Select Committee on Culture, Media and Sport First Special Report


Appendix 3 - The Government

Introduction

1.1 This document sets out the Government's response to the Fifth Report of the Culture, Media and Sport Select Committee, on Privacy and Media Intrusion (HC 458-1), published on 16 June 2003.

1.2 As the Committee recognises in the introduction to its report, there is a difficult tension between the need to preserve free speech in an open and democratic society, and the important need to protect individuals from unwarranted intrusion by the media into their privacy. Even when there is sufficient public interest to justify media activity, it can be difficult to ensure that the extent of that activity is proportionate.

1.3 The Government strongly believes that a free press is vital to the health of our democracy. There should be no laws that specifically seek to restrict that freedom, and Government should not seek to intervene in any way in what a newspaper or magazine chooses to publish. We therefore support self-regulation. However, in her evidence to the Committee, the Secretary of State made clear her desire to see the current system improved. She raised the following questions for the PCC to answer:

  • Should the PCC be more "pro-active" in its approach?
  • Would the PCC consider independent scrutiny of its procedures?
  • Is there a need to make the appointments process more transparent?
  • Is the balance of lay members and industry members right?
  • What scope is there for the PCC to raise its profile and become more accessible to the public?
  • Is there a case for devising an appeals mechanism that is not only independent of the Government but also seen to be free of undue industry control?
  • Should the PCC make greater use of hearings?

We are glad that Christopher Meyer has indicated his intention to look at most of these ideas, and we welcome the Committee's report which has taken the debate on a stage.

1.4 The central recommendations in the Committee's report relate mainly to improvements to the system of self-regulation, but the Committee also make the case for introducing a privacy law. The Government does not accept that case, and considers that existing legislation is capable of dealing adequately with questions of privacy. A detailed response on this point is at section 2. Sections 3 and 4 contain our responses to the Committee's other recommendations.

A new privacy law?

2.1 The Committee's conclusion - and recommendation - on this issue is:

2.2 On balance we firmly recommend that the Government reconsider its position and bring forward legislative proposals to clarify the protection that individuals can expect from unwarranted intrusion by anyone - not the press alone - into their private lives. This is necessary fully to satisfy the obligations upon the UK under the European Convention of Human Rights.There should be full and wide consultation but in the end Parliament should be allowed to undertake its proper legislative role. (Paragraph 111)

2.3 The debate over whether to introduce specific privacy legislation is a legitimate one. There are several reasons, however, why we believe more legislation is not only unnecessary but undesirable. We need to ask what would be the purpose and benefits of such legislation. First of all, various aspects of privacy are already protected by legislation - for example, the Data Protection Act - and there is the over-arching impact of the 1998 Human Rights Act's (HRA) provisions on the right to respect for private life. However, Section 12 of the HRA makes provision for substantial protection for the historic right to free speech, and there is a balance to be struck between freedom of expression and the right to privacy. We believe that that balance is not always to be found at the same point because, in effect, some people can be said to have invaded their own privacy by, for example, granting access to photographers, and thereby making public details of their private lives. The weighing of competing rights in individual cases is the quintessential task of the courts, not of Government, or Parliament. Parliament should only intervene if there are signs that the courts are systematically striking the wrong balance; we believe there are no such signs.

2.4 One possible approach might be to introduce legislation that simply banned the invasion of privacy unless it is warranted by the public interest. But it is exactly on this basis that the Code of Standards overseen by the PCC works. We have no doubt that there are occasions where an invasion of privacy is warranted because it is in the public interest; it might, for example, lead to the unveiling of a crime. Because there are two conflicting rights involved, disputes require resolution on a case by case basis, and we believe that it is entirely appropriate for the courts to decide where the right balance lies, rather than setting out boundaries in legislation that attempt to cover all events.

2.5 Privacy legislation would pose a particular problem for those not normally in the public eye because the mere fact of seeking a remedy in the courts can, of itself, lead to a further loss of privacy. The provision of an effective, informal remedy through self-regulation can protect against the exacerbation of any harm. People in public life are also entitled to a private life, but it is for the courts to determine the extent, in each individual case, to which a person has consented to the infringement of their privacy through their engagement in public life. There is not one rule for celebrities and another for members of the public; the rule is the same, but the current situation allows individual circumstances to be taken into account.

