APPENDIX 2
Memorandum submitted by the Editors' Code
of Practice Committee
1. INTRODUCTION
1.1 The committee welcomes the opportunity
to set out its views on privacy and media intrusion which are
principal themes addressed by the Editors' Code of Practice (See
Appendix I—not printed). It believes and hopes to
demonstrate that the evolving Code, an indivisible element of
the self-regulatory system, has helped improve press standards
since 1991 and remains the best mechanism for reacting to concerns
which inevitably will arise in the future.
1.2 While the committee is a central pillar
of the wider self-regulatory regime, its evidence here will concentrate
largely on its dedicated role in drafting, actively monitoring
and improving the Code to suit changing circumstances generally
and, more specifically, in regard to privacy and intrusion issues
as they affect people "not generally in public life."
2. CONSTITUTION
AND HISTORICAL
REVIEW
2.1 The Editors' Code committee was set
up in 1990 to write, review and revise the Code of Practice which
set the benchmark of standards to be administered by the newly
formed Press Complaints Commission.
2.2 The first rule for a successful self-regulatory
regime is that there should be universal acceptance and compliance
from those being regulated. For the PCC to perform as an effective
adjudicatory and conciliation service redressing complaints from
the public, it was essential its writ was recognised throughout
the industry. This in turn required that the Code should, to echo
the words of the National Heritage Committee, be at the very heart
of the operation. It had to command universal respect among editors
and their staff.
A unique forum of experience
2.3 To secure that respect, and to bring
both breadth and depth of experience, the committee's membership
was drawn from the ranks of very senior editors across the print
spectrum, geographically and culturally. All styles and shades
were represented: national, regional and local newspapers and
magazines; broadsheets and tabloids, creating a unique forum of
editorial expertise.
2.4 It needed to be. This was an unprecedented
change in the journalistic landscape. It was the first time there
had been a comprehensive, binding code for the British press,
drawn up by editors for editors. There was no history of the different
cultures sitting down together, let alone harmonising. It was
a new world.
2.5 The committee's very first corporate
decision demonstrated unity of purpose. It unanimously appointed
as its chairman Ms Patsy Chapman, Editor of the News of the
World and one of the most influential figures in tabloid journalism.
It was the clearest signal that the tabloid press was fully signed
up to and integrated into the process of self-regulation.
2.6 Thus the Code which came into force
in January 1991 (Appendix II—not printed), while
using as a template and starting point the model drafted by David
Calcutt QC, was written for editors by their peers. It was then
endorsed by the industry. It was the Editors' Code. Deliberate
non-compliance would have been perverse.
2.7 The Code was therefore instantly invested
with an authority it might not otherwise have had: an industry-wide
respect, the absence of which had contributed to the ultimate
downfall of the previous Press Council. Since 1991, the maintenance
of that authority has been crucial in delivering continuing acceptance
and compliance. Membership and status of the Code committee has
remained at the highest level and the seniority of its subsequent
chairmen, Sir David English and Mr Les Hinton, is emblematic of
that. (A list of serving and former members of the Code Committee
is included in Appendix III—not printed).
2.8 That authority has been externally validated
frequently since. The Code has been incorporated into legislation,
such as the Data Protection and Human Rights Acts. It has been
upheld in the courts twice on judicial review and formed part
of High Court judgments. It has been introduced into journalistic
training manuals and has been used as a template internationally.
It forms part of most journalists' contracts of employment and
breaches can—and do—lead to dismissal.
2.9 But perhaps the most significant testimonial
is that during the last 12 years the authority of the Code has
not been challenged on any substantive point by an editor who
was the subject of an adverse adjudication. Nor has any newspaper
failed in its obligation to publish a PCC adjudication against
it.
2.10 That is a record which is very easy
for critics to minimise or take for granted. But it is one which
many press industries internationally—especially in the
Commonwealth, seeking to install a self-regulatory system on the
British model—find most difficult to emulate.
The importance of lay input
2.11 Nor was that achieved by devising a
Code which was a cynical, self-serving push-over for the press,
as is sometimes claimed. It was widely acknowledged, including
by Ministers and Shadow Ministers, as tough, challenging and requiring
considerable voluntary restraint on the part of editors. And from
the very start there had been, both directly and indirectly, a
substantial and valuable lay influence which has continued to
expand by a variety of means:
— Much of the original Code was based
directly on the recommendations of Sir David Calcutt's Committee
on Privacy.
— Since 1993, the Code has had to be
ratified by the PCC, with its strong lay element. From 1994, that
lay representation has been in a majority on the PCC, in line
with the views of the National Heritage Committee, although against
the original Calcutt recommendation.
— Since 1995, that non-press majority
has been represented at Code committee meetings by the lay chairman
and the director of the PCC, who participate fully in the deliberations.
— Appointments to the Editors' Code
committee have, since 1995, needed to be confirmed by the Appointments
Commission of the PCC, which again has a lay majority.
— The public and civil society is invited
to suggest amendments and these are taken into account by the
committee when the Code is being monitored and revised.
2.12 The interaction between the Code committee
and the lay membership of the PCC has been crucial in establishing
a Code which protects the interests of readers both as individuals,
with personal rights to pursue grievances against the press and,
collectively, as stakeholders in a society which prizes freedom
of expression as an essential human right.
3. PHILOSOPHY
OF THE
EVOLVING CODE
3.1 It is impossible to divorce the philosophy
of the Code from the philosophy of self regulation. Put briefly,
this is that while in a perfect world there should be no need
to regulate a free press, neither the press nor the world is perfect.
The norms of 21st century society demand some form of regulation
which offers redress for the public and a measure of accountability.
3.2 It inevitably boils down to a choice
between some form of statutory regulation, via the courts or government—or
independent, self regulation. But a press which is regulated by
the government or courts cannot be truly free. At best, it is
loosely tethered by light touch regimes or, at worst, it is ruthlessly
shackled. There are many gradations in between, but with most
governments having a vested interest in controlling the mechanisms
which govern the media, there is an inherent and perilous contradiction
in the very concept of statutory regulation.
3.3 Since a free press is universally recognised
as one of the hallmarks of a democratic society, the moral imperatives
against any form of state control become irresistible, especially
in Britain with its long, healthy tradition of a free and independent
press. A system of self-regulation, which accepts the principle
that rights must be balanced by responsibilities, then becomes
the obvious and most desirable option. It has many advantages.
