House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Seventh Report

4 THE CASE OF MS MIDDLETON

37. On 10 January 2007, MediaGuardian reported that "Ms Middleton, Prince William's girlfriend of four years, yesterday ran a gauntlet of more than 20 press photographers and five television crews as she emerged from her London flat on her 25th birthday. Some chased her down the street while others attempted to take pictures through the windows of her car as it sped away".[54] This followed an escalation of press interest, fuelled by speculation that Kate Middleton and HRH Prince William would announce their engagement on her birthday.

38. A person who believes that they are being subjected to harassment by the press or by photographers may approach the PCC and invite it to issue a "desist notice", under which editors are asked to call off their staff and are made aware of their responsibilities under the Code not to use photographs supplied by external contributors (such as freelance photographers) but obtained in the course of practices which contravened the Code (such as harassment). Such notices, which are generally heeded by editors,[55] have existed informally since at least 1997. The present, more formal system evolved from a 24-hour anti-harassment line established by the PCC in early 2003, which enabled callers to report their concerns; these were in turn relayed to press contacts. The PCC has only kept individualised records of desist notices since 2006, when 17 notices were issued. So far during 2007, up until mid-June, 21 such notices have been issued.[56]

39. In the case of Kate Middleton in January 2007, it was reported in some quarters that solicitors acting for Ms Middleton were considering submitting a formal complaint to the PCC or asking it to issue a desist notice. They did not in fact do so at this point.[57] News International, however, took the decision on 9 January 2007 to announce that its titles would not buy photographs of Kate Middleton taken by paparazzi. Some other publishers followed News International's lead, and the pack began to disperse.[58] Although the PCC did not issue a desist notice, it did circulate to editors (on 12 January) a letter from solicitors acting on Ms Middleton's behalf pointing out that their client was suffering from harassment and warning that a formal complaint would be made if editors continued to use material obtained from paparazzi.[59]

40. The PCC held up the rapid dispersal of the pack as a demonstration that, despite the concerns expressed about the case, it was actually "instructive of how these things can be resolved using existing procedures without the need for legislation". It also maintained that its efforts to signal to editors how seriously it viewed harassment, and its indication that it would be quick to condemn unwarranted intrusion through harassment, had helped to make it unnecessary for Ms Middleton to make any formal complaint.[60] There are nonetheless serious questions about whether the media circus should have gone on for as long as it did (and indeed about whether it should have been allowed to occur in the first place).

COULD THE SCRUM HAVE BEEN PREVENTED?

41. Prevention of a gathering of interested journalists and photographers is clearly not practical. Mr Hinton, Executive Chairman of News International, said, with or without irony, that "it is very difficult to make rules about what is the proper size of the assembly of the press at a particular event or a particular occasion",[61] and Mr Horrocks, Editor of the Manchester Evening News, made the same, perfectly obvious point.[62]

APPLICATION OF THE CODE OF PRACTICE

42. Clauses 3 and 4 of the Code of Conduct read as follows:

There was no suggestion in evidence that the wording of Clauses 3 or 4 of the Code needed to be amended in order to prevent a repetition of the behaviour of the press or of photographers in the case of Ms Middleton. It is not clear that there was an invasion of privacy under the terms of the Code: the photographs were generally taken in public places where there would not necessarily be an expectation of privacy. There was, however, clearly harassment, as the persistence with which Ms Middleton was pursued caused distress.[63]

43. As we observed earlier, the PCC issued no desist notice. Normally such notices would be issued by the PCC in response to a request from an individual (or their representative)[64] —indeed, Harbottle and Lewis, the solicitors acting for Ms Middleton told us that "the PCC do not of their own volition take action regarding the behaviour of the paparazzi" and that "they wait until a complaint is made".[65] This was confirmed by the PCC, which maintains that it relies on the information provided by the parties concerned when issuing notices.[66]

44. While the PCC was correct in bringing editors' attention to the letter from the solicitors acting for Ms Middleton, it did so long after the worst abuses had occurred. News International had already announced that it would not use photographs taken by the paparazzi. Whatever the motives behind News International's announcement—Les Hinton, the organisation's Executive Chairman, acknowledged that the decision had been "pragmatic"[67] and the NUJ described the move as "claiming the moral high ground"[68]—it was an example of self-regulation in the strict sense, in that a newspaper publisher took pro-active steps to uphold the letter and spirit of the Code.

45. Nonetheless, the press allowed the scrum to continue for too long when it was clearly causing distress. It is not clear whether the press believed that there was a public interest involved: but such an argument would not in any case be convincing. Mr Horrocks, Editor of the Manchester Evening News, listed investigations into corruption, wrongdoing and misdemeanours as the sorts of public interest tests he would want to see applied to journalism, and not lifestyle and the private lives of celebrities.[69] His distinction illustrated neatly the principle that the public interest is not the same as what interests the public, a point articulated by the NUJ amongst others.[70] The circumstances of Kate Middleton also found no place in other interpretations of the public interest suggested to us, for instance by the Information Commissioner[71] and by the NUJ.[72] However, Mr Eugene Duffy, the Group Managing Editor of Mirror Group Newspapers sought to justify the decision not to follow News International in stating that no paparazzi photographs of Ms Middleton would be used by giving the hypothetical example of a photograph of Ms Middleton using a mobile phone while driving and thus breaking the law, publication of which "would clearly be in the public interest".[73] This in itself we regard as highly debatable.

46. In the case of Ms Middleton, harassment was evident, yet photographs taken by the paparazzi continued to appear in national and regional papers. We see no plausible public interest defence. We conclude that editors, in failing to take care not to use pictures of Kate Middleton obtained through harassment and persistent pursuit, breached Clause 4(iii) of the Code of Practice. The PCC appears to have waited for a complaint to materialise: it could and should have intervened sooner. There may be valid reasons why a person who is suffering from media intrusion is reluctant to make a formal complaint. The Press Complaints Commission took too long to act to protect Kate Middleton from clear and persistent harassment. We note that the public sympathy enjoyed by Kate Middleton may have been a factor behind News International's decision to stop using paparazzi photographs. Others who may not have the same public support nevertheless are entitled also to protection, and the PCC needs to be even more vigilant on their behalf. The Commission should be readier to depart from its usual practice of issuing a desist notice only in response to a