House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Minutes of Evidence

The use of sanctions and other effective remedies

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 costs—rather 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 otherwise—especially 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 officers—or 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 ago—without the threat of financial sanctions.

Measuring effectiveness

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.

Conclusion

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.

Annex 2

ANALYSIS OF 1993 NATIONAL HERITAGE SELECT COMMITTEE RECOMMENDATIONS AND ACTION TAKEN TO IMPLEMENT THEM

INTRODUCTION

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 adopted—and exceeded—many 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 source—a point underlined in the Commission's adjudications[103].

Readers' Representatives

4. The Committee was impressed by the system of readers' representatives—or ombudsmen—that 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 newspapers—notably The Guardian, The Observer, The Independent on Sunday—do 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 still—The Mirror, The Daily Express, for example—have 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 newspapers—national, regional, local—and 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.

Regional offices

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 efficient—particularly 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 in London[104]. Nonetheless, the PCC does operate its own Scottish Helpline—0131 220 6652—to assist with the cost of those calling from Scotland. Section D3 outlines how the PCC maintains a high profile in the regions.

A hot-line

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[105]. The Helpline is manned during office hours and anyone needing advice at any other time can use our 24 hour emergency service.

Training

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". (Paragraph 70).

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).

Press monitoring

18. The Committee said that the Commission should "monitor the press on a continuing basis". (Paragraph 71).

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 discretion—there are real dangers that any institution with broader "monitoring" powers would soon become a censorship body. In any case, the Commission—with its focus on delivering swift redress to ordinary members of the public—would be reluctant to see any of its resources diverted from its key task. Only a state-run and funded body—common in authoritarian systems of Government—could adequately undertake an exercise to "monitor" the whole of the press[106].

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.

Case law

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.

Due prominence

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". (Paragraph 74).

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 matter—and its very clear belief that not only would this be counterproductive but also misses the point of why people complain—is 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 industry—the 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[107]. 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. (Paragraph 32).

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.

Anti-social conduct

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 in 1994.

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. (Paragraph 83).

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[108] as part of its commitments under the Complainants' Charter.

Conclusion

38. In all the areas where suggestions were made about to how to improve the PCC's service—rather than those calling for a change in the whole philosophical basis of the organisation—the 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 ago—and is committed to continuing to do so.

Annex 3

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 comment—for obvious reasons—about 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.

STRENGTH OF THE CODE

2. The Code itself—a document designed to set out the rights of the individual—contains 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.

DEALING WITH BREACHES OF THE CODE

5. Nonetheless, breaches of the Code do—rarely—happen. 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:

Bishko

Evening Standard,

Peck

Time Out,

A woman

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.

THE CODE AND GENERAL COMMENT

8. There are some people who would like Clause 13 of the Code to be redrafted to include groups of people—which 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 editors—who 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 do—which was to offer a dispute resolution service to people who had been victims of intrusive or inaccurate reporting.

11. However, the Code Committee has—as a result of representations from politicians and the public—looked 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 unworkable—no 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 people.

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[109] 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.

RAISING STANDARDS

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 reactive—on the back of complaints—and some proactive, such as the issuing of Guidance Notes.

STATEMENTS

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 approaches—over 300—from 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"[110]. This tactic worked and the Commission has not had to deal with any similar case since.

GUIDANCE NOTES

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"[111].

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.

CONCLUSION

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 D2.

Annex 4

WHY A PRIVACY LAW WOULD BE OF NO USE TO ORDINARY COMPLAINANTS

1. Various sections of the PCC's submission set out the benefits of self-regulation and the work of the Commission for ordinary people—particularly in relation to privacy. These are that self-regulation is:

— fast—sorting complaints out in weeks;

— free—making a complaint costs nothing;

— accessible—it is easy to make a complaint, and everything takes place on paper;

— fair—both 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 law—and actions under it—exhibit none of these characteristics. This short note summarises why it would therefore be of little practical use to ordinary people.

3. Slow justice—no justice. Complaints to the PCC are dealt with quickly. Legal action takes a great deal of time—meaning 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 2002—some 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 days—122% longer. 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[112].

5. Cost. Complaining to the Commission is free—which makes the PCC's service accessible to anyone. Actions under the Human Rights Act—as indeed would be the case under a privacy tort—would 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[113]. 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 they lost[114].

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 lawyers—certainly in the wake of the Ford, Campbell, Theakston and Flitcroft rulings—know 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 complaining—often the most vulnerable—into 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, newspapers—as Naomi Campbell found out to her cost—tend 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 of self-regulation).

9. Fairness and flexibility. The PCC knows a lot about privacy—and can tailor its dispute resolution service to the exact needs of an individual. Many people who complain to us simply want an apology—often privately—from 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 process—with its emphasis on amicable resolution—takes that into account. Indeed, some resolutions to disputes simply involve getting both sides talking.

10. The Courts, however, as Mr Justice Silber noted in his ruling in the Ford case[115], 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 dispute—without involving any damages—a legal action is quite impractical. Indeed, legal actions simply serve to destroy relationships with newspapers or magazines—something those in the public eye, in particular, are often keen to avoid.

11. Parading your private life—to 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[116]. 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 matters—in 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 people—or 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 people—partly 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 complaining—and 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 inclined—under such a system—not 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 people—not 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 from that?

16. Privacy laws impossible with the Internet. This short section sets out why a privacy law would be of no use to ordinary people—who 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 law—and 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 newspapers—while 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 THE PCC[117]

APPENDIX I

Summary of 2002 complaints

APPENDIX II

How to Complain booklet [not reproduced]

APPENDIX III

The Code and You [not reproduced]

APPENDIX IV

Broadcasting Standards Commission performance and finding tables

APPENDIX V

PCC Customer Feedback Statistics 2002

APPENDIX VI