Fast, fair and free
3.4 Firstly, it can deliver more easily
that which statutory regimes often cannot: universal acceptance
within the industry, as has been demonstrated above. There is
the inevitable danger that statutory curbs on press freedom would
always be seen by the press as a barrier to be surmounted, a target
to be attacked, and an imposition to be constantly challenged.
It would always be a fraught relationship.
3.5 Secondly, a self-regulatory system can
reach the parts that even statutory regimes cannot: such as dealing
with online publications. Policing the internet has defied governments
for a decade. Yet in 1997, the Code committee and the PCC were
able to bring online publications of British newspapers and magazines
under its self-regulatory umbrella at a stroke.
3.6 Thirdly, the self-regulatory system,
with its fast-track procedures, its arm's length independence
from the industry and its lack of legalistic complexity or bureaucracy,
not only provides a system of conciliation and redress which is
effective and fair, but one which is also fast and free.
3.7 But to do this successfully, the self-regulatory
system has to construct a regime which fulfils two roles. It must
enshrine the essential rights of the individual—the right
not to be falsely accused, misreported, traduced or suffer invasions
of privacy without reason—whilst maintaining the vital essence
of press freedom: the right to free expression, the right to be
fearless and robust, the right to investigate and expose in the
public interest and indeed the right to be wrong. Any form of
regulation which allowed for external prior restraint would be
embracing censorship.
3.8 It was this balance of rights and responsibilities
which the Code committee set out to strike in 1991. The effective
reconciliation of those issues continues to underpin its philosophy
and ethos 12 years on.
A Code that can't stand still
3.9 It is axiomatic that the Code should
not stand still. One of the strengths of the self-regulatory regime
is its ability to adapt rapidly to changing circumstances. It
is a fast-track system. A standing committee of senior editors
can respond to shifts in public attitudes, or political, social
or technological developments, in weeks rather than the months
or years such changes might take in a statutory context. The current
code is thus very different from that first launched in January
1991. (See Appendix II—not printed)
3.10 However, although the Code has evolved
substantially since then, its fundamental ethos remains the same.
Its style is non-legalistic and pragmatic; its philosophy founded
on simple good practice, setting determinable limits rather than
Olympian standards and avoiding subjective matters of taste upon
which it would be impossible to adjudicate. These would remain
judgment calls for editors, who are also answerable to their readers.
3.11 The Code is comprehensive but concise,
so that it can be readily absorbed both by the public whose rights
it protects and by the journalist for whom it must be a professional
tool upon which a continued livelihood could depend.
3.12 The current Code, analysed in more
detail below, covers the gamut of issues which concern readers:
— Accuracy and distortion and the reader's
opportunity to reply.
— Privacy, including intrusive pictures
and harassment.
— Newsgathering—use of subterfuge,
payments to criminals or witnesses, listening devices and rules
of financial journalism.
— Protection of children, the sick
and other vulnerable groups.
All this is contained on a single A4 sheet,
rather than the volumes which characterise many statutory regulation
codes. As testimony of industry commitment, it is also issued
by the Society of Editors in a wallet-size fold-out format which
can be carried by all journalists at all times.
3.13 The Code must be responsive to social
change and flexible to circumstance, while maintaining certainty
and consistency. The lines which are drawn should be neither so
taut that they restrict legitimate reporting and healthy debate,
nor so slack that they fail to offer proper protection for all
members of the community, especially those not normally in public
life. The Code must be clear in defining the rights of the public
and the responsibilities of editors and journalists.
3.14 This is often difficult and never more
so than when striking the balance between protecting sometimes
competing rights: the freedom of the individual and freedom of
expression. The Code must, for example, allow the demands of accuracy
and fairness to be weighed against the right to fair comment,
the freedom to be partisan and to also accommodate the British
tradition of satire and polemic.
The "spirit" of the Code
3.15 In areas of privacy and intrusion,
there can be genuine conflicts over where legitimate public exposure
ends and public prurience begins. When dealing with public figures,
there can be a further dimension: how much is the process of prurience
deliberately stimulated by celebrities themselves?
3.16 These are impossible areas to distil
satisfactorily without resort to judicial complexities inimical
to the simplicity of a working Code. To try to reconcile these
issues, the Editors' committee drew on a feature of self-regulation
which would be unlikely to be available in any statutory or legalistic
matrix: it invoked the spirit of the Code.
3.17 Since 1991 there had been a stipulation
that the Code applied in the spirit as well as the letter and
editors would be expected to abide by that. But in 1997, to provide
a proper context for the major revisions which followed the death
of Diana, Princess of Wales, the preamble was totally rewritten
so that, taken in conjunction with the public interest defences,
it gave a clear definition of the "spirit" of the Code.
3.18 Therefore, in analysing the Code clause
by clause, we should start both at the beginning and the end:
addressing the preamble and the public interest defences, the
philosophical framework in which the whole of the document is
set.
— NOTE: In the interests of brevity
and clarity, in the following analysis not all sections or clauses
appear here in their entirety. The Code in full constitutes Appendix
I (not printed).
The preamble
3.19 While re-stating the importance of
the Code as the cornerstone of self-regulation and the industry's
binding commitment to it, the revised preamble set out precisely
the difficult balance that had to be struck: both protecting the
rights of the individual and upholding the public's right to know.
3.20 It went on to expressly require that:
"It is essential to the workings of an agreed code that it
be honoured not only to the letter, but in the full spirit. The
Code should not be interpreted so narrowly as to compromise its
commitment to respect the rights of the individual, nor so broadly
that it prevents publication in the public interest."
3.21 The intended message to the industry,
to the PCC and to the public at large was that this was an even-handed,
practical code, based on decent principles which should be abused
neither by newspapers trying cynically to tip-toe their way around
the rules, nor by complainants playing the system to the detriment
of the public's right to know.
3.22 It was a major advance. The preamble
was empowering the PCC, with its lay majority, to adjudicate on
the balance of those rights and decide where the public interest
lay in individual circumstances. Effectively, it gave the PCC
a freer hand in reaching sound, commonsense adjudications in the
public interest, as listed in the Code.
