Examination of Witnesses (Questions 720-740)
TUESDAY 1 APRIL 2003
LORD DUBS
OF BATTERSEA,
MR PAUL
BOLT, MS
JUDITH BARNES
AND MR
STRACHAN HEPPELL,
CB
720. You said there are a large number that
fall outside your remit, are all of them very individual, there
is no grouping of anything, there is nothing that struck you as,
"It is a shame we cannot cover that one but it is not in
our remit".
(Ms Barnes) I do not think so, essentially because
if we have taken the judgment that there has not been an infringement
of privacy then we do not entertain complaints. If we have reached
that judgment, and I think I can say we are fairly generous to
our complainant in the way we approach complaints, then it is
very unlikely. I am not saying we never get it wrong, it is very
unlikely there would be an infringement of privacy in those circumstances.
Under the Act we are allowed to take a complaint where it is a
complaint of privacy in the making of the programme as well as
in broadcast, unlike fairness. That does extend the scope of privacy
quite widely.
721. Is the Act limiting in that it fails to
allow you to be proactive?
(Ms Barnes) We can only entertain a complaint once
the programme has been broadcast. We are limited in a statutory
sense in that way.
(Mr Bolt) There is a case to say that in a perfect
world we would have the kind of resources that would allow us
to mount a full-blown independent investigation of the facts in
a case, I am not sure that we pine for such powers, but occasionally,
it is fair to say, there is a case where we have a nagging feeling
where we would have liked to dig deeper into that and find out
more rather than at one remove through the parties or at the hearing
what had happened. The fact is that we do not have a whole battery
of investigators to support us, I do not think it is plausible
or right.
722. Keeping with the proactivity, basically
you are not proactive, that is what you just said.
(Ms Barnes) We have no power.
723. Is that not in itself very limiting?
(Mr Bolt) I think by and large Parliament was right
to confine it to people who had a direct interest. There may be
a case, this is one of the categories that we habitually bat off
that people complain vicariously—I keep using that word—on
behalf of other people whose privacy was outraged and they feel
very cross, and they write in complaining on their behalf. Normally
we cannot accept that, but if it is so outrageous that it amounts
to a complaint that normal standards of decency and even human
dignity have been violated then we actually consider such a complaint
under our taste and decency remit.
724. Things, for example, like war, where we
are going to have significant numbers of people grieving, until
a complaint comes to you that there has been an inappropriate
broadcast you have no powers to do anything, however one might
say you should be proactively seeking to prevent multiple intrusions
before they start happening which you can foresee, which in this
case is going to happen?
(Mr Heppell) We are able to lay the ground rules by
the publication of the codes, which broadcasters have to follow.
That is required of us under the legislation. Broadcasters would
know our general approach in those circumstances, in that sense
that is being proactive.
725. You are allowed to be proactive?
(Mr Heppell) Not in respect of individual cases but
in setting the scene.
726. You are allowed to be proactive, what is
your remit for this proactivity? What are your parameters? Take
back remit, what are your parameters?
(Lord Dubs of Battersea) I am not sure I would quite
use the word "proactive" in the same way. We develop
codes and we have a statutory obligation to do so, as with Ofcom.
Those codes both enable complainants to know whether there has
been a breach of a code in a programme and they also enable the
broadcaster to judge whether the programmes they are making are—
727. That is back to the specific complaints,
I have moved away from that, I am talking about with war. You
can see there are going to be multiple intrusions, they are going
to happen, from which there may or may not be complaints, should
you have a role to be proactive, to seek to influence the broadcasters
not to do this in the first place?
(Lord Dubs of Battersea) I think that would probably
not be a good idea from my point of view, because we would be
getting very close to being a censorship body, which emphatically
we are not. If we said to the broadcaster, "You ought not
to be doing this, do not cover the war in this way, do not do
that", that is pretty close to saying, "You may not
do that", and frankly I welcome the fact that we are not
a censorship body and we do not have such powers, and I would
not wish us to have such powers.
