The use of sanctions and other effective
24. The Lord Chancellor and some judges
have, from time to time, suggested that the use of financial sanctions
would enhance the credibility and effectiveness of self-regulatory
Councils. It is the Commission's view, however, that the power
to impose fines would change the whole character of self-regulation
and, paradoxically, reduce its effectiveness.
25. Voluntary compliance is the real strength
of the self-regulatory system. The effectiveness of a self-regulatory
Council should not be judged by reference to the frequency with
which it feels obliged to impose draconian financial sanctions.
Indeed, the most likely response of the wealthiest publishers
would be to treat such fines as an irksome but necessary part
of their running costsrather in the manner that wealthy
car-owners treat their parking fines.
26. We have found, for our purposes, that
the requirement to publish a critical adjudication in full and
with due prominence is an entirely sufficient sanction. So far,
the newspaper and periodical industry has given 100% support to
the Commission and its administration of the Code.
27. No newspaper or periodical has ever
refused to publish a critical adjudication. Some critics suggest
that they are not surprised to learn that editors obey this requirement
since it imposes a sanction that costs them nothing in financial
terms. Our files of correspondence with editors facing the prospect
of a critical adjudication suggest otherwiseespecially
when they are convinced that they have not breached the Code.
They frequently invest considerable time and effort in defending
their actions and sometimes they go on to appeal against a critical
adjudication. Editors do not like losing a case. They do not like
having to publish a critical adjudication which reflects adversely
on their professional judgement and competence. Least of all do
they like it when competitors also report their breach of the
Code with suitably self-righteous comments.
28. In recent years the Commission has developed
two complementary procedures for the resolution of complaints.
Some are resolved by means of informal conciliation and others
go all the way to a formal adjudication.
29. The extent to which editors voluntarily
comply with Code requirements is clearly demonstrated by the fact
that over 90% of all the complaints we receive which raise a prima
facie breach of the Code are resolved informally to the satisfaction
of the parties involved. They are resolved through the intervention
and mediation of the Commission's complaints officersor
they are not pursued. Only about 3% of complaints have to be taken
to full and formal adjudication. This is either because there
are prima facie grounds for believing that the breach is
potentially so serious that an informal apology, published letter
or a voluntary correction would not be a sufficient remedy or
because the editors concerned are convinced that they have not
breached the Code and that a formal adjudication will vindicate
them. The extent to which we can rely on such voluntary compliance
and correction explains, in large part, why it takes us, on average,
32 working days to conclude a complaint.
30. All Commissioners receive draft recommendations
on the outcome of informally resolved complaints before they are
formally adopted. They may, if they wish, ask to see the relevant
correspondence, request a further review, or recommend that the
complaint be taken forward to a formal adjudication.
31. A tariff of financial sanctions would
undoubtedly slow down the process of resolving complaints. Moreover,
there is no evidence that complainants are seeking financial compensation.
They want the editor to admit that he or she got it wrong. They
want an apology, a correction or a published letter. They know
when they come to us for redress of grievances that it is a cost-free
service. They hope, in addition, that their complaint will be
dealt with swiftly and, in that respect, they are rarely disappointed.
32. When the Commission started work in
1991, its relations with many editors were highly confrontational.
Every complaint was the subject of prolonged negotiation and disputes.
Over the years they have become much more willing to make voluntary
corrections and apologies for breaches of the Code. This change
in editorial attitudes provides a crucially important measure
of the extent to which the Commission and the industry have created
a new climate of conciliation and voluntary compliance in the
resolution of complaints.
33. Other critics have argued that the Commission's
increasing use of conciliation and the growth of voluntary compliance
clearly indicates the extent to which it is "cosying up"
to the press and the degree to which the industry's editors and
owners "have penetrated the inner working of the Commission".
They go on to claim that even the Commission's majority of lay-members
does not protect its independence from industry pressures.
34. These claims are without foundation.
Voluntary compliance is not to be confused with "cosying-up".
In the process of seeking informal resolutions through conciliation
it is more often the case that editors feel that it is they who
are being put under pressure by the Commission's complaints officers.