The public interest defences
3.23 The public interest defences cover
nine of the 16 clauses. They are: Privacy; Harassment; Children;
Children in sex cases; Listening devices; Hospitals; Reporting
of crime; Misrepresentation; and Payment for articles. The fact
that they are so widely available means they are sometimes derided
by critics as a universal escape clause for editors. That charge
is demonstrably untrue and the new preamble gave the lie to it.
3.24 The Code is careful not to define the
public interest as essentially anything the public is interested
in—even though that definition has a powerful advocate in
Lord Woolf, the Lord Chief Justice, who gave it force and legitimacy
in the Court of Appeal judgment (11 March 2002) in the case of
the footballer Gary Flitcroft.
3.25 The Code definitions, while not exhaustive,
generally follow much tighter, more commonly accepted lines. They
encompass almost entirely those areas recommended by the Calcutt
Committee and the National Heritage Committee both of which—while
stopping short of defining the public interest—allowed for
exceptions to the Code if they could be justified for the purpose
of:
— exposing crime or serious misdemeanour;*
— protecting public health or safety;
and
— preventing the public from being
misled by some statement or action of an individual or organisation.
*An earlier definition embracing anti-social
conduct was deleted (in line with Heritage Committee views) as
being too loose and open to misuse.
3.26 The public interest defences have been
extended to reflect the Human Rights Act's endorsement of freedom
of expression. This followed a case under Clause 10 where a father
complained that he had been named gratuitously in a report of
how his son was cautioned by the police. In fact, the relationship
was already in the public domain, having been acknowledged by
the son in a television interview. The Code was therefore later
amended at the Commission's request to prevent a further technical
breach: "There is a public interest in freedom of expression
itself. The Commission will therefore have regard to the extent
which material has, or is about to, become available to the public."
3.27 The Code committee and PCC are anxious
to avoid abuse of public interest defences and attempt to do so
by a variety of mechanisms:
(i) The Code alerts editors to the fact
that where the public interest is invoked, the PCC will "require
a full explanation by the editor demonstrating how the public
interest was served." The burden of proof is put squarely
on the newspaper.
(ii) To increase protection for children
(see also 4.30), the committee raised the threshold for
invoking such a defence: "In cases involving children, editors
must demonstrate an exceptional public interest to override the
normally paramount interests of the child." This ratchets
up the existing test several notches.
(iii) Lord Wakeham, then chairman of the
PCC, in 1996 formulated seven key questions to be asked by the
Commission before it would accept a public interest defence. Essentially
these were tests of whether there was a genuine public interest
in any given case of intrusion on privacy and, even if there was,
whether that intrusion might have been minimised. This provided
an additional context to assist editors in their decisions prior
to publication.
3.28 Taken together, these measures demonstrate
the validity and importance of the genuine public interest defence.
First, the PCC has the freedom to adjudicate on competing interests.
Second, the Code definitions follow standard formats. Thirdly,
the language of the Code and PCC has been ratcheted up to protect
the public generally and children in particular. That is as it
should be: there should be no easy escape clause. But neither
should the Code committee need to apologise for the inclusion
of proper public interest defences.
3.29 If, as the National Heritage Committee
suggested, the Code lies at the heart of the self-regulatory process,
then serving the public interest lies at the very heart of the
Code, and also of the very best of journalism, synthesising its
democratic role. No self-regulatory regime worth the name could
operate without adequate public interest defences, such as those
embraced in the Code.
3.30 Of the 16 clauses in the Code, 12 deal
directly or indirectly with privacy and intrusion issues. They
are dealt with separately in Section 4 below, but first we analyse
the remaining four: Clause 1, Accuracy; Clause 2, Opportunity
to reply; Clause 14, Financial journalism; Clause 16, Payments
for articles.
Clause 1—Accuracy
3.31 Accuracy is fundamental to good journalism
and this clause still accounts for the majority of complaints
to the PCC. However, there has been a marked reduction in the
proportion of such cases. While in 1991 Clause 1 accounted for
76% of complaints, it currently accounts for 56%, perhaps reflecting
an improvement in standards. This is not withstanding the fact
that in 1997 the clause was extended to cover the manipulation
of pictures in the wake of developments in digital technology.
As well as distortion, the Clause also covers the importance of
distinguishing between comment and fact. No breach under that
heading has been upheld since 1997.
Clause 2—Opportunity to reply
3.32 The Code insists: "A fair opportunity
to reply to inaccuracies must be given to individuals or organisations
when reasonably called for." This has occasionally been criticised
as falling short of an absolute right of reply. However in the
context of a conciliation service, any term dealing in absolute
rights on either side, whether they be reasonable or otherwise,
could be counter-productive or raise false expectations. The Code
committee therefore settled for a definition which relies on what
was reasonable in the circumstances, which would be decided by
the Commission with its lay majority. In the event it appears
to work. Complaints under this clause account for only 1% of the
total.
Clause 14—Financial journalism
3.33 This clause, based entirely on the
recommendations of the Calcutt Privacy committee, has stood the
test of time, and remains unchanged despite increasing concerns
about financial services regulation and the case of the Mirror's
City Slickers column. Indeed the Mirror case demonstrated the
strength of the clause. Two business columnists who had been tipping
shares in which they had an interest were in breach of the Code.
They were dismissed. The editor was subsequently found guilty
of a breach by not enforcing the Code and was obliged to publish
the PCC's highly critical adjudication in full—all 4,000
words of it.
3.34 The Code committee consulted widely
among leading business journalists on a best practice note which
was circulated within the industry and eventually incorporated
into both UK and European Union regulatory guidance.
Clause 16—Payments for articles
3.35 This clause covers both payments to
witnesses and to criminals. In 1996, following the trial of Rosemary
West, there was disquiet both inside and outside the industry
over media payments to witnesses in current proceedings. Although
judges decided payments had not harmed the interests of justice,
the Code committee opted for a wholesale tightening of the existing
rules, which had previously echoed the Calcutt Committee proposals.
3.36 The relevant clause was rewritten to
outlaw both payments and offers of payment unless editors could
prove there was "an over-riding need" for them to be
made in the public interest. This created a much higher threshold
to be crossed before editors could claim they were acting in the
public interest. The clause went on to demand that editors "take
every possible step to ensure that no financial dealings have
influence on the evidence that those witnesses may give."
