Strengthening the sanction
8. The critical adjudication is, therefore,
a powerful sanction—but, partly in response to the proposals
contained in the Second Calcutt Report and the 1993 Select Committee
Report, the industry took steps to strengthen it even further
in the mid 1990s.
9. First, publishers moved to ensure that
compliance with the Code became a part of their editors' contracts
of employment—a point dealt with in more detail in Section
B4.
10. Second, and building on that important
initiative, the Commission itself announced in January 1994 that
"it would in future bring instances of severe or calculated
breaches of the Code of Practice (whose terms are incorporated
into the conditions of employment of members of staff of many
newspapers) to the attention of the publishers. [88]"
11. The Commission has made use of that
facility—which obviously should only be used in the most
serious cases—on two occasions:
— in the first case, the PCC referred
a serious breach of the Code relating to pictures of Countess
Spencer in a bulimia clinic, published in the News of the World
in April 1995, to the publisher. The PCC's adjudication, and the
response of the publisher to the Commission, is set out in Appendix
XXIII (not reproduced here);
— in the second case, the Commission
referred the multiple and serious breaches of the financial journalism
provisions of the Code in the "City Slicker" complaints
to the publisher of The Mirror. The publisher accepted
the Commission's findings and implemented root and branch changes
to the way matters relating to financial journalism, and the provisions
of the Code in this area, were policed on the newspaper.
12. In one other case, the Commission heavily
censured The Evening Standard for breaking the rules concerning
the interviewing of children at school and the identification
of children in sex cases. The Commission took the unusual step
of asking the editor to review the application of the Code across
his newspaper—and the editor wrote back to confirm that
this had taken place. A copy of that adjudication is at Appendix
XXIV (not reproduced here).
13. The Commission has always found that—against
the background of its principle role as a dispute resolution mechanism—these
sanctions are (a) adequate and (b) powerful.
Compensation and fines
14. Indeed, there is a danger that any further
sanctions—for instance compensation or fines—would
both be impractical and would undermine the Commission's vital
conciliation work.
15. The clear and overwhelming case against
privacy laws and a statutory ombudsman is set out in Annex 4—and
many of these points apply to any analysis of the case against
fines and compensation, but it might be useful to summarise them
here.
16. To begin with, the PCC could not establish
a system in which it awarded compensation and imposed fines without
some form of legal powers—as it would be powerless if a
newspaper or magazine refused to pay. That would mean turning
the PCC's common-sense system of conciliation into a legal system,
with all its failings. Any system which involved the law and newspapers
would mean:
— costs for the complainants—which
would seriously limit the accessibility of the PCC to ordinary
members of the public;
— delay (a point dealt with below);
— the need for a range of legal powers
to investigate complaints—including oral hearings on oath,
powers to subpoena documents and so on—as well as a cumbersome
appeals process; and
— legal representation for complainants.
17. Even a brief survey of the difference
in time it takes to deal with a complaint through lawyers, and
complaints direct from ordinary people, under the PCC now underlines
the point. In 2002, while the average time to deal with all complaints
was 32 working days, complaints made through lawyers took an average
of 71 working days—122% longer[89].
Furthermore, it took an average of 84 working days for a complaint
through a lawyer or other representative to be resolved—nearly
half as long again as complaints resolved directly with the complainant,
without any difference to the success rate. This is merely a flavour
of what any form of statutory control, or system involving fines
and compensation, would entail. The PCC has always believed that
justice delayed is justice denied—and any legal system would
certainly do that.
18. Even more importantly, a system of fines
and compensation would fatally undermine the PCC's role as a conciliator.
Newspapers and magazines would be unlikely to agree a resolution
to a complaint if they thought it was the first rung in a legal
process that could lead to damages against them. That would constitute
a great disservice to most of the people who complain to us who
seek more than anything else a correction and apology for breaches
of the Code[90].
19. The "legalisation" of the
system—with incumbent appeals processes that would be required
under the Human Rights Act—would inevitably mean the majority
of complaints being dealt with by newspaper or magazine lawyers.
That in turn would either put ordinary people off complaining
or mean that they themselves had to employ lawyers. The costs
involved with that would make the system inaccessible.
20. As set out in more detail in Annex 4,
there is actually no evidence that substantial fines would be
a deterrent to successful newspapers—who may be happy simply
to pay the fine for carrying intrusive material that gave them
a short term circulation boost. However, there is a possibility
that fines could put some smaller, less commercially successful
local newspapers out of business, with all the implications for
press freedom and diversity of news inherent in that.
21. These, and other issues, are explored
in more detail in Annex 4.
E (4) "OWN
VOLITION" AND
THIRD PARTY
COMPLAINTS
1. One of the issues that marks the PCC
out from its predecessor, the Press Council, is the question of
third party complaints. These are, of course, a form of "own
volition" complaint in that all major stories which the PCC
might investigate of its own accord inevitably attract third party
complaints—and the difference between the two is largely
one of semantics. They are dealt with accordingly here.
2. The Press Complaints Commission itself
addressed this matter in 1998, when the issue received a certain
amount of public attention in the wake of one or two high profile
privacy cases. The arguments set out in this Section were endorsed
by the Commission accordingly, and reproduced here.
Background
3. Before addressing the practical problems
raised by the use of own volition complaints, there are a number
of background points that it is worth noting.
First, it is wrong to say that the PCC "does
not have the power" to raise its own complaints. The Commission
does—and has done since 1994, when our Memorandum and Article
of Association were changed to allow us to do so[91].
Since then, we have acted on our own volition on a number of occasions
when a newspaper article has raised wide issues of public interest—and
there was good reason why no complaint was going to be made to
us. This happened, for instance, over:
(i) the identification of the winner of the
first rollover jackpot on the lottery[92];
(ii) various cases of payments to criminals[93];
(iii) allegations of inappropriate share
dealing—the case of the "City Slickers"[94];
(iv) cases involving witness payments[95].
In each case the Commission was happy to act
of its own volition on the back of third party complaints—but
only once it had satisfied itself that (a) that there were broad
matters of public interest at stake and (b) nobody directly involved
could complain. (In the case of payments to criminals and witnesses,
and of financial journalism, this will always remain the case—as
those directly involved are likely to be people who have actually
benefited from any breach of the Code.)
4. Second, the reason that the Commission
has always been extremely wary of own volition or third party
complaints is that it was their unfettered use which was one of
the causes of the demise of the Press Council. It should also
be remembered that the practical result of the Press Council's
procedures was that the system of investigating complaints, and
calling witnesses on them, became extremely slow: it could often
take two years to adjudicate on a complaint because the Council
was busy with complaints that no one directly involved had raised.
The loser from that were ordinary members of the public who did
bother to complain, but had to wait a long time for a result.
Now, the PCC can deal with complaints in an average of 32 working
days: swift justice is the flip side of the third party complaint
coin.
5. Third, the volume of complaints received
by the PCC—over 2,500 each year and nearly 30,000 since
the Commission was established—does not suggest that there
is any unwillingness on behalf of members of the public to complain,
or that the Commission is inaccessible. In fact, the PCC receives
more complaints each year than every other Press Council or Commission
in the rest of Europe put together[96].
6. Fourth, virtually every other similar
regulatory body adopts the same procedure as the PCC—acting
only on the back of a complaint from somebody directly involved.
The Broadcasting Standards Commission, for instance, which draws
its powers from statute can only act on the basis of a complaint
from those directly involved in an intrusion into privacy.
7. Fifth, it is worth noting that the only
other Press Council or Press Commission in Europe which regularly
raises its own complaints is that of Turkey. There, the Press
Council utilises own volition complaints as a means of "encouraging"
pro-Government reporting. It is, in other words, state control
by the back door. Two other Press Councils—Cyprus and Norway—sometimes
raise their own complaints. Every other European Press Council
rejects the use of own volition complaints—most of them
for the reasons set out in this paper—except (as with the
PCC) in exceptional circumstances[97].
