyone contemplating public life had simultaneously to accept that no aspect of their private lives could remain private because someone, somewhere, might think it pertinent, then few people would consider entering public life. That, too, must be contrary to most people's notion of democracy. [25]

  Of course, what is true for someone submitting themselves for public office is not true of a private citizen. But in between the prospective MP and the private citizen there are hundreds, if not thousands, of sub-categories of people in whose we may feel we can reasonably take varying degrees of interest. Where those lines are drawn are as subject to changing ethical and cultural norms as much as anything else. Mr Justice Eady put this well in the speech he gave in December 2002 which challenged Lord Woolf's doctrine in A v B & C that a footballer was a role model, and therefore a public figure:

    "Just because someone happens to be good at football, why does he have to be subjected to different standards of sexual behaviour from those applying to the rest of his contemporaries—including tabloid journalists? There is no longer, if there ever was, a generally agreed code of sexual morality. Marriage no longer appears to have the particular status it used to be accorded. We are not courts of morals. Nowadays many people, particularly young people, lead lives which in the old days what would have been called "promiscuous". Now it is simply known as a "sexually active" or "fun loving" lifestyle. If a sportsman or model does not presume to preach to the general public, why should he or she have imposed upon them by anyone, let alone judges or tabloid journalists, the standards which used to be applied from behind the twitching curtains of suburbia half a century ago—on pain of prurient exposure?" [26]

  The social researchers, David Morrison and Michael Svennevig, came to the conclusion that a rigorous meaning of the term "public interest" was so elusive that it was positively hindering the debate about privacy. After extensive research they concluded: "the term public interest suffers the same fate as claiming that something is in the `national' interest." They proposed replacing the notion with the term "social importance".

    "The term `social importance' appears to us to capture all that `in the public interest' refers to without the operational difficulties of the latter . . . The term `social importance' opens judgement of intrusion to reason in a way that is not so readily the case with the term `in the public interest'. What, for instance, is the social importance of a picture of a female newsreader sunbathing on a holiday beach? In other words, in what way can it be said that not to see such a picture, not to possess such `knowledge' would have repercussions on how we negotiate our lives. Once the level of social importance is understood, it then follows that the degree of intrusion considered to be appropriate is dependent upon that importance. It is almost arithmetic." [27]

  It might be that this term, in turn, could, in use, prove as troublesome and elusive as "the public interest". But the Morrison/ Svennevig research does give a further indication of the complexity of the issues involved in applying legal procedures to complex ethical and cultural matters. It could take many cases and many years before a workable and predictable jurisprudence developed. It is increasingly hard to imagine any formulated privacy law in this country that would

    —  be effective;

    —  be open to all, regardless of income; and

    —  protect legitimate reporting on matters of public interest by the press.

  So, although many people might dispute some aspects of his judgement in A v B & C, it is easy to see how Lord Woolf came to the conclusion that:

    "What constitutes an infringement of privacy or bad taste or a failure to conform to proper standards of decency is very much a matter of personal judgement. This is not an area on which the courts are well equipped to adjudicate." [28]

  Parliament has demonstrated no appetite to pass any kind of privacy law. Attempts by the courts to develop a new tort of privacy will be a long, drawn-out process during which the unpredictability of the law could not but lead to a chilling effect on free expression.

The PCC

  As we have tried to suggest above, many cases relating to privacy demand delicately balanced judgements around terms which are poorly defined and involving concepts which are as much cultural as legal.

  For this, and for other reasons, The Guardian supports self-regulation as a free, quick and generally effective way of responding to specific complaints about newspapers. Going to law is, by contrast, expensive, slow and unpredictable.

  It follows that it is in newspapers' interests that the PCC should command the widest support. That means it must strive to be open, transparent, independent, accountable, effective, fair and rigorous.

  Most editors respect the role of the PCC. Most will go to some lengths to avoid an adverse adjudication. Lord Wakeham—particularly in his earlier years at the PCC—did much to put the organisation on a more efficient and effective footing.

  We are aware that the PCC will be making its own submission to the Committee, doubtless highlighting the many cases in which it has successfully negotiated outcomes to the satisfaction of the complainant. That is, indeed, a record of which it can be proud: it is a model which has been studied and copied by other countries. But it would be unwise of the newspaper industry here to be complacent about its operation, and there remain concerns among numerous journalists and editors about some aspects of the PCC.

    —  There has been a tilt in recent years towards mediation and conciliation and away from adjudication. Any process which can settle complaints quickly is desirable, but this may remove the deterrent value of a public criticism from the regulator. There is a perception that editors will only co-operate with a mediation process if there is an understanding—tacit or otherwise—that they will not receive an adverse adjudication. This is not a regulatory process that would be recognised in many other walks of life.

    —  There was some discomfiture in the later Wakeham years that the Chairman had found himself speaking on behalf of, and in defence of, the press. There is a narrow line between advocacy of the PCC process and defence of newspapers themselves. Again, it would be odd in other areas of life to find the regulator regularly speaking up in defence of the group or industry he/she was supposed to be regulating.