35. Reponses to the claim that the Commission
is a good example of the way in which lay-members are "captured"
by the industry they regulate are best left to past and present
lay-Commissioners. Once appointed, lay and industry members alike
serve as independent Commissioners. In their adjudication of complaints
at Commission meetings, they rarely, if ever, divide into two
opposing camps and it is extremely difficult to predict the outcome
of their deliberations.
36. For all these reasons, we submit that
the increase in the number of complaints resolved through informal
conciliation and mediation has in no way prejudiced the independence
of the Commission or weakened the rigour and stringency of its
adjudications. On the contrary, this development clearly indicates
the extent to which the great majority of editors are voluntarily
abiding by the requirements of their Code of Practice. They are
exercising their right to freedom of expression in a far more
responsible way than was the case 10 years agowithout the
threat of financial sanctions.
37. Responsible self-regulation requires
editors to use their discretion when deciding whether or not to
publish a story or article that might prove to be in breach of
the Code. Errors of judgement are bound to occur from time to
time, although it is seldom difficult to spot the difference between
genuine mistakes and intentional breaches of the Code. After allowance
is made for genuine human error, three reliable and realistic
measures can, in addition to surveys of user-satisfaction, be
applied in assessing the effectiveness of self-regulation.
38. The first of these measures is the willingness
of editors to make voluntary corrections and apologies in appropriate
cases. The great majority of complaints received are resolved
in this way. The second measure is the incidence of breaches of
the Code which are so serious or flagrant that they must be formally
adjudicated. Only 3% of complaints fall into this category. Flagrant
breaches of the Code were commonplace before 1991. They rarely,
if ever, occur today. The third measure is the willingness of
editors to publish critical adjudications in full and with due
prominence. In this respect, 100% compliance has been achieved.
39. Much has been written about the Commission's
adjudications in high profile cases involving public figures and
other celebrities. Far less attention has been given to the great
majority of adjudications involving so-called ordinary people.
Almost no attention at all has been given to the thousands of
complaints that have been resolved through the process of informal
conciliation without any need for formal adjudication. They account
for over 90% of all complaints received raising a possible breach
of the Code over the last 10 years.
40. For these reasons, the Commission's
success in creating a new climate of conciliation and conflict
resolution has never been accorded the recognition that it merits.
When relevant measures of effectiveness are applied across the
whole range of the Commission's work, the true scale of that success
becomes evident. Freedom of expression has been protected and
the press has learned to exercise that freedom more responsibly.
Most importantly, serious breaches of the Code occur far less
frequently than they did 10 years ago and when people do complain
they receive a service that is readily accessible, cost-free,
efficient and prompt in delivering a resolution or making an adjudication.
ANALYSIS OF 1993 NATIONAL HERITAGE SELECT
COMMITTEE RECOMMENDATIONS AND ACTION TAKEN TO IMPLEMENT THEM
1. Following its inquiry into privacy and
media intrusion, the National Heritage Select Committee used the
opportunity of its 1993 Report to make a number of recommendations
aimed at "strengthening" the system of self-regulation
of the press. It actually recommended replacing the PCC with a
new Press Commission, but the PCC endured, and the newspaper industry
adoptedand exceededmany of the Committee's recommendations.
The recommendations in the Select Committee therefore referred
to improvements that should be undertaken by a Press Commission,
but as it was never created this analysis will refer to the PCC.
Editors' and journalists' employment contracts
2. The Committee recommended that "editors'
contracts of employment should specifically require them to enforce
the industry's Code of Practice and to accept the consequences
of any fundamental breaches". It also thought compliance
should be made part of every journalist's contract and that "every
freelance should be told that his or her work will not be accepted
unless the material has been obtained in compliance with the Code"
(Paragraphs 62 and 82).
3. The newspaper industry accepted this
idea and such references to the Code of Practice are commonplace
in the contracts of editors. Section B4 of this submission contains
the results of an industry-wide survey into the extent to which
this practice has penetrated the industry and shows virtually
universal compliance with this recommendation. Regarding freelancers,
the Committee's objectives have been met by the inclusion in the
Code of a clear requirement that published material must comply
with it no matter what the sourcea point underlined in
the Commission's adjudications.
4. The Committee was impressed by the system
of readers' representativesor ombudsmenthat it found
on some American broadsheet newspapers. While not recommending
that every newspaper should have one it did suggest that the idea
should be considered. (Paragraph 65).
