Memorandum submitted by Mr Alan Rusbridger,
the Editor of The Guardian
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
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-regulationwhich
involves employing a Readers' Editor to handle around 10,000 complaints
and queries annuallyis 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
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 intervenethus achieving the very result
which the press rightly seeks to avoid.
The general context of Media Law. Why privacy
matters and why the press should respect it. The freedoms and
responsibilities of the press.
How privacy stands in relation to other media
laws. Recent developments in society and the courts affecting
debate over privacy.
3. THE GUARDIAN'S
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
4. PRIVACY LAW-V
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 casesAnna Ford, Sara Cox and Geoffrey Peckwhere
lawyers have become involved because the PCC did not satisfy the
complainant. Their implications, in legal terms, for the future
running of the PCC.
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
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 byand the pain caused bypublication
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. 
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 lawintroducing, via Article
8, a right to privacy into domestic jurisdiction.
The development of technology. The
most famous essay on privacyBrandeis 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 lifefrom 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
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 10freedom of expression)
that suited its aims. At the same timeled by its then regulator,
Lord Wakehamit asked for an exemption from the bit (Article
8privacy) that less obviously suited its purposes, both
Editorial and commercial.
As Professor Onora O'Neill said in her second
"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
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." 
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
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." 
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:
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
The debate about what is legitimately in the
public domain and what is reasonably private is a complex one.
Recent legal textbooks
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 complaints520 out of 3,030relating to some aspect
of privacy. 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.
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." He
was suggesting thatin the absence of a tort of privacy/defamationjuries
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 90swhen The
Guardian was fighting a succession of high profile libels
cases under laws which most legal scholars regarded as unfairly
stacked against defendantswe 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
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. 
The Government has passed a Freedom
of Information Act, due to come into full effect in 2005.
3. THE GUARDIAN'S
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
Leading a campaign for Freedom of
Leading a successful campaign against
the more draconian provisions of the Regulation of Investigatory
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
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.
Suicidejournalists 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. 
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 printeither 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.
The initiative to appoint a Readers' Editor
came about through a recognition that journalismwhile utterly
necessary to the working of a mature democracyis 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 sayover and
over until the point has been madethat 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 hoursdistorted, despite
our best efforts to eliminate gross biasby 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'." 
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
privilegethen the corollary must be that they systematically
correct errors when they occur.
In virtually every other walk of life modern
organisationswhether they're hospitals, gas companies,
local councils, hotels or bankspositively encourage their
customers, clients or users to report back on the service they're
getting. Many newspaperswhile advocating accountability
and transparency for othersfind 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,
"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." 
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
Mr Mayes's own description of his workincluding
matters to do with privacyis 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 CLARIFICATIONSTHE
||1,176||1 : 4.5|
||1 : 5|
||1,432||1 : 4|
||1 : 5|
||1 : 6.5|
A comparison with the rate of complaints handled by the PCCdealing
with nearly 20 national titles, more than 450 regional titles
and numerous magazines, national and localacross Britain
indicates how this system is extremely responsive to Readers'
THE GUARDIAN AND PCCCOMPLAINTS
|PCC||3,033||41 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 mechanismsindependent
self-regulation at both local and national levelsmay be
a fruitful way forward in terms of serving our readerships responsibly
For the system to work the Readers' Editor needs to be as
independent as possible. True independencein the sense
of outsiders with no previous connection with the newspapermay
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 Trustthe paper's
ownercan dismiss him.
8. The existence of the Readers' Editor should be advertised
prominently in each edition of the paper, together with contact
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
10. The contract and conditions of the Readers' Editorwith
full details of their terms of referenceshould be publicly
available on the paper's website. 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 casesif
The Guardian model is anything to go bythey 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
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
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.
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 judgementfounded on the first and fourteenth
amendments to the US Constitutionheld 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 . . ." 
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
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
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?"
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 celebritiesthough
only someplay a cynical game of using the media when it
suits them. Some go further in mis-using or abusing the mediaoften
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, thoughwithout knowledge
of what deals have been done by who, and whenit 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
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. "
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. 
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 showsfrom
Oprah and Jerry Springer to Graham Norton and Richard and Judyincreasingly
rely on celebrities and ordinary members of a studio audience
or paneltalking 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 lessas sometimes
claimedthat 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.
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
Judges are fond of saying that what is of interest to the
public is not necessarily in the public interest. 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
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 footballereven 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 executivewho
might be accused by some of using the medium to promote homosexualityless
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." 
