House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Minutes of Evidence

Protecting the Privacy of Children

33. While the Code gives greater protection to children under Clause 6 of the Code, it is another common misconception that it outlaws all pictures of children taken without consent. The Commission will bear in mind whether the photographs concern a child's welfare, where they were taken and whether they might embarrass or inconvenience a child. As noted in Section 1 above, the Commission will also take into account the extent to which a parent has compromised the privacy of a child.

34. Donald v Hello! Magazine (Report 52, 2000)

The complainants said that a photograph of their child, taken while he sat in a push-chair in a public street, breached the Code. The Commission noted that the Code does not require editors to seek consent before publishing any pictures of a child under the age of 16, as this would mean no pictures at all could be published without consent. It was only those that could have "involved the welfare of the child" that required consent. In the case of Donald, the photograph was an innocuous image, unaccompanied by personal details and taken in a public place, and was therefore not in breach of the Code. The Commission reaffirmed this principle in Kingston v Hello! Magazine, Report 55.

35. Rowling v OK! Magazine (Report 55, 2001)

On the other hand, pictures of the eight year old daughter of the writer JK Rowling were a breach of the Code. She was on a private beach and the Commission also had regard to the fact that Ms Rowling had gone to considerable lengths to protect her daughter's privacy. Indeed, it was precisely because the complainant had protected her daughter in this way that photographs of her would affect her welfare. Her image was not known because her mother had not put her into the public domain in any way, and the photographs were only taken and published because of the fame of her mother.

36. Kenewa v Sunday Mercury (Report 50, 2000)

The Commission upheld a complaint from an asylum seeker after the decision to give him two homes was criticised by the newspaper. The newspaper had interviewed some of his 15 children, and identified them in the article, in a manner that breached the Code. As the subject matter was likely to provoke a strong reaction in readers the newspaper should have taken particular care to take into account the welfare of the children.

37. Granton v Daily Post (Report 59, 2002)

Similarly, the Commission reaffirmed that reporters must not approach schoolchildren under the age of 16 for interviews without the consent of their parents or, if at school, a responsible adult. In this case the complainant's 15 year old daughter had consented to an interview about her former boyfriend who had been convicted of murder. The adjudication made clear that whether or not children of that age agree to an interview is irrelevant: they must have parental consent.

38. Price v The Observer (Report 49, 1999)

The high degree of protection contained in Clause 6 was emphasised in this adjudication on a complaint from parents of children who were photographed at a youth club disco. The photographs—which were of an embarrassing nature—had been authorised by the head of the youth centre but there was some doubt as to whether he had known that they were destined to be published in a national newspaper rather than in a student's portfolio. The Commission made clear that the onus was on the newspaper to satisfy itself that the relevant consents had been given, and that it should have been more thorough in its pre-publication checks by contacting the youth centre rather than just relying on the word of the photographer.

39. Blair MP v Mail on Sunday (Report 47, 1999)

An article reported the decision by a local Catholic school to admit Kathryn Blair while rejecting other local children. The Commission had to consider whether the story, in as much as it focused upon the daughter of the Blairs, was in the public interest. It did not deny the possibility that exceptional circumstances may arise in the future in which the child of a public figure could be named in relation to a story of great public interest. However, it believed that, in this case, the naming of the child was not justifiable in the context of the article as a whole. Furthermore, the Commission noted the Code's responsibility to protect vulnerable children. In this case, it considered that Kathryn would start school at the centre of a row over the validity of her admission and felt that the story therefore had significantly affected her welfare at a particularly crucial time.

40. The Commission was also concerned about the apparent inaccuracy of the story. The Commission felt that the implication of the article, that Kathryn Blair had been accepted at the school as a result of her father's position, had not been properly substantiated by the newspaper. As a result, it considered that the article was in breach of Clause 1 (Accuracy) of the Code of Practice. It therefore followed that, because the article was misleading, there could be no public interest in its contents. The breach of Clause 1 necessarily would demonstrate a breach of Clause 6 (Children) in that untrue allegations connected to a child would automatically harm her welfare and obviate the public interest defence. The Commission—in line with the precedents set out in Section 1—also noted the extent to which Mr and Mrs Blair had gone to protect the privacy of their daughter.

41. Blair MP v Daily Telegraph (Report 57, 2002)

The Commission upheld a complaint about an article which revealed the university to which Euan Blair had applied. The application concerned Euan Blair's private choices and the Commission considered that the press must be able to demonstrate that commenting upon such applications at a crucial time in an individual's education is—in the terms of the Code—"necessary". There was no public interest in the story as the decision to apply to the university did not put Euan Blair at odds with Government policy or any public statement of his parents. However, in underlining the fact that the children of the Prime Minister are not public figures in their own right, the Commission warned that "it is much more difficult to protect any individual where he or she begins to acquire a public profile in their own right, for instance by making public appearances. Privacy is best maintained when not compromised in any way".

42. Hall v Eastbourne Argus (Report 59, 2002)

Upholding a complaint from the father of a 12-year old victim of crime, the Commission adjudicated for the first time under the new part of Clause 10, which states that "particular regard should be paid to the potentially vulnerable position of children who are witnesses to, or victims of, crime". In this case the newspaper had identified the complainant's daughter—who had been the victim of an attempted kidnap—in an interview with another victim. Sufficient regard to the vulnerability of the girl had not been paid by the newspaper, and the complaint was upheld.

PROTECTING THE PRIVACY OF CHILDREN AT SCHOOL

43. Children at school are, of course, away from the care of their parents—and the Code therefore includes provisions to ensure that children should neither be photographed or interviewed at such times without the permission of the school authorities.

44. Munro/Bancroft v Evening Standard (Report 54, 2001)

The Commission issued a stern rebuke to the newspaper after an undercover reporter went into the school pretending to be a schoolteacher. The Commission ruled that such "fishing expeditions" for information are unacceptable, and that in speaking to the children in his quest for a story he had repeatedly breached the Code.