3.37 Then, to further safeguard the integrity
of the judicial system, which the Code committee recognised as
paramount, a new and important element of transparency was introduced.
This obliged editors to disclose to both prosecution and defence
the fact that a payment or offer of payment had been made to any
witness cited to give evidence and to inform the witnesses of
that.
These clauses were designed to:
— ensure the jury was fully aware of
a financial transaction;
— avoid the risk of journalists coaching
or influencing witnesses;
— rule out payments which were conditional
on a guilty verdict; and, implicitly, to—
— warn witnesses against committing
perjury.
Since the Clause was rewritten, there has been
only one breach—in the case of Gary Glitter—and that
was largely inadvertent. However, further revisions are being
discussed with the Lord Chancellor's Department.
3.38 At the same time, a new sub-clause
was introduced to cover payments to criminals and their family,
friends, colleagues or other associates. It is, however, possible
for a newspaper to argue successfully that such a payment is in
the public interest, although instances are rare.
3.39 One such occasion was when the PCC
ruled that serialisation in The Times of an analytical
book about the child killer Mary Bell was in the public interest
because it ensured that important information was made available
to a wider audience.
3.40 Conversely, it was ruled that payment
for an article in the Daily Telegraph by Victoria Aitken
was not in the public interest because it glorified the crimes
of her father Jonathan Aitken. Lapses under this clause are unusual.
There has not been a breach since that case in 1999.
General changes to the Code
3.41 Although the Code is a constantly evolving
document with amended versions posted in May 1992, July 1993,
May 1994, November 1996, and December 1999, the most far-reaching
revision followed the death of Diana, Princess of Wales in August
1997 and was published in December of that year.
3.42 Many of the amendments related directly
to invasions of privacy and to press intrusion, dealt with in
detail below. But since the committee was engaged in a total overhaul
of the Code, it spread the net beyond privacy issues.
3.43 In 38 sub-clauses, for example, the
injunction to observe the Code was upgraded from "should"
to "must". Although the new restrictions relating to
Children majored strongly on protecting privacy (see 4.9 below)
they went wider, embracing aspects affecting the child's welfare.
3.44 In response to requests from the public
and health support groups, the clause on Discrimination was altered
to refer to physical disability, rather than handicap.
4. THE CODE
AND PRIVACY
4.1 The importance the Code attaches to
protecting privacy and preventing intrusion is manifest. Of the
16 clauses, 12 relate directly or indirectly to privacy or intrusion.
They are:
— Clause 5: Intrusion into
grief or shock
— Clause 7: Children in sex
cases
— Clause 8: Listening devices
— Clause 10: Reporting of crime
— Clause 11: Misrepresentation
— Clause 12: Victims of sexual
assault
— Clause 13: Discrimination
— Clause 15: Confidential sources
4.2 These are universally important issues
affecting all sectors of the press, national and local, and—especially
with the advent of celebrity interest titles—magazines.
Paradoxically, a greater proportion of cases concerning the regional
and local press involve privacy matters than is true for the national
press.
4.3 These complaints generally come from
local people not ordinarily in public life and may reflect a change
in public expectations of privacy rather than any diminution of
standards by regional papers.
4.4 Ironically, despite greater transparency
in government and corporate life, and a growing taste for fly-on-the-wall
entertainment and more relaxed personal lifestyles, there been
a counterbalancing trend towards seeking opacity in private life.
This is undoubtedly due in part at least to societal changes,
such as the breakdown in traditional communities and the fear
of crime, as well as expectations raised by legislation such as
the Data Protection Act and the Human Rights Act.
4.5 This is not the forum to debate the
causes. However, it is worth considering some of the effects,
which are experienced on a daily basis by editors, especially
those on regional and local newspapers.
4.6 Traditionally accepted norms, such as
the concept of open justice, are now routinely challenged. Defendants
increasingly protest at court reports. Families query the right
of the media to cover inquests. Coverage of wills and divorces,
part of the public record that was once the stock in trade of
local newspapers, now often lead to hostile complaints. Police
who once reported details of burglaries as part of an exercise
in crime prevention now withhold them under the Data Protection
Act. That story is repeated for reports of traffic accidents.
4.7 A fear of paedophilia now leads schools
to ban photographs of sports days and nativity plays. Meanwhile,
a female reviewer sent to a cover a pantomime matinee attended
by a school party at a major theatre in Scotland found she had
a minder in the next seat, a teacher who warned: "Call me
paranoid, but I'm just going to sit here and keep an eye on you."
Whether all or some of this might be understandable, is a separate
issue, but it does suggest a developing bunker mentality in some
quarters which might be impossible to accommodate in a free society.
4.8 The impact of such changing attitudes
is obvious. It will inevitably lead to an increase in complaints
of intrusions into privacy. The difficulty will be in deciding
whether these are due to falling press standards or to unrealistic—if
understandable—expectations on behalf of some complainants.
4.9 It will not be for the Code committee
or the PCC alone to make those judgments, but for the wider civil
society. In this context, the comments of Lord Chief Justice Woolf
suggesting that there is a public interest in newspapers publishing
what members of the public are interested in, takes on a particular
significance.
Meanwhile, the Code attempts to reflect a sensible
balance of what should and should not be properly in the public
domain, as analysis of the relevant clauses below will illustrate:
Clause 3—Privacy
4.10 It was in an attempt to reflect and
manage changing attitudes that in its post-Diana revision, the
Code committee abandoned the definitions which had been evolved
from the Calcutt recommendations and attempted to redefine the
boundaries. In tightening and toughening these areas, the Code
committee exceeded many of the measures urged by critics, including
the 1993 National Heritage Committee.
4.11 In its revised Clause 3, the Code first
incorporated the requirement of the European Convention on Human
Rights (anticipating the Human Rights Act) that "Everyone
is entitled to respect for his or her private and family life,
home, health and correspondence". This effectively established
the "zone of privacy" sought by the National Heritage
Committee and went further than the French definition which the
committee quoted with approval as a model.
4.12 The revised Clause then underwrote
that by putting the onus of proof on editors: "A publication
will be expected to justify intrusions into any individual's private
life without consent." It went on: "The use of long
lens photography to take pictures of people in private places
without their consent is unacceptable."