2.6 The press should not simply be able to abdicate responsibility for this issue to the courts. It is clear that they do not do so, and the process of weighing the right to privacy against the freedom of the press is incorporated into the industry's Code of Practice. The Code includes a clause on privacy which mirrors the HRA by stating that everyone is entitled to respect for his or her private or family life. Intrusions can only be justified where it is in the public interest. This means, for instance, where "intrusion" exposes a crime, protects public health or safety or prevents the public being misled. Sensibly applied, these seem to us to be perfectly justifiable exemptions, and we believe that the focus should be on ensuring that the press are meeting their responsibilities under the terms of the Code.

The broadcasters

3.1 Ofcom must seize the opportunity presented by its new structure to undertake a thorough review, including wide consultation, of how complaints against the broadcasters should be tackled and on the substance of a new code upon which the system will rest. In the meantime, and under the new arrangements, we recommend the continuation of hearings for complex cases (but we see no good reason why the complainant cannot make a full record of the proceedings). (Paragraph 36)

3.2 Section 107 of the Broadcasting Act 1996 sets out the requirement for the Broadcasting Standards Commission (BSC) to publish from time to time a code giving guidance as to the principles to be observed by broadcasters in avoiding unwarranted infringements of privacy. The BSC is also under a duty to review the code and before doing so to consult such persons as appear to the BSC to be appropriate. Under the Communications Act 2003, Ofcom will assume responsibility for this code and for the related duties.

3.3 Although Ofcom will inherit the current BSC code, they will need to review and consult on their own code, in the light of their own duties and functions set out in the Act: the kind of thorough consultation and review process recommended by the Select Committee will therefore need to be undertaken by the regulator. The Government considers that it is best left to Ofcom to decide when such a review should take place.

3.4 Sections 110 and 111 of the Broadcasting Act 1996 set out the procedures that must be followed by Ofcom in considering complaints about unwarranted infringements of privacy. However, there is nothing to prevent Ofcom from establishing supplementary procedures. The Government is sure that both common sense and the statutory duties laid on Ofcom to follow good regulatory practice would lead them to conclude that they should both publish, in simple form, guidance on their procedures for tackling complaints, and review such procedures from time to time. However, the Government also believes that it is best left to Ofcom to determine when and precisely how to do so.

3.5 As for complainants being able to make a full record of the proceedings, this is not current BSC practice, but it is not precluded by legislation. It will therefore be for Ofcom to consider this procedural matter.

3.6 We were not at all convinced that door-stepping, by a film crew, of people who have refused, sometimes in writing, to be interviewed is really done to give the subjects of a programme a final opportunity to put their side of the story. The motivation is surely less judicial and more about entertaining footage. Such intrusion, and broadcasting the result, should only be undertaken in important cases of significant public interest. (Paragraph 37)

3.7 The Government recognises that the validity or otherwise of "door-stepping" must be a judgement made by the broadcasters and the broadcasting regulators. The BSC code already addresses door-stepping and the limited circumstances in which it might be acceptable and further guidance is set out in the ITC Programme Code and BBC Producers' Guidelines: the latter make clear that "door-stepping should not be used merely to add drama to a factual report". Broadcasters must comply with the codes and guidance and there must be an effective regulatory regime to ensure compliance. We believe that the Communications Act provides for that.

3.8 The BBC should respond to the preference of individuals for their privacy complaints to be dealt with by an external body (previously the Broadcasting Standards Commission) and should either increase the demonstrable independence of its own system or refer complaints to Ofcom if the initial response from the programme-makers does not resolve the situation. The BBC should participate fully in the Ofcom review that we recommend above. (Paragraph 38)

3.9 Ofcom is required to consult the BBC on their review of their code and the BBC has given a commitment to work closely with Ofcom. It will be for Ofcom to ensure that the public are fully informed of their rights to complain to Ofcom themselves about unwarranted infringements of their privacy, although we think it quite right that broadcasters themselves should seek to resolve complaints if they can.

