APPENDIX 46
Memorandum submitted by the Editor of
The Times
The Times is grateful for this opportunity
to submit its thoughts on privacy to the Culture Media and Sport
Committee.
From the Younger Committee in 1972 to the present
day, not a single committee or body has been able to define "privacy"
with sufficient precision for it to form the basis for either
a clearly defined tort or a criminal offence of physical intrusion.
As the Younger Committee said in 1972, "the concept of privacy
cannot be satisfactorily defined". It therefore concluded
that on balance there was no need "at present for a general
law of privacy". The matter was then looked at again in 1990
by Sir David Calcutt and his Committee following the Gordon Kaye
case and they concluded that "a tort of infringement of privacy
should not presently be introduced" although the Committee
did recommend three limited offences of entering private property
with intent to obtain personal information, placing a surveillance
device on private property and taking a photograph or recording
the voice of an individual on private property in all cases without
that person's consent and with a view to publicity. Sir David
then produced a second report in 1993 after which the Government
issued a consultation paper "infringement of privacy"
in the same year.
In March 1993, the Heritage Committee, the forerunner
to the present Culture Media and Sport Committee, recognising
the friction between the right of free speech and the right to
privacy stated in paragraph 1.8 of its report, "A balance
is needed between the right of free speech and the right to privacy.
The Committee's view is that at present that necessary balance
does not exist and in this report it recommends action to achieve
it. The Committee does not believe that this balance can or should
be achieved by legislation, which imprisons the press in a cage
of legal restraint, and for that reason rejects those proposals
in the recent report by Sir David Calcutt, which could create
such a cage. The Committee would be deeply reluctant to see the
creation of any system of legal restraint aimed solely and specifically
at the press or the broadcast media. It believes that self-restraint
or as the Committee prefers to call it, voluntary restraint, is
by far the better way".
The Times believes those sentiments hold
good to this day and that the balance between free speech and
privacy has now reached a sensible equilibrium through the introduction
over the last 10 years of various pieces of legislation and a
thoroughly updated Press Complaints Commission Code of Practice
which amongst other things deals with long lens photography, listening
devices, intrusions into grief and shock, hospitals and harassment.
Section 12 of the Human Rights Act then balances the right to
freedom of expression against compliance with any relevant privacy
Code and makes prior restraint injunctions possible only where
"any relevant privacy code" has not been adhered to
or the material is going to become public anyway or publication
is "in the public interest". For the following reasons,
The Times believes that further interference in the area
of privacy, whether it be to protect "people not generally
in public life" or "public figures" themselves,
would be entirely inappropriate:
First, we believe that a statutory straightjacket
introducing offences of the kind contemplated by Sir David Calcutt
or even a broad based general tort of breach of privacy would
not be compatible with our obligations under the European Convention
on Human Rights and Article 10 (1), which protects free speech.
Second, the PCC Code of Practice which now contains
paragraphs dealing with privacy, harassment, long lens photography,
listening devices, subterfuge, hospitals, intrusion into grief
and shock has been greatly strengthened by the introduction of
a number of statutes all of which contain provisions which protect
peoples' privacy. These statutes include the Protection from Harassment
Act 1997, the Human Rights Act 1998, the Data Protection Act 1998,
the Regulation of Investigatory Powers Act 2000 and the Criminal
Justice and Police Act 2001. The combined effect of the current
PCC Code of Practice and these statutes has been to create a far
greater balance between free speech on the one hand and privacy
on the other. Indeed, if anything, the balance is swinging in
favour of individuals seeking to protect their privacy and away
from freedom of speech. This is of course largely due to judicial
interpretation of these statutes and how they operate in the vexed
area of free speech v privacy.
Third, a body of cases is now beginning to be
built up in the Court of Appeal, which deals with the interrelationship
between the law of confidence and the concept of privacy. The
recent Court of Appeal judgment in Naomi Campbell v Mirror
Group Newspapers Limited has clearly set out the parameters
of the law of confidence and how newspapers can and should expect
to be sued for breach of privacy and/or confidence where they
publish information which is "highly offensive to a reasonable
person of ordinary sensibilities". In this context, public
figures have also been reassured that they are entitled to a degree
of privacy although those enjoying kudos as "role models"
must expect to be exposed if their conduct falls short of that
expected of them.