5. Some newspapersnotably The
Guardian, The Observer, The Independent on Sundaydo
now have Readers' Representatives. Others, like The Sun and
the News of the World, have appointed former senior executives
as ombudsmen to deal with readers' complaints effectively. Others
stillThe Mirror, The Daily Express, for examplehave
initiated corrections and clarifications columns to ensure swift
redress for readers. All are variations on the idea of in-house
self-regulation which is epitomised by a Readers' Representative.
The PCC strongly encourages such moves.
Publication of PCC details in newspapers
6. The Committee considered that the PCC
should be as widely-known as possible and recommended that the
address and telephone number of the PCC be published periodically
by newspapers. (Paragraph 68).
7. The newspaper industry accepted this
proposal. All newspapersnational, regional, localand
magazines from all over the country regularly carry PCC advertisements
free of charge. These adverts detail the service that the PCC
offers and have generated hundreds of enquiries and formal complaints
over the years, playing an essential part in keeping the Commission's
profile high. PCC contact details are also listed in every telephone
book in the country.
8. It was recommended that PCC offices should
open in Wales, Scotland and the English regions to deal with complaints
from those particular areas. (Paragraph 68).
9. It was not thought that this extra layer
of bureaucracy would be particularly helpful or efficientparticularly
as the PCC is a very small body anyway. Analysis of the geographical
distribution of complainants suggests that people are not put
off from complaining because they have to write to an address
Nonetheless, the PCC does operate its own Scottish Helpline0131
220 6652to assist with the cost of those calling from Scotland.
Section D3 outlines how the PCC maintains a high profile in the
10. The Committee wanted editors to be aware
of possible problems before publication, in order that they may
take a more informed decision about whether or not to publish.
It was suggested that the Commission therefore telephone editors
on a "hot-line" to alert them about potential breaches
of the Code, although this was not intended to develop into a
system of prior restraint. (Paragraph 69).
11. The Commission has been wary about intruding
into any areas that put it at risk of developing a system of prior
restraint. However, it does operate a Helpline for members of
the public, and advises people how they can approach editors and
how to frame their arguments using the Code of Practice.
The Helpline is manned during office hours and anyone needing
advice at any other time can use our 24 hour emergency service.
12. The Committee recommended that the Commission
should play a "valuable role in ensuring that journalists
are fully trained in the Code and in wider press ethics".
13. As detailed in Section D4 of this submission,
every year the Commission undertakes a major programme of training
journalists. Senior members of the Commission and its staff travel
all over the United Kingdom to ensure that a new generation of
journalists learns about the Code and the Commission while they
are studying journalism. Knowledge of the Code is now a core part
of the National Council for the Training of Journalists' curriculum.
This programme started following the last Select Committee report.
Research into public opinion
14. Part of the Committee's idea for a new
Press Commission was that it would be specifically charged with
upholding press freedom. To this end the Committee recommended
that it should periodically conduct research into "public
attitudes to the press, the effectiveness of the Code of Practice,
(and) the press's wider role in society and the freedom of the
press". (Paragraph 71).
15. The PCC did not take on this additional
role as a champion of press freedom and instead developed itself
as an efficient dispute resolution service for members of the
public. However, it has commissioned research into what the public
thinks is important in a complaints body, who should fund the
PCC, how many people have heard of the Commission and whether
they know that its service is free. (See Appendix X).
Enquiries into issues of general public concern
16. It was suggested that the PCC should
initiate enquiries into "issues of general public concern
or into specific incidents and, where necessary, give advice on
the principles to be applied". (Paragraph 71).
17. In practice this is something that the
PCC does from time to time through the use of Best Practice or
Guidance Notes. It has done so on issues as varied as the reporting
of major sporting events, mental health issues, Court reporting
and the reporting of cases involving paedophiles. When such statements
are made the Commission publicises them and they are permanently
accessible on its website. The Commission also does raise its
own complaints from time to time on matters of wide public interest
such as payments to criminals or financial journalism. (For more
detail, see Section E4).