3.10 Ofcom and all the broadcasters should engage with the PCC and the press industry to develop ways of tackling the media scrums that still seem to gather at the scent of a story. Described by Lord Wakeham as "a form of collective harassment" this is a matter that must be capable of being sorted out - especially when it is the victims of violent events, or their families, that are involved. (Paragraph 39)

3.11 The Government welcomes this recommendation. Media scrums are more to do with intimidation and potential unfairness than with privacy, and the issue is addressed in the guidance offered to broadcasters in the BBC Producers' Guidelines and ITC Programme Code. We believe that Ofcom, the broadcasters, the PCC and the press industry are capable of determining the nature of their inter-relationship with regard to "media scrums", which engage the interests of the regulators and self-regulators of different media.

3.12 We agree with the Committee that this is a matter in which closer co-operation between the regulators of the different media would be in the public interest. We also consider that each has sufficient scope to allow them to research the precise nature of the effect that the broadcast and press media together have on individual news stories, and to take any action necessary to reduce any negative effects.

3.13 Of necessity we reserve our judgement on the precise arrangements to be established by Ofcom. This is a matter to which we may well return. (Paragraph 40)

3.14 The Government notes the Committee's comments.

The press

4.1 Most of the Committee's recommendations on the press address ways in which the PCC might consider changing the way it operates. The Secretary of State for Culture, Media and Sport made it clear in her evidence to the Committee that any such suggestions were for the PCC to consider and that, ultimately, it was for the PCC alone to determine whether - and how - to take forward these suggestions and recommendations. Our comments on the recommendations therefore need to be read with that over-arching qualification in mind. We have commented on the Select Committee's recommendations in the order in which they were listed.

4.2 Notwithstanding the PCC's avowed intent to secure resolution between parties to a complaint, if possible, we recommend that the PCC consider establishing a twin-track procedure. The new provision would be to respond to those complainants who did not want mediation but wanted the Commission to make a judgement in reference to the Code on their case (after the normal exchange of papers) without this insistence prejudicing the result. At the very least the Commission should make an assessment amongst complainants as to the level of demand for such an innovation. (Paragraph 61)

4.3 It is hard to see what would be gained from the introduction of such a system. It is open to complainants to refuse attempts at finding a resolution if, for example, they believe that an apology or correction offered is inadequate in some way. But newspapers could not, in any case, be prevented from offering to make amends if they thought it was justified when a complaint was brought to their attention. Nonetheless, there would be no harm in taking public soundings on the idea.

4.4 There are a number of issues that arise in advance of the publication of a story that do not amount to "prior restraint" or "press censorship". We believe that the PCC should consider establishing a dedicated pre-publication team to handle inquiries about these issues from the public and liaison with the relevant editor on the matters raised. This team should also handle issues related to media harassment, including the production and promotion of guidance to both press and the public, liaison with the broadcasters and the transmission of "desist messages" from those who do not want to talk to the media. The first job for the prepublication team should be the collaborative work with Ofcom on "media scrums" that we recommend above. (Paragraph 62)

4.5 We believe it should be recognised that, although the PCC does not have a specific "prepublication" team, it already carries out many of the functions the Committee has suggested here. For instance, the Committee heard from editors that they can call the PCC for advice if they have doubts over a particular article. It is, of course, more difficult for members of the public to discuss an article at the pre-publication stage, quite simply because they do not normally know what will be published. The PCC also already provides advice and a help-line for those who feel that they are subject to harassment. The PCC have done some good work in raising their own profile but it is true that many people are not aware of the full range of their work until it is too late. On occasion - where it has been necessary - the Commission has issued a "desist message". The Committee heard that this happened during the coverage of the events in Soham last year. There can be no doubt that the newspapers had a legitimate right - indeed a duty - to report on those events, but a point was reached when there was nothing further to be gained from their presence in the town.

4.6 Regardless of whether there is a specific team at the PCC to deal with these issues, we would like to see the emphasis on encouraging the press itself to take responsibility for adherence to the Code rather than using the PCC to police a Code which the press are believed to be trying to get around, or as nanny to a press seen as incapable of adhering to a Code of Practice.