    —  There are concerns about the transparency of the process by which members of the PCC are chosen. There is an independent appointments commission, but in reality—for press members—it rubber-stamps the choice of the Newspaper Publishers' Association (NPA). Peter Preston, a distinguished former editor and respected advocate of the PCC, wrote recently in the Observer:

    "Perplexingly, there hasn't been a national daily broadsheet editor on board for nine years. (I was the last) . . . The easy answer, politely proffered, is that they are all too busy to serve. The difficult answer, hissed behind hands, is that too many broadsheet dailies are run by `enemies'." [29]

    If this is true—and there is no way of knowing whether it is the case—it suggests that the dominant players in the industry (predominantly, owners of tabloids and mid-market titles) might be successfully excluding known critics. It is always a danger in any field, market or industry that the dominant players "capture" the regulator. It goes without saying that the PCC must demonstrate its utter independence from any section of, or player within, the newspaper industry.

    —  The determination that the PCC should rarely, if ever, consider third party complaints or instigate inquiries of its own can lead to prima facie ethical breaches remaining uninvestigated. There may be patterns or trends of behaviour which are ignored because individuals—for whatever reason—do not complain. Once again, it is difficult to imagine this happening with other regulators or other professions.

    —  In some cases of apparent intrusion involving third parties (for example, the use of private detectives or telephone engineers) the PCC has apparently been happy to allow the Information Commissioner or police to assume the sole responsibility for investigating matters.

    —  There is a tension in the external perception of an organisation which describes itself as exercising "self-regulation" but simultaneously advertises that the majority of members are "lay" members—ie outside the industry.

    —  There have, more than occasionally, been publicly-voiced anxieties over the close personal relationships between leading figures at the PCC and leading figures within the newspaper industry. The celebratory tenth anniversary party—with "victims", royals, regulators and editors rubbing shoulders—perhaps gave an unfortunate image of independent self-regulation of the press. In addition, the PCC must guard against any perception—however unfair—that its judgements and processes are unduly influenced by considerations peculiar to the senior members of the Royal Family and their children.

  Some people within the newspaper industry are anxious about how its processes and remedies will stand up to the inevitable scrutiny of judges over the coming years. There have, in recent years, been several high-profile instances where judgements have been challenged in the courts, or else people have ignored the PCC and gone straight to law, taking the view that the PCC does not offer adequate remedies. [30]

  It is instructive to read the recent opinion of the information group at the leading set of human rights chambers, Matrix, in which they noted:

    "Potential claims might be brought in the following situations:

    —  If the regulator dismissed an application by an individual whose right to respect for private and family life had, by Article 8 standards, been infringed by the media. Such a dismissal would, arguably, be incompatible with that individual's Article 8 rights to have a public authority take positive steps to secure respect for private life;

    —  If the regulator found a violation of the Code but failed to provide the complainant with an effective remedy, then, once again, there might be a breach of Article 8. For example, a person whose privacy was seriously or repeatedly invaded might have a claim that the regulator should have in place a more powerful remedy against the media than an adverse "adjudication"—such as damages or an order restraining future publication.

    —  In short, although privacy is protected to a certain extent by regulators, their powers are limited, and the ability to challenge their decisions has, up to now, been very limited." [31]

  The newspaper industry must learn to accept that the PCC is now living in a new world in which its judgements will come under increasing judicial scrutiny. In the case Anna Ford brought against the PCC the judge—Silber J—said:

    "The Commission correctly in my view accepts for the purposes of the present permission application, that it is arguable whether it is a Public Authority for the purposes of Section 6 of the Human Rights Act 1998 ("the HRA") and is amenable to judicial review." [32]

  On this occasion the courts rejected the application for judicial review, thus giving the PCC a certain comfort. Of less comfort are two other cases: the failed mediation with Sara Cox in her complaint against the Sunday People and the judgement of the European Court of Human Rights in the case of Geoffrey Peck. It is worth looking at all three.

Anna Ford

  Anna Ford complained that photographs of her and a friend published in the Daily Mail on 31 August 2000 and in OK! Magazine on 15 September 2000 intruded into their privacy in breach of Clause 3 (Privacy) of the Code of Practice. The PCC considered both the method by which the photograph was taken (covertly, with a long lens) and whether her privacy had been breached.

  On the issue of long lens photography the PCC decided it "could not conclude that a publicly-accessible Majorcan beach was a place where the complainants could have had a reasonable expectation of privacy."

  On the more general question of privacy the PCC ruled that the pictures were "innocuous" and did not add to information about the couple which was not already in the public domain. It concluded:

    "The pictures neither intruded into any intimacy nor left the complainants open to ridicule and the Commission did not consider that by their nature they had shown the complainants a lack of respect for their private lives." [33]

  Ms Ford disagreed with this ruling and applied unsuccessfully for judicial review, with the result mentioned above.

  The PCC judgement, although arguably technically correct in its own terms, illustrates the difficulties the organisation may get into with its current approach.