4.13 Finally, and perhaps most significantly,
it added a note which broadened the concept of what might constitute
a private place: "Private places are public or private property
where there is a reasonable expectation of privacy." Previous
attempts at defining areas of privacy had proved too tight, restricting
private places largely to private residences and secluded gardens,
hotel bedrooms and the wards of hospitals or nursing homes. They
would not, for example, have protected someone from being pictured
while worshipping in church or dining in a discreet corner of
a restaurant.
4.14 The new definition attempted to meet
public expectations by introducing the test of what was or not
reasonable. The final judgment, taking into account all the circumstances,
would be down to the PCC, with its lay majority. It was a landmark
change in the Code and would have a particular resonance for people
not usually in the public eye.
4.15 Not only did this definition of a private
place go further than either the Calcutt Committee or National
Heritage Committee had envisaged, it was also wider in scope than
most of the examples from U.S. state legislature privacy laws
cited by the National Heritage Committee. Moreover, its validity
was endorsed on judicial review in the Administrative Court, when
the broadcaster Anna Ford sought, unsuccessfully, to over-turn
a decision of the PCC which had rejected her notion of a reasonable
expectation of privacy while on holiday on a beach which was open
to the public.
Clause 4—Harassment
4.16 Similarly, in revising Clause 4 on
Harassment, the Code committee introduced tough new concepts.
Faced with concerns over the activities of the paparazzi in the
aftermath of the Princess Diana tragedy in Paris, the Code prohibited
journalists from obtaining or seeking to obtain information or
pictures through "persistent pursuit". It further required
that journalists and photographers, having been asked to desist
from such pursuit, must do so.
4.17 Although the preamble to the Code already
made clear that its rules should be observed rigorously by all
journalistic contributors, staff members and freelancers alike,
a further warning was added strongly reinforcing the point: "Editors
must ensure that those working for them comply with these requirements
and must not publish material from other sources which does not
meet these requirements."
4.18 Taken together with the existing rules
to prevent harassment—which were now similarly strengthened
by the new definition of "private places"—these
amounted to some of the strictest press regulations in Europe.
Moreover, the prohibition would also apply to material from foreign
freelancers operating under less stringent national rules. In
fact, complaints of harassment are rare, since they are often
dealt with over the PCC's helpline.
Clause 5—Intrusion into grief or shock
4.19 One of the principal areas of the Code
affecting the privacy of people not normally in public life is
that involving intrusion into grief or shock. There is a widespread
misconception—shared by, among others, the Calcutt Privacy
Committee and some MPs (although not, apparently, the 1993 National
Heritage Committee)—that all approaches by the press to
the bereaved are inherently intrusive. This is by no means the
case.
4.20 Death, perhaps especially in tragedy,
offers an opportunity to honour the life which has been lost.
Regional newspaper reporters particularly, with their close contact
with local communities, are keenly aware that in speaking to the
next of kin following bereavement, they are collecting information
for a report which will be a lasting—and last—memorial.
They know of the hurt to the family that can be caused if they
get the facts wrong as, too often, do funeral directors and even
clergy.
4.21 Sometimes details of the deceased's
life are known only to their closest family. This is regularly
the case where the person who has died has not had a public profile,
and there is no file in the cuttings library which could be relied
upon. Older people particularly are usually very aware of the
importance of this last memorial, and for that reason often welcome
reporters who are making inquiries sensitively. This, of course,
is not always the case. Some grieving families do find the press
intrusive, but they may actually be in a minority and reporters
are encouraged to sound them out via neighbours or friends without
causing direct offence.
4.22 That is why the Code committee has
always balked at prohibiting unsolicited inquiries altogether,
as some observers proposed, and instead insisted that "In
cases involving personal grief or shock, enquiries should be carried
out and approaches made with sympathy and discretion." In
response to a request from the Commission, that requirement for
sensitivity has now been extended to embrace publication which
"must be handled sensitively at all times." However,
to avoid repetition of cases where grieving families had tried
to suppress details in legitimate court or inquest reports, the
qualification was added that "this should not be interpreted
as restricting the right to report judicial proceedings."
Clause 6—Children
4.23 The interests of children, always one
of the strictest areas of self-regulation, have been given a new
primacy in the Code. In Clause 6, the privacy already afforded
to children under 16 was extended to cover all of their schooldays.
"Young people should be free to complete their time at school
without intrusion." For many children this would cover life
until they were 18, by which time they could be legally married,
have children, pay taxes and be old enough to drive, to drink,
to vote, and to die for their country: indeed, every test of
adulthood.
4.24 The revision introduced a ban on payments
both to minors—for material involving the welfare of children—and
to less scrupulous parents or guardians who were selling their
children's story when it was not demonstrably in the child's interest.
There was also new protection to prevent the sons and daughters
from being thrust into the media spotlight solely because of the
"fame, notoriety or position of their parents or guardians".
Clause 7—Children in sex cases
4.25 In Clause 7, covering children in sex
cases, there were changes made to the wording to be used in incest
or child abuse cases to prevent accidental identification. This
was part of a major advance for the media as a whole. The Code
was a pioneer in tackling long-standing problems of "jigsaw
identification"—addressed in the National Heritage
committee report in 1993—by which children involved in court
cases might be identified unintentionally when publications acting
independently observed the law in different ways.
4.26 Traditionally, national and local newspapers
had taken different approaches. The national press tended to give
anonymity to the accused, which permitted them to describe the
exact nature of the offence without identifying the victim. In
local and regional papers, the tendency was to name the defendant
without giving the precise offence so that the victim would not
be identified. Both approaches were equally valid in law—but
read together would clearly lead to the identification of the
victim.
4.27 The Code committee laid down a common
formula for reporting such cases in which the national press agreed
to follow the route used by the regional newspapers. But this
alone could not solve the problem, since the radio and television
newsrooms could still take a different course. At the behest of
the Code committee and its then chairman, Sir David English, this
approach was later adopted in the interests of uniformity by the
broadcasting standards codes. It was the first case of cross-media
standardisation achieved by self-regulation.
4.28 To underline the special status of
children, greater protection was provided in Clause 10—Victims
of crime, which already shielded friends and relatives of people
accused or convicted of crime. It now urged: "Particular
regard should be paid to the potentially vulnerable position of
children who are witnesses to, or victims of, crime. This should
not be interpreted as restricting the right to report judicial
proceedings."