John Thurso
728. Can I pick up on that in a slightly different
way, I was interested to read in your submission the current privacy
code, which was adopted 1998, is in the course of revision. What
I was really aiming at was, who decides when the codes need to
be revised? What procedures and processes do you have in place
for making that decision and then undertaking the work?
(Lord Dubs of Battersea) We revise the codes every
few years because we want them to be up to date in relation to
developments and research that we have done, and so on. The specific
driving force is that we want our codes to be as up to date as
possible so that we can hand them over to Ofcom so that Ofcom
have a good starting point for their work. The way we do it is
that we do it internally, we have a panel of members, we work
at the codes and we consult the broadcasters and others as to
the appropriateness of the codes and changes in the codes before
we actually publish them and say, "That is it, that is how
we are going to move forward".
729. Is it a regular thing, something that you
would be doing biannually or on a relatively regular basis?
(Lord Dubs of Battersea) Not as often as biannually,
it is quite often.
(Ms Barnes) It is quite a big exercise, as you can
imagine. We have to give the adjudications that we have decided
on a bit of run-in first.
730. You are positively—to avoid the proactive
word—looking at the code and you are from time to time saying,
"Does it still meet its needs?" A year later you say,
"Yes", two years later you say, "Yes" and
three years later you say, "No, we have to do something",
and a positive process takes place. It is not reactive in the
sense that after a while you say, "We are getting an awful
lot of complaints about how this code works, we have to do something
about it". That is really what I was driving at. Another
point, you cover, interestingly, radio, television and satellite,
you have everything that is broadcast, do your complaints come
from particular areas? Is it more radio than television or vice
versa, more local than national, more satellite?
(Ms Barnes) There is only about 10% radio, that is
true of fairness and privacy, and it is mainstream broadcasters,
if I can call them that. We get very little from satellite channels,
presumably because there are fewer people watching them, perhaps,
and less concerned about them. It is mainly the terrestrials.
731. Of the mainstream broadcasters are they
all broadly equal in complaints or are there particular bad boys
and girls?
(Ms Barnes) Looking at the statistics that we prepared
on privacy when it comes to complaints being upheld as opposed
to received or entertained then there is not a lot of difference
between them, it is fairly evenly spread.
Mr Bryant
732. You mentioned satellite, do you include
cable?
(Ms Barnes) Yes, we do, yes.
733. Not just the traditional concept of broadcast
but cable as well. How do you interpret the public interest, is
it just what is interesting to the public or is there some other
concept that underlies what you think of as the public interest?
(Lord Dubs of Battersea) No, it is not just what is
interesting to the public. I am not sure how useful it is for
us to try and get a precise definition. What we use it for, of
course, is to see whether breaches of privacy can be justified.
The main justification for a breach of privacy is if it is in
the public interest, that is to say that it is likely that this
information should be made public even if some privacy has been
breached.
(Mr Heppell) You could talk about the public interest
being a matter of concern to the public on matters such as public
health, corruption, injustice, criminal activity, something that
is of concern to the community at large rather than a matter that
only affects a small number of people.
734. You mentioned earlier that one of the things
that affects your process of adjudication is whether something
is already in the public domain, if something appears in newspapers
and is complained about to the PCC and the same piece of information
is broadcast, possibly as a report of what was in a newspaper,
would you then investigate separately?
(Mr Heppell) We have had cases where there have been
complaints of infringement of privacy where the information has
been used from written reports in the press. In those sort of
cases, unless there are very special circumstances, we will not
have upheld the case because it is already in the public domain.
735. That seems a bit rough on the poor individual.
If one were to take the view that the PCC had not done its job
well enough to prevent newspapers being rather casual with people's
privacy you would then be allowing broadcasters to be casual on
the back of that?
(Ms Barnes) It would depend partly on the degree to
which it was in the public domain. If there was a short paragraph
in some local paper and then it was broadcast on the BBC News
then I think there is a possibility that the complaint might be
upheld. If there was days and days of stories in all of the newspapers
on a particular issue then by the time it got used through the
broadcasting medium then we might find it difficult to uphold.