The problems involved
8. Against that background, there are a
significant number of practical problems involved in "pro-activity"
and the taking up of third party complaints, as well as one overwhelming
philosophical problem—that it would turn the Commission
into a two-tier complaints service. This Sections deals with the
practical problems at the end—but it is worth looking at
the broader philosophical issue first.
Do we want a two-tier system of regulation?
9. The PCC has always invested a huge amount
of resources and energy in ensuring that people know about the
Commission and about how to make a complaint. This is set out
in detail in Section D of this submission. Judging by the number
of complaints we receive, the service is now well known—and
members of the public obviously have confidence in it: they would
not bother complaining in such numbers otherwise.
10. Furthermore, we get complaints from
every type of person and every region of the country, as we set
out in detail in Sections A and C.
11. An argument is often made that celebrities
and public figures (as well as people in the public eye as a result
of their infamy) are wary of complaining, because it produces
yet more publicity. Yet there is no evidence for this either.
In the last year or so we have received complaints from Members
of the Royal Family, a number of Government Ministers, from MPs,
from celebrities (including well-known soap stars and singers),
from criminals, from high-ranking police officers, from Bishops
and from High Court Judges. All these people took the decision
to complain in order either to set down a marker about their privacy
or to protect their family or to have the record set straight
on a point of accuracy.
12. The Commission has also always recognised
that it takes courage for people to complain and take on a newspaper
or magazine. That is why our procedures are simple and private—and
also why we crack down hard on any newspaper that attacks a complainant
for making a complaint, something which happens only extremely
rarely.
13. Against that background, the insuperable
problem with "pro-activity" and the use of own volition
complaints is that it would inevitably turn this service—free
and accessible to everybody—into a two-tier system. In other
words, ordinary people would still have to summon up the courage
to make a complaint—because it is unlikely that their concerns
would ever be the subject of a third party complaint; yet public
figures embroiled in a high profile dispute with a newspaper could
"expect" the PCC to take action for them on the back
of a third party complaint. But such complainants are those with
more means than most—including solicitors or press offices—of
making a complaint. If some public figures don't mind complaining,
why should others expect a different service?
14. The other result of such a system, of
course, may well be to discourage those who do make complaints
at the moment from doing so. In order to protect their family,
the Prime Minister and Mrs Blair have made a number of complaints
to us, as have other public figures. If the PCC was taking complaints
up on its own behalf, or responding to third parties, shouldn't
they have been able to "expect" the Commission to do
it for them? Why should they have to complain themselves?
Politicising the PCC
15. The pressure on the PCC to raise complaints
on its own behalf, or on the back of a third party, inevitably
occurs when a public figure—and often a politician—has
been embroiled in a dispute with a newspaper or magazine. This
highlights one enormous danger of such a system—that it
would end up politicising the Commission.
16. On one scenario, imagine a story in
a newspaper about the private life of a member of a Cabinet. The
PCC decides to raise its own complaint and investigate. At the
very least that might be construed as a political decision—and
one that puts any system of regulation on a very slippery slope.
Next week there is a story about a member of a Shadow Cabinet.
In order to maintain some form of political neutrality, the Commission
then takes up that complaint. The net result of that is a Commission
which—in order to maintain its impartiality—starts
investigating any story which appears about a politician, because
it cannot stop once it has started.
17. The result of that is something the
PCC has always fought strenuously to avoid—that the PCC
becomes a Politicians Complaints Commission, or indeed a Press
Control Commission which is there to avoid politicians and other
public figures having to take on newspapers themselves.
From complaints—to control
18. In order to avoid charges that it was
running a service simply for high profile public figures, the
PCC would have to make much wider use of own volition complaints—taking
up cases where ordinary members of the public find themselves
under newspaper scrutiny.
19. This would inevitably mean having to
establish a wide ranging monitoring exercise, in which we were
looking for stories about the private lives of ordinary people.
20. This leads to another problem. The figures
set out in Sections A and C show that the majority of cases of
intrusion into privacy raised by ordinary members of the public
are not about national newspapers—but about the regional
press. This is, in many ways, inevitable: local and regional newspapers
quite frequently include a good deal of material about local figures,
about those appearing in Court cases, about Councillors and so
on. Yet how could the Commission ever put itself into the position
of monitoring over 1,300 regional titles, and hundreds of magazines
as well?
21. The answer is that it could not—without
putting in place an Orwellian system of press "monitoring"
and then seeking information from ordinary people to assess whether
there was a prima facie case of intrusion into privacy. It would
therefore inevitably have to stand by its usual procedures—and
expect people with a grievance about a local newspaper to complain
directly. The Commission would then remain open to the charge
that it operated one system for the rich and famous and one for
everybody else—precisely the argument that is consistently
and rightly made about a privacy law.
The right not to complain
22. The Commission has always recognised
that some people have very good reasons for not complaining—and
must therefore have the right not to complain.
23. Part of the reason for this is that
there are two sides to most stories about prominent individuals—particularly
celebrities, many of whom court publicity, even if the end result
appears to us to be intrusive. In fact, because of the success
of the Code, there are very few cases which arise where there
is an intrusion into privacy without some potential defence by
the newspaper—either of consent or public interest. The
unfettered use of third party or own volition complaints would
air that defence in public—even if it was unwelcome to the
individual involved.
24. If the PCC was raising its own complaints
about high profile public figures, the Commission would have to
recognise that in some cases its actions would be extremely embarrassing.
Take two examples.
A story about the private life of a Government
Minister appears in a Sunday newspaper—planted there by
somebody else within Government. The Minister knows that and therefore
does not want to complain. Does the Commission over-rule him and
insist that the background be made known? Does it intrude further
into his private life? It receives a third party complaint. Does
it investigate it—and then reject it, causing the individual
in question extreme embarrassment? However, if the Commission
was making wide use of own volition complaints and decided NOT
to raise its own complaint in this instance, wouldn't others infer
something from this? Wouldn't the industry, too, think that the
Commission was only raising complaints where it had already made
its mind up in advance that the newspaper was guilty of a breach
of the Code—but didn't do so on the majority of occasions
when there was a legitimate defence? The Commission could also
be open to the charge from the competitors of that newspaper that
it was showing undue lenience on a particular title, placing the
PCC in a position it has always firmly avoided—in the middle
of the competitive battle between newspapers.
A picture of a well known celebrity, sobbing
as she arrives to attend the funeral of a relative. It looks at
first sight as if it is a paparazzi picture and publication is
intrusive. The Commission receives a third party complaint and
decides to investigate, but finds out that the picture was posed
and the celebrity well paid for it. Does it make the circumstances
clear—and embarrass the person who was after all acting
legitimately (if cynically) to pose for a picture—or does
it "hush up its findings"? If it did the latter that
would be to the detriment of the newspaper, who would have had
to endure the opprobrium of the PCC launching its own investigation—with
attendant publicity from the newspaper's competitors—without
the reasons for its acquittal ever being made clear.
25. A further point arises from the possibility
that the PCC could be caught by the terms of the Human Rights
Act. By raising a complaint about an article on someone's private
life without their consent, the Commission might well end up being
accused of intruding into their privacy—in breach of the
legislation, and facing legal action as a result.
26. All these points underline the fact
that people have a right not to complain—a right we would
be taking away from them if we were regularly to take up third
party complaints, or raise them of our own volition.
The right not to co-operate
27. There is an allied issue to this. The
Press Complaints Commission cannot investigate a complaint without
the co-operation of those involved: only with such co-operation
can we ascertain all the facts relating to a particular article
and then adjudicate. That is how we can make a voluntary and non-legalistic
system—without powers to subpoena evidence, call witnesses
and take statements on oath—work. When we get a complaint
we are assured of co-operation.