    —  It is little wonder that Ms Ford is sensitive about newspapers and her privacy. It is a matter of record that Ms Ford has previously been targeted by a private detective acting on behalf of newspapers. Mrs Rachel Barry was convicted in Harrow Magistrates Court in 1997 on 12 offences of selling phone bills and ex-directory numbers to tabloids (News of the World, Sunday Express, People, Mail on Sunday). Among the information passed to the papers was private information concerning Ms Ford. It would have been open to the PCC, knowing of this background (even if it took no action after the Rachel Barry case), to inquire how a British press photographer happened to chance upon Ms Ford on this beach. Was it serendipity or a case of targeting? Was the photograph simply the fortuitous result of the financial market created by tabloid newspapers and celebrity magazines?

    —  Ms Ford believed then—and presumably believes today—that she was on a private holiday and thus had every expectation of privacy: not in the sense that she might not be recognised by other people on the beach, but in having her image published for millions of Daily Mail and OK! readers. The PCC ruling may have been within the letter of the Code: but the common sense meaning of "expectation of privacy" clearly suggests that the spirit of the code was broken. It have been that the PCC was anxious not to create a precedent by trying to define or circumscribe the notion of a place "where there is a reasonable expectation of privacy". Certainly it is difficult to imagine any editor justifying the picture on public interest or "social importance" grounds.

  In turning down permission for judicial review, Silber J emphasised that he was not taking a view of whether there had been an infringement of Ms Ford's privacy:

    "My task has not been to consider an appeal on the facts from the determination of the Commission nor is it to give my views on whether the taking of the photographs or publishing them in the Daily Mail or OK infringes Ms. Ford or Mr. Scott's right to privacy. My function is simply to determine whether there are arguable grounds for invoking this court's limited supervisory jurisdiction over the Commission." [34]

  Silber took the view that before judges overturned PCC judgements they would have to be satisfied that it was "not merely desirable but clearly desirable to do so".

  The Matrix view is that it would be premature to regard this case as a significant landmark in terms of the way courts will regard PCC judgements in future. It considers that the PCC will be treated as a "functional public authority" under section six (three) [b] of the HRA. "As a result," argues Matrix, "its decisions in `privacy' complaints could be subject to HRA challenge in the courts." Matrix is of the view that Silber J's ruling in Ford was at variance with the courts' decision in Ex parte BBC. In future, it predicts, judges may make a primary judgement as to whether the applicant's privacy has been invaded—something requiring a full hearing—and will not be content (as was Silber J) to defer to the regulator.

  The PCC's adjudication—by sticking to the letter of the Code and its provisions on public places and long lens photography—runs the danger of being divorced from everyday notions of privacy. Another approach would have been as follows:

    (a)  To ask whether Anna Ford—or any of us, in or out of the private eye—has a reasonable expectation of privacy when on a family holiday? The common sense answer is yes.

    (b)  To consider whether there were any factors which might be relevant in terms of the complainant and her notion of what should be regarded as the private sphere. This might include

    (i)  Had Anna Ford a history of talking about her family in press interviews? ie has she put them in the public domain herself.

    (ii)  Had Anna Ford a history of arranging photo-opportunities for herself or family? ie was this a case of a well-known person switching on and off the tap of publicity?

    (iii)  Does her fame or celebrity rely on publicity, or is it an incidental result of the job she does?

    (c)  If—having considered (a) and (b) the Commission decided that Anna Ford was entitled to enjoy a family holiday without pictures of it appearing in newspapers and magazines, then a final consideration ought to be whether there was any public interest or social importance in publication which would over-ride her desire for privacy.

    (d)  Finally—and regardless of the above—did the picture or story have intrinsic news value? It would appear not since the paper, in its defence, argued that the information was already in the public domain.

  It is likely that, if this approach had been followed, the PCC would have ruled that Anna Ford's privacy had been invaded on this occasion. That might be thought a more reasonable result than one which—by straining to interpret the rubric relating to long-lens photography in public places—came to the opposite conclusion.

Sara Cox

  This was another case where the PCC's processes failed to satisfy the complainant and which subsequently became a legal suit for breach of confidence/privacy. Once again, the case concerned more snatched holiday photographs—of the Radio DJ Sara Cox and her new husband on honeymoon. The full frontal naked pictures were taken without their consent or knowledge. The couple were photographed in a private jacuzzi while staying in a private villa on a private island in the Seychelles.

  Ms Cox complained to the PCC. There was a short period of mediation involving PCC and the editor of The People, Neil Wallis, (who is also a member of both the PCC and its Code of Conduct Committee.) The following week The People published a 63-word apology on page three. This failed to satisfy Ms Cox, who announced that she would seek redress in the courts. There was subsequently a public conflict of testimony between the editor and the person who supplied the pictures, each accusing the other of falsehoods.