45. Black v Bedfordshire on Sunday (Report 43, 1999)

The chairman of governors of a school complained that pupils at the school had been approached by journalists following attempted suicides by some fellow pupils. The editor tried to justify the journalists' behaviour on the grounds that the approaches were informal, but the Commission made very clear that such an excuse was not acceptable and that the Code is at its strictest when it deals with vulnerable groups such as children.

46. Brecon High School v Brecon and Radnor Express (Report 57, 2002)

A photograph taken of a 14-year-old boy on school property and published in a local newspaper was a breach of the Code, even though the photograph was taken with the consent of the boy's mother. The ruling underlined that journalists and photographers must seek permission from relevant authorities before photographing or interviewing children when they are at school.

PROTECTING THE PRIVACY OF THOSE WHO ARE ILL

47. The Commission has made clear that the protection of the vulnerable is at the heart of its work—and those who are unwell and also the subject of media interest are often amongst the most vulnerable. It is particularly important that the Code is followed strictly when people are in hospital. In fact, there have only been a very small handful of breaches of the hospitals Clause as it is one of the areas where journalistic standards have improved dramatically over the last decade. However, mistakes do happen from time to time and the Commission will always take a harsh view of any newspaper that unnecessarily intrudes into the privacy of those who are ill.

48. Hutchison v News of the World (Report 37, 1996)

A reporter had not adequately identified himself to responsible hospital authorities when seeking an interview with a woman who had been injured in the Canary Wharf terrorist bomb. Although the breach of the Code was inadvertent, the Commission upheld the complaint because it is essential that the Code is strictly adhered to in light of the vulnerability of patients.

49. Jennings v Eastbourne Gazette (Report 60, 2002)

In the first serious breach of the hospitals Clause for some years, a journalist went to the bedside of a man who had been badly injured in a car accident. The journalist had not identified himself to the relevant authorities. To the editor's credit he dismissed the journalist and apologised to the complainant but the matter was so serious that the Commission had no hesitation in issuing a robust adjudication criticising the newspaper.

50. Taunton and Somerset NHS Trust v The Mirror (Report 54, 2001)

There are cases, however, when the letter of the Code can be breached in the public interest. In this case, the wishes of a hospital that was caring for a brain-damaged victim of domestic violence and those of her family were at odds. The woman's family desperately wanted publicity for what it saw as the feeble sentence handed down to the woman's attacker, so it invited a photographer to accompany them on a visit and take a photograph of her. The photographer did not in these circumstances ask permission from a responsible executive. The Commission concluded that there was a sufficient public interest because of the views of the woman's parents, who were "entitled to express their disgust at what they saw as the leniency of the sentence". Furthermore "readers may not have been able fully to appreciate the gravity of the situation—and the consequent strength of the parents' feelings—had the photograph not been published".

51. A couple v Aberdeen Evening Express/Press and Journal (Report 56, 2001)

Two papers intruded into the privacy of a 15-year-old boy by identifying him as a tuberculosis sufferer. The editors had argued that the information was in the public domain by virtue of it appearing on the same day in the broadcast media. However, the Commission made clear that editors cannot rely on such an argument because those references may be subject to complaints to other regulatory bodies. They must make their own judgements based on the newspaper industry's Code.

52. Brown v Kentish Express (Report 36, 1996)/Rutherford v Sunday Express (Report 37, 1996)

Early into the nvCJD health scare, the Commission made clear in these two adjudications that sufferers should not be identified without the consent of relatives. Apart from one rogue breach of the Code in this respect—A man v Northern Echo and Darlington and Stockton Times, Report 53—no further instances of any problems in this area have come to the Commission's attention.

53. A woman v Hastings and St Leonard's Observer (Report 41, 1998)

The mother of a suicidal 17-year-old boy who had some mental health difficulties complained that details of his condition were published in the local paper. Even though they had been firmly put into the public domain as a result of a court case that the complainant was involved in, the Commission still upheld the complaint, making clear that the Code "exists to afford protection to the vulnerable over and above that afforded by the law". In this case the editor should have taken the boy's medical condition into account and the complaint was upheld.

PROTECTING VICTIMS OF SEXUAL ASSAULT

54. It is difficult to conceive of potentially more vulnerable people than victims of sexual assault. The Commission interprets the Code in its strictest possible sense, with no public interest or public domain defences allowable. Breaches of the Code—which are very rare—are almost always inadvertent.

55. A woman v Clydebank Post (Report 41, 1997)

The Commission considered that the newspaper had published material likely to identify a rape victim when it published a court report describing the distinctive clothing that the woman was wearing at the time of the attack. It also mentioned a hobby that the victim had, and the combination of details resulted in sufficient information being published for local people to be able to identify the complainant. Although legally entitled to publish these details because they were given in open court, the Code binds editors to rules over and above those stipulated in the law.

56. Thames Valley Police, on behalf of a rape victim v Metro (London) (Report 59, 2002)

The newspaper had not sufficiently edited material supplied to it by a news agency before publishing a story about a rape victim, leading to details which could have identified her being published in the newspaper. The Commission made clear in its adjudication that it attaches "extreme importance... to the scrupulous manner in which reports about sex crimes should be constructed". It added that "any details beyond the most basic—no matter how small—can identify a victim to someone who does not know of the crime to which that person has been subjected".

PROTECTING PEOPLE AT TIMES OF GRIEF AND SHOCK

57. The Commission has long recognised that it is an unenviable but necessary part of a journalist's job to speak to the relatives of those who have died or been injured in newsworthy incidents. However, particularly given the heightened vulnerability of such relatives, the Code sets out strict rules about how information must be gathered and published. The following summaries detail examples of where the Commission considered that a newspaper went too far.