4.29 As with other areas of the Code, the
clauses covering children may be subject to a public interest
defence. This has sometimes been cited as evidence of the Code
rowing back on the commitment to protect the privacy of children.
That is not the case.
4.30 The public interest exemption applies
because cases have arisen occasionally where, for example, persistently
offending children have been deliberately named and shamed by
a court; or where underage mothers who were technically victims
of crime had emerged with the support of their parents to talk
of their plight, their identity was already widely known and they
had waived their right to privacy or had been mentioned in Parliamentary
proceedings.
4.31 However, the Code committee believes
that as a general rule the public interest should only rarely
be invoked in cases concerning children. It therefore created
the higher threshold to be crossed (See also 3.26.II).
Clause 8—Listening devices and misrepresentation
4.32 While the use of long lens photography
is regulated under Clause 3, separate protection was introduced
in 1993 in Clause 8, in the wake of the Camillagate scandal, to
prohibit journalists from obtaining or publishing material obtained
by using clandestine listening devices or interception of telephone
conversations. As with the use of subterfuge and misrepresentation
in Clause 11, this would constitute an intrusion and could be
justified only if it could be proved to be in the public interest.
There has been only one breach of the listening devices clause—in
1996. No other cases have been reported since then, further evidence
that self-regulation is working in that area.
Clause 9—Hospitals
4.33 The long-standing protection afforded
to coverage of hospitals by Clause 9 remains, although the onus
on journalists is increased. They now have to identify themselves
to a responsible executive, rather than official. While breaches
are very rare, they are taken extremely seriously. In a recent
case in Eastbourne, a reporter who tried to interview a seriously
injured accident victim in hospital was dismissed after a disciplinary
inquiry.
Clause 12—Victims of sexual assault
4.34 The anonymity of victims of sexual
assault is protected in Clause 12 and is not subject to a public
interest defence. However there are rare cases where, for instance,
a victim may waive his or her anonymity or where the information
has, through the court, been put into the public domain. The Code
makes provision for these.
Clause 13—Discrimination
4.35 While the first part of Clause 13,
referring to pejorative or prejudicial references, is not strictly
a privacy issue, the second part relating to gratuitous references
to race, colour, religion, sexual orientation, physical or mental
illness or disability, certainly could be. Nonetheless, although
complaints of discrimination have risen, the number of breaches
against named individuals has not.
Clause 15—Confidential sources
4.36 The commitment to preserve the confidence
of sources in Clause 15 rarely arises as a basis for complaints.
However, at its core, it is one of the ultimate tests of a right
to privacy.
4.37 The foregoing clauses testify to the
importance of privacy issues within the Code. They are strict
and comprehensive. They often go further than critics have urged.
They provide genuine protection from genuine intrusion. They strike
a balance between the demands of privacy and the requirements
of freedom of expression. Inevitably, they will not meet the expectations
of those who believe privacy means total invisibility in all circumstances.
We do not believe that general acceptance of such a proposition
would be either reasonable or healthy in a free society.
5. IS THE
SYSTEM WORKING?
5.1 Perhaps the two most fundamental tests
of whether the Code and self-regulation work are:
— Has it improved standards of the
press and will it continue to do so?
— Is it providing adequate redress
for complainants?
And to this last should be added the questions
posed by the Culture Media and Sport Committee:
— Could the system be improved by greater
sanctions, including fines and compensation awards?
— Should it be subject to overview
by a statutory ombudsman?
We examine these in turn.
Has self-regulation improved standards?
5.2 The greatest single impact of the Code
has been the change in culture which has been wrought in newsrooms.
But while this is regarded by many experienced editors as having
been remarkable, it is, almost by definition, usually intangible.
We need more measurable tests.
5.3 The first concerns the Code itself.
Is it recognised as a credible and authoritative ethical matrix
for the industry? The evidence of external validation suggests
it is. The Code is now demonstrably tighter and tougher on most
substantive points than that proposed by the Calcutt Privacy committee
or indeed the National Heritage Committee in 1993.
5.4 It has been endorsed for incorporation
into the legislative process for both the Data Protection Act
and the Human Rights Act. It has been upheld in the Administrative
Court on both the occasions when it was tested on judicial review.
Its jurisprudence on privacy issues has been mirrored in the High
Court. Its rules for applying the public interest defences are
much stricter and tighter than those applied by the Lord Chief
Justice in the Court of Appeal. The Code has been adopted as a
working template and starting point for many countries, especially
in the Commonwealth, where self-regulation of the press is being
introduced.
5.5 We believe all this reflects its credentials
and validity as a sound, fair and reasonable Code upon which to
base an effective self-regulatory system. But that is only half
of the question. However sound, fair or reasonable it might be,
its effectiveness depends on the authority and influence it has
on editors and journalists. Do they take any notice?
5.6 Again, we believe the evidence is compelling:
— After 12 years, the authority of
the Code has not been challenged on any substantive point by editors.
— No newspaper—including those
who were not officially party to the self-regulatory compact—has
failed in its obligation to publish an adverse adjudication.
— The Code is written into the contracts
of employment of journalists and breaches have led to disciplinary
action, including dismissal.
— The Code has been incorporated into
the programmes of all major journalistic training courses, which
are further supported by PCC visiting lectures.
— The evidence of complaints indicates
standards are rising. The number of complaints about accuracy
has fallen; while complaints on privacy have risen, the number
of breaches has not. Instances of habitual intrusion, of harassment,
of payments to criminals, of intrusions into hospitals, of pejorative
discrimination, of the use of listening devices, of identification
of children or sex victims, are increasingly rare.
5.7 This tends to confirm the feeling of
editors that there has been a cultural sea-change in newsrooms.
The Code is constantly consulted, and its provisions and obligations
met in addressing news-gathering, privacy and the whole range
of regulatory strictures.
5.8 Inevitably there are, and will be, lapses,
but the trend towards higher standards is strongly in the right
direction. This will continue to improve as the new generation
of editors come on stream who have not known life without the
Code, who have grown up with it and who see it for what it is:
an ethical compass providing constant guidance, while leaving
them free to set the journalistic destination.
Is there adequate redress for complainants?