Fourth, we believe the Press Complaints Commission
is doing a valuable job and does have a clear and recognisable
restraining influence on the Press. Although it does not have
the power to fine a newspaper or compensate a victim, its adjudications
do carry weight and British editors, including the editor of The
Times, are conscious of its role, its importance and the significance
of its sanctions. More importantly it provides a quick, inexpensive
way of getting some redress where a newspaper has invaded someone's
privacy and there is no public interest reason for the newspaper's
conduct.
Before looking at these points in greater detail,
it is perhaps worthwhile remembering what Lord Bingham, the Senior
Law Lord had to say about the role of the Press in a modern participatory
democracy: ". . . the press are the eyes and ears of the
public to whom they report. . . the proper functioning of a modern
participatory democracy requires that the media be free, active,
professional and enquiring"
1. FREE SPEECH
AND THE
UK'S OBLIGATIONS
UNDER EUROPEAN
LAW.
Lord Bingham's remarks clearly stem from an
appreciation of Article 10 of the European Convention on Human
Rights (ECHR) and how it protects free speech. According to European
case law, (Bernard Connolly v Commission 2001) Article
10 of the ECHR has to be seen in the following light:-
"As the Court of Human Rights has held,
`Freedom of expression constitutes one of the essential foundations
of [a democratic society], one of the basic conditions for its
progress and for the development of every man. Subject to paragraph
two of Article 10 [of the ECHR], it is applicable not only to
information or ideas that are favourably received or regarded
as inoffensive or as a matter of indifference, but also to those
that offend, shock or disturb; such are the demands of that pluralism,
tolerance and broadmindedness without which there is no democratic
society...
Freedom of expression may be subject to the limitations
set out in Article 10(2) of the ECHR. . . Those limitations must,
however, be interpreted restrictively. According to the Court
of Human Rights, the adjective `necessary involves, for the purposes
of Article 10(2), a `pressing social need and, although `[t]he
contracting States have a certain margin of appreciation in assessing
whether such a need exists, the interference must be `proportionate
to the legitimate aim pursued and `the reasons adduced by the
national authorities to justify it must be `relevant and sufficient
(see, in particular, Vogt v Germany, § 52; and Wille
v Liechtenstein judgment of 28 October 1999, no 28396/95,§
61 to § 63). Furthermore, any prior restriction requires
particular consideration (see Wingrove v United Kingdom judgment
of 25 November 1996, Reports of Judgments and Decisions 1996-V,
p 1957, § 58 and § 60).
Furthermore, the restrictions must be prescribed
by legislative provisions which are worded with sufficient precision
to enable interested parties to regulate their conduct".
Thus any restrictions on free speech eg a law
of privacy, can only be deployed where three conditions are satisfied.
The restriction on free speech must be to:
(1) pursue a legitimate aim or aims; and
(2) be "prescribed by law" ie comply
with the principle of legal certainty so that the law is formulated
with sufficient precision for the ordinary citizen to rely upon
the legal rules to regulate his or her conduct, and
(3) be "necessary in a democratic society"
for securing what is necessary for the protection of others and
no more.
In deciding whether a given interference with
free expression is necessary, our Courts are "faced not with
a choice between two conflicting principles, but with a principle
of freedom of expression that is subject to a number of exceptions
which must be narrowly interpreted": Sunday Times v United
Kingdom (No.1) (1979). The European Court of Human Rights
("the ECHR") explained in Spycatcher that there
must be a "pressing social need" for "any restriction
on free speech". It is clear from the ECHR's judgments that
the principle of proportionality does not involve striking a balance
between equally competing interests but rather giving effect to
a principle of free expression subject to exceptions which have
to be narrowly construed.
We therefore believe that serious damage could
be done to a fundamental principle of European life through the
introduction of a broad based tort or criminal offence. This is
because definitional problems would almost certainly make any
such tort or offence incompatible with ECHR principles. It would
also have an inevitable chilling effect on free speech and as
the Heritage Committee said last time any legislation which seeks
to "cage" or muzzle the press is almost certainly going
to fall foul of Article 10 of the ECHR and our own Human Rights
Act.