28. What happens if we decide to raise a
complaint about something—and those involved are not prepared
to co-operate with us? We cannot compel them to do so, and without
evidence cannot investigate. The Commission is then left unable
to adjudicate.
29. Exactly this set of circumstances arose
over the issue of the alleged harassment of Mary Bell's daughter
following publication of "Cries Unheard"[98].
In the clamour that surrounded this, nobody—including the
police and social services—was able to present the Commission
with any facts which it could investigate. Calls to each of the
major newspapers received the reply that they were all abiding
by the Code—something we had no reason to doubt. Where could
the Commission take the complaint from there—without compelling
social services to co-operate, something we could only do with
statutory powers?
Conclusion
30. The problems associated with the use
of "own volition" complaints are many and varied. There
are some who argue that it is something the Commission should
do "from time to time". But as set out in paragraphs
9-21 above, it would be impossible occasionally to raise only
one or two specific complains, without sliding into a more general
system of monitoring and ultimately "control."
31. It was never intended that the PCC should
seek to "control" the media by deciding what it would
investigate of its own volition—nor should it in a free
society. It was intended, however, that the PCC should not repeat
the mistakes of the old Press Council—whose investigations
into complaints without complainants meant that those members
of the public with a genuine grievance often obtained only limited
and much delayed redress.
32. Although the Commission does, of course,
have a very powerful role in raising standards of journalism—through
our adjudications, through guidance notes and so on—on a
day-to-day level the PCC is, at its heart, a dispute resolution
procedure which depends on people bringing their disputes to us.
It would involve an enormous practical—and philosophical—change
for the PCC to go looking for disputes to resolve. That would
make it a controlling Commission, protecting people in the public
eye, not a complaints Commission working for the public.
E (5) MEDIA MONITORING
1. The Press Complaints Commission was established
with the aim of dealing with complaints from individuals affected
by breaches of the industry's Code—as set out in Section
E4 above. It was not set up as a body to raise its own complaints
(except in exceptional circumstances)—and so the PCC has
never had to put in place a comprehensive programme of media monitoring.
2. There would be practical problems in
doing so. There are over 20 national daily and Sunday newspapers;
over 1,000 regional and local newspapers in England and Wales;
180 titles published in Scotland and Northern Ireland; and at
the last count over 8,300 magazine titles. In addition, there
are a mushrooming number of newspaper websites over which the
PCC has jurisdiction. To monitor all these for potential breaches
of the Code would be an impossibility.
3. There are philosophical objections as
well. There is a perilously thin line between "monitoring"
a free press and seeking to control it, as judgements about the
issues, personalities and stories to monitor would be extremely
subjective. That is not the job of the PCC which is why we have
never sought to establish a media monitoring system.
Raising standards
4. However, the Commission also recognises
that it is its job to administer the industry's Code and to do
what it can consistently to raise standards of newspaper reporting.
In 1998, the Commission decided that there was therefore a case
for undertaking an occasional—and private—monitoring
project to decide whether the Commission needed to take action
on newspaper standards in defined areas. This comprised two areas:
— general monitoring exercises; and
— exercises on specific areas relating
to vulnerable groups of people.
5. With the general monitoring exercise,
national daily and Sunday newspapers were scanned by a member
of the PCC's staff and stories and photographs that looked as
if they might raise issues under the Code were considered for
informal and private investigation. Some regional newspaper titles,
some publications in Scotland, and some magazines were also scanned.
When it was clear that none of the individuals directly involved
in the stories were going to complain, a private and informal
letter was sent to the newspaper or magazine concerned explaining
the nature of the exercise and inviting the publication to comment.
6. Nearly all the approaches made by the
Commission received very helpful responses explaining the background
to the story and setting out how the publications had considered
the matter under the Code. In virtually every case publication
could be justified; but in a handful of cases where no adequate
response was offered, the publications concerned without exception
agreed to bear the Commission's concerns in mind in preparation
of future articles. A note summarising the findings of this exercise
is set out in Appendix XXV (not reproduced here).
7. This exercise has been repeated at occasional
intervals since then. On each occasion the Commission—which
has reviewed all the papers—has concluded, from this limited
exercise, that there is no identifiable problem of substantial
numbers of breaches of the Code going unreported to the PCC. The
Commission will continue this private initiative at its discretion
in the future.
Specific monitoring exercises
8. More importantly, the Commission has
deployed this procedure on a number of occasions relating to specific
issues—partly to assess general standards of reporting,
and again to see whether individuals in particularly vulnerable
positions may not be complaining.
In the first case, the Commission looked at
newspaper coverage of the Paddington Rail Disaster in 1999—as
there had been some allegations at the time of previous large-scale
tragedies that the press was unjustifiably intrusive at times
of grief and shock for large numbers of individuals[99].
Again, the Commission reviewed the papers and was content that
nearly all the coverage it examined appeared, in the light of
responses from editors, to have been carried out in accordance
with the Code.
The Commission has also been concerned over
the years to seek to improve reporting standards in matters relating
to mental health (see Section D2). Accordingly, it undertook a
short monitoring survey over a six-month period in 1999 to assess
standards in this area. The Commission noted that reporting appeared
to be more balanced since the publication of its guidance note,
and the work was useful as background to the meeting with MIND
and others involved in the care of those with mental illness.
Indeed, MIND itself commented about the trend to more balanced
reporting at its 2001 Press Awards:
"More articles than ever before have been
short-listed for the Journalist of the Year Award, and very few
articles appear on the Bigot of the Year Award shortlist. This
points to a gradual improvement in media reporting of mental health
issues. The shortlist includes staff reporters on national broadsheet
and tabloid papers, and local papers, consumer magazines, and
freelancers."
Another group of people who are in a particularly
vulnerable position, mainly with regard to individual privacy,
is the transgendered community. Following a number of complaints
in this area, the Commission decided privately to monitor this
specific issue for a short time as a precursor to meetings with
transgender organisations such as the Beaumont Society. That has
proved a useful initiative, and although the Society—like
MIND—found there was still some scope for improvements in
reporting, the PCC's interest and involvement with these particularly
vulnerable groups of people was welcomed by those involved with
their care and support.
The Commission also undertook an exercise on
matters relating to refugees and asylum seekers. Again, the information
was of use in meetings with the Refugee Council and others, where
the complaints process was explained in more detail.
9. The Commission will continue to undertake
these private monitoring exercises, where it is appropriate to
do so and where there is concern that a particularly vulnerable
group of people may not be making use of the PCC's services. The
information will be used to help us ensure that such groups of
individuals are made more aware of the complaints procedure and
the benefit of complaining.
E (6) ACCOUNTABILITY
AND SCRUTINY
1. Issues of accountability and openness
are inevitably different in a system of self-regulation to a system
which is governed by statute and based on legal controls. This
arises partly because of the source of funding, and partly because
of the nature of the regulation itself. However, this short Section
outlines how the Commission seeks to be accountable and transparent,
and the scrutiny that it receives.
Accountability to our customers
2. One of the main ways in which any complaints
handling body should be accountable is to its customers. To that
end, we ensure that everyone who complains—no matter who
they are—receives a clear understanding at the start of
the process of:
— what our role is, and what outcome
they can expect;
— how long it will take; and
— the standards of service they can
expect.
3. Much of this is laid out in a leaflet
on How to Complain, which is in Appendix II (not printed),
including the service commitments in the Complainants' Charter
set out in Section A5.
4. When the Commission reaches a decision
on a complaint, it also gives clear reasoning for its decision.