58. McKeown v Newcastle Evening Chronicle (Report 40, 1997)

In a well-publicised landmark adjudication, the Commission upheld a complaint after a reporter effectively broke the news of the death of a man to his parents. They knew that he was missing but not that a body had been found and were still hoping that he would be found alive. The Commission made absolutely clear that it is not the function of newspapers—either through publication or through the questioning of reporters—to break news of a death to close relatives.

59. Mulford v Dundee Courier and Advertiser (Report 41, 1998)

The Commission underlined this point when adjudicating on a complaint about a reporter's behaviour. There was no complaint about a published piece. A journalist telephoned a man whose niece had just died in a car accident for a comment—even though the man was unaware of the accident, something that should have been known to the journalist. Breaches of this part of the Code have not happened since this case.

60. Clement v South Yorkshire Times (Report 43, 1998)

An enquiry at the home of the widow of man who had just died in a car accident resulted in a breach of the Code because of the behaviour of the reporter. The Commission concluded that stepping into the property without permission did not show suitable sympathy and discretion at the time of grief and that unnecessary distress had been caused.

61. Napuk and Gibson v FHM (Report 48, 1999)

The complainants were the parents of two students—unknown to one another—who had committed suicide at university. The magazine had highlighted their cases in a flippant way in a student guide at the beginning of the university year. The complainants' children had died relatively recently and the Commission condemned a serious breach of the Code where tragic deaths were treated in a gratuitously humorous manner.

INNOCENT RELATIVES AND FRIENDS

62. One of the most common reasons why members of the public become involved in newspaper reports is that they are witnesses to or victims of crime. Details of such cases are woven into the different cases in the sections above. But there is another category of people who are also innocent—friends or relatives of those accused of crime. This Section outlines the Commission's findings in relation to a handful of complaints by such people.

63. Beever v News of the World (Report 42, 1998)

There was no public interest in exposing a police officer as the step-brother of a man accused of being a contract killer because, as the newspaper admitted, the complainant had no idea about his step-brother's activities.

64. Lacey v Eastbourne Gazette (Report 44, 1998)

A local newspaper should not have made a city councillor the focus of a story about the conviction of her son on drink driving charges, although there may have been some justification for mentioning her in the body of the article, because the story was about her son and not about her.

65. Bibb v Weston and Somerset Mercury (Report 47, 1999)

There was no public interest in identifying the father of a girl who had been expelled from school for taking drugs. In pursuing his public duties as a primary school governor the complainant had never made any reference to the drugs issue or had responsibility for such problems—and there was therefore no public interest in identifying him.

66. A woman v Milton Keynes on Sunday (Report 48, 1999)

An article about a local criminal who was renouncing his life of crime and moving to a new area included the name of the criminal's mother, and what she did for a living. There was no public interest in doing so, and neither was the relationship established in the public domain.

HARASSMENT

67. It can often be overwhelming for those who are unexpectedly caught up in a story to have to deal with journalists who repeatedly ask for information. The PCC deals with most allegations of harassment by giving practical advice to complainants over the telephone about how to get rid of the journalists—and therefore it is actually quite rare for formal complaints of harassment to be brought as problems are quickly sorted out. Our website carries information about what to do in the event of harassment, and we operate an emergency 24-hour manned helpline which gives advice when the office is closed[53]. The following summaries of adjudications underline that the Commission will take a firm line when journalists are found to breach the strict terms of Clause 4.

68. Kimble v Bucks Herald (Report 53, 2000)

A couple who were grieving for the loss of their 16 year old daughter should not have been approached several times over a short period of time, just because the reporter was trying to meet a deadline. Common sense should have told the reporter that repeated approaches were not appropriate in the immediate aftermath of the tragedy.

69. Swire v Mail on Sunday (Report 54, 2001)

The father of a woman who was caught up in a news story complained to the Commission that, after having been asked to desist, a reporter and photographer from the newspaper turned up trying to interview his daughter. The Commission made clear that it will find a breach of the Code in such circumstances where there is no public interest: reporters must respect the wishes of the public if they are asked to desist from approaching or telephoning them.

CONCLUSION

70. This survey—and the accompanying documentation in the Appendix (not printed)—has set out a number of principles which guide the Commission in the application and interpretation of the Code. A number of conclusions can be drawn from this brief survey.

— Privacy is not an absolute right. It can be compromised by the actions of an individual—or intruded into in the public interest.

— Privacy is not a commodity that can be sold on one person's terms. The Code—which mirrors the terms of the Human Rights Act—is not designed to protect commercial arrangements, and is at its strongest where it is safeguarding the rights to privacy of those who do most to protect themselves.

— If a person sells material about his or her private life—or indeed talks about his or her private life in public—then they may limit their ability to complain and protect themselves in the future.

— The protection of personal privacy does not extend to the taking of pictures in public places—or the protection of material that is about to enter the public domain.

— Where children are concerned, the need for protection of privacy is greater—but is linked to whether or not a photograph or story impinges on the private life of a child in a way which might damage his or her welfare.

71. Against this background, the PCC will continue to adjudicate on whether or not the Code has been breached, taking into account not just the letter of the Code but the case law laid down by these adjudications.

C (3) PRIVACY AND PUBLIC FIGURES

1. Although the Select Committee's inquiry centres on the privacy of ordinary members of the public, and the PCC's service to them, it is sensible briefly to survey how the Commission deals with the issue of privacy and public figures. This is partly because—as the Commission has readily acknowledged—when the Select Committee (and indeed Calcutt) last scrutinised this area, the PCC's record was not strong. The Commission in its early years—particularly in relation to the exceptionally difficult circumstances of the break up of two Royal marriages and intense public interest in them—found it difficult to cope with these issues[54]. But much has changed with them, and the Commission believes it is now much more professional at handling complaints from high profile people—partly because it does so on the clear basis of equal treatment under the Code and equal service from the PCC.

2. This brief section sets out some of the issues involved in the handling of complaints from individuals who have a high profile—in most cases because of their fame, but in other cases because of their infamy.