18. The Committee said that the Commission
should "monitor the press on a continuing basis". (Paragraph
19. The Commission has set out in Section
E how it undertakes specific, private monitoring exercises from
time to time to satisfy itself that Code compliance is high on
particular issues. However, this is informal and at the Commission's
discretionthere are real dangers that any institution with
broader "monitoring" powers would soon become a censorship
body. In any case, the Commissionwith its focus on delivering
swift redress to ordinary members of the publicwould be
reluctant to see any of its resources diverted from its key task.
Only a state-run and funded bodycommon in authoritarian
systems of Governmentcould adequately undertake an exercise
to "monitor" the whole of the press.
Third party complaints
20. The Committee recommended that the Commission
investigate third party complaints. (Paragraph 72).
21. The PCC's position on this matter is
set out in Section E4. It does have the discretion to take third
party complaints but exercises it relatively rarely, for very
good reasons. The Commission would strongly resist any attempt
to compel it to accept all third party complaints.
22. The Committee thought that its suggestions
in relation to third party complaints and monitoring would lead
to an impressive volume of case law that would reduce the number
of breaches of the Code. (Paragraph 73).
23. In fact, the development of a very considerable
volume of case law has been achieved effectively and with more
benefit to the complainant through the publication of adjudications
from individuals who have complained. These lay down guidelines
for the whole industry and have, over the years, raised standards:
details of how this has been achieved are set out in Section C2
of this submission. Case law can easily be accessed by the search
engine on the PCC website.
24. The Committee suggested that where factual
errors and breaches of the Code had occurred, the Commission should
be able "to order the publication with due prominence of
its adjudications and of a correction and appropriate apology".
25. The Code of Practice now says that significant
inaccuracies "must be corrected promptly and with due prominence".
With regard to adjudications, it says that "any publication
which is criticised by the PCC . . . must print the adjudication
which follows in full and with due prominence". Incorporating
this requirement for due prominence in the Code is an effective
way of ensuring that it happens, because a failure to do so can
result in another breach of the Code. As it happens, the Commission
has never had to uphold a complaint that an editor did not publish
a correction or adjudication with due prominence.
Compensation and fines
26. The Committee recommended that the Commission
should have the power to award compensation to complainants, and
to fine newspapers when they are adjudged to have "brought
journalism into disrepute". (Paragraphs 75 and 77).
27. The PCC's position on this matterand
its very clear belief that not only would this be counterproductive
but also misses the point of why people complainis set
out in Section E3 of this submission.
Appointments to the Commission
28. The Committee recommended that appointments
should be entrusted to the "appropriate representative bodies
of the industry" and have regard to the need to appoint women
and ethnic minorities. (Paragraph 79).
29. The industry has reformed the appointments
procedure far more thoroughly than the Committee suggested. The
Appointments Commission now comprises four independent members
and just one from the industrythe Chairman of Pressbof.
Of the eight public members of the Commission, two are currently
from ethnic minorities and four are women. This is dealt with
in more detail in Section E1.
Journalists identifying themselves
30. The Committee recommended that journalists
should identify themselves when seeking an interview and suggested
that copies of the Code be made available to people at the time
the interview or photograph was being sought. (Paragraph 83).
31. While there is no specific requirement
in the Code for journalists to identify themselves, the Commission
will consider it a breach of Clause 11 (Misrepresentation) if
journalists allow a misleading impression of who they are to develop.
In practice, therefore, the Committee's objectives have been met.
Regarding distribution of the Code, members of the public have
round the clock access to it and information about how to use
it. Copies of the Code are also widely distributed to journalists
through the Society of Editors and others.
Times of grief
32. The Committee commended the way that
the police helped to shield relatives of deceased people or victims
of crime from media intrusion and encouraged its further development.
33. The Police have continued to develop
this important area of training. The Commission co-operates closely
with them on such matters, for example by giving an annual talk
at the Scottish Police College to Family Liaison Officers.
34. The Committee recommended that all references
in the Code to "anti-social conduct" should be deleted
because of the difficulties of definition. (Paragraph 87).
35. The Code Committee deleted such references
Printing of the Code in minority languages
36. The Committee said that "consideration"
should be given to printing copies of the Code in other languages.
37. The PCC has exceeded this requirement
by publishing not just the Code but a range of literature in Urdu,
Bengali, Welsh, Gaelic and Chinese and other languages
as part of its commitments under the Complainants' Charter.