5.9 The principles of the self-regulatory
regime, of which the Code is part, are to provide a dispute resolution
and conciliation service which is fair, fast and free—a
dimension which will be particularly attractive to ordinary people
not normally in public life.
5.10 By most tests the PCC succeeds in that.
Its service is the fastest of any regulatory body, with an average
complaint handling time of only 32 days. It has a majority of
lay members selected by an independent Appointments Committee
to ensure that the press is not a sole judge in its own court.
It works to a Code which the Commission itself has ratified and
which, as we have seen, has been widely validated externally.
5.11 Surveys of complainants indicate they
are broadly satisfied with PCC procedures. Analysis of the pattern
of complaints, which rise particularly after high profile cases,
suggests a public awareness of the Commission's existence and
role. That is perhaps inevitable when dealing with cases involving
the Royal Family, the Prime Minister or celebrities, but the PCC
provides equal service to all, and 97% of complainants are not
public figures.
5.12 While none of this is grounds for complacency,
it lends powerful support to the view that the current procedures
of the PCC can and do work. The question which arises is whether
this level of success would be enhanced or hindered by some of
the proposals mooted by the Culture, Media and Sport Committee.
Could the system be improved by greater sanctions?
5.13 The problem with increasing sanctions
is that they would transform the nature of press self regulation,
losing many of its advantages along the way, and delivering no
significant gain in return. The current regime is a fast-track
system, relying on written evidence, largely free of lawyers,
where cases are tested against a Code which works to the spirit
as well as the letter. It is also a free service.
5.14 If fines or compensation awards were
introduced, inevitably there would greater use of lawyers, almost
certainly leading to oral hearings in some cases, with consequent
increases in time and cost. The PCC would have no power to summon
evidence or witnesses, or indeed enforce payments, without changing
its very nature.
5.15 Then the voluntary element of self-regulation
would be seriously undermined, and the latitude allowed by adjudications
in the "spirit" of the Code quickly lost. So also would
be the Commission's conciliation role, as the self-regulatory
regime came to replicate the worst elements of the legal system:
slow, expensive and inaccessible, particularly to ordinary people
without money or power and not in public life.
5.16 And for what advantage in efficiency
or effectiveness? When the National Heritage Committee reported
in 1993, it gave an approving nod in the direction of the Solicitors
Complaints Bureau and the Insurance Ombudsman, each of which had
powers to award compensation, and which it was hinted might be
a model for the press. Both organisations have since been abolished.
5.17 Their successor organisations do not
mirror the PCC's operation and anyway face substantial backlogs
of complaints. In the case of the Office of the Legal Services
Ombudsman, perhaps the closer comparator, the financial awards
were minimal. The lowest compensation award in 2001-02 was £50,
the highest £2,000, and the average award, £243. Against
this should be set the fact that average turn-around times were
extended from 4.5 to 6.7 months.
5.18 It is unlikely the PCC's clients would
find such delays worthwhile, especially since complainants rarely
exhibit a desire for compensation. Indeed because the PCC has
no legal waiver, they are already free, once they have their adjudication,
to take their case to court for compensation, possibly supported
by contingency-fee lawyers. Few choose to do so. For many, a public
apology, correction—or sometimes simply a private letter
of sincere regret from the editor—is sufficient redress,
rather than tortuous proceedings which prolong the sense of grievance.
5.19 The arguments against fines are equally
powerful. Not only would they create an adversarial system which
would delay adjudications, they are unlikely to work. In France,
it is widely believed that if the commercial gain from publication
is substantial, successful newspapers and magazines often simply
anticipate a fine, publish regardless and provide for it in their
marketing budget.
5.20 However, this is not an option for
newspapers with small resources. Fines could, by that experience,
hit hardest at the most vulnerable target, threatening diversity
of the press. They would be likely to threaten regional and local
papers most. This may explain why there is no appetite for fines
in the majority of established European self-regulatory press
councils. Among EU states only France, with its draconian press
and privacy laws, and Portugal do not embrace self regulation.
5.21 Meanwhile, it is a mistake to underestimate
the sanctions currently available to the PCC. They have a menace
whose mechanics are only too well understood by editors. First,
there is the sanction of an adverse adjudication, which the offending
newspaper is obliged to publish in full. In the case of the Mirror
City Slickers share-tipping scandal, the stinging adjudication
was 4,000 words long, and censured the editor who was obliged
to run it across two prominent news pages.
5.22 No one should underestimate the commercial
price of this in the highly competitive market in which newspapers
and magazines operate. Not only is the censured newspaper shamed
on its own pages to its own readers, its embarrassment is also
seized upon by its rivals and paraded on their pages. It is a
form of calculated double jeopardy which explains why editors
are desperate to avoid adverse adjudications.
5.23 Secondly, the PCC has the sanction
that in the case of very serious breaches, it can bring the matter
to the attention of the publisher. This happened in the case of
the News of the World pictures of Countess Spencer in a
bulimia clinic. The editor was publicly rebuked by his employer.
It happened again in the City Slickers affair.
5.24 Finally, the Code of Practice is written
into the contracts of most, if not all, principal newspaper group
editors and their staffs. Breaches of the Code may lead to disciplinary
hearings. In the City Slickers case, two journalists were dismissed
in anticipation of the PCC's adjudication. In Eastbourne, a local
reporter who interviewed a seriously injured crash victim was
also dismissed because he breached the Code. Although this again
anticipated the PCC, the newspaper was nonetheless criticised
heavily.
5.25 So while the PCC's existing sanctions
are real and effective, the likely gains from compensation and
fines are, at the very least, dubious. They would add little or
nothing, and threaten the voluntary foundations upon which any
system of press self regulation is built.
Should there be a statutory ombudsman?
5.26 The same would almost certainly be
true if a statutory ombudsman were to be superimposed onto the
self-regulatory framework. It would be the worst of all worlds.
The omnipotence and interventionist role of the ombudsman, as
envisaged by the National Heritage Committee, would constitute
profound dangers for press freedom.
5.27 The ombudsman would inevitably be perceived
not as part of a legitimate complaints adjudications procedure,
but as something rather more Orwellian: a state-appointed policeman
of the press. However independent he or she might set out to be,
it would be difficult, if not impossible, for any ombudsman to
live that down. Such influence and control residing in one person,
or department, would have major implications for the independence,
plurality and diversity of the press as its range and colour was
focussed and refracted through the prism of this single—and,
ultimately, distorting—lens.