  The case may yet be settled with a negotiated sum of damages paid out of court by The People. It was such an open and shut case of invasion of privacy, it would have been understandable for both the newspaper and PCC not to want the case to proceed to a full hearing. Were it to have done so, it is unlikely that a judge would have found the PCC's behaviour amounted to an effective piece of regulation. As a piece of failed mediation by the PCC, it should perhaps ring some alarm bells for the press.

  Some observers have wondered why—in such a blatant case of intrusion—there was no adjudication against the editor (who remains a member of the PCC.) It has been argued, on the PCC's behalf, that editors would not agree to a mediation process if, at the end of it, they could find themselves the subject of an adverse adjudication. It would be instructive to know whether this was such a case.

  Lord Wakeham has often emphasised how censure by the PCC is one of the ways in which editors are discouraged from breaching the code:

    "Editors do take notice of it . . . censure of an editor by the PCC has to be published in full in his or her newspaper and is a serious professional matter: it is tantamount to saying that the editor broke his or her rules and has therefore been censured by his or her own professional body." [35]

  In this case—though it is generally accepted that that this was, indeed, a serious professional matter, the editor escaped without any censure. The Cox case appears, on the face of it, to be a case of the sort anticipated (above) by the Matrix media and information group:

    "If the regulator found a violation of the Code but failed to provide the complainant with an effective remedy, then, once again, there might be a breach of Article 8."

  If so, then it may set an uncomfortable precedent in which the PCC would have to consider whether its mediation process alone provides sufficient remedies of the sort anticipated by Article 8 of the HRA.

  It is clearly important that the PCC is able to satisfy both public opinion generally and the courts specifically as to what sort of regulator it is, and that it is doing that job robustly and independently. As well as responding to individual complaints from people who consider themselves victims of newspapers it should consider whether it should take a more pro-active interest in general areas of concern.

Geoffrey Peck

  Geoffrey Peck, suffering from depression, attempted suicide with a kitchen knife in Brentwood High Street in 1995. He had lost his job and had just discovered that his partner had been diagnosed as suffering from a terminal illness. He was unaware that he had been filmed by a closed-circuit television (CCTV) camera installed by Brentwood Borough Council.

  The CCTV footage did not show the applicant cutting his wrists; the operator was solely alerted to an individual in possession of a knife. The police were notified and arrived at the scene, where they took the knife, gave the applicant medical assistance and brought him to the police station, where he was detained under the Mental Health Act 1983. He was examined and treated by a doctor, after which he was released without charge and taken home by police officers.

  The CCTV footage of the incident was subsequently broadcast and appeared in newspapers. In one instance the picture was used under the headline "Gotcha!". Mr Peck complained to the BSC, the ITC and the PCC, alleging an unwarranted infringement of his privacy and that he had received unjust and unfair treatment. His complaint was not against the CCTV—he acknowledged that it played a part in saving his life—but in how it was used by the media. The BSC upheld both complaints. The ITC found that the applicant's identity was not adequately obscured and that the ITC code had been breached. Given an admission and apology by Anglia Television, however, no further action was taken. On 17 May 1996 the applicant complained unsuccessfully to the Press Complaints Commission concerning the articles.

  The PCC rejected the applicant's complaint without a hearing and the decision was communicated to the applicant by letter dated 2 August 1996. The PCC considered that, whether or not the applicant was identifiable from the photographs, the events in question took place in a town high street, open to public view. It did not consider that the juxtaposition of the photographs and the articles implied that the applicant had committed a crime and it had been made clear that he was released without charge, the second article indicating that the applicant was ill at the relevant time.

  Mr Peck's application for Judicial Review was rejected. Having exhausted domestic channels, he went to the ECHR, complaining that his case was;

    —  a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights; and

    —  a violation of Article 13 (right to an effective remedy) taken in conjunction with Article 8.

  The court decided that, following the disclosure of the CCTV footage, the applicant's actions were seen to an extent which far exceeded any exposure to a passer-by or to security observation and to a degree surpassing that which the applicant could possibly have foreseen. The disclosure by the Council of the relevant footage therefore constituted a serious interference with the applicant's right to respect for his private life.

  The court also found that there was no adequate remedy for people who took privacy cases to the BSC ITC or PCC.

    "The Court finds that the lack of legal power of the commissions to award damages to the applicant means that those bodies could not provide an effective remedy to him. It notes that the ITC's power to impose a fine on the relevant television company does not amount to an award of damages to the applicant. While the applicant was aware of the Council's disclosures prior to the "Yellow Advertiser" article of February 1996 and the BBC broadcasts, neither the BSC not the PCC had the power to prevent such publications or broadcasts." [36]

  The ECHR noted that this was not the first time the UK had been taken to court over the failure to provide remedy against the behaviour of tabloids:

    "The Court would confine itself to noting that, despite this being the second area of dispute between the parties in the above-cited case of the Earl and Countess Spencer, no attempt has been made by the Government in the present case to clarify how damages could have been awarded in the absence of a prior injunction"

  and also rejected the Government's argument on the balance between Articles 8 and 10:

    "The Court does not accept as relevant the Government's argument that any acknowledgement of the need to have a remedy will undermine the important conflicting rights of the press guaranteed by Article 10 of the Convention."