38. In all the areas where suggestions were
made about to how to improve the PCC's servicerather than
those calling for a change in the whole philosophical basis of
the organisationthe newspaper industry and the Commission
reacted with vigour. Not only were most of the recommendations
adopted but some were exceeded. Furthermore, as outlined in other
sections of this submission, the PCC has constantly looked for
imaginative ways of engaging with the public and making its procedures
accessible and widely-publicised. It succeeds in doing this in
ways that were not imagined 10 years agoand is committed
to continuing to do so.
THE PCC AND DISCRIMINATION
1. As Section A2 shows, there has been a
steady rise in the number of complaints about discrimination over
the PCC's lifetime. This does not mean that breaches of the Code
are more frequent or that standards in the press are falling.
But it does reflect the changing times and the growth of press
commentfor obvious reasonsabout matters to do with
Islam, immigration and asylum seekers, and the willingness of
more people to use the PCC to make their views clear when they
disagree with a newspaper. It also reflects the fact that more
lobby groups use the PCC as a mechanism to make their point against
a newspaper, and encourage individual members to register complaints
about particular articles. Because a large number of people often
complain about the same thing it is often overlooked that the
actual number of articles complained about is really quite small.
It seemed useful to draw together some of these issues as an Annex
to our substantive submission.
2. The Code itselfa document designed
to set out the rights of the individualcontains in Clause
13 tough rules on the reporting of someone's race, colour, religion,
sex or sexual orientation, mental or physical disability.
3. In particular, it says that the press
must avoid publishing such details unless they are relevant to
the story. It also protects individuals from prejudicial or pejorative
references to any of these facts.
4. The Code has, in this area, been responsible
for gradually raising standards of reporting. Because breaches
of the Code are so rare it is easy to forget the pernicious attacks
that some newspapers freely made on people on account of their
race or sexual orientation as recently as the late 1980s.
5. Nonetheless, breaches of the Code dorarelyhappen.
When they do the Commission applies its normal procedures to try
in the first instance to reach an amicable settlement to the complaint.
Examples of complaints under Clause 13 being resolved include:
a newspaper that criticised a German
woman for studying English art apologising to the woman and offering
to publish a letter from her;
a newspaper apologising to a gay
police officer for a prejudicial reference; and
a magazine, having included details
of a woman's mental health problems in an article, later apologising
and ensuring that the article was not re-circulated.
6. Only rarely does the Commission have
to adjudicate on alleged breaches of Clause 13. However, it has:
criticised an evening newspaper for
pejorative use of language in an article about a Jewish businessman
(Bishko v Evening Standard, Report 40);
censured a magazine for ignoring
the Commission's Guidance Note on mental health (Peck v
Time Out, Report 40); and
upheld a complaint against a local
newspaper for including details about a teenager's mental health
problems in an article about his mother's conviction for possession
of cannabis (A woman v Hastings and St Leonards' Observer,
7. It is clear therefore that the Commission
provides effective remedies on those few occasions that Clause
13 is breached.
8. There are some people who would like
Clause 13 of the Code to be redrafted to include groups of peoplewhich
might include nationalities, political groups or religions.
9. The Code has never proscribed journalists
from making critical comments about such groups. Indeed, any attempt
to do so would arguably infringe the journalist's and the newspaper's
right to freedom of expression.
10. Moreover, the Commission has never concerned
itself with subjective matters such as what might be offensive
or what might be in poor taste. These are matters that are left
to editorswho are best placed to judge the sensibilities
of their readers. Making judgements about something that has offended
one group of people could put the Commission in the position of
offending another group of people. This is not what the Commission
was designed to dowhich was to offer a dispute resolution
service to people who had been victims of intrusive or inaccurate
11. However, the Code Committee hasas
a result of representations from politicians and the publiclooked
several times at whether the Code might be amended to include
rules on how journalists should refer to groups of people. Each
time the idea has been dismissed as unworkableno formula
has been found that would protect legitimate comment and freedom
of expression while at the same time addressing the concerns of
those who wish to outlaw discriminatory comment about groups of
12. In any case, it is often true that people
can complain under the accuracy Clauses in the Code about articles
that they have also considered to be discriminatory. This was
shown to good effect in the complaint from solicitors Harman and
Harman against the Folkestone Herald
when the Commission took the opportunity to highlight the danger
of inaccurate reporting of asylum stories creating a climate of
fear and hostility not borne out by the facts.
