Defining terms
9. Privacy is an aspect of human dignity and autonomy
and almost everyone regards privacy as essential.[7]
There was no dispute that everyone should be entitled to a zone
of privacy and is likely to need such space to maintain their
psychological well-being and personal development and to allow
the fostering of relationships especially intimate ones. Article
8 of the European Convention on Human Rights states that everyone
has the right to respect for his or her private and family life,
home and correspondence.
10. But privacy cannot be an absolute right. There
are limited situations when it can and should be breached, where
crime, corruption or hypocrisy are being hidden under a cloak
of privacy and where it is overwhelmingly in the public interest
that the truth be brought to light. Even here, though, it is important
that both the authorities and the media only infringe privacy
in relation, and in proportion, to the iniquity thought to be
in question.
11. PCC jurisprudence, more developed than that of
any other regulator, revealed the following features of privacy:
i) People could intrude upon, or compromise,
their own privacy but private facts subsequently exposed by the
media should be proportionate to the information revealed by the
individual.
ii) One person's privacy could be compromised
by the right to freedom of expression of another individual involved
in the story.
iii) If the relevant information was, or was
about to be, available to the public then its privacy was diminished.[8]
iv) Publication of photographs taken without
knowledge or consent was intrusive if such photographs were taken
in places where there was an expectation of privacy. The PCC has
ruled public places such as quiet tearooms and cathedrals to be
in this category, but not a public beach.
v) Many privacy-related clauses in the Code had
a public interest exemption but the hurdle for over-riding the
clauses relating to children was "exceptionally" high;
on health matters the public interest case must be "incredibly
strong"; and there was no such exemption at all for provisions
relating to victims of sexual assault or to intrusion into grief
and shock.[9]
12. The "public interest" is a concept
of crucial importance. However, it was a confusing term. The public
interest had not traditionally been regarded as the same as "that
which interests the public" and indeed this was the firmly
stated position of the PCC.[10]
The Court of Appeal recently seemed to suggest differently: "Even
trivial facts relating to a public figure can be of great interest
to readers and other observers of the media … The public
figure may be a role model whose conduct could well be emulated
by others … The courts must not ignore the fact that if newspapers
do not publish information the public are interested in, there
will be fewer newspapers published, which will not be in the public
interest. The same is true in relation to other parts of the media."[11]
This view was described as an "aberration" by one of
our witnesses[12]
which was corrected in a further Court of Appeal judgment.
13. It might be better to regard the public interest
as covering those matters that citizens ought to be interested
in: information necessary or helpful to participating in the democratic
process, information about crimes and misdemeanours, information
important to the ability of society and individuals to safeguard
health, wealth and safety and generally to the effort of navigating
through the complexities of modern life. This appears at first
to be a very solemn definition. However, it is certainly not intended
to exclude anything other than private material, the lack of knowledge
of which could have little significant impact on anyone else's
life. The Press Code of Conduct describes the public interest
as including, but not limited to: detecting or exposing crime
or a serious misdemeanour; protecting public health and safety;
and preventing the public from being misled by some statement
or action of an individual or organisation. The Code also states
that there is a public interest in freedom of expression itself
and the Commission would therefore have regard to the extent to
which material has, or is about to, become available to the public.
14. Lord Wakeham established a number of questions
to test a public interest defence to a charge of breaching the
Code. These involve assessment of whether:
i) there was a current and genuine public interest
and any way to minimise the necessary intrusion;
ii) any intrusive photographs are necessary to
the story or simply illustrate it;
iii) impacts on innocent or vulnerable relatives
(especially children) of the individual at the centre of any necessary
intrusion can be minimised;
iv) in any story about someone connected with
a public figure, there is a genuine public interest in the connection;
and
v) in any story about the past actions or statements
of an individual (at odds with current behaviour), the original
statement or action was recent enough.[13]
15. There have been many attempts to define what
constitutes the public interest. The gravity and ambiguity attached
to the term have also motivated efforts to find an alternative
phrase perhaps the latest of which concluded that "social
importance" was a superior concept being more amenable to
subtle gradations from high to low—a key advantage in a
regulator's toolbox.[14]
16. Media intrusion can take two principal forms.
There was first the intrusion of unethical newsgathering methods.
Such activities included: the use of long lens cameras, or concealed
cameras, to peer in or around private domains; the bugging of
telephones; interception of e-mails; trawling through dustbins;
and persistent door-stepping which can amount to a "media
scrum". Other matters to which we heard reference concerned
the eliciting of private data from public and commercial entities
(the police, BT and other organisations) perhaps through the employment
of private detective agencies or other intermediaries.[15]
Of course, although reprehensible and in some cases illegal, not
all these behaviours will cause distress in themselves being,
by their nature, clandestine.
17. The second form of intrusion, highlighted by
Sir Louis Blom-Cooper, Chairman of the PressWise Trust, as the
more serious, is the decision actually to publish or broadcast
the fruits of this harvesting, whether licit or not, in a media
story.[16]
The information, which was then in the public domain, can receive
local, regional, national or even international attention and
can reappear in other stories, however tangentially related, almost
indefinitely.
18. Intrusion felt by people was not always strictly
a matter of privacy. The editors of local and regional papers,
and a national paper in Scotland, said that many complaints to
them concerned their reporting of court proceedings, which are
of course the open and public arbitration of private upsets and
tragedies.[17]
However, a number of individual cases about which we received
evidence of particular distress related to one-sided, or distorted,
reporting of such matters. This seemed to be a particular problem
in adversarial proceedings because, by their very nature, lines
of argument were presented in a very partial way.
19. In one case, an officer-in-charge of a case where
the prosecution failed was named prominently in a newspaper even
though his culpability for the errors was a matter of dispute
and his own side of the story was not sought prior to publication.
