Select Committee on Culture, Media and Sport Fifth Report

1. Introduction

The inquiry

1. The Committee announced its inquiry in December 2002, inviting written evidence at that time. Subsequently both the PCC and the PressWise Trust (a charity set up to help victims of the media amongst other things) wrote to former complainants and invited them to get in touch with the Committee. A number did so and went on to submit written evidence and other material that assisted the Committee to understand their experiences and aided the inquiry. We were grateful to all our witnesses for the evidence we have received. However, we are especially mindful of the various burdens involved in the effort made by some former complainants. Where consent has been given we have published, or made available, the submissions we received.[1]

2. During the early part of this year, 2003, we took oral evidence from a wide range of witnesses: legal experts; editors of national, regional and local publications (accompanied by their advisers and others); representatives from some industry trade associations; the PressWise Trust; the National Union of Journalists; the National Council for the Training of Journalists; the Press Complaints Commission (PCC) led by Acting Chairman Professor Robert Pinker; the BBC (as both self-regulator and media organisation); ITN; Mr Clive Soley MP; the Broadcasting Standards Commission (BSC); the Office of Communications (Ofcom); and the Government in the form of Baroness Scotland of Asthal, Parliamentary Secretary, Lord Chancellor's Department; and Rt Hon Tessa Jowell MP, Secretary of State for Culture, Media and Sport. Sir Christopher Meyer, KCMG, who took up his appointment as Chairman of the Press Complaints Commission on 31 March 2003, towards the end of the evidence-gathering process, appeared before us on 21 May. A full list of those who gave oral evidence is set out at the back of this volume.

3. Early in the inquiry we had also invited a small number of people who had submitted written evidence about their experiences with the media and the regulators to give oral evidence in private. This was due to the decision of the Committee that it would not seek to re-try individual cases as well as the request of some, but we stress not all, of the witnesses. This oral evidence, where the consent of the witness has been given, has been published as part of the record.[2]

The dilemma

4. The dilemma we faced was the same as when the National Heritage Committee inquired into the subject in 1993.[3]

5. A free and open democratic society is one where there must be a resolute guarantee of freedom of speech, especially for the media. Legal restraint and remedies, if that restraint is broken, must apply in specific and defined areas, for example: national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.[4]

6. Self-restraint should also play a part in that freedom of expression. As the National Heritage Committee said in 1993: "A free society should not be a society which, in order to exhibit its freedom, dispenses with civilised discourse."[5] However, crucially, this freedom must protect the ability to say, write and broadcast things which might be inconvenient to those in public authority whoever they might be.

7. There must also be respect for privacy. Not everything in an individual's life is fair game for speculation, comment and exposure. This applies also to individuals who have public responsibilities or who have courted publicity for their own ends. However, we were mostly concerned with what we termed, for want of better words, people not generally in public life who have nonetheless found themselves the focus of media attention often by virtue of being the victims of crime or by being involved in a personal or national tragedy.

8. The balancing of these rights, or their due reconciliation, is what this Report is about. In 1993, with regard to the press, the balance being struck was not found to be appropriate by the Review of Press Self-Regulation carried out by Sir David Calcutt QC, nor, subsequently, by our predecessor Committee.[6]

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

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