The importance of equal protection under the Code

3. It is inevitable that public figures—those in the political, showbusiness, sporting and other worlds—will face different pressures from ordinary people. Their faces are familiar to the public (and members of the public, in turn, are often the ones who intrude into their privacy when they are out and about with requests for photos and autographs and so on). They often need to promote themselves—and sometimes an "image" of themselves—in the media as part of their professional life. They sometimes accept money for doing so. And, on occasion, they use their families as part of that. Each of those points means that people in the public eye have special needs.

4. The Commission recognises that. For instance, in its adjudication on a complaint from former Coronation Street actress Jacqueline Pirie[55]—a good example of an actress required to seek publicity from time to time—the PCC noted that such work in a professional capacity does not undermine an individual's right to privacy:

"First, the Commission has previously made clear that even when individuals do put matters concerning their private lives into the public domain—as public figures such as Ms Pirie are expected to do from time to time—the press cannot reasonably justify thereafter publishing articles on any subject concerning them" (Report 49).

5. Indeed, the Commission has always made clear that public figures are entitled to the same protection for their privacy as ordinary people—the Code makes clear that "everyone" is entitled to respect for his or her private life—unless or until, as we set out later, individuals do something to compromise that right. This principle of equal treatment has been set out in a number of adjudications about the famous, and about the infamous (whose privacy the Commission is determined to protect, albeit at the cost of some unpopularity with the public, as much as anyone else's).

— The Pirie adjudication referred to above made clear that film and television celebrities are entitled to respect for their private lives—even though they sometimes have to appear in the media as part of their professional obligations. This ruling has been reinforced when the Commission has upheld complaints from other celebrities including Cilla Black (Report 55), JK Rowling (Report 56), Sir Elton John (Report 45) and Sir Paul McCartney (Report 43).

— Public servants—including of course politicians—are also entitled to privacy, although their public role, and payment by the taxpayer, inevitably opens them up to an added degree of scrutiny. This was established in an important complaint on behalf of a police officer—WPC Moira Charters—about intrusion into her family life. The Commission ruled "public servants are entitled to the same protection under the Code as anyone else" (Report 48).

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— Even those who are in the public eye because of their (or their spouse's) infamy have rights to privacy. The Commission clearly set out this doctrine in a ruling in January 2001 on a complaint from Ian Brady about the Liverpool Echo and others: "The Code—in line with the Human Rights Act—confers rights to privacy on everyone, no matter how horrendous their crimes" (Report 49). This doctrine has been underlined in subsequent rulings on complaints from Mrs Primrose Shipman—where the PCC upheld a complaint (Report 56)—and Miss Jane Andrews (ibid).

Equal treatment from the Commission

6. The other way in which the PCC now deals more effectively with issues relating to the privacy of high profile individuals is to ensure they have equal procedural treatment from the Commission. In its early years, the PCC was inclined to make statements about issues in the absence of formal complaint and investigation[56]. This undermined its authority—and also opened it to the charge that it operated a two-tier service.

7. Procedures for dealing with complaints from public figures were reviewed and tightened in 1995, so that the PCC would never make a statement in the absence of complaint and investigation. It has also, since then, sought rigidly to apply the same procedures to complaints from high profile individuals as it does to every other complaint—and to apply, similarly, the terms of the Charter.

8. This process was scrutinised by the Administrative Court in the action for judicial review brought by TV personality Anna Ford (see Section E6). In that case, the Commission's procedures, based on equality of treatment, were clearly endorsed by the Court.

The public's view—different to that of the Commission

9. While the Code and the Commission confer equal treatment on high profile individuals, members of the public—ironically those who sometimes also register their disquiet about newspaper standards—take a somewhat different view which it is important to note.

10. These views have recently been ascertained in an important survey by Professor David Morrison and Michael Svennevig for the BBC and others[57]. One of the questions posed to focus group surveys of 1,500 people was the extent to which different individuals had rights to privacy (Research Working Papers, Volume I, p.123 and following). A copy of the results is included in Appendix IX. In summary it found that:

— 54% of people thought that children and patients with Alzheimer's disease should have full rights to privacy;

— 48% believed victims of crime should have full rights—almost the same proportion as lottery winners (46%); whereas

— only 16% thought Members of the Royal Family had full rights to privacy—while 18% thought they should have none or almost none;

— just 6% thought politicians should have full privacy rights—while 40% thought they should have none or almost none; and

11. The conclusion the authors drew from that was that:

"This division of people's rights according to their role and responsibilities was mirrored throughout all the subgroups within the overall sample. There was a widely shared consensus over what rights different people and different roles have in respect of privacy from the media. These findings closely mirrored those drawn from the focus groups, and indicated very clearly that there was a shared set of media treatment criteria—and associated limits—which most people were familiar with and accepted" (p.124)

12. While noting public sentiment in this area, the PCC, rather unfashionably, disagrees with this—believing that everyone must start from the basis of equal rights to privacy. But the PCC has also always recognised that some individuals can undermine those rights to protection and to complaint.

Undermining rights to privacy

13. As is set out elsewhere, rights to privacy, although equal, can never be absolute. A range of factors—explored in more depth in Section C2—impact on them. Where public figures are concerned the most obvious point is that some individuals can, by their own actions, compromise their rights to privacy. This is usually the result of either promoting a false image in the media or selling private information and pictures to newspapers or magazines. These points are examined in more detail elsewhere in this submission.

14. This common sense doctrine—that rights to privacy are not something that individuals can enjoy on their own terms, especially if they are role models—has received strong backing in a number of Court rulings. Specifically:

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— in a judgement about whether or not to grant TV presenter Jamie Theakston an injunction restraining publication of a story about various sexual matters concerning him, Mr Justice Ouseley ruled in the High Court that: "Whilst (Theakston) may not be presented as a role model, nonetheless the very nature of his job as a TV presenter of programmes for the younger viewer means that he will be seen as somebody whose lifestyle, publicised as it is, is one which does not attract moral opprobrium and would at least be generally harmless if followed . . . It is insufficient to say that the newspaper could take this information to the BBC. The free press is not confined to the role of a confidential police force; it is entitled to communicate directly with the public for the public to reach its own conclusion" (High Court, 14 February 2002, para 69).