His identification led to victims in other cases losing confidence
in him. From the way he presented his experience to us, we believe
his eventual resignation to have been a significant loss to the
police force.[18]
In another case, from 1991, a young schoolgirl was murdered by
a fellow pupil who was subsequently sentenced to Unlimited Time
under Scottish law. Subsequent references to this case in some
articles (within discussions of sentencing policy) focused solely
on arguments put forward by the defence which presented the victim
as provocative in a number of ways and, in one instance, played
down the extent of the attack. In 1992 the victim's younger brother
committed suicide as a direct and demonstrable response to this
coverage which has been proved unbalanced with reference to a
transcript of proceedings obtained by the family with difficulty
and expense.[19]
Finally, there was the case of an inquest that heard expert evidence
that drug-use was not the cause of a young man's suicide but one
newspaper reported quite the reverse in a very declamatory style.
Eventually, again after the effort and expense on the part of
the relatives of securing a transcript of proceedings, the newspaper
accepted their point.[20]
20. These, we hope, are isolated occurrences, with
perhaps the most tragic having taken place more than a decade
ago (although this is of no solace to those involved). However,
taken with our other evidence, links between privacy on the one
hand, and accuracy and distortion on the other, can be clearly
shown. If publication can be an act of intrusion, and the Press
Code says it is, then publication of inaccurate, distorted or
one-sided public material can be just as intrusive and damaging
as the revelation of private facts.
The different media
21. The broadcasters and the press operated in two
quite different environments. The broadcasters, being near-monopoly
providers delivering output straight into people's homes, were
licensed, regulated by statute—including a requirement for
impartial news provision—and subject, ultimately, to the
removal of their licence to operate if they continually transgressed.
The BBC was of course in a slightly different position constitutionally,
but the implications of the Royal Charter and Agreement with the
Secretary of State were effectively the same.
22. The press was in a different position. As Mr
Paul Dacre, editor of The Daily Mail, told us: "anyone
can start a newspaper".[21]
In the absence of a wholly new statutory system, there was ultimately
no big stick, or Damoclean sword, under which change could be
imposed. Therefore, the current regulation of the press is a matter
of consensus and voluntary submission for a variety of reasons
which we examine further below. Mr James Strachan, barrister,
pointed to the anomaly of proposals to give the PCC "teeth"
because this, he argued, misunderstands the basic position that
"any coercive means the regulator wishes to impose have to
be by the consent of those…being regulated".[22]
23. For whatever reason, surveys of public attitudes
have consistently revealed that the people place significantly
more trust and confidence in the broadcasters than in the press.
It was pointed out several times that press journalists vie with
politicians for the lowest position in many such surveys.[23]
It is certainly the case that the weight of our evidence, supportive
and critical, was heavily focused on the PCC and the press,
rather than the broadcasters, and that is reflected in the balance
of this Report. As in 1993, the Committee has found that the main
concerns of witnesses and public debate—Communications Bill
notwithstanding—related to the conduct and regulation of
the press.
The Government's position
24. Government policy on the regulation of the broadcasters
is set out in the Communications Bill and is an area upon which
we have reported three times since 1998. Ofcom will replace the
Independent Television Commission and the Broadcasting Standards
Committee and a discrete Ofcom "Content Board" will
deal with complaints under revised arrangements. With respect
to the press, the Government's position could not be clearer.
The DCMS wrote that: "the Government's starting point is
a fundamental belief that a free press is best served by unfettered
self-regulation. The Government has no plans whatsover to legislate
in this area, or to interfere with the way the PCC operates."[24]
The Secretary of State submitted a list of areas where she thought
the Commission could usefully ask itself whether it could improve
performance, and these were described as "questions"
that have emerged from our inquiry.[25]
We deal with these in detail later in this Report.
1 The majority of the written evidence we received
is published in HC 458 Volume III. Where reproduction has not
been possible the material have been deposited in the Public Record
Office under longstanding arrangements (the details are set out
at the back of this volume). Back
2
The oral and written evidence from witnesses appearing before
the Committee is published in HC 458 Volume II. Back
3
National Heritage Committee, Fourth Report of Session 1992-93,
Privacy and Media Intrusion, (hereafter the "NHC Report")
HC 294-I, paragraphs 1-8. Back
4
Pace, Article 10 of the European Convention on Human Rights Back
5
Op. cit., paragraph 2. Back
6
Cm 2135; NHC Report, paragraph 8. Back
7
Professor Eric Barendt, Rules by Recluses, IPPR, 2002,
pp14 and 15 Back
8
However, justification by a newspaper that a private fact had
been broadcast simultaneously has been dismissed by the PCC on
the grounds that the broadcast was subject to separate procedures
and judgements made by press editors must be based on the press
editors' Code. Back
9
Ev 186ff Vol II Back
10
Ev 154 and 200 Vol II Back
11
A v. B and C, quoted in Ruled by recluses, privacy journalism
and the media after the Human Rights Act, IPPR, 2002 (hereafter
"Ruled by Recluses, IPPR, 2002"), p98. See also
Ev 200 Vol II Back
12
Ev 13 Q 55 Back
13
Ev 200 Vol II Back
14
David Morrison and Michael Svennevig, Ruled by Recluses, IPPR,
2002, p65ff Back
15
Ev 128 Vol II and see Section 4 below Back
16
Q 214 Back
17
Q 840 Back
18
Ev 370 Vol II and Q 1004 Back
19
Ev 177 Vol III Back
20
Ev 410ff Vol II Back
21
Q 158 Back
22
Q 39 Back
23
Q 156 Back
24
Ev 347 Vol II, paragraph 2 Back
25
Ev 347 Vol II Back