4.7 We recommend that the Code Committee, Pressbof and the Commission consider the following in relation to the Code of Conduct.

i) The Code's ban on intercepting telephone calls should be updated to reflect the communications revolution (in line with the provisions of the Regulation of Investigatory Powers Act 2000) and should include reference to the privacy of people's correspondence by e-mail and between mobile devices other than telephones.

ii) An additional element of the Code should be that journalists are enabled to refuse an assignment on the grounds that it breaches the Code and, if necessary, refer the matter to the Commission without prejudice.

iii) The Code should explicitly ban payments to the police for information and there should be a ban on the use and payment of intermediaries, such as private detectives, to extract or otherwise obtain private information about individuals from public and private sources, again especially the police. (Paragraph 63)

4.8 We would agree with the Committee that if there is a clause banning the interception of telephone calls, it seems reasonable that it should also reflect other more modern methods of communication. This recommendation and that contained in paragraph 63iii do, however, raise the wider question of how the Code should respond where issues are also covered by the law. For instance, it is possible to imagine circumstances where a journalist could obtain vital information on a story by breaking into a property. Regardless of the story - and even if in journalistic terms it might, ultimately, be in the public interest - this hypothetical course of action would of course be against the law. The same is true, for example, of the provisions in the Regulation of Investigatory Powers Act 2000, which makes it an offence to intercept a telephone call or other communication without lawful authority. Yet while the one offence is covered by the Code, the other is not. In our view, there needs to be wider consideration of whether it is right, or necessary, for the Code to duplicate the law in some circumstances, and, if so, what those circumstances are. We deal specifically with the matter of payments to police officers at sections 4.35 to 4.40 below; but, briefly, there are laws which make this illegal for the police officer and for the person offering payment for information.

4.9 The Committee heard evidence that more and more journalists, as well as editors, had

adherence to the Code written into their contracts. We welcome this development and believe that this is a positive way to address, at least to some extent, the issues raised in the Committee's recommendation at 63ii.

4.10 We welcome the assurance of the Chairman of the PCC that the selection of candidates for the role of lay commissioner would be put on a proper, open and transparent footing from now on. We note his undertaking to have a further lay commissioner, appointed under such arrangements, in place before the end of 2003. (Paragraph 64)

4.11 We believe that the Commission would command more confidence in the independence of its membership if it adopted the following proposals:

i) Lay members should be sought and appointed for fixed terms under open procedures including advertisement and competition.

ii) Press members should be appointed for fixed terms from across the industry. There should be an explicit presumption that they are not there to represent the interests of their associations but to offer the benefits of their particular experience whilst acting independently as members of a quasi-judicial body.

iii) Press members (and here we include members of the Code Committee) who preside over persistently offending publications should be required to stand down and should be ineligible for reappointment for a period - perhaps the length of a term of office. Persistence could be defined as "three strikes and you're out".

iv) The lay majority should be increased by at least one; as provided for in the PCC's Articles and accepted by Sir Christopher Meyer, the new PCC Chairman.

v) The Appointments Commission should appoint an independent figure, also under the new procedures, to implement the procedural appeals process to which Sir Christopher Meyer has referred. To this responsibility we would add the task of commissioning a regular external audit of the PCC's processes and practices - a version of accreditation. While the "standard" would probably be unique to the PCC, the methodology has been pretty well established throughout the corporate world.

vi) The Code Committee, which at the moment is composed entirely of editors, should be re-established with a significant minority of lay members. (Paragraph 67)

4.12 The Government would also welcome more transparent recruitment for lay commissioners, and supports the proposed increase in the lay membership. We believe that it would increase public trust in the essential fairness of the system and, by extension, of newspapers if the PCC and the process of self-regulation were made more transparent.

4.13 We recommend that the PCC, under its new Chairman, considers the case for taking on a more consistent approach to foreseeable events that herald intense media activity and people in grief and shock; and for acting as soon as possible after unexpected disasters have occurred. This may be another appropriate responsibility of the pre-publication team. (Paragraph 72)

4.14 One of the aims of the Code is to ensure a consistent and appropriate approach across the spectrum of the print media. The Code governs their behaviour whether they are reporting events that generate intense interest, or more day-to-day events. By their nature, high profile events will often involve people in grief and shock but that does not necessarily mean that they do not want to talk to journalists. Some people welcome the opportunity to speak to the press even in the most difficult circumstances. Others, of course, will not welcome a media presence. It must be recognised that the public have a right to receive information, and that it is the professional duty of journalists to provide that information. It is in managing these conflicting demands that difficulties arise. But the Code exists to provide guidelines for journalists and editors in any circumstances, including the most difficult; reminding them of their responsibilities under the Code from time to time is no bad thing and, on occasion, specific advice will be appropriate. This happens already.