2. SELF REGULATION
AND LEGISLATIVE
CHANGE SINCE
1993
As stated above, we believe that the current
PCC Code of Practice forms an invaluable set of criteria under
which journalists have to operate. Paragraph 3 of the Code specifically
protects privacy and repeats almost verbatim Article 8 of the
ECHR, which protects every individual's "Right to respect
for private and family life". Indeed, the Code adds in the
additional concept of someone's "health" being an area,
which should automatically be deemed private like their "home"
and "correspondence". The Code then goes on to deal
with "long lens photography" and in other paragraphs,
"harassment", "intrusion into grief and shock",
"listening devices", "hospitals" and "misrepresentation"
ie when misrepresentation or subterfuge may be employed by a journalist
carrying out an in depth investigation. A substantial number of
adjudications by the PCC now give editors clear guidance on what
must be seen as "private places" even though they may
be accessible by the public eg J K Rowling's complaint when she
and her daughter were photographed on a beach in Mauritius and
Prince William was photographed by OK Magazine during his
gap year in South America. In all these cases, the complainants
had a "reasonable expectation of privacy" which should
have been respected. The fact that these may be difficult decisions
involving fine judgments was readily appreciated by the High Court
when it refused to judicially review the decision of the PCC in
the complaint that Anna Ford had brought against Associated Newspapers
for publishing photographs of her on a public beach in Majorca.
Last year, the High Court in Beckham v MGN Ltd added further
weight to the body of PCC adjudications by making it quite clear
that photographs of the inside of the Beckhams' house was a breach
of privacy.
Further, almost every journalist's contract
of employment now includes a clause, which obliges him/her to
abide by the PCC Code of Practice. Any clear breach of the Code
would either lead to the journalist's sacking or a first written
warning. In short, Editors are conscious of the important social
and legal role of the PCC and are now mindful that failure to
comply with the PCC Code or Practice particularly paragraph 3
on privacy could lead to an injunction as happened in the Amanda
Holden complaint against the Daily Star. There the defendant
was able to obtain a High Court injunction when the newspaper
threatened to publish further photographs of her naked which she
deemed a breach of her right to privacy.
We therefore believe that the mix of precedent
and self regulation is working well. Section 12 of the Human Rights
Act which links freedom of expression to adherence by the Press
to any relevant privacy code provides those wanting to stop the
Press from further infringing their "right to be let alone"
with a valuable weapon. In addition to the Human Rights Act which
specifically guarantees a "Right to respect for private and
family life" there have been a large number of other legislative
changes which have provided further protection to those who feel
that their right to a private life has been infringed. These are
the Protection from Harassment Act 1997, the Human Rights Act
1998, the Data Protection Act 1998, the Regulation of Investigatory
Powers Act 2000 and the Criminal Justice and Police Act 2001.
While the Protection from Harassment Act 1997
was not designed to limit journalistic endeavour—it was
meant to protect people from stalkers—it contains no proper
definition of "harassment" and one Fleet Street newspaper
has already been sued under it for a series of articles which
caused a female police officer considerable anxiety. It is nevertheless
a piece of legislation, which could be deployed against journalists
or newspapers where alarm or distress is caused by a "course
of conduct" such as a series of articles in a newspaper.
As already stated, the Human Rights Act specifically
incorporates Article 8 of the ECHR into UK law. Section 12 also
seeks to balance the right to freedom of expression against the
right to relief in the form of prior restraint where a newspaper
has breached a relevant privacy code. The Data Protection Act
1998 is often referred to as a "backdoor privacy act"
and is increasingly being used as an alternative plea to a straightforward
privacy claim (Naomi Campbell v Mirror Group Newspapers Ltd).
In that case photographs of the model had been taken without her
consent. They constituted personal data and had it not been for
the journalistic exemption under s. 32 and other factors she might
have been able to sue the newspaper for distress. While the Data
Protection Act is primarily used by wealthy celebrities to gain
access to personal data held by newspapers and other public bodies,
it can also be used to recompense someone who has suffered distress
as a result of a breach of its provisions. Like the general right
to privacy, it is at a developmental stage although the Court
of Appeal did limit its use against the media by holding that
the section 32 exemption applied as much before publication as
after publication of a particular article.
Just as the PCC Code of Practice lays down strict
rules over the use of listening devices (paragraph 8), the Regulation
of Investigatory Powers Act now specifically prevents any repetition
of what was known as "Camillagate"—the taping
of a mobile telephone conversation. In the same vein, the Act
prevents the taping of a telephone conversation of the kind between
David Mellor and Antonia de Sancha back in the early 1990s. The
Act carries serious sanctions and therefore buttresses what is
currently in the PCC Code of Practice.