This is set out in a letter to both the parties. Complainants
who take issue with the findings are told that the Commission
will happily reconsider any complaint, if the complainant can
show either that the Commission has misunderstood something or
can produce new evidence.
5. We set out elsewhere how we seek to measure
our success in these areas, and each year we publish openly (unlike
some of the statutory regulators) in our Annual Review:
— details of the number of complaints
received and their outcome;
— the time it took to deal with complaints;
— results of a customer satisfaction
survey; and
— a report on how we measured up to
the targets in our Charter.
6. Customers with a grievance about the
procedure can complain to our Charter Officer, who will seek to
see that our procedures have been followed. Ultimately, of course,
any complainant can also seek a judicial review of our decision
(see para 17 below).
7. Members of the public also have an opportunity
to make their input into the terms of the Code. Anyone can make
a suggestion about possible changes, and the Code Committee will
consider them carefully. More detail on this is contained in Section
E2.
Accountability to the public
8. Each year, the PCC produces an Annual
Review which is available to any member of the public on the website
or direct from the PCC. In addition copies are mailed to MPs,
MSPs, CABx, public libraries and other interested parties to ensure
that any individual can access information about the PCC's performance
and practice.
9. Key to the issue of public accountability
is, of course, the lay majority on the PCC who are there, among
other reasons, to represent the interests of the public. Lay members
dominate the Commission, its Sub Committees, the weekly complaints
meetings and the setting of a Budget—as well as the Appointments
Commission.
Accountability to the industry
10. In a system of self-regulation, it is
obviously crucial that the Commission should be accountable to,
but not controlled by, the industry. Accountability in this area
means that the industry should ensure the PCC is doing the job
it was set up to do—and covers such matters as the administration
of the Code, finance and an overview of how the PCC is serving
complainants.
11. Accountability with regard to finance
springs from annual budget meetings between the PCC Chairman and
Director and the Pressbof Board, as well as quarterly reporting
of expenditure figures. The Chairman and Director also attend
Pressbof Board meetings, when invited, to report back on the work
of the Commission—for instance at the time of the publication
of the Annual Review.
12. There are other forums of liaison between
the industry and the Commission. The Chairman and Director both
sit in an ex-officio capacity on the editors' Code Committee;
and the Chairman of the Code Committee sits, in turn, as an ex-officio
member of the Commission.
13. Commissioners and members of staff of
the Commission also seek regularly to attend industry events—not
least to report on the development of the Code—and answer
questions about the Commission's work.
14. It needs to be emphasised that none
of this entails any incursion into the independence of the PCC.
What it does ensure is both that the industry is satisfied the
Commission is working to protect the public in the independent
and impartial manner in which it was set up and that editors and
publishers keep up to date with the way in which we are applying
the Code and, consequently, raising standards incrementally.
Scrutiny
15. The PCC, although not a statutory body,
is also subject from time to time to the scrutiny of Parliament
and of the Courts.
16. This inquiry is a good example of that.
The Commission welcomes it as a chance to demonstrate its service
to the public and the way in which the Code has raised standards—and
will be happy, at this time and any others, to appear before the
Select Committee to answer questions.
17. Similarly, the PCC works well with the
officials in various Government Departments—principally
the Department of Culture, Media and Sport, but also the Home
Office, the Lord Chancellor's Department and at times the FCO—in
answering questions they may have, and working in partnership
with them to sort out problems (see Section B5).
18. Furthermore, while it has never been
established whether or not the Commission is subject to the jurisdiction
of the Divisional Court, the PCC will always readily answer for
its procedures and decisions on an action for judicial review
brought by a complainant. The PCC's procedures are therefore subject
to the scrutiny of the Courts, and accordingly are framed in accordance
with the rules of natural justice.
19. It is interesting to note that the PCC
has only been taken to judicial review three times in 12 years—and
one of these cases was withdrawn before a final decision was reached.
In the first case, the PCC was taken to review
in 1995 by serial killer Ian Brady, after the Commission decided
not to censure the editor of The Sun for publishing pictures
of Brady in the grounds of Ashworth Hospital[100].
Brady's complaint was rejected by the Courts at each stage of
the judicial review process and ended up finally in the Court
of Appeal in September 1996. In finding in favour of the PCC,
Lord Woolf, then Master of the Rolls, made it clear that the Court
endorsed the Commission's common sense approach to decisions under
the Code of Practice rather than any alternative narrow technical
interpretation.
The PCC was not taken again to review until
March 2001, when the TV presenter Anna Ford sought review of a
decision by the Commission that pictures of her taken on a public
beach in Majorca were not an intrusion into her privacy. The Court
again backed the PCC, and in a strong ruling in July 2001 clearly
endorsed the procedures it had deployed in reaching its decision.
There is more detail on the findings of Mr Justice Silber in this
case in Section C5.
A third case was brought in the summer of 2000
by complainants whose complaint had been rejected. The single
Judge refused leave to go to the Administrative Court and before
an appeal against that decision could be heard the complainants
withdrew their application.
20. The PCC is therefore clearly and willingly
subject to the scrutiny of the Administrative Court if aggrieved
complainants wish to complain about the procedures we deployed
in investigating their complaint.
"Open meetings" and minutes of meetings
21. It is sometimes suggested that the PCC
should hold meetings in public, or publish minutes of its meetings.
There are insuperable problems in doing so, because most of the
complaints the Commission deals with at its meetings relate to
intrusion into privacy and therefore involve substantial amounts
of highly personal detail. The confidentiality of these proceedings
is one of the strengths of our system over the very public manner
in which legal actions are fought out. It would therefore be quite
wrong of the PCC to open its meetings up to third parties. The
minutes of the meetings record decisions that are taken. All of
these are published in the Commission's quarterly bulletins, so
the minutes contain no material—other than the routine matters
associated with company law—that is not made public in any
case.
Conclusion
22. Although a non-statutory body, the PCC
can be seen to be open and accountable—and subject, too,
to degrees of scrutiny appropriate to a self-regulatory organisation.
SECTION F—THE EUROPEAN AND INTERNATIONAL
CONTEXT
F (1) THE PCC
AND SELF-REGULATION
IN A
EUROPEAN CONTEXT
1. The United Nations Development Report
of 2002 highlighted the vital importance of a free and independent
press to spreading democracy. It presented self-regulation as
the most obvious mechanism by which, simultaneously, restrictive
state controls could be avoided and higher standards of professionalism
and responsibility could be promoted. This Section looks at self-regulation
of the PCC first in a European perspective, and then in a Commonwealth
one.
The European tradition of self-regulation
2. There is a long history of press self-regulation
in Europe. The Press Council of Norway was set up in the 1930s
and the Swedish Press Council has been in operation for over 85
years. The PCC, therefore, fits into a well-established European
tradition of voluntary regulation.
3. Moreover, there can be little doubt that
the tide of opinion in Europe is pulling increasingly in favour
of self-regulation of the press. In the last five years, independent
Press Councils have been established in Slovakia, Bosnia and Belgium,
while in Slovenia, Serbia, Ukraine, Russia, Bulgaria and Ireland
there are ongoing discussions regarding the establishment of self-regulatory
institutions.
4. Indeed, there are now very few countries
around the continent where, if self-regulation does not exist,
there is no desire to set up a system of that sort. Recent developments
are these:
— In the Ukraine, a Journalistic Ethics
Commission has recently been set up by the Independent Journalistic
Trade Union to act as an independent regulator dealing with complaints
and ethical issues.
— In Ireland the industry and the government
are keen to see the formation of a Press Council. This, however,
will not be possible until the country's libel laws are reformed.
— The Slovenian Journalistic Society
has a press code that is based on the German model but has encountered
problems with obtaining the necessary funds to establish a Press
Council. Negotiations remain ongoing.