  It is too soon to work out the full implications of the Peck case (which has been given scant publicity in newspapers). The Strasbourg court awarded him £7,800 in damages, and nearly £2,000 costs. It will now be for the Government to decide to respond to the finding that victims of privacy in the UK do not have sufficient a remedy under the existing regulatory framework. This could present problems for the PCC, which does not award damages and grant injunctions to prevent publication.

  These three cases—Ford, Cox and Peck—should, in our opinion, be of some concern both to the PCC and the newspaper industry. Each is different, but in each case there is a common sense argument that an invasion of privacy occurred—on a scale from gross intrusion to gross insensitivity. In each case the complainant was dissatisfied with the way the PCC handled the complaint. In two out of three cases the PCC would almost certainly have lost, or did in fact lose, the subsequent legal argument. In all three cases the PCC's view of what constitutes a reasonable expectation of privacy is open to the charge of being out of kilter with a common sense and/or legal view.

Methods v content

  As noted above, the judgement of Lord Nicholls in Reynolds established a new framework for giving a measure of qualified privilege where the subject matter was important. The guidelines concentrated as much on the processes followed by the reporter as the content of the story. They included:

    —  The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

    —  The nature of the information, and the extent to which the subject matter is a matter of public concern.

    —  The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

    —  The steps taken to verify the information.

    —  The urgency of the matter. The timing of the story.

    —  Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.

    —  Whether the article contained the gist of the plaintiff's side of the story.

    —    The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

  In privacy, as in libel, the PCC might wish to place some emphasis on questioning the methods involved in gathering information on people rather than, as at present, leaving this task to the Information Commissioner.

  As the Code stands journalists should not use clandestine listening devices or intercept phone conversations unless they can convince themselves that it is in the public interest. The Code also discourages the use of long lens photography to take pictures of people in private places without their consent—unless the public interest is involved. It is less explicit about a range of more contemporary methods of intercepting communications and forms of electronic eavesdropping. It is also ambiguous about the use of third party non-journalists to gather information on a newspaper's behalf. Strictly speaking, the Code applies only to staff journalists and "anyone who contributes to their publications." [37]The use of external agents for activities which breach the code might give a paper `plausible deniability'.

  A recent article in the Sunday Telegraph suggested that there was a widespread practice of newspapers using private detectives to perform surveillance operations that would, if conducted by journalists, be forbidden by the Code unless a public interest defence could be shown. The two journalists who wrote the article claimed to have interviewed a number of private detectives, who told the paper that they regularly intercepted calls for media organisations using scanners and listening devices that can be installed on telegraph poles and BT boxes. It read, in part:

    "The work, which is illegal, is so routine that some detective agencies derive the bulk of their income from carrying out work for tabloid newspapers. Some investigators claim to use the services of current and former BT employees to install listening devices.

    Although the equipment required to bug conversations can be bought for just a few hundred pounds on the internet or from magazines such as Exchange & Mart, the services of a professional are expensive. Most media surveillance stings cost about £10,000 but that does not include the cost of changing and listening to the tapes, which can be as much as £400 a day. One investigator told how he earned as much as £50,000 working for a month on a surveillance operation.

    Newspapers unable to find any other way of standing up their stories are, however, often happy to pay such fees. One investigator, who asked not to be named, said: "I think the £10,000 payment is now standard within the industry. Personally, I now wouldn't do it for less than £20,000. It is very risky: you are talking about six months in prison if you get caught. I know someone who is in Ford open prison right now for doing just that. But there are organisations willing to do it. There is an agency in the south of England which has been paid £250,000 a year by one newspaper.

    At least two former BT engineers are thought to be serving prison sentences for their part in tabloid stings." [38]

  There have been a number of other publicised instances—investigated either by the police or the Information Commissioner—where it is claimed that there is a systematic pattern whereby private detectives and corrupt police officers have been paid by newspapers for personal information. The PCC, though aware of these allegations, has not investigated any of them, arguing either that no complaint has been made or that they lie outside the Code.

  There may be a case for the PCC to inquire into the methods used by newspapers to obtain specific stories or, more generally, to investigate allegations of the sort made above, even though the PCC has received no specific complaint. The self-imposed bar on initiating inquiries or accepting third party complaints (except in exceptional circumstances) may be worth revisiting. [39]

5.  SUMMARY

  We believe that self-regulation should provide the best and most effective route for dealing with complaints of intrusion and breaches of privacy against the media. Parliament has not passed any sort of privacy law and is unlikely in the short term to do so. Though the courts will continue to hear cases which may, over time, extend the law of confidence, it is undesirable—so long as the PCC is doing an effective job—for judges to develop a separate tort of privacy. The PCC is free, quick and can, at its best, be responsive. The courts, by contrast, tend to be slow, unpredictable and expensive.