15. A number of other factors may limit the rights of individuals who are, or have been, in the public eye. For instance, there will always be a good deal of material about public figures in the public domain—and information once there cannot be "retrieved". Here the Code echoes the terms of the Human Rights Act and of important Strasbourg jurisprudence, and recognises that it is impossible to stop newspapers or magazines republishing material available to the public[59]. This point was underlined in the Commission's adjudication on a complaint from Mrs Renate John—about whom an article had been written in a Sunday newspaper despite the fact that she is no longer a public figure. In that adjudication the Commission ruled that:

"The Commission accepts that a free press will from time to time write about people who have formerly been in the public eye and it is not the Commission's job either to restrict this right or to afford individuals a veto over future publicity, provided, of course, that newspapers abide by the terms of the Code in such reporting" (Report 53).

16. In an important point in that adjudication about the difference between intrusion into privacy and unwanted publicity, the PCC added—in relation to details such as Mrs John's divorce and the village where she lives—that:

"it could not uphold a complaint about the article when the objection appeared to be more to do with unwanted attention than the publication of truly intrusive details" (ibid).

The families of public figures

17. One area where the PCC has been consistently strong and robust is the degree to which the families of public figures—especially their children—are entitled to the maximum protection of the Code, unless of course (in very rare circumstance) they themselves are famous in their own right. In the case of children, the Code itself is very explicit that "where material about the private life of a child is published, there must be justification for publication other than the fame, notoriety or position of his or her parents or guardian" (6v).

18. The Commission has underlined these principles on a number of occasions.

— These points were echoed in a complaint from the Prime Minster and Mrs Blair about articles in two national newspapers regarding their son Euan's education. The PCC ruled that:

"It wanted to underline in this adjudication that the acid test that any newspaper should apply in writing about the children of public figures who—like the Prime Minister and Mrs Blair's children, and unlike the Royal Princes—are not famous in their own right is whether a newspaper would write such a story if it was about an ordinary person. Academic achievement or successful entrance to a University might well fall into such a category; private choices about the nature of such an application, or indeed private details about an individual's time at university, would not. The children of public figures like the Prime Minister are clearly not public figures in their own right—but of interest to the public only because of the position of their parents. The Commission considers that they should continue to benefit—like the families of all public figures—from the full and strong protection contained in the letter and spirit of Clause 6 of the Code" (Report 57).

— The Commission extends such protection to families as well—and underlined that point in an important ruling in 1998 on a complaint from Mr Paul Burrell. In complaining about an article in a Sunday newspaper, Mr Burrell accepted that he was a public figure—albeit at that stage unwillingly—but that his family should be protected. The PCC ruled that it "could not accept it as axiomatic that the family life of those involved in charities was a legitimate subject of newspaper scrutiny . . . Indeed, the families of those involved in charity work have as much right to respect for their private lives as any other" (Report 42).

The Royal Princes

19. A great deal has been written about Princes William and Harry and respect for their privacy. We do not intend to chronicle it again here, except to highlight a number of points—principally that:

— that the PCC has always expected the Princes to have the same rights to privacy as other children during their education—no more and no less. There has never been any question of special treatment or the application of different, more stringent rules;

— complaints from, or on behalf of, the Princes (and indeed other members of the Royal Family) are dealt with in the same procedural manner as all other complaints; and

20. Indeed, it was in relation to this third point that the Commission put considerable effort into liaising with the University authorities and the Students Union at St Andrews in the summer of 2001 to ensure that fellow students of Prince William at University—who would clearly not be public figures in their own right—knew about the terms of the Code and the process for bringing complaints under it. Apart from the provision of specific information, a seminar was held for 400 students under the auspices of the then Rector, Andrew Neil.

21. The Commission is satisfied that the arrangements covering the privacy of Princes William and Prince Harry continue to work well—and that newspapers and magazines are to be commended on their continuing restraint, which indeed they show to other children as well, in this area. The PCC is also pleased that the privacy of other students at St Andrews—as was the case at Eton—has clearly been respected. In this area—the privacy of ordinary students—the PCC will continue to be especially vigilant.

22. Finally, on a point of interest, the Commission has received a number of representations from other Governments via their Embassies (for instance Norway) about how this difficult balancing act has been managed—and has been pleased to advise on the relatively successful formula deployed here.

Conclusion

23. The Commission continues to acknowledge that while individuals in the public eye are entitled to the same respect for their privacy as anyone else—unless or until they do something to compromise it—there are of course special sets of circumstances that relate to their relationship with the media.

24. The PCC will continue to balance all these factors in its adjudications—strengthened, as they are, by the added authority and weight lent to the Commission's common sense approach by recent High Court judgements.

C (4) THE PUBLIC INTEREST

Definitions

1. Nobody has—unsurprisingly—ever succeeded in producing a comprehensive definition of what constitutes the public interest. It is futile to try: the public interest will incorporate too many things—and mean too many different things to different people—for any definition to be practical or meaningful.

2. The industry's Code of Practice seeks simply to give some illustrations of what constitutes the public interest. It includes:

— detecting or exposing crime, or serious misdemeanour;

— protecting public health and safety; and

— preventing the public from being misled by some statement or action of an individual or organisation.

The Code, drawing in effect from the Human Rights Act, adds that there is a "public interest in freedom of expression itself"—one impact of which is that the Commission must have regard "to the extent to which material has, or is about to, become available to the public."