736. Is the absolute infringement not there,
nonetheless?
(Ms Barnes) Sorry?
Mr Bryant: If the person's privacy has been
infringed without an overriding public interest of the kind you
specified in the newspaper but because in the newspapers world
there is no statutory body to enforce in the same way as there
is in broadcasting then we are getting the lowest common denominator
if terms of defence for privacy?
Chairman: It is important to remember,
Chris, that the broadcasters are established by statute or in
the case of the BBC by charter, whereas the press, of course,
are not established by anything, except their own decision to
publish.
Mr Bryant
737. I understand that. If the Broadcasting
Standards Commission and subsequently Ofcom are going to say,
"Well, if it has already appeared in the newspaper then we
cannot uphold a complaint". . .
(Mr Bolt) Our code does make it clear, it is not an
absolute defence to say this has already been published. As Judith
Barnes has already pointed out, duration of time is one consideration
that might make one think that dragging it up again, so might
the disproportion between where it has been published and where
it is suddenly now being broadcast, it is not an absolute offence.
Our code expressly says that while it is obviously a very powerful
consideration it is not necessarily a complete knockdown argument.
There are some requirements by us on the broadcasters to behave
with reasonableness and proportionality.
738. If there were a privacy law then it would
probably apply equally to both of you as opposed to this statutory
relationship for broadcasters, but non-statutory self-regulation
for the press.
(Lord Dubs of Battersea) Yes. If there was a scurrilous
story in a newspaper we would not necessarily say that that was
properly in the public domain, we would make a judgment as to
the way that information was in the public domain, and the authenticity
of that information in the first place. We would not just say
it appeared in some newspaper and therefore it is not a breach
of privacy for the broadcaster to repeat. We would want the broadcaster
to have gone into it a bit more than that.
739. You mentioned the number of complaints
that you receive and then you mentioned the number that you entertained
and then the number that you upheld, obviously these numbers go
down very rapidly from received, to entertained, to upheld, is
that because there are people complaining vexatiously or because
the system is not readily understood by the majority of people
in the country, or should you be getting more complaints than
you are because not enough people know how to complain? Why was
it that you upheld 16 complaints in 1998-99 and only two in 2001-02
and four in 2002-03. Is that because broadcasters have improved
or you are more lenient towards them?
(Lord Dubs of Battersea) We are not being more lenient.
I hope we can maintain the same standard over the period, we certainly
do our best.
(Mr Bolt) There is another reason why
the numbers go down, and that is what we quite often find, not
least in cases which go to a hearing, is that it is just a misunderstanding
or an insufficient understanding amongst the general public of
what are the normal conventions about the ways that broadcast
journalists go about their business. There is a surprising degree
of naivety and quite often we have to say not that the person
is vexatious but that—
740. Give me an instance of that?
(Mr Bolt) The number of people who complain
that they were not given a right to vet the way a statement they
had given to the broadcaster was going to be presented on air
and seemed to think they had an absolute right to have their verbatim
account broadcast, and then get upset when it is not seems to
be an example. I have come across that more than once.
(Ms Barnes) Picking up on the point you made about
remit and entertainment, the concept of privacy is quite a flexible
one. Perhaps people do not understand what is included in privacy.
I can give you an example, somebody complained to us that the
broadcaster had nailed a sign to his shop and then filmed the
shop, which was empty. That may be inappropriate and reprehensible
on the part of the broadcasters but we took the view that it was
really trespass to his property rather than privacy, because it
did not involve disclosure of any personal information. There
are quite a lot of tricky issues round that kind of division between
privacy and damage to property or trespass. It is a difficult
one for lay people and lawyers to understand.
Mr Bryant: Thank you, Chairman.
Chairman: Thank you. Thank you very much
indeed. I think I speak for the Committee when I say the way in
which you presented your evidence and your accurate evidence was
extremely impressive. Thank you.
|