13. The fact that the Commission cannot
adjudicate on general complaints under Clause 13 should not be
mistaken for impotence or inactivity when it comes to dealing
with objections to discriminatory reporting about groups of people.
Section D2 sets out in some detail the lengths to which the Commission
has gone to engage with representatives of minority groups who
might be concerned by such reporting. Members of the Commission's
staff have explained how the Code can be used when complaining
directly to editors, and have given advice on how other points
of view can be communicated.
14. The Commission has also undertaken more
formal exercises to raise standards. Some of these have been reactiveon
the back of complaintsand some proactive, such as the issuing
of Guidance Notes.
15. On two occasions, the Commission has
taken the opportunity of discrimination complaints to remind editors
of the need for high standards in this area, and subsequent to
each occasion reporting has improved markedly. While it could
not censure the papers concerned because no breach of the Code
had occurred, the Commission issued critical statements.
16. The first such occasion followed press
coverage of the Euro 96 football tournament. The Commission received
a record number of approachesover 300from members
of the public concerned about what they perceived to be stereotypical
and aggressive coverage given to the German football team, which
played England in the semi-finals. On this occasion, members of
the Commission issued a statement placing on record "their
own concern about the lapses in editorial judgement which had
occurred, and trusted that all editors would take into account
the public reaction to the coverage of Euro 96 . . . when covering
future international sporting events". (See Appendix XXVIII)
(not reproduced here).
17. The next test for editors came during
the World Cup Finals in France in 1998. On the eve of the tournament
Lord Wakeham, then Chairman of the PCC, issued a statement urging
editors to ensure that "their reporting and their comment
does nothing to incite violence, disorder or other unlawful behaviour,
or to foster any form of xenophobia that could contribute directly
to such incitement" (PCC Annual Review 1998, p 12).
18. Editors heeded this warning, and took
account of the Commission's statement of two years earlier. Reporting
of the tournament was notably more restrained and the Commission
had no call to criticise editors again.
19. The Commission also had cause to issue
a statement over articles in two different newspapers, by the
same columnist, which criticised Malta in 1996. The articles were
written in extreme terms and were hyperbolic to the point of absurdity
but contained a large amount of material that many people found
offensive. The complaints chiefly concerned matters of taste,
but members of the Commission wanted to put on record "their
own abhorrence at the offensiveness of the language which, they
believed, was a rare example of that worst type of journalism
which all too easily can bring the whole of the press into disrepute".
This tactic worked and the Commission has not had to deal with
any similar case since.
20. The Commission, as a result of dialogue
with the Mental Health Act Commission, issued guidance to editors
in 1997 about the sort of language that is not acceptable when
referring to sufferers from mental health problems. It said that
epithets such as "basket case" and "nutter"
should be avoided, and reminded editors that those detained under
the Mental Health Act 1983 were not prisoners but patients, and
consequently words such as "cell", "cage"
and "jail" were not appropriate to describe their accommodation.
21. The message of this Guidance Note was
reinforced when the Commission upheld a complaint against a magazine
which had said that there was a "huge number of nutters on
London buses" and referred to a "gibbering nutter".
22. In 1999, a member of the Commission's
staff monitored press coverage for a three month period to assess
how newspapers were reporting mental health stories. No instances
of a breach of either the guidelines or the more specific requirements
contained in the Code were found.
23. The Commission does not believe that
its inability to adjudicate about general comment under the Code
allows the press free rein to publish any inflammatory and discriminatory
reference about various groups of people. The Code and the Commission
are responsible for restraint in this area for several reasons.
Firstly, any article that relies on an inaccuracy or distortion
to make a point can be complained about under Clause 1 (Accuracy).
Secondly, the Commission has helped to make editors aware of certain
issues through the publication of Guidance Notes and statements,
after which standards have noticeably risen. Thirdly the Commission
has helped those representing minority groups to use the Code
in their dealings with editors and has helped them to frame formal
complaints when necessary.
24. However, the Commission also appreciates
that there is a lot of work to be done in this area which is why
it has undertaken the programme of initiatives outlined in Section
WHY A PRIVACY LAW WOULD BE OF NO USE TO ORDINARY
1. Various sections of the PCC's submission
set out the benefits of self-regulation and the work of the Commission
for ordinary peopleparticularly in relation to privacy.