3. It is important to note—before looking at the public interest in more detail—that not every Clause in the Code has such an exemption to it. Some Clauses are absolute and allow for no defence of public interest in view of their importance in the protection of ordinary people. They include: accuracy and opportunity to reply; intrusion into grief and shock; identification of victims of sexual assault; discrimination; and financial journalism.

4. The PCC has always sought to judge the concept of public interest on a case by case basis—and this is dealt with more fully below. But one thing it has always been clear about is that there is a clear distinction between public interest and "what interests the public". The two—from the point of view of PCC rulings—are quite different.

5. The Courts, in looking at this area since the introduction of the HRA, have taken a somewhat different and more liberal view than the Commission. In particular, in the successful appeal by Mirror Group Newspapers against the injunction granted to footballer Gary Flitcroft restraining publication of various sexual stories about him, the Court of Appeal under Lord Woolf ruled that:

B&C,

6. The Commission recognises the force of this logic, but continues to make clear that it will apply a much tighter definition of public interest when adjudicating on possible breaches of the Code.

Tests

7. Because of the difficulty of defining "public interest", the former Chairman of the PCC, Lord Wakeham, sought to establish a number of tests that the Commission would apply in scrutinising the public interest defence deployed by newspapers[63].

8. He identified seven of them, as follows:

— is there a genuine public interest involved in an intrusion, or is this just something which interests the public?;

— if there is a public interest, are there ways to disclose it which minimise the necessary intrusion?;

— is there a way to minimise the impact on the innocent and vulnerable relative of the individual at the centre of any necessary intrusion, in particular children?;

— in any story about someone connected with a public figure designed to illustrate a point about that public figure, is there a genuine public interest in the connection, or is the relationship actually too remote?;

— where a story relates to past actions or statements of an individual that are at odds with his or her current behaviour, was the original statement or action recent enough to justify publication?; and

— in any story published about an individual where there used to be a public interest, have these tests been applied afresh in case such a defence no longer applies?

9. Against this background, this Section sets out how the Commission has applied its scrutiny to editors' public interest defences in practice, applying these tests where appropriate.

EXPOSING CRIME

10. Exposing crime and serious misdemeanour is obviously something which serves the public interest—and is indeed an important role of many campaigning newspapers, not just nationally but locally as well. The PCC has consistently backed newspapers who have been involved in rooting out wrongdoing—for instance in cases where:

Khare

News of the World,

Thomson

Sunday Mail,

PROTECTING PUBLIC HEALTH AND SAFETY

11. Another leg of the Code's public interest defence is protecting public health and safety. Cases where the Commission has backed newspapers include:

Fielden

The Sun,

Northwick Park Hospital

Evening Standard,

Robson

Evening Standard,

12. However, there are some cases where the Commission has judged such a defence not to be applicable—particularly where children are concerned.

King

Reading Evening Post,

EXPOSING HYPOCRISY

13. The third leg of the public interest examples in the Code relates to the exposure of hypocrisy where statements or actions of an individual or organisation would mislead the public. Such cases where the PCC has backed a public interest defence include:

Allason MP

The Mirror,

Malcolm-Walker

News of the World,

PUBLIC POLICY AND PRIVACY

14. Another role of newspapers and magazines is to expose public concern about matters of public policy and debate. On occasion, they will need to illustrate such concerns with examples that may intrude into an individual's privacy. Relevant cases include:

Zachs

The Glasgow Herald and others,

Taunton and Somerset NHS Trust

The Mirror,

Stewart-Brady

Liverpool Echo and others,

THE PUBLIC'S RIGHT TO INFORMATION

15. Although not on an issue of privacy, the Commission has from time to time had to make judgments about whether payments to criminals and their families reveal a public interest.

16. In the case of the serialisation by The Times of Gitta Sereny's book about Mary Bell, the Commission ruled in an important adjudication—which also dealt with a number of other payments to different criminals—that payment was in the public interest because it ensured important information was made widely available. If there had been no serialisation "it would have meant that the material in the books would not have been made available to a wide public audience . . . The public would have been deprived of information that was in the public interest" (Report 43).

17. However, the Commission also ruled that there was no public interest in an article by Victoria Aitken about her father's crimes. The article contained no information which the public needed to know and merely served to glorify Jonathan Aitken in a way which breached the terms of the Code (Barlow v The Daily Telegraph, Report 47).

PROTECTING PRIVATE LIVES

18. There are also occasions when newspapers or magazines reveal material about the private lives of individuals and stories where no public interest is served, and the Commission will in those circumstance censure the newspaper. The following cases are good examples[68]:

Greer/Sutherland

Sunday Mail,

Charters

The Scottish Sun,

KEEPING HEALTH ISSUES PRIVATE

19. One of the areas in which the Commission has been consistently firm centres on the privacy of an individual's health and medical records. The public interest in revealing such details needs to be incredibly strong. The following cases illustrate those that did not pass such a stiff test:

Lilley

Daily Mirror,

Rutherford

Daily Express,

PROTECTING CHILDREN: THE EXCEPTIONAL PUBLIC INTEREST

20. As is set out elsewhere in this submission, the protection of vulnerable groups of people is one of the cornerstones of the Code and the work of the PCC. In 1997 the Code Committee recognised, in this context, the particular problems that arise from the coverage of children in newspapers and magazines—and amended the Code to ensure that:

"in cases involving children, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child."

21. This sets a very high threshold at which editors can write about the private lives of children (see also Section C6 for a summary of issues relating to children). To date, the Commission has never yet accepted an extreme public interest justification for intrusion into the private life of a child from any publication—which underlines the tough nature of the Code and the importance the PCC attaches to it. The following cases include some examples of public interest defences we have rejected:

Colgan

Manchester Evening News,

Blair MP

Mail on Sunday,

Brown

Salisbury Journal,

C (5) PRIVACY AND THE HUMAN RIGHTS ACT 1998

Background

1. During the passage through Parliament of the Human Rights Bill in 1997-98, the Press Complaints Commission, and the newspaper industry, voiced serious concerns about the possible impact of the legislation both on self-regulation and on freedom of expression.