4.15 Ultimately, the aim must be for every journalist to research and write every story with the Code in mind.

4.16 The text of a PCC adjudication should be clearly and consistently set out to ensure its visibility and easy identification as proposed by Sir Christopher Meyer, the new Chairman of the Commission. However, we urge that the design of this 'branding' must avoid duplicating the appearance of an advertisement which may cause it to be skipped automatically by some readers. (Paragraph 79)

4.17 The Government agrees that it would be a step forward for PCC adjudication to be clearly identifiable; consistent branding would be very helpful in achieving this.

4.18 We recommend that any publication required to publish a formal PCC adjudication must include a prominent reference to the adjudication on its front page - in effect a 'taster' for the judgement. (Paragraph 80)

4.19 We believe that it is important for the credibility of the system for any adjudication to be given appropriate prominence.

4.20 In addition we recommend that the PCC's annual report contains an additional feature-something familiar and popular amongst newspapers-a league table showing how publications have performed against the Code that year. (Paragraph 81)

4.21 We believe it is important to note that information on adjudications and other complaints is already freely available from the PCC; it is published on their website along with a helpful facility that allows a search by newspaper, by Code clause, by name, or any key word.

4.22 We believe that annotating press archives as to their accuracy and sensitivity should be automatic in all cases, and certainly all upheld adjudications, and furthermore that the publication should be responsible for removing the relevant article from publicly available databases. (Paragraph 82)

4.23 It is indisputable that newspapers should take steps not to repeat inaccuracies and the annotation of databases seems an important step in this process. While newspapers can only annotate databases over which they have control, they should also take appropriate steps to inform others of inaccuracies.

4.24 We believe that the PCC, Pressbof and the industry would benefit, in terms of public confidence, if they formed a consensus around two new elements of the system; one gently punitive and one modestly compensatory:

i) Pressbof should introduce a gearing between the calculation of the registration fee and the number of adverse adjudications received by a publication in the previous year; and

ii) the industry should consider agreeing a fixed scale of compensatory awards to be made in serious cases (which in any case according to the evidence from the industry and the PCC are few and far between). If these were fixed in advance, a matter of consensus and relatively modest, we can see no reason for lawyers to be involved. Consideration could be given to the making of an award to a charity of the complainant's choice rather than directly. (Paragraph 83)

4.25 The Code covers an enormous range of publications so what might be a modest compensatory payment by a national paper would be punitive to very many smaller publications. Breaches of the Code are very serious but it is not for the PCC to administer a self-regulatory scheme which might result in the closure of a newspaper. The PCC would also need to consider whether editors would continue to participate in such a scheme, and there is a distinct possibility that some - particularly some associated with smaller local papers - would not. The introduction of financial penalties could therefore be counter-productive.

4.26 The Committee believes that the involvement of lawyers would be unnecessary, but it seems that editors do not necessarily agree; for example, when Rebekah Wade gave evidence, she indicated her belief that such a practice would inevitably mean that lawyers would become involved and, in turn, that the process would slow down.

4.27 That does not mean that financial penalties are never appropriate, but if someone wants to pursue compensation, there are legal options available to them and the Courts will decide on the appropriate level of compensation.

4.28 We strongly urge the PCC and the industry to consider the matter of complainants' costs and agree that, where justified complaints have involved particular financial burdens on the complainant such as the acquisition of a transcript of a trial or inquest (but not legal fees), then those costs must be met by the offending newspaper, which made the original claims, to the complainant who has been found to have been traduced or otherwise injured. In the light of the PCC's battle cry of "fast, free and fair" we believe this to have nothing to do with the debate over punitive or compensatory awards. (Paragraph 85)

4.29 We can see that this might be a particular issue in complaints dealing with the accuracy of reporting, but it seems less relevant to complaints about privacy, and it would of course require a judgement about whether the expenditure was necessary in the first place. This recommendation also raises the issue of whether complainants should pay the costs where their complaints are found not to be justified, yet have been pursued to adjudication stage.