These are that self-regulation is:
fastsorting complaints out
freemaking a complaint costs
accessibleit is easy to make
a complaint, and everything takes place on paper;
fairboth sides know the PCC
will act impartially in dealing with a complaint and consistently
in applying the Code. In addition the Commission has a huge amount
of experience in dealing with matters of individual privacy.
2. A privacy lawand actions under
itexhibit none of these characteristics. This short note
summarises why it would therefore be of little practical use to
3. Slow justiceno justice. Complaints
to the PCC are dealt with quickly. Legal action takes a great
deal of timemeaning that it is often years before an individual
receives any form of redress. For instance, the story about Naomi
Campbell attending Narcotics Anonymous was published in The
Mirror on 1 February 2001. Final judgement in the matter was
not handed down until 14 October 2002some 21 months later.
4. The delay involved in legal actions is
borne out by the Commission's own experience of complaints brought
through lawyers. As set out in Section A5, while the average time
to deal with all complaints was 32 working days in 2002, complaints
made through lawyers took an average of 71 working days122%
longer. Furthermore, it took an average of 84 working days for
a complaint through a lawyer or other representative to be resolvednearly
half as long again as complaints resolved directly with the complainant,
without any difference to the success rate.
5. Cost. Complaining to the Commission
is freewhich makes the PCC's service accessible to anyone.
Actions under the Human Rights Actas indeed would be the
case under a privacy tortwould cost a great deal of money,
with absolutely no prospect of an extension of legal aid. Estimates,
for example, in the case of Naomi Campbell suggest that a prolonged
action could cost upwards of £750,000.
This makes privacy actions in Court inaccessible to anyone other
than the super-rich. However, as is established elsewhere in this
submission, the overwhelming majority of individuals affected
by media intrusion are ordinary people who could never afford
such bills and would never risk the prospect of bankruptcy if
6. It is sometimes suggested that an extension
of so called "no win, no fee" actions in this area could
assist individuals in utilising any law. To begin with, there
would still be the prohibitive costs of insurance for those complaining.
More importantly, most lawyerscertainly in the wake of
the Ford, Campbell, Theakston and Flitcroft rulingsknow
that privacy cases are far from easy and NEVER clear-cut. While
some lawyers might be prepared to take the gamble, it is unlikely
that sufficient numbers would want to deal with the burden of
complaints that the PCC receives every year.
7. Inaccessible to the most vulnerable.
The PCC spends much time coaxing individuals who may be wary
of complainingoften the most vulnerableinto doing
so. We can do it on the basis that complaining is easy, that newspapers
won't victimise those who complain, that the process is informal
and does not involve any of the legal paraphernalia that many
ordinary people find off-putting.
8. The opposite would be the case under
any form of privacy law. Particularly vulnerable people would
be afraid of the formality of the legal system. In addition, newspapersas
Naomi Campbell found out to her costtend to regard those
who litigate against them as an enemy, and treat them accordingly
in ongoing coverage (something which does not happen in the system
9. Fairness and flexibility. The PCC knows
a lot about privacyand can tailor its dispute resolution
service to the exact needs of an individual. Many people who complain
to us simply want an apologyoften privatelyfrom
the editor, and we set out to get for them what they want. This
is particularly the case where individuals and organisations actually
need to work together in the future: the complaints processwith
its emphasis on amicable resolutiontakes that into account.
Indeed, some resolutions to disputes simply involve getting both
10. The Courts, however, as Mr Justice Silber
noted in his ruling in the Ford case,
are not well equipped to deal with matters of privacy, which are
seldom clear cut and require a bank of experience. Nor is the
legal process flexible: for those who wish a private resolution
to a disputewithout involving any damagesa legal
action is quite impractical. Indeed, legal actions simply serve
to destroy relationships with newspapers or magazinessomething
those in the public eye, in particular, are often keen to avoid.
11. Parading your private lifeto
protect your privacy? One of the other benefits of the complaints
system is that it is private and confidential. Newspapers do not
reveal material made available to them as part of an investigation,
either during it or after it; and individuals do not have to give
evidence in public and subject themselves to cross examination.