  But the newspaper industry must accept that the people they write about will increasingly seek to assert their rights to privacy. And the PCC, if it is to have sufficient credibility, must be seen to be effective, transparent, independent, fair and tough. It should pay close attention to maintaining the highest professional standards and should not simply react to individual complaints.

Annex

A STATEMENT BY IAN MAYES, READERS' EDITOR

  I have been a journalist for 46 years. I spent a long period as the features editor of a provincial evening paper before joining BBC Radio News in Broadcasting House in 1979. I left in 1987 to become assistant features Editor of the short-lived London Daily News. After a brief hiatus (which included a week on the comment pages of the Daily Telegraph), I joined The Guardian towards the end of 1988. Among the jobs I have had at The Guardian are, deputy editor of the Magazine at its launch, deputy features editor, arts editor, obituaries editor. I am a life member of the National Union of Journalists, a member of the Media Society, an associate member of the Society of Editors, a member of the board of the Organization of News Ombudsmen. I have been serving on a project, on which the PCC has also been represented, to help in the introduction of self-regulation in the media in two centres in Russia, Nizhny Novgorod and Rostov-on-Don. I have lectured and taken part in seminars on the function of ombudsmen in the media in the US, in Scandinavia and in many places in Europe, most recently, Slovenia. Two collections of my columns and corrections have been published.

  My job at The Guardian is to consider and adjudicate on complaints about The Guardian's journalism, from a position of independence. It is a full-time job conducted from an office on the main news floor of the paper. It is not my job to defend The Guardian or to represent The Guardian (for example when complaints are taken to the PCC). My independence is guaranteed by my terms of reference. Neither the editor nor anyone on his staff can veto or interfere with anything I write in a weekly column in which I consider issues raised by readers. The editor cannot sack me. To dismiss me within the period of my contract would require an act by the owner of The Guardian, the Scott Trust. Although under the terms of reference the Editor retains the right to decide, for example, whether or to whom an apology should be made, in practice since The Guardian started to run a daily corrections column on 5 November 1997, he has not exercised that right on any occasion and the conduct of the corrections column has been left entirely to the discretion of the Readers' Editor. The editor's commitment to the system, which was his idea in the first place, has been demonstrated by his dedication to the principle of the Readers' Editor's independence.

  The degree of independence I have been able to exercise has been an essential factor in any measure of success the system has achieved. It was recognised last year (2002) by Mr Justice Morland, who in appraising the way in which I had handled a complaint of defamation brought against The Guardian by Mr James Mawdsley said I had acted "honourably, independently and competently". He capped the damages to be paid by The Guardian at £10,000.

  The editor of The Guardian has indicated in his evidence the volume of complaints and queries with which I and my assistant have dealt in the past five years. Many of these are small matters—misspelt names for instance, or wrong dates—which have no bearing on the overall integrity of the report in which they occur. A small proportion, however, deal with serious matters such as misrepresentation, or libel, or intrusions upon privacy either in text or in pictures. I have attached several columns in which I deal with matters in this area which may be of interest to the committee. These are all matters which might have been (and in some cases were) considered by the PCC or have gone to law.

  My experience, unique experience for most of the time, has demonstrated to me very strongly that the great majority of people who bring even serious complaints against the newspaper (a term I use to cover all its forms of publication including the website) do not want either to go to the PCC or to sue. They want above all a serious and speedy consideration of their grievance and very often, but not always, some public acknowledgment in print of the matter if resolved in their favour. The head of The Guardian's legal department has maintained that since I began five years ago the number of cases reaching her department is at least 30% lower than would otherwise be the case. During the five years that The Guardian has had a Readers' Editor (and indeed, for several years before) there have been no adjudications against the paper by the PCC.

  I consider the main purpose of the Readers' Editor to be to represent those who are unfairly and unnecessarily harmed in the melee of daily journalism, and then I have in mind a descending scale of priorities, as I have indicated above. I recognise at the same time a responsibility to be fair to the journalist and to consult the journalist in the case of any serious complaint. I remind journalists from time to time that what I do carries no privilege and that they could sue me if they felt they had been treated unfairly and professionally damaged. The journalists at the Guardian have, for the most part, supported the system.

  To serve and to be seen to be serving readers it is necessary that they are told daily that such a service exists and that the service itself is conducted publicly. One US ombudsman described the process as "washing the dirty linen in public". That seems to me to be a very fair description.

  I do not consider that the existence of resident ombudsmen, even if they were on all newspapers, would remove the need for the PCC. (The present acting chairman of the PCC, Professor Robert Pinker, has said: "The more papers that have Readers' Editors the better.") The basis for what I do is the Editor's code monitored by the PCC and extended by the Guardian's own code, which is also published on The Guardian website. Complaints made to me as Readers' Editor played a part in framing The Guardian code, for example on declarations of interest, and most recently on the reporting of suicide. In the case of suicide The Guardian is ahead of the NUJ Code, the Editors' (PCC) Code and any other newspaper in adopting such a clause.