4.30 If the Board and the Code Committee are totally unwilling to accept the introduction of lay members to the latter, then we believe that the industry has a sufficient input into agreeing the Code and that Pressbof should withdraw from the process. (Paragraph 87)

4.31 The key point here is that this is a process of self-regulation. In any case, there do not seem to be any criticisms of the Code itself; criticisms have related to the way the Code is interpreted.

4.32 We accept the offer to the Committee made by Sir Christopher Meyer to return in a year's time to report on progress. This offer will not, however, substitute for action on our own initiative and we therefore recommend that the PCC make itself available to give evidence to this Committee at regular intervals for discussions on progress with its agenda for change. (paragraph 88)

4.33 There is no reason to believe that the PCC would show anything but co-operation.

4.34 We cannot see how the matter of illegal payments to policemen can fail to fall within the criteria set out by the PCC for taking the initiative, or how the issue is different to the example of illegal telephone-tapping highlighted by the Commission itself. We believe that the PCC must investigate. This may be best accomplished in cooperation with the Information Commissioner and the Police Complaints Authority and, if necessary, result in an addition to the Code (such as occurred on intercepting telephone calls). (Paragraph 96)

4.35 This again raises the question of whether the Code should be duplicating the law. Setting that aside, and concentrating solely on the question of newspapers making payments to policemen, there are several laws that make it an offence for police officers to receive payments for information: the Misconduct in a Public Office Act, the Prevention of Corruption Act, the Data Protection Act, and the Common Law. A police officer receiving payments would also be subject to disciplinary procedures under the terms of codes of conduct.

4.36 Of course, it would be for the courts to decide, but in paying a police officer for information it is likely that a journalist or editor would be guilty of bribery under the terms of the Common Law and would contravene the Prevention of Corruption Act. It may also be considered incitement to commit an illegal act, and there is legislation which makes such incitement itself illegal. Whether it is necessary for the Code to ban such activity may depend on whether there is evidence that it is taking place. In the evidence the Committee heard there were suggestions that payments had been made in the past, but that the practice was no longer current.

4.37 On the other side of the fence, we recommend that the Home Office and police authorities also take note of evidence from the editors of The Sun and the News of the World to us regarding payments to police officers for information and take steps to review and overhaul, if necessary, the guidance measures aimed at preventing such behaviour by police and media. (Paragraph 96)

4.38 The Government condemns corruption and the abuse of power in all its forms, and believes that police officers who abuse their position should be identified and dealt with. We believe that Chief Officers of police are just as keen to root out instances of corruption amongst their officers.

4.39 In February 2003 the Home Office published a report called Police Corruption in England and Wales: An assessment of current evidence (available on their website at http://www.homeoffice.gov.uk/rds/pdfs2/rdsolr1103.pdf ). The report establishes the nature of contemporary police corruption, and "leaks to the media" were cited as examples of "information compromise" which, it acknowledges, is a problem, particularly in high profile cases. The report moves on to look at the causes of this and other types of corruption, and examines the good practice already available in investigating and preventing corruption.

4.40 The Police Reform Act 2002 includes provision to afford police officers the protection of the Public Interest Disclosure Act 1998. This allows an officer to report corruption (or any other type of wrongdoing) with the assurance of protection if he or she suffers for doing so. This is particularly important if an officer sees corruption in a more senior officer. We hope that this protection will lead to a more open police service.

Conclusion

5.1 The Government believes that people have a right to a private life, but that right is not absolute. Equally, the right to freedom of expression is not absolute. Where there is conflict between the two, they must be weighed against each other. The Government remains committed to supporting self-regulation as the best possible form of regulation for the press, and as the best possible way of balancing those sometimes conflicting demands. There is, however, room for improvement in any regulatory system, and the Committee's report has effectively opened up debate on what the improvements in this system might be. We believe that such debate is healthy and constructive, and that it should lead to a positive outcome.

October 2003


 
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