Finally, section 42 of the Criminal Justice
and Police Act 2001 gives a police officer the power to instruct
someone eg a journalist to move on from outside someone's home
if the officer is of the view that the journalist is trying to
persuade someone to do or not to do something and the approach
is causing alarm or distress. During an E-Coli outbreak in Cumbria
last year, the police used this provision to move on journalists
who were anxious to interview the man who was responsible for
the hospital's air conditioning system.
Thus we believe that since 1993, there has been
a wave of regulations and interpretations which give substantial
protection to the individual wanting to protect privacy.
3. NAOMI CAMPBELL
V MIRROR
GROUP NEWSPAPERS
LTD AND
OTHER CASES
Last year, the Court of Appeal set down some
valuable guidelines regarding the law of confidence and privacy
and the extent to which people could expect to be able to protect
a right to privacy. This case followed the earlier case of A
v B plc (the Gary Flitcroft case) in which the Court of Appeal
laid down 15 guidelines for judges as to when a privacy injunction
might be granted. This followed Douglas v Hello! where
Lord Justice Sedley clearly recognised a law of privacy as separate
and independent from the law of confidence. Some doubt may now
be cast on this by the judgment in Campbell v MGN but the
courts are increasingly making it clear that without a good public
interest defence newspapers can and should expect to be sued where
"a reasonable person of ordinary sensibilities" would
find what had been published "highly offensive". As
the Court there held, "we consider that the media can fairly
be expected to identify confidential information about an individual's
private life which, absent good reason [read "public interest"],
it will be offensive to publish". While these cases say little
or nothing about "people not generally in public life",
those barristers who are instructed to seek interlocutory privacy
injunctions by those who believe their rights are about to be
infringed will confirm that the courts are increasingly granting
injunctions where there is no good public interest in publication
of confidential [read "private"] information which would
obviously breach the PCC Code of Practice. Thus Angus Deayton
was able to obtain an injunction preventing publication of information
about his health even though he had been exposed as snorting cocaine
and having an illicit affair with a call girl. Again Jamie Theakston
was able to prevent publication of photographs of him in a brothel
on the grounds that publication of the photographs would add nothing
to the general public interest story of his behaving badly in
a brothel.
We therefore believe that the courts are sensibly
and empirically developing the law of confidence and privacy and
any interference by the legislature would simply complicate matters.
4. PRESS COMPLAINTS
COMMISSION
Finally, The Times believes that the
Press Complaints Commission fulfils an invaluable role. It enables
people to complain about media intrusion without having to incur
substantial legal costs. Further it is a process, which is on
the whole relatively quick and simply. Numerous celebrities have
already taken advantage of the PCC as a sensible way of resolving
complaints and, as we have stated above, the role of the PCC is
supplemented by the High Court which will grant injunctions where
the PCC's Code of Practice is being flouted or ignored eg Amanda
Holden v. Daily Star. We continue to support the PCC and no
one can doubt the fact that PCC rulings can be a considerable
embarrassment to a newspaper if the newspaper's conduct is heavily
criticised by the Commission.
For those who are "not in the public eye",
the PCC, is invaluable because it costs nothing and its sanctions
are meaningful and swift. As soon as any dispute becomes adversarial,
with serious sanctions at the end, costs inevitably escalate with
lawyers being instructed by both sides or certainly by the side
with most to lose. High Court proceedings are therefore a luxury
for the rich unless a claimant can persuade a firm of solicitors
to act on a conditional fee basis. It is early days yet and many
firms would refuse to take a privacy action on a conditional fee
basis. That is why the PCC provides an essential mechanism for
getting expeditious relief.
The Times therefore believes that self-regulation
coupled with the new rights granted to individuals under the Human
Rights Act fully protect people wanting to preserve their privacy.
At the end of the day there will always be a tension between free
speech on the one hand and the right to a private life on the
other.
The balance is delicately weighted at present.
The calls for a tougher stance against the media do not come generally
from defenceless citizens but from the more powerful members of
our society. As a responsible socially-aware newspaper, The
Times and its editor campaign strongly against changes which
may have a profound and unintended impact on the freedom of information
which is rightly cherished not just by newspapers but by the ordinary
law-abiding British citizen.
February 2003
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