  If I cannot resolve a complaint or a complainant does not accept my adjudication I tell them what their options are, including the PCC. The appointment of a Readers' Editor implies a willingness to abide by and to implement the provisions of the PCC Code, but furthermore to recognise the spirit and purpose of the Code.

  The Readers' Editor's terms of reference, as published on The Guardian website.


READERS' EDITOR TERMS OF REFERENCE

  To collect, consider, investigate, respond to, and where appropriate come to a conclusion about Readers' comments, concerns, and complaints in a prompt and timely manner, from a position of independence within the paper.

  To seek to ensure the maintenance of high standards of accuracy, fairness, and balance in our reporting and writing.

  To create new channels of communication with and greater responsiveness to readers, whether by `phone, email, the internet, surface mail, or through the columns of the paper.

  To seek the views and where appropriate, the written comments, of journalists whose work is the focus of Readers' concerns: to take these views into account when responding to readers, and to make critical appraisals, if judged necessary, on an objective and fully-informed basis.

  To look for ways of improving the paper's work and performance, in the broadest sense, by collating and analysing Readers' concerns, ideas, and suggestions and identifying possible new or alternative courses of action and/or ways to develop the paper for the benefit of its readers and the paper itself.

  To write a regular—and, where possible—weekly column addressing one or several aspects of Readers' concerns/suggestions/complaints, the content to be determined independently and not subject to prior approval by the Editor or others on the staff, other than in respect of matters of fact, style, spelling and grammar.

  To use this column as a platform and forum for readers' views.

  To require of the Editor that he take steps to ensure that his staff co-operate fully and promptly with the Readers' Editor should they be requested to provide assistance in responding to readers' concerns and complaints. Similarly, the management and commercial departments of GNL, insofar as their activities relate to Readers' concerns about Editorial content.

  In consultation with the Editor and/or managing Editor, to decide whether and when a correction should be published and/or apologies tendered, when deemed necessary, insofar as any correction/apology is not the subject of, or may be prejudicial to, a current complaint to the press complaints commission, our defence of an actual or possible legal action against the paper, or actual or possible legal or other action by the affected journalist(s).

  In order to keep fully in touch with the workings of the paper, the Readers' Editor should have an established right of access to the Editor, to heads of department meetings, budget meetings, to daily news conferences, and to other relevant forums. The Readers' Editor should be available to report, on an ad hoc, basis, to the Editor and to these other groupings. The existence of the Readers' Editor, and how to contact him or her, should be advertised fairly prominently on a daily basis in the paper.

  The Readers' Editor can refer to the external ombudsman any substantial grievances, or matters whereby The Guardian's journalistic integrity has been called into question.

  The Readers' Editor will initially be appointed for two years. He/she can be reappointed. He/she can only be removed from the post within two years by a vote of the Scott Trust.

SELECTION OF ARTICLES BY IAN MAYES

    (a)  Abuse of trust, about the unauthorised re-use of photographs [The Guardian 16 June 2000].

    (b)  Snap decision, questions raised by the use of photographs of the dead [The Guardian 20 January 2001].

    (c)  Snap judgment, on pictures of children used without permission [The Guardian 12 January 2002].

    (d)  Matters of approximate fact, self-regulation and trust [The Guardian 21 October 2002].


1   "The question that all editors should ponder . . . is this: why is privacy a value which calls for protection under every human rights treaty ever devised? There is, I am convinced, a psychological need to preserve an intrusion-free zone of personality and family, and there is always anguish and stress when that zone is violated." Geoffrey Robertson QC. The Justice Game, Vintage, 1999. Back

2   Onora O'Niell, second Reith Lecture, Trust and Terror, 2002. Back

3   Freedom, Law and Justice, Sweet and Maxwell, 1999. Back

4   Ruled by Recluses? Privacy, journalism and the media after the Human Rights Act edited by Damian Tambini and Clare Heyward, IPPR, 2002. Back

5   "Without freedom of expression by the media, freedom of expression would be a hollow concept." Lord Nicholls in Reynolds v Times Newspapers, October 1999. Back

6   For instance, International Privacy, Publicity and Personality laws, (Butterworths 2001). Georgios Gounalakis: Privacy and the Media, a comparative Perspective, Beck, Munich, 2000. Privacy and the Media, the developing law, Matrix Media and Information Group, 2002. Developing Key Privacy Rights, Ed Madeleine Colvin, Oxford and Portland, 2002. Ruled by Recluses? Privacy, journalism and the media after the Human Rights Act, edited by Damian Tambini and Clare Heyward, IPPR, 2002. Back

7   Press, privacy, public interest and the HRA, IPPR, 2002. Back

8   Louis Blom Cooper: The right to be let alone. James Cameron Lecture 1989. Published in Media Voices (Politico's 2001). Back

9   Named after NYT v Sullivan (1963) which gave the US press some qualified protection against being sued when writing about public figures unless the claimant could prove malice, or that the journalist knowingly wrote falsehoods. Back