Their privacy is protected throughout.
12. The same cannot be said of an action
in Court. Newspapers will vigorously defend themselves in legal
actions. The court system is adversarial, combative and public.
Claimants can be subjected to substantial legal scrutiny across
a range of intensely personal and private issues raised by their
claims. Naomi Campbell, again, found that out to her cost, when
she was questioned in detail about many very private mattersin
the course of which she was exposed, as the Judge in the case
recognised, as a liar, and for a short time even opened herself
up to a potential charge of perjury.
13. Protecting ordinary peopleor
making them targets? One of the strengths of the PCC and self-regulation
is that the Code actually inculcates among editors a respect for
ordinary peoplepartly because they know that anyone can
make a complaint, irrespective of their means or vulnerability.
Editors seldom take a gamble on an ordinary person not complainingand
that is one of the reasons that standards have been raised over
the years. It simply is not worth the risk.
14. However, under a privacy law inevitably
without any legal aid, editors could rest assured that anybody
other than the super-rich would be unlikely to take action against
them. Editors might therefore be inclinedunder such a systemnot
to take risks with celebrities but to intrude more into the lives
of ordinary people. A privacy law could therefore make the situation
worse for ordinary peoplenot better.
15. The situation in France underlines that
point. There, many magazines have in the past actually used fines
against them to boast about the amount of interesting material
contained in them. Far from being a deterrent, fines become a
marketing tool which increases circulation. How could anyone benefit
16. Privacy laws impossible with the
Internet. This short section sets out why a privacy law would
be of no use to ordinary peoplewho have, in any case, made
no use whatever of the Human Rights Act. As a final note, it is
worth pointing out that debates over whether or not a privacy
law would be a beneficial thing are in any case largely irrelevant
in the age of the Internet. It is axiomatic that the Internet
cannot be regulated by lawand privacy controls would be
just as useless in controlling it. A domestic privacy law would
simply be a tool for the rich and famous to gag newspaperswhile
intrusive material about them could simply appear on the web in
any case, as Chancellor Schroeder has found out to his cost.
LIST OF APPENDICES TO THE SUBMISSION FROM
Summary of 2002 complaints
How to Complain booklet [not reproduced]
The Code and You [not reproduced]
Broadcasting Standards Commission performance
and finding tables
PCC Customer Feedback Statistics 2002
Complainants' Charter [not reproduced]
Financial Journalism: Best Practice Guidance
Note [not reproduced]
Privacy Adjudications [not reproduced]
Results taken from Research Working Papers vol.I
Article from Coroner's Society Annual Review
PCC Editorial concerning Mental Health [not
Article from Health and Community Care Journal
Article from Gay Times [not reproduced]
Article from Tartan Skirt [not reproduced]
PCC Advert for Newspapers and Magazines [not
Organisations that have links to the PCC website
Individuals briefed by PCC [not reproduced]
Current Members of the Commission
Former Members of the Commission
Balanced Representation across National Publishing
Current Code Committee Members
Adjudication and Response to Countess Spencer
Complaint [not reproduced]
Evening Standard Adjudication [not reproduced]
Findings of General Monitoring Exercise [not
Organisations who have participated in AIPC
Summary of "Imperfect Freedomthe
case for self-regulation in the Commonwealth press" [not
Commissioners' Statement on Coverage of Euro
96 [not reproduced]
103 See Noble v Jersey Evening Post (Report
57 2001), concerning a complaint about a published letter which
contained some of the complainant's personal financial details.
The complaint was upheld. Back
See Section A2 paras. 9-13. Back
See Section A3 paras. 1-18. Back
See Section E5. Back
See Faldo v The Sun, Report 53. Back
See Section A3 paras. 4-7. Back
See Section D2, paras. 4-5. Back
Report 36. Back
Peck v Time Out, Report 40. Back
See Section A4. Back
Guardian, 15 October 2002. Back
See Section C1. Back
See Section C5, para. 6. Back
This is one of the reasons why meetings are closed-see Section
E6, para. 21. Back
Full copies of the PCC's submission, including appendices, have
been placed in the House of Commons Library and in the Record
Office, House of Lords. Requests for inspection by members of
the public should be made to the latter (020 7219 3074). Back