Statutory control the exception, not the rule
5. Among EU member states only France and
Portugal stand out as exceptions to the self-regulatory rule.
Both countries operate stringent press laws. The French laws on
privacy are particularly notorious—with the result that
much of the press in that country is widely seen to lack robustness
and some of it is, in any case, dependent on state subsidies.
In Portugal the High Authority for the Mass Media is a government-run
body that oversees the conduct of the press.
6. Of the 19 Press Councils or similar bodies
in continental Europe, only three are founded on statute—Denmark,
Lithuania and Turkey—and those in Denmark and Lithuania
are effectively self-regulatory because, while the law requires
that there is a Press Council, it leaves its administration to
the industry. Crucially, there is support for these systems from
the press itself. However, Turkey provides a clear demonstration
of why such an organisation can be dangerous (especially as it
masquerades as independent).
7. The Press Council of Turkey is in effect
a tool for the government to control the press and suppress opposition.
It has also played a key role in the now discredited World Association
of Press Councils (see Section F2), where its fellow members are
state-run bodies from outside Europe, such as those in Bangladesh
and Egypt.
8. There is general acceptance throughout
Europe, however, that self-regulation is the best way to regulate
the press and it is to true Press Councils that countries wishing
to establish media self-regulation turn for advice and support.
Common characteristics
9. Press Councils do of course vary slightly
from country to country to take into account different social,
cultural and political considerations. Clearly a self-regulatory
body that would suit a small country like Malta would not necessarily
suit the UK, or vice versa.
10. Nevertheless, despite minor differences,
the various independent Press Councils around Europe do share
the same basic characteristics.
11. In particular Press Councils are independent
from government, from other pressure groups and from the media.
This is frequently achieved by the inclusion of members of the
public on the Council. Indeed, as in the UK, public members make
up the majority of the Council in Bosnia, Estonia, the Netherlands,
Malta and Spain, while in Sweden there is an equal number of lay
and press members.
12. Most European Press Councils are funded,
at least in some part, by the industry that they are regulating.
Some systems—such as in the UK and Norway—receive
all of their money from the industry. Others—Germany and
Finland for instance—are partly funded by the industry and
partly by the taxpayer on a "no strings attached" basis.
If there is external funding it is always only on the understanding
that those who provide it play no role in the administration of
the system or the decision-making process.
13. Most European Press Councils, like the
PCC, see themselves as dispute resolution bodies—backing
up that service with the power to issue critical adjudications.
14. Only the smaller Press Councils—with
very low numbers of complaints—tend to accept third party
complaints. The Councils of Bosnia, Catalunya, Lithuania, Estonia
and Switzerland can technically examine complaints from third
parties although in practice they seldom do. Other Press Councils,
including the PCC, may examine cases from a third party where
no individual is directly affected.
15. Similarly, "own volition"
complaints are rare in Europe, although the Councils usually retain
the power to institute them. Most recognise the difficulty inherent
in examining a case when those involved do not wish to co-operate
with the investigation. Press Councils have neither the desire
nor the resources to begin "monitoring" the press through
the use of own volition complaints.
16. It is significant that those countries
with the longest tradition of press self-regulation, including
Sweden, Norway, Finland, Germany, the Netherlands and the UK,
all now have Press Councils that generally only react to complaints
and do not tend to use third party or own volition complaints
to launch investigations.
17. In contrast, the only Press Council
that raises its own complaints regularly is that which exists
in Turkey. The Press Council effectively utilises own volition
complaints as a means of "encouraging" pro-Government
reporting. It is, in other words, state control by the back door.
Complaints handling: the PCC compared with its
counterparts
18. In numerical terms the PCC receives
far more complaints than any other similar institution: indeed,
in 2002 we received more complaints than all the PCs in Europe
put together. This is perhaps unsurprising given the nature of
the British press and the high profile of the Commission. Moreover,
readership levels in the UK are comparatively high. At the lower
end of the spectrum, in Bosnia just 10% of the population read
papers regularly.
Inset (next page). A map of Europe shows where
self-regulatory Press Councils have been established, where they
are being set up and where no such regulation exists. This underlines
the clear tradition of, and trend to, self-regulation throughout
Europe.
F (2) HOW THE
COMMISSION HELPS
OTHER COUNTRIES
TO DEVELOP
SELF-REGULATION
1. In 1997 and 1998 the World Association
of Press Councils (WAPC) tried to establish a global code of ethics
and a trans-border complaints authority to uphold it. This proposal—which
emanated from Turkey—was strongly opposed by the PCC, and
indeed many other Press Councils, which saw the idea as anathema
to press freedom and the principle that self-regulation works
best when applied at the local or national level.
2. The PCC pulled out of WAPC, and was soon
followed by the Press Councils of Australia and New Zealand. The
only democratic Government still to be involved with the Association
is Israel, and, apart from that institution, WAPC now comprises
solely state-run Press Councils and organisations, under the auspices
of the state-funded Turkish Press Council and Supreme Press Council
of Egypt.
3. The PCC thought that any association
of Press Councils should be more concerned with promoting self-regulation
in those places that wanted it than trying to establish an unnecessary
scheme of trans-border complaints. It therefore encouraged the
European Press Councils to come together to form a loose association—see
F3 below—and has sought generally to offer advice and encouragement
to any country exploring the benefits of press self-regulation.
The Bosnian example
4. One of the countries in which the PCC
has been most closely involved is Bosnia and Herzegovina (BiH),
where some form of statutory controls on the printed press was
mooted in 1999.
5. The PCC was contacted by the Independent
Media Commission (IMC), a body set up by the International Community
to licence and regulate the broadcast media, and agreed to provide
advice on how it might be possible to establish an independent,
self-regulatory Press Council in the country.
6. The IMC had, in partnership with the
six journalists' associations of BiH, already produced a code
of conduct, which they felt was appropriate for local circumstances,
and had agreed on the formation of the proposed Council. Advice
was, therefore, required on how to run a Press Council on a day-to-day
basis.
7. Because of the obvious ethnic tensions
in the country, the selection of a chairman was something of a
stumbling block. The journalists' associations eventually decided
that it would be advantageous to have an international chairman
who had experience of self-regulation and invited the then PCC
Chairman Lord Wakeham to fill the post. On his retirement from
the Commission, the Acting Chairman of the Commission Professor
Pinker was appointed. He attends four meetings a year in Bosnia.
8. Since the BiH PC began dealing with complaints
in 2001 the PCC has also helped in the ongoing process of complaints
handling, giving advice on how cases might best be resolved and
giving a detached opinion on complaints based on the information
provided by the BiH PC's secretariat. Ultimately, however, it
is only those on the ground in Bosnia who can assess the best
way in which a mediation can be achieved.
9. The Press Council of BiH is generally
well supported by the industry, politicians and the international
community and has received funding from bodies as diverse as the
Organisation for Security and Co-operation in Europe, the Swedish
International Development Agency, the British Embassy in BiH and
the EU.
10. The survival—and success—of
the BiH PC is a great achievement for those wishing to underpin
the fragile democracy in Bosnia. The PCC will continue to provide
active support and guidance for as long as it is requested.
Central and Eastern Europe
11. In the past year the PCC has received
a number of requests from Central and Eastern Europe for information
and advice on press self-regulation. It is in this part of Europe
where press freedom is most consistently threatened by stringent
libel laws and suspicious Governments and it is, therefore, of
great importance that self-regulation be encouraged if the will
exists locally.
12. In the Ukraine a small NGO, Charter-4,
which is committed to raising standards of press conduct and encouraging
the growth of media self-regulation, has acted in partnership
with the Independent Journalistic Trade to set up a Journalistic
Ethics Commission (JEC).
13. This Commission, despite opposition
from politicians and media owners is already acting as a de
facto Press Council, examining complaints and encouraging
journalists to operate by the rules of its code of conduct.