10   Foreword to Privacy and the Media, the developing law. Matrix Chambers, May 2002. Back

11   All quotations from The Guardian's Editorial Code. Back

12   http://www.newsombudsmen.org/index.htm. Back

13   David Broder Behind the Front Page, Simon and Shuster, 1987. Back

14   Kovach is a former Editor of the Atlantic Journal and Washington bureau chief for the NY Times. He is also former curator of the Nieman Foundation for Journalism at Harvard. Rosenstiel is former chief congressional correspondent for Newsweek and is currently director of the Project for Excellence in Journalism. Back

15   Bill Kovach and Tom Rosenstiel, The Elements of Journalism, Three Rivers Press, NY, 2001. Back

16   http://www.guardian.co.uk/readerseditor See full terms in Annexes. Back

17   Clifton O Lawhorne. The Supreme Court and Libel Cases (Carbondale, S Illinois University Press, 1981). Back

18   A 1969 case in which a Chicago lawyer sued a magazine for libel. It reached the Supreme Court in 1974, and again in 1981. Back

19   Anthony Lewis, Make no Law, Vintage Books, 1992. Back

20   Bernie Ecclestone, PCC privacy complaint against the Mail on Sunday, Judgement on 25-08-2002. Back

21   See the comments of Eady J on this point: "I am not sure whether, when this young man woke up, he would have been more surprised to find himself a footnote in legal history or appointed as a moral guardian of the nation's youth. In A v B it was accepted that the footballer in question had not courted publicity, but it was said that someone holding his position was inevitably a figure in whom a section of the public and the media would be interested. It is a major policy question, whether certain classes of citizens should be treated differently by the law according to their trades or professions. I merely raise the question whether it is apt to be decided by the courts. Because someone happens to play football or snooker, or darts, is it right that he should have a judicially imposed label which requires him to behave with the rectitude of a bishop? Or, if he fails to live up to those standards, is it right that his private life should then be, as it were, open season for any salacious coverage?" Seminar to celebrate the publication of Privacy and the Media, Gray's Inn, 12 December 2002. Back

22   "It remains vital, I suggest, to keep a clear distinction between public interest in that sense, on the one hand, and matters which are merely interesting to sections of the public on the other hand. That distinction should never be fudged." speech given by Mr Justice Eady at a seminar to celebrate the publication of Privacy and the Media, Gray's Inn, 12 December 2002. Back

23   "The public interest includes:

(i) Detecting or exposing crime or a serious misdemeanour.

(ii) Protecting public health and safety.

(iii) Preventing the public from being misled by some statement or action of an individual or organisation." Back

24   Private conversation with the Editor of The Guardian, 2002. Back

25   "True, public figures voluntarily step into a fish-tank that entails close public scrutiny of their every move, and they ordinarily enjoy greater access to channels of communication that provide an opportunity to counter false statements. But that opportunity is circumscribed, none the less, and in a country where Rupert Murdoch, the Maxwell organisation and Lord Rothermere with their powerful and partisan views, control 80% of national newspapers, there is understandable reluctance to give their newspapers a blank cheque to attack political enemies. "Geoffrey Robertson and Andrew Nicol, Media Law, Penguin, 1992. Back

26   Speech, Gray's Inn, op cit. Back

27   From "Public Interest" to "social importance":<is0p2>the public's view of the public interest. David Morrison and Michael Svennevig, IPPR 2002. Back

28   R v Broadcasting Standards Commission, ex parte British Broadcasting Corporation [2000] 3 WLR 1327. Back

29   Observer, 26 January 2003. Back

30   The actress Amanda Holden was one recent example of a person ignoring the PCC: she was granted an injunction to prevent the Daily Star publishing long-lens shots of her topless in Italy. Back

31   Privacy and Media, the Developing Law. Matrix 2002. Back

32   Anna Ford v the Press Complaints Commission, July 2001 judgements R (Ford) v PCC [2002] EMLR 95. The Court of Appeal, in Douglas v Hello! Confirmed that the right to privacy was grounded in the equitable law of confidence and decided that it was required by section 12 (4) of the HRA to have particular regard to clause 3 of the PCC Code of Practice since this was a `relevant privacy code' as described by section 12(4). Lord Justice Brooke concluded (paragraphs 94 and 95) that: "A newspaper which flouts Section 3 of the code is likely . . . to have its claim to an entitlement trumped by Article 10(2) considerations of privacy." Back

33   PCC judgement. Back

34   Judgement of Nr Justice Silber, Anna Ford v PCC, July 2001. Back

35   Lord Wakeham IPPR, op cit. Back

36   Peck v the United Kingdom (application no 44647/98). ECHR, January 2003. Back

37   PCC Code of Conduct. Back

38   An article in the Sunday Telegraph by Chris Hastings and David Bamber (15-12-03). Back

39   Other self-regulating bodies, such as the Australian Press Council, accept third party complaints. Its statement of principles on individual privacy is also worth noting: It reads: "Readers of publications are entitled to have news and comment presented to them honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy should not prevent publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports, if published at all, should be identified as such." (APC Statement of Principles, 1996). Back


 
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