2. The former PCC Chairman, Lord Wakeham, said that his main concern was the likely impact on ordinary people:

"It (the legislation) would . . . be highly damaging to ordinary people—in other words, the great majority of those who from time to time are affected by media intrusion—leaving them without the protection of self-regulation . . . If there is a law of privacy, fashioned by the Courts, I fear that newspapers will simply say to complainants: `Use it.' That will be fine for the rich and the powerful, but it will be a remedy out of the reach of ordinary people.... (Furthermore) if the PCC's adjudications on matters of privacy could be subject to subsequent action by the courts, our task in seeking to resolve differences, to obtain a public apology where appropriate or, if necessary, to deliver a reprimand to an erring editor would no longer be a practical proposition" (House of Lords, 24 November 1997).

3. The Government—with cross party support—listened to those concerns and amended the Bill. The amendment on Freedom of Expression subsequently became Clause 12 of the Human Rights Act 1998 (HRA). The amendment dealt with the problems of possible interlocutory injunctions under the Act, safeguarded the position of self-regulation by including compliance with the Code in the legislation, and imbued the legislation with the culture of Strasbourg jurisprudence (both on press freedom and on material in the public domain) by directing Courts to have special regard to the Convention right on freedom of expression. In other words, the Government was seeking to ensure that the Act did not become a "privacy law by the back door."

The development of the HRA since then

4. The Act itself has proved to be controversial in many ways—although it has to be said that the controversy has been based far more on myth than reality. In fact the HRA has developed in the way Parliament, when incorporating the Convention safeguarded by Clause 12, hoped. The facts are that:

— no Court has yet said that the Act "creates" a privacy law, a myth which arises from the unsupported comments of just one of the three judges sitting in the case of Michael Douglas, Catherine Zeta-Jones and Hello! magazine;

— fewer than 12 cases relating to privacy and the press have in fact gone to Court in the more than two years since the Act's implementation in October 2000—a very small number that underlines the fact that actions under the legislation have proved cumbersome, inaccessible and practically useless for ordinary people. Indeed, none of them have been from ordinary people;

— there is no evidence of individuals—whether in or out of the public eye—"bypassing the PCC" and going straight to Court. In the months since the implementation of the Act the number of privacy complaints coming to the Commission has gone up, and have in the last two years reached record numbers (see C1), dwarfing actions brought under the Act;

— there is no two-tier system of redress on privacy issues—public figures are still coming to the PCC along with the vast majority of complainants who are not people in the public eye—contrary to what some commentators have maintained.

5. A number of important legal rulings have underlined how right the PCC and editors were to be concerned about the potential impact of the Act—but they have also served to give real teeth to Clause 12 of the Human Rights Act, which enshrined the importance of freedom of expression.

6. The first important judgement—in which the PCC was directly involved—was the judicial review sought by Anna Ford of the Commission's decision in her complaint against The Daily Mail and OK! Magazine[70]. That judicial review—only the second in the PCC's 11 year history—was the first case to come to Court following the implementation of the Act. Her action—like that of Moors Murderer Ian Stewart-Brady before her—failed[71]. In a crucial ruling, Mr Justice Silber said that:

"The type of balancing operation (between privacy and freedom of expression) conducted by a specialist body, such as the Commission, is still regarded as a field of activity to which the courts should and will defer. The Commission is a body whose membership and expertise makes it much better equipped than the courts to resolve the difficult exercise of balancing the conflicting rights . . . (of) privacy and of the newspapers to publish" (High Court of Justice, Queen's Bench Division, 31 July 2001).

7. The second important ruling was that of the Court of Appeal, under the Lord Chief Justice Lord Woolf, in the case of A v B&C—or, as was subsequently revealed, the footballer Gary Flitcroft and the Sunday People. In overturning an injunction which had been granted to the footballer by Mr Justice Jack restraining publication of an article about him, the Court of Appeal ruled that publication should go ahead. The ruling—repeating in effect PCC jurisprudence—underlined that celebrities who court publicity may compromise their rights to privacy. The Court said that:

8. The ruling also made clear—echoing that of Mr Justice Silber—that the Court preferred that matters of detail relating to privacy be dealt with not by the Courts but by the PCC and, ultimately, by readers. In a section of the ruling relating to the substance of the Flitcroft case, the Court of Appeal said:

"Once it is accepted that freedom of the press should prevail, then the form of reporting in the press is not a matter for the courts but for the Press Complaints Commission and the customers of the newspaper concerned" (ibid, para 48).

9. In the case of Naomi Campbell, the High Court did not make any finding relating to Ms Campbell's privacy after she withdrew her action—instead ruling in her favour to the tune of just £3,500 in relation to breach of confidence and the Data Protection Act. The Court, however, found that the newspaper had acted lawfully in revealing that she had not told the truth about her drugs problem and the fact that she was having therapy.

10. The newspaper appealed against the ruling on the issue of the Data Protection Act, and the award of damages, and their case was strongly upheld in the Court of Appeal. It ruled that:

Naomi Campbell

MGN Limited,

11. This ruling chimed clearly with earlier related judgements—in the cases of Anna Ford and Gary Flitcroft detailed here, as well as one in the case of TV presenter Jamie Theakston[73]—in buttressing the position of the PCC and of self-regulation.

12. There are a number of implications which the PCC can draw from these cases that:

— there exists no "law of privacy" in the United Kingdom;

ex parte

— it is for the Courts to intervene only where the PCC has demonstrably failed in its task of balancing rights of individual privacy with freedom of expression. The PCC—which should in effect be the first port of call for aggrieved individuals—does not need to change its approach to privacy complaints;

— the "public interest" should be interpreted liberally—not to include everything that "interests the public" (which the PCC has always made clear is not an appropriate definition), but not exclusively relating to matters such as crime and public health either; and

— the Code, and editorial adherence to it, remain crucial.