14. The PCC was approached by Charter-4
to discuss the theory behind self-regulation and the practicalities
of running a Press Council. In November 2002 the Acting PCC Chairman
travelled to Kiev for further meetings with those involved. The
British Embassy in Kiev is also providing support and funding
for this project.
The British Government and overseas self-regulation
15. In fact, the involvement of British
embassies and Government departments has been growing recently.
For instance, the British Council in Sofia, Bulgaria approached
the PCC in 2002 for advice on the establishment of a Press Council
in the country. It emerged that the EU was financing a major project
designed to improve professional standards in the Bulgarian media
and that the first aim of that project was to set up a system
of voluntary self-regulation for the media.
16. The Department for International Development
has been funding a project to establish self-regulatory systems
in two areas of Russia—Rostov-on-Don and Nizhny Novgorod.
The project is being overseen by the Programme in Comparative
Media Law and Policy (PCMLP), which is based at Wolfson College
in Oxford. The Commission sits—at the PCMLP's invitation—on
the advisory council for this project.
17. The PCC has spent some time with journalists,
publishers and politicians from the regions involved in the scheme,
talking about the practicalities of creating media complaints
bodies, the writing of Codes and how complaints are handled. In
November of last year PCC representatives travelled to Russia
to take part in a series of seminars on the subject of self-regulation
in those regions. The project is ongoing and the Commission will
give any further advice as necessary.
18. The Foreign and Commonwealth Office
has also sponsored a major project in the Commonwealth, designed
to promote Press Councils and other forms of self-regulation (see
below).
Visits to the PCC
19. The Commission receives frequent visitors
from overseas to the PCC, which allows us either to share information
and experiences with our counterparts or to talk about the PCC
to interested parties. In 2002, for example, the Commission had
meetings with, among others:
— Flip Voets, the Secretary-General
of the new self-regulatory Press Council of Belgium;
— the general secretary of the Norwegian
Press Complaints Commission, Per Edgar Kokkvold;
— students from foreign universities
(see Section D5); and
— visitors whose trips are organised
by the FCO and who are keen for more information about self-regulation
(see Appendix XVIII for a full list (not reproduced here)).
Conferences abroad
20. The PCC's position as a leading and
high profile Press Council leads to a number of invitations to
address foreign conferences. Unfortunately the Commission cannot
attend them all but in 2002 a PCC representative did speak in
Cyprus on the subject of the "Modern Media—the UK and
Cyprus—Duties, Dangers and Deserts". The PCC also sent
a paper to be presented at a conference in Latvia on the "Freedom
of information and the inviolability of the private life".
F (3) THE ALLIANCE
OF INDEPENDENT
PRESS COUNCILS
OF EUROPE
1. As the World Association of Press Councils
(WAPC) began to venture down the dangerous path of trans-border
regulation, the PCC realised that despite its links with WAPC
(which soon came to an end), it had not had a great deal of sustained
contact with other Press Councils of Europe.
2. The Commission's first move was to arrange
a meeting with representatives of the Dutch Press Council (geographically
and philosophically the closest self-regulatory body to the UK),
who suggested that an alliance of similar European bodies might
be profitable for all concerned. The PCC welcomed this suggestion
and undertook to organise a conference at which to further discussions.
The London Conference of 1999
3. Subsequently, in June 1999, representatives
from about 20 European Press Councils and Commissions as well
as other key figures in the field gathered in London. Addresses
were given by representatives from France, Sweden, Germany, Bosnia
and Ireland.
4. Those present at the meeting decided
to form a very loose knit alliance, which would provide a forum
for the exchange of information and advice, and which would meet
annually. According to its mission statement, this Alliance of
Independent Press Councils of Europe is:
"A loose-knit group whose members believe
in the application of self-regulation, independent of Government,
at a local or regional level and based on nations' differing cultures.
The Alliance was formed so that colleagues throughout
Europe can co-operate with each other through the exchange of
views and information on a regular basis, but without the need
for formal bureaucracy. Colleagues will aim to meet each year
to discuss matters of mutual interest.
Participating countries agree that the writing
of codes of journalistic ethics and their administration is the
business of journalists and publishers, who take into account
public feelings, and not the business of Governments.
They also agree that it is not possible to operate
a universal code of ethics, and are opposed to the imposition
of supra national codes and regulatory organisations, either at
the European or global level.
Those participating in the Alliance will help
to promote and support as much self-regulation a possible, in
as many places as possible, so that local solutions can be provided
to meet local needs."
5. Since its inception AIPCE has gone from
strength to strength and has sought to bring in new members from
around the continent when new Press Councils are established.
Numerous issues of mutual interest—such as the impact of
data protection laws, regulation of the internet and the implementation
of European directives—are discussed at its annual meetings,
which allow members to obtain a wider contextual understanding
of European media regulation. Since London in 1999, conferences
have been held in Bonn, Dublin and Malta.
6. AIPCE conferences are also now attended
by interested parties from outside Europe, with observers from
Israel and Japan attending this year's meeting in Malta.
7. Because the Alliance has no formal bureaucracy,
contact between members and others interested in self-regulation
has generally been on an ad-hoc basis. However, this has
changed in the last year as a result of a PCC initiative which
launched a new website for and about Press Councils, which was
demonstrated to AIPCE members at its recent conference.
8. The new site—www.presscouncils.org—contains
information and contact details about every known independent
Press Council in the world. It is not only useful for the staff
of Press Councils but also an excellent research tool for the
growing band of students of self-regulation. The project is overseen
by Professor Claude-Jean Bertrand of Paris, a world authority
on media accountability systems.
The future
9. AIPCE will continue to act as a forum
for debate and discussion and will be increasingly important as
new Press Councils emerge and old ones develop.
10. In 2003 the Swedish Press Council, the
oldest of the self-regulatory organisations in Europe, will host
the annual AIPCE meeting. The following year, the Cypriot Code
of Conduct Committee, one of the continent's newest independent
Press Councils, will take the chair.
11. A list of those organisations that have
participated in the Alliance of Independent Press Councils of
Europe is in Appendix XXVI (not reproduced here).
F (4) OUR WORK
IN THE
COMMONWEALTH
1. Outside Europe, the PCC's most significant
international commitment is in maintaining contacts with Commonwealth
Press Councils and advising Commonwealth countries wishing to
move from restrictive press laws to a self-regulatory model. The
trend in the Commonwealth is towards self-regulation and long-established
press councils in New Zealand, Australia and Canada also serve
as excellent examples of how things can be done.
2. This commitment has accelerated since
the recent programme—organised by the Commonwealth Press
Union (CPU)—to promote press freedom and self-regulation.
This initiative was funded by the Foreign and Commonwealth Office
as part of its wider project to support and advance the human
rights of people in the developing world.
3. The CPU's project was based around a
series of seminars that were held throughout the Commonwealth
during 2001 and 2002 in Ghana, Kenya, Sri Lanka, South Africa,
Sri Lanka and Barbados. Together with a seminar organised by the
Australian Press Council the series was attended by 122 representatives
from 39 countries. All were attended by PCC representatives—first
Lord Wakeham and subsequently Professor Pinker.
4. The seminars established that while there
was a strong desire for self-regulation in many countries, there
were also many obstacles to achieving it. The press was often
divided against itself and the funds needed to set up a self-regulatory
Press Council were often lacking. Governments could be, perhaps
unsurprisingly, often hostile to the self-regulatory ideal and
civil society uncomprehending towards a new concept in consumer
protection and dispute resolution.
5. In light of these problems the programme
has been responsible for some important and gratifying developments
and has seen complaints mechanisms established where previously
there were none (see below). In Sri Lanka, for instance, the Government
has been persuaded to amend the law on criminal defamation—inherited
from the British—in order to allow a new self-regulatory
body to flourish.
