Memorandum submitted by Clive Soley MP
Although a privacy law has certain attractions
I believe it could restrict legitimate and important investigative
journalism. I would therefore prefer to avoid such a law. I note
that the courts are developing case law in some aspects of privacy
and freedom of speech, as defined in the Human Rights legislation.
We should continue to monitor this development.
Our current problems around press responsibility
are not new. Press freedom is a very important concept but the
failure of effective self-regulation undermines public confidence
in journalism. It may be that continuing to strive for effective
self-regulation will again prove to be the triumph of hope over
experience, but there are problems with a statutory approach too,
so if we can find ways of improving the present situation it would
be to everyone's advantage.
I believe a number of steps could be taken that
would give greater protection to the public without seriously
impinging on press freedom.
The history of press regulation shows a pattern:
press abuse followed by threats of legislation, followed by a
period of restraint before another period of abuse (See "Regulating
the Press" by Tom O'Malley and Clive Soley; Pluto Press
2000). Very often the abuse which generates major debates about
the press comes from high profile cases of well known people.
However the reality is that abuse takes place on a regular basis
of ordinary people who are not in the public eye except during
the media feeding frenzy. Relying on this ebb and flow approach
to regulation is therefore inadequate.
My first recommendation to the committee is
designed to provide a regular check on the effectiveness of press
regulation. It is that the Communications Bill is amended to include
a duty on the Ofcom regulator to "periodically review and
report on the effectiveness of self regulation of the press".
This would ensure that the issue remained on
the agenda and put pressure on the industry to improve the regulatory
system.
My second recommendation concerns the effectiveness
of the Press Complaints Commission. It is not seen as an independent
and effective organisation. Part of the reason is that it is funded
by the press but more importantly out of the 16 Commission members
seven are editors. In addition to that the Commission operates
on a conciliation or negotiating model. This puts the complainant
at a disadvantage. The more inexperienced the complainant the
more they are vulnerable to the greater experience and resources
of the newspapers. It is a one-sided battle.
The PCC has another major failing at its core.
It assumes that the only injured party is the complainant. Often
in privacy cases this is true but the public do have rights not
only in terms of the PCC code generally but also in a public view
that certain invasions of privacy are wrong. Let me give an example.
I complained about a story in the Daily Mail which used
a picture of a four year old child on the front page with her
name beneath it. The story, which was an important story, concerned
the mother who had been sent to prison on information given by
the grand mother. The importance of the story did not in my view
necessitate the publication of the child's name and picture. Other
members of the public agreed with me. When I wrote to the chair
of the PCC saying that I had written to the Daily Mail
the response I got was "You raise an interesting point, I
will be interested to know what the editor says". The Daily
Mail took the view that it had not done anything wrong. This
is seriously inadequate and I know of no other regulatory body
which would respond in a similar way. The key point is that the
PCC assumes the public have no rights in this process at all.
They are the only regulatory body I know that assumes the consumer
of their product has no rights at all.
My second recommendation therefore is that the
PCC should be reformed:
(a) to reduce the influence of editors on
the Commission;
(b) to include a duty to protect the rights
of the reading public. This is particularly important in relation
to accuracy in reporting but inaccurate statements about peoples'
private lives are often at the core of complaints about privacy;
(c) to include better representation on the
Commission of people with experience of consumer rights: the assumption
behind the PCC code should be that a breach is a breach of the
consumer's rights as well as those of individuals named in the
story; and
(d) to require the PCC to adjudicate a complaint
instead of allowing editors to negotiate a settlement.
My third recommendation concerns the Data Protection
Act. The press are not obliged to reveal the content of files
in the way other organisations are. This exemption was to protect
investigative journalism. The effect however is to protect them
from having to reveal information even if there is no longer an
investigation taking place. We should look at this again. This
is relevant because the press will claim that some invasion of
privacy is necessary because they have evidence of some other
event which they say would legitimise the invasion. It also means
that inaccurate information can stay on the file.
My fourth recommendation is that we consider
a very tightly drawn and specific privacy bill relating only to
lawful sexual behaviour between consenting adults. This area often
produces the most invasive and unnecessary revelations about private
lives. It also enables lazy editors to fill columns of news print
without any justification other than that it sells newspapers
by offering confidential information of a sexually explicit kind.
I cannot think of any genuine reasons why good investigative journalism
requires revelation of sexual liaisons that are lawful and that
the people concerned do not want to reveal. It is at least possible
that if such revelations were prohibited then it would raise privacy
standards in the press generally. This deserves more attention
and the Committee may feel it could examine the proposal in more
detail.
If self-regulation of the press continues to
fail then we should consider a more extreme option. The most obvious
route would be to make the existing PCC code justiceable in the
Courts. The press claims to obey the code so putting it into statute
theoretically should not cause them too many problems. I suspect
this proposal will produce howls of outrage but if so it then
raises the question of why the code can't be enforced more effectively.
Finally one of the most offensive aspects of
the current debate is the way that editors, owners and certain
journalists maintain a strict wall of privacy round their own
lives while they constantly invade other peoples. The very least
we should ask is that editors and owners put themselves into the
public arena. The electronic media could be helpful here in providing
a platform where the public could question these people about
their behaviour and the standards and policies that they apply
in their own newspapers. They have a great deal of power and influence
and yet are more effectively hidden from public scrutiny than
any other similarly influential group. This needs to change.
SUMMARY
1. A full Privacy Act could inhibit investigative
journalism.
2. Self regulation of the press is still
failing.
3. The Communications Bill should be amended
to give Ofcom the power to review and report on the effectiveness
of self regulation.
4. The PCC should be radically reformed
to reduce the influence of editors; to allow adjudication rather
then negotiation; to increase consumer rights.
5. We should reconsider the exemption given
to the press on duties under the Data Protection Act.
6. Consideration should be given to a very
specific law of privacy relating to lawful sexual activity between
consenting adults.
7. If self regulation continues to fail
consideration should be given to making the existing PCC code
justiceable.
8. Owners, editors and senior journalists
should face public scrutiny on the standards, policies and practices
of their newspapers.
11 February 2003
| 