13. Furthermore, it is important to note that, particularly in the case of Naomi Campbell, the Court was lending great weight and authority to the PCC's own jurisprudence on privacy—namely that celebrities who court privacy (often for payment) compromise and undermine their own rights when further, less welcome, private material about them is published. That serves to underline the importance of the Code and the PCC's rulings in this area.

C (6) CHILDREN

1. Various parts of this submission deal with issues relating to the protection of children—and it seemed useful, therefore, simply to summarise them here for ease of reference.

2. The Commission places care for the vulnerable—which is very much at the heart of the editors' Code—at the top of its list of priorities. And among all categories of vulnerable people, children are in many ways paramount: they typify the types of individual least able to protect themselves from media intrusion or harassment.

3. The Code recognises this with tough rules:

— on photographs of children that impact on their welfare;

— enabling children to complete their time at school free from intrusion;

— preventing interviews or photographs of children at school without permission of the school authorities;

— prohibiting payments to minors, or their parents/guardians, for material involving the welfare of other children;

— stopping the publication of stories about children just because of the fame of their parents;

— on the treatment of children who are witnesses to, or victims of, crime; and

— to stop the jigsaw identification of those children tragically involved in sex cases (designed in co-ordination with the broadcast regulators).

4. In addition the Code allows for public interest exemptions only in cases where there is an exceptional public interest to over-ride the normally paramount interests of the child. As set out on page 124[74], the Commission has yet to find a public interest defence put forward by an editor sufficiently convincing to reject a complaint of intrusion into a child's privacy.

5. To buttress these Code stipulations, the Commission has issued a number of very important adjudications in this area—set out in more detail in Section C2—which underline, among other things, the clear right to privacy of the children of public figures.

6. The Commission is pleased to note the very small number of complaints it receives relating to key parts of the Code—payments to minors, stories about the children of public figures, child witnesses to and victims of crime, and the identification of children in sex cases. This testifies to the significantly improved standards of reporting in this area over the years. The PCC has never actually had to censure a newspaper for a payment to a minor, for instance, and has only ruled on one case involving a child witness to a crime in the four years since it was incorporated into the Code. No complaint of jigsaw identifications has been upheld for six years.

7. The Commission is keen to ensure that schools and others involved in the care of children know about the Code and how to complain. Section D2 sets out some of our initiatives in this area. One of the members of the Commission with significant experience of schools and teaching is most helpful in co-ordinating some of this work.

8. The Code Committee will also be pleased to receive any further suggestions from members of the public and organisations involved in child welfare about how the Code might need to develop in this area. Such co-operation is extremely useful: indeed, some of the significant changes to the Code relating to children in 1998 followed discussions with the NSPCC and other similar bodies.

D (1) OUR PROACTIVE PUBLIC INFORMATION STRATEGY

Accessibility is the key

1. One of the keys to any system of regulation is that its existence and services are well known to those who might want to complain. Accessibility, openness and transparency are the keys both to public confidence and to the protection of the public. Even the most efficient of regulatory bodies is useless if its existence is a secret.

2. This point was registered in the 1995 White Paper on Privacy and Media Intrusion which urged the PCC to: "consider improvements to your publicity arrangements . . . (Initiatives) to publicise the achievements of the Commission . . . might be combined with efforts to publicise its powers and remedies" (Privacy and Media Intrusion, Cmnd. 2918, July 1995, p. 33). Even before that White Paper, the PCC had put in place many measures to ensure our service is easy to use and accessible to ordinary people. It had also put in place a proactive public information strategy to make sure it maintains a presence throughout the regions of the country, and highlights its service to those who might have particular need to complain.

The PCC's strategy

3. The Commission has, since 1996, built extensively on that programme, with a number of aims in mind. We have sought to ensure that:

— we target those groups of people most likely to need to complain—and in particular the most vulnerable groups in society;

— we maintain a strong presence around the countries and regions of the United Kingdom;

— we play our full part in training tomorrow's journalists—on whom the future of strong, independent self-regulation will depend—in the strictures of the Code and the work of the Commission; and

— we respond swiftly to requests for information and presentations about our work from the industry, from professional and other civic groups and from interested organisations.

4. Mindful, in particular, of the Select Committee's scrutiny of the impact of media intrusion on ordinary people, many of whom will find any complaints process daunting, this Section outlines in detail how we have sought to meet each of these aims, how they have been resourced, and our plans to continue them in the medium term.

53 See Section A3. Back

54 See Professor Shannon, "A Press Free and Responsible" (2001); especially Chapters 4 and 7. Back

55 See also Section C2. Back

56 See Professor Richard Shannon, "A Press Free and Responsible" (2001), Chapter 7 especially. Back

57 "The Public Interest, The Media and Privacy" (March 2002), for the BBC, the BSC, ICSTIS, the ITC, the IPPR and the Radio Authority. Back

58 The Commission recognises that the Code applies to everyone, including prisoners. See Andrews v The Mirror, Report 56. Back

59 -although the Commission does take a different view, on very rare occasions, where publicly available material may damage the welfare of particularly vulnerable groups. See A woman v Hastings and St Leonards Observer (Report 41). Back

60 See also Section C2. Back

61 Ecclestone v Mail on Sunday, Report 60. This is the doctrine first expounded in Pirie (Report 49) and see Section C2. Back

62 Further information on all these points can be found in two speeches of Lord Wakeham, which set out the basic principles, based on the Code, relating to reporting of Prince William and Harry during their time at school and university. The first was at the St Bride's Institute on 23 August 1995; the second at the same location on 28 June 2000. See also "Prince William, Prince Harry and the Code", 29 April 1999, on the issue of cumulative intrusion. Back

63 Speech to the Michael Page Group, London, 21 November 1996. Back

64 This is also an issue the Court of Appeal dealt with in the appeal of Naomi Campbell v Mirror Group Newspapers. Back