6. In all these places, and others, the
PCC's policy has been to ensure that self-regulation was moulded
to fit the individual country concerned and to encourage countries
to develop their own code of ethical conduct, taking into account
their distinctive civil traditions.
The conclusion of the project
7. The seminar series was brought to a close
in London in November of last year. A report on the project, entitled
"Imperfect Freedom—the case for self-regulation in
the Commonwealth press" was launched at this final conference
and its summary is contained in Appendix XXVII (not reproduced
here).
8. The report showed that while there is
a well-established tradition of press self-regulation in some
parts of the Commonwealth, in others it needs nurturing.
9. In the Eastern Caribbean a Code of Practice
has been written by editors and a Press Council with a lay majority
has now been firmly established to cover the territories of Barbados,
Grenada, St Vincent, St Lucia, Dominica, Montserrat, Antigua,
St Kitts-Nevis and the British Virgin Islands.
10. The Sri Lankan press has been working
towards self-regulation since 1998, with the PCC helping when
necessary. Now the Sri Lankan PCC—helped by the impetus
of the CPU seminars—is operational and hopes to start taking
complaints from members of the public in the near future.
11. Other notable successes have been witnessed
in Kenya, Nigeria, Botswana and Zambia. In each of those countries
Press Councils have either been tentatively established or have
been proposed as serious possibilities. Their success will depend
largely on continued support from the press and politicians locally.
12. Continued support from the CPU and the
PCC is essential, and the new Councils will benefit from the presscouncils.org
website, which will help them to keep in touch with established
Press Councils and obtain advice from experts[101].The
CPU also hopes to organise follow-up visits to countries where
Press Councils have been set up or there are moves to establish
such bodies.
Other developing world Press Councils
13. Aside from its work with the CPU, the
PCC was approached in 2002 by the Foreign and Commonwealth office
to help with the proposed establishment of an independent Press
Council in Swaziland. Professor Pinker was subsequently invited
to Swaziland to discuss the situation with politicians, the press,
interested civic groups and the King. The project remains ongoing
and it is hoped that a Press Council, the basis of which has been
agreed, will be established within the next year.
14. The UN itself has recognised the importance
of self-regulation to freedom of expression, concluding in a report
in 2002 "perhaps no reform can be as significant for making
democratic institutions work as reform of the media . . . Informed
debate is the lifeblood of democracies"[102].
15. The PCC will continue to play its full
part in achieving that.
CONCLUDING REMARKS
1. The PCC welcomes this review of privacy
and media intrusion by the Select Committee, and has enthusiastically
grasped the opportunity of making this submission to set out its
service to the public, the ways in which it has sought to raise
standards, and the comprehensive manner in which it has publicised
itself.
2. Press freedom is not perfect—and
self-regulation will never be perfect. What this submission has
sought to do is to show how it is nonetheless preferable, above
all from the point of view of ordinary people, to any form of
legal control.
3. A great deal has changed since the Select
Committee last investigated this area. The Code and the PCC's
sanctions have been strengthened. The Commission's independence
has been renewed. Procedures—endorsed by the Courts—have
been streamlined to offer complainants a fast, free and fair service.
A body of case law, particularly on privacy, has been established
which has helped raise standards further. The Code has been embedded
among a generation of journalists. A substantial public information
programme—concentrating on the most vulnerable in society—is
in place and expanding. And the PCC is now leading the way in
Europe in terms of customer service and effective regulation.
Above all, it is quite clear that standards of reporting have
been substantially raised since the 1980s when the blueprint for
the Commission was designed. And it is independent self-regulation—demonstrating
the power of voluntary controls—that has done that.
4. Of course there will always be more to
do, and the PCC is far from complacent. The Commission strives
consistently to improve its services—and welcomes constructive
and practical proposals for change. Similarly, the Code itself
is a flexible document, which has grown organically in strength
and authority, particularly in the last five years. The Code Committee
will also respond positively to proposals for further change in
the Code's provisions—as it has clearly demonstrated in
recent years.
5. We would welcome the opportunity to give
oral evidence to the Committee if that would be helpful to the
progress of this important and timely inquiry.
Annex 1
PRESS FREEDOM AND PRESS RESPONSIBILITY—THE
POWER OF SELF-REGULATION IN PRACTICE
A SUMMARY OF
THE ISSUES
INVOLVED WITH
A PERSONAL
VIEW BY
PROFESSOR ROBERT
PINKER
The case for press self-regulation
1. Press self-regulation serves two main
purposes. It protects press freedoms and it protects citizens
from abuses of those freedoms by the press. Freedom of expression
and privacy are both fundamental human rights but they can seldom,
if ever, be treated as absolute rights because they so frequently
come into conflict with each other. In seeking to reconcile these
conflicts, regulatory bodies must give due consideration to the
claims of the public interest but the nature of these claims varies
according to who is advancing them. Editors, for example, may
advance a public interest defence in order to justify an invasion
of privacy. Governments may advance the same defence in order
to restrict freedom of expression or access to information. Editors,
for their part, associate the public interest with the extension
of these rights.
2. The resolution of these conflicts of
interest and interpretation, as and when they arise, is the central
concern of all adjudicatory processes—whether they are being
carried out by statutory or self-regulatory bodies. The fact that
such conflicts of principle occur so frequently explains why some
form of press regulation is necessary. The dilemma we face is
not one of choosing between regulation and no regulation at all
but of choosing between two different kinds of regulation—the
statutory or the self-regulatory options.
3. With regard to the press, two powerful
arguments can be advanced in defence of the self-regulation option.
First, a free press is one of the fundamental institutional characteristics
of a free society. Newspapers and periodicals are public watchdogs.
They scrutinise those who exercise power in every walk of life.
They help voters make informed choices and reach considered opinions.
They frequently criticise Government policies and the conduct
of political office-holders. For all these reasons, as the late
Lord McGregor once observed, relations between politicians and
the press tend at times to be "uneasy, suspicious and fretful".
If they were ever to become more cordial there would be good grounds
for questioning whether or not the press was doing its job effectively
as a public watchdog.
4. Media freedom is never absolute. It is
subject to many legal restraints which in the United Kingdom include
laws of defamation, data protection, copyright, confidence and,
more recently, the 1998 Human Rights Act. If, however, the state
were to become continuously involved in regulating the day-to-day
conduct of news gathering and publication in ways that went beyond
these legal restraints, such regulation would eventually become
synonymous with statutory censorship of the printed word. Relations
between Government and the press would become openly confrontational
or abjectly conciliatory. And since it would be impossible to
regulate the internet effectively the whole exercise would swiftly
be rendered pointless.
5. Secondly, the case for self-regulation
rests on the premise that, in complex democratic societies, self-imposed
rules will carry a greater moral authority and, consequently,
work with greater effectiveness than externally imposed legal
rules. Self-regulation, at its best, works well because it is
accessible to everyone, rich and poor alike. It is fast and flexible
in its conduct of business. With the appropriate institutional
safeguards it operates independently of all special interests
and at no cost to either the taxpayer or the complainant.
6. The case for self-regulation, however,
must be defended not only on grounds of general principle, but
tested with regard to its practical effectiveness. In the United
Kingdom, responsibility for meeting these criteria is shared between
the Press Complaints Commission and the press itself.
7. In this short paper we describe how these
responsibilities are shared and how the Code is designed to help
in the reconciliation of conflicting rights and claims. We go
on to review the effectiveness of the Commission's sanctions and
its procedures for resolving complaints. We conclude with a general
evaluation of the Commission's effectiveness over the past 10
years.