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. 
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 contemporariesincluding
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 agoon pain of prurient
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."
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 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." 
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.
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
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
Most editors respect the role of the PCC. Most will go to
some lengths to avoid an adverse adjudication. Lord Wakehamparticularly
in his earlier years at the PCCdid 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
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 understandingtacit or
otherwisethat 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 realityfor press membersit
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'." 
If this is trueand there is no way of knowing whether
it is the caseit 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 individualsfor whatever reasondo
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
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" membersie 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 partywith "victims",
royals, regulators and editors rubbing shouldersperhaps
gave an unfortunate image of independent self-regulation of the
press. In addition, the PCC must guard against any perceptionhowever
unfairthat 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. 
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."
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 judgeSilber Jsaid:
"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." 
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 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
"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." 
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 thenand presumably believes
todaythat 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." 
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 invadedsomething requiring a full hearingand
will not be content (as was Silber J) to defer to the regulator.
The PCC's adjudicationby sticking to the letter of
the Code and its provisions on public places and long lens photographyruns
the danger of being divorced from everyday notions of privacy.
Another approach would have been as follows:
(a) To ask whether Anna Fordor any of us, in or
out of the private eyehas 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
(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) Ifhaving 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) Finallyand regardless of the abovedid
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 whichby straining to interpret the rubric relating
to long-lens photography in public placescame to the opposite
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 photographsof 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
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 whyin such a blatant
case of intrusionthere 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
"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." 
In this casethough 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, 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
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 CCTVhe acknowledged that
it played a part in saving his lifebut 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
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." 
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
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 casesFord, Cox and Peckshould,
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 occurredon 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
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 consentunless
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
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
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." 
There have been a number of other publicised instancesinvestigated
either by the police or the Information Commissionerwhere
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. 
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 undesirableso
long as the PCC is doing an effective jobfor 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.
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 mattersmisspelt
names for instance, or wrong dateswhich 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
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.
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 regularand, where possibleweekly
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].
"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,
Onora O'Niell, second Reith Lecture, Trust and Terror, 2002. Back
Freedom, Law and Justice, Sweet and Maxwell, 1999. Back
Ruled by Recluses? Privacy, journalism and the media after the
Human Rights Act edited by Damian Tambini and Clare Heyward, IPPR,
"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
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
Press, privacy, public interest and the HRA, IPPR, 2002. Back
Louis Blom Cooper: The right to be let alone. James Cameron Lecture
1989. Published in Media Voices (Politico's 2001). Back
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
Foreword to Privacy and the Media, the developing law. Matrix
Chambers, May 2002. Back
All quotations from The Guardian's Editorial Code. Back
David Broder Behind the Front Page, Simon and Shuster, 1987. Back
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
Bill Kovach and Tom Rosenstiel, The Elements of Journalism, Three
Rivers Press, NY, 2001. Back
http://www.guardian.co.uk/readerseditor See full terms in Annexes. Back
Clifton O Lawhorne. The Supreme Court and Libel Cases (Carbondale,
S Illinois University Press, 1981). Back
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
Anthony Lewis, Make no Law, Vintage Books, 1992. Back
Bernie Ecclestone, PCC privacy complaint against the Mail on
Sunday, Judgement on 25-08-2002. Back
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
"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
"The public interest includes:
(i) Detecting or exposing crime or a
(ii) Protecting public health and safety.
(iii) Preventing the public from being
misled by some statement or action of an individual or organisation." Back
Private conversation with the Editor of The Guardian, 2002. Back
"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
Speech, Gray's Inn, op cit. Back
From "Public Interest" to "social importance":<is0p2>the
public's view of the public interest. David Morrison and Michael
Svennevig, IPPR 2002. Back
R v Broadcasting Standards Commission, ex parte British
Broadcasting Corporation  3 WLR 1327. Back
Observer, 26 January 2003. Back
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
Privacy and Media, the Developing Law. Matrix 2002. Back
Anna Ford v the Press Complaints Commission, July 2001 judgements
R (Ford) v PCC  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
PCC judgement. Back
Judgement of Nr Justice Silber, Anna Ford v PCC, July 2001. Back
Lord Wakeham IPPR, op cit. Back
Peck v the United Kingdom (application no 44647/98). ECHR,
January 2003. Back
PCC Code of Conduct. Back
An article in the Sunday Telegraph by Chris Hastings and
David Bamber (15-12-03). Back
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