5.28 The temptation for the ombudsman to
be drawn into areas of taste, decency and political correctness
would be enormously seductive. The chilling effect alone of own-volition
investigations launched by an ombudsman into sensitive or controversial
media coverage would be damaging to most accepted notions of a
free press. If the stories involved Cabinet or Shadow Ministers,
there would be charges of politicisation. If the ombudsman's investigation
concerned coverage involving the royal family or other public
figures it would be open to accusations of establishment favouritism.
The office of the ombudsman could become tainted by suspicion.
5.29 How this would affect, positively,
ordinary people is unclear. Least likely to be assisted would
be those not in public life, if for no better reason than that
their lower profile stories would not be picked up on the ombudsman's
radar—unless the resources at his disposal were unimaginably
vast. In any event, it would be unlikely that those resources
would extend beyond the depth and breadth of professional experience
available to the PCC in a voluntary self-regulation context.
5.30 That voluntary element, meanwhile,
would by definition have been hugely diluted. The system would
become adversarial and invite constant challenge, especially from
a press anxious to protect diversity and freedom. The extra tier
of authority would ensure that the adjudicatory mechanism would
become overloaded with layer upon layer of process.
5.31 First, there would be the PCC adjudication
which, if it were awarding fines or compensation, would become
slow and legalistic. Then there would be the right of appeal to
the ombudsman—if he or she did not first arbitrarily intervene.
The ombudsman's adjudication would itself be subject to the possibility
of judicial review or, in the case of a newspaper dissenting from
a fine or compensation, an appeal to the High Court for a discharge.
At its worst, the process could go on for months and years. It
would appear interminable and expensive—to the detriment
of complaint resolution.
5.32 Finally, the proposition that the statutory
and self-regulatory systems could work in unison does not hold.
The fast-track, conciliatory Press Complaints Commission horse
could not be harnessed effectively to the statutory cart, loaded
with controlling purpose and perhaps pulling in another direction.
The moral authority of the PCC would be dangerously eroded and
the voluntary principle irreparably damaged by the imposition
of a supervening statutory system. There could be one or the other.
Not both.
6. A LAW OF
PRIVACY?
6.1 The arguments against a privacy law
remain substantially the same as when it was proposed by the Heritage
committee in 1993: it would be difficult, if not impossible, to
frame effective legislation; it would be expensive and slow; it
would be impractical and inaccessible to most ordinary people.
Meanwhile, the arguments in favour of such legislation—that
the lack of a privacy law left a gaping hole in the legal code—have
receded. The world has moved on.
6.2 The gaps are being filled by a variety
of developments. The Data Protection Act and Human Rights Act,
as demonstrated by the Naomi Campbell action against the Mirror,
and footballer Gary Flitcroft against the Sunday People,
now provide a legal remedy—if the case is sound. The developing
law of confidence, currently being deployed by Michael Douglas
and Catherine Zeta Jones to try to protect the exclusivity of
their wedding pictures, has a role.
6.3 So the law has its remedies, even if
they suffer from the perennial problems of cost and inaccessibility.
In addition, where the privacy complaints involve the press, these
problems are addressed directly by the PCC with its rapid, no-cost
remedies for breaches of the Editors' Code, which itself majors
on privacy matters.
6.4 Nor does a complaint to the PCC preclude
legal action. There is no legal waiver. Also, if a complainant
is dissatisfied with the PCC's approach on privacy, the possibility
of judicial review lies open, as the Anna Ford case showed. The
courts have demonstrated that they regard the PCC and its procedures
as the legitimate and most suitable forum for deciding on privacy
issues involving the press.
6.5 The current remedies of existing laws
and developing jurisprudence, taken together with the PCC's procedures,
are effective and improving. They are much preferable to a privacy
law which—apart from its inherent difficulties of definition—would
become the resort of the powerful and wealthy, open to abuse and
could hobble a British tradition of openness and debate, especially
in the media.
6.6 The lessons from abroad are deeply troubling.
In France, the stifling privacy laws created a culture where the
fact that President Mitterrand had an illegitimate daughter was
kept from the public for many years. Concerns about the health
of the president, terminally ill with cancer, were also suppressed.
In Germany, Chancellor Schröder has taken action to prevent
press reports that his fourth marriage is in trouble—and
has sued a press agency which suggested his hair was dyed. He
has now tried to extend action against the British press for reporting
his marital affairs.
6.7 All this has worrying echoes of a culture
belonging to another age of privilege and opacity. In Britain
in the 1930s, the press's complicity in keeping secret Edward
VIII's romance with Wallis Simpson contributed to distrust of
the media. Similarly, in the 1950s, the illness of Winston Churchill,
while still Prime Minister, was kept from the public.
6.8 Any law which contributed to such deceptions
would again lead to distrust of the media and provoke suspicions
of conspiracy within the establishment. While a privacy law might
be popular with celebrities and politicians who stood to gain
most from it, the public at large would not be better served.
It would be turning the clock back, not forward.
7. CONCLUSION
7.1 The Editors' Code of Practice committee
believes:
— The self-regulatory system, while
not perfect, is working well, and will continue to improve and
to raise press standards.
— The current Code of Practice is strict,
sensible, comprehensive, dynamic and authoritative. Via a continuing
process of active monitoring and lay input, it addresses the public's
concerns on press ethics, particularly relating to privacy.
— The PCC, with its reliance on conciliatory
dispute resolution and voluntary sanctions, remains the best form
of complaints handling procedure, balancing the public's need
for adequate redress and the public's right to know.
— Financial compensation and fines
would not be effective, but would seriously impede the self-regulatory
process, and its commitment to a fast, fair and free adjudication
service.
— An extra tier of regulation, in the
form of a statutory ombudsman, would be unworkable, undermining
the authority of the PCC, creating procedural delays and extra
costs, while reducing public accessibility and having serious
implications for press freedom.
— Recent legislative advances have
overtaken the case for a privacy law, which anyway would be difficult
to frame, inaccessible to the public, and vulnerable to abuse
by the wealthy and privileged.
The committee is happy to contribute to the
deliberations of the Select committee in any way, and would be
prepared to give oral evidence if that were seen as helpful.
February 2003
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