The division of responsibilities
8. Neither a statutory nor a self-regulatory
system could work effectively without a very high degree of voluntary
compliance. Since a self-regulatory system is entirely dependent
on voluntary compliance it is imperative that such compliance
should become as widespread as possible. A self-regulatory Press
Complaints Commission like ours only works effectively if its
Code of Practice is firmly based on the civic traditions and customary
values of the general public and the industry which it regulates.
These values are, in turn, underpinned by their attachment to
more general principles of ethical conduct and formal doctrines
of natural rights and duties.
9. The business of self-regulation is, however,
a highly practical activity. Regulators have to apply general
principles—which often conflict with each other—to
specific cases as they arise in every day life. The Code of Practice,
which the Commission administers, provides the general framework
within which these principles can be put into practice.
10. The British system of press self-regulation
is based on a clear-cut, but complementary, division of responsibilities
between the industry and the Press Complaints Commission. The
Code of Practice belongs to the industry which is responsible
for upholding its requirements and keeping it up to date. The
Commission is responsible for administering and enforcing the
Code.
11. This division of responsibility dates
from 1991 when the Commission's first Chairman, Lord McGregor,
insisted that the Code should be written by a small committee
of editors and publicly endorsed by the industry. Since then,
the editors' Code Committee has kept its requirements under continuous
review and updated them in response to changing needs and circumstances.
These requirements include a general obligation to uphold the
Code "not only to the letter but in the full spirit".
A further requirement states that the Code "should not be
interpreted so narrowly as to compromise its commitment to respect
the rights of the individual, nor so broadly that it prevents
publication in the public interest".
The Code of Practice
12. The Code of Practice provides clear
guidelines on how the right to freedom of expression must be balanced
against other rights, including privacy and considerations of
public interest. It upholds "the public's rights to know"
and sets out a number of qualifications that impose responsible
limits on that right. In this respect, it should be noted that
when the provisions of the European Convention on Human Rights
were incorporated into UK law, it was not deemed necessary for
the industry to make any changes to the Code.
13. Article 10 of the Convention upholds
"the right to freedom of expression . . . to hold opinions
and to receive and impart information and ideas without interference
by public authority". This right is now incorporated into
United Kingdom law. It should also be noted that both the right
to freedom of expression and to privacy are made subject to various
qualifications relating to a consideration of the public interest.
This includes such matters as the protection of national security
and public safety, the prevention of disorder or crime, the protection
of public health and morals and the protection of the rights and
freedom of others.
14. The Code's definition of the public
interest includes:
(i) Detecting or exposing crime or a serious
misdemeanour.
(ii) Protecting public health and safety.
(iii) Preventing the public from being misled
by some statement or action of an individual or organisation.
15. In cases involving children, editors
must demonstrate an exceptional public interest to override the
normally paramount interest of the child. In cases involving privacy
intrusion, the right to privacy must be balanced against the right
to free expression and the claims of the public interest.
16. The first two sub-clauses of this definition
seldom give rise to serious problems of interpretation. It is
the third sub-clause that often gives rise to disputes and is
frequently invoked by editors as a prima facie public interest
justification for intrusion into peoples' privacy.
17. Public figures, and in particular politicians,
invariably put their own privacy at risk when they make pronouncements
on moral issues which will affect the way in which ordinary citizens
live their private lives and conduct their personal relationships.
Members of Parliament, and other legislative bodies, have as much
right as anyone else to comment on such matters but, when they
do, their statements carry a special significance because they
are in a position to recommend and introduce changes in the boundaries
between those aspects of moral behaviour which are subject to
legal sanction and those which are not. In more general terms,
all public figures put themselves at risk of press enquiries into
the circumstances of their private lives when what they say and
do in public seems to be inconsistent with what they do in their
private lives.
18. Nine of the 16 Clauses in the Code cover
issues of a kind which allow editors to advance a public interest
defence in justification of their actions. These issues include
privacy intrusion, harassment, reporting on children, the use
of listening devices, access to hospitals, the identification
of innocent relatives and friends, misrepresentation and subterfuge,
and payment for articles. A public interest defence cannot be
advanced with regard to the identification of children involved
in sex cases.
19. Clause 3 of the Code defines privacy
in the following terms:
(i) Everyone is entitled to respect for his
or her private family life, home, health and correspondence. A
publication will be expected to justify intrusions into any individual's
private life without consent.
(ii) The use of long lens photography to
take pictures of people in private places without their consent
is unacceptable. Note—Private places are public or private
property where there is a reasonable expectation of privacy.
20. There are other parts of the Code which
touch on issues related to privacy intrusion. They relate to matters
including harassment, which can be seen as a protracted form of
privacy intrusion, the protection of people receiving medical
care and people suffering from grief and shock, and for other
vulnerable people including children, victims of sexual assault,
and the innocent relatives or friends of those who have been convicted
of crime.
21. The stringent and wide-ranging requirements
of the Code recognise how deeply hurtful unwarranted privacy intrusion
can be to the individuals affected. They also take account of
the way in which these intrusions can affect innocent friends
and relatives. Privacy intrusion was the issue that caused the
Government of the day to establish the first Calcutt Committee
of inquiry and privacy continues to hold a salient significance
in the work of the Commission today.
22. Reconciling the right to privacy and
the right to freedom of expression will always be a complex and
difficult exercise because privacy is such a paradoxical concept.
People can only come to appreciate the value and nature of privacy
by growing up in a society. In order to become sociable, however,
people have to accept limits on their privacy. Privacy is not,
therefore, an absolute and nor is the right to invade it. This
is a dilemma that all members of a society have to live with.
23. In recent years the Code's requirements
on privacy intrusion have been made more stringent. The Commission,
for its part, has given more focus and refinement to the questions
it asks when considering all privacy complaints. These questions
include whether the disclosures complained about are already in
the public domain, whether they raise issues of genuine public
interest, and whether the past behaviour of the complainant has,
in any way, compromised their right to privacy. In all such cases,
the Commission seeks to establish whether or not the disclosures
in the article complained about are proportionate to the information
already in the public domain. With regard to stories about the
children or other relatives of public figures, the Commission
asks whether or not they would have been published at all if the
familial links not existed. Complainants who have previously revealed
details of their personal lives do not necessarily forfeit their
future rights to privacy.
88 Professor Richard Shannon, "A Press Free
and Responsible" (September 2001), pp. 156-7 and 162. Back
89
These and other statistics are set out in more detail in Section
A4. Back
90
Compare with the current situation in the Republic of Ireland,
where newspapers have no culture of correcting mistakes because
of the legal ramifications of doing so. Back
91
According to article 53.4 of the Commission's Memorandum and Articles
of Association: "Notwithstanding the provisions of Article
53.3, the Commission shall have discretion to consider any complaint
from whatever source that it considers appropriate to the effective
discharge of its function." Back
92
See PCC statement of March 1995. Back
93
For example, regarding the serialisation of a book about Mary
Bell in The Times, Report 43, and regarding payments made
by The Sun to Ronnie Biggs, Report 54. Back
94
See Report 50. Back
95
The relevant trials were Gary Glitter (Report 48) and Amy Gehring
(Report 57). Back
96
It is worth noting that the PCC does not, in fact, now receive
all that many third party complaints. Only 6% of the total last
year turned out to be third party complaints. Back
97
Source-Professor Clause-Jean Bertrand, questionnaire to
European Press Councils in 2000. Note that no information was
supplied by Iceland. Back
98
June 1998. Some of these issues are dealt with in the adjudication
on the issues arising from Clause 16 of the Code on payments to
criminals (Report 43). Back
99
The role of the Commission during Dunblane and other tragedies
is covered in Section A4. Back
100
Kaye v The Sun, Report 31. Back
101
See Section F3 para. 8. Back
102
United Nations Development Report, 2002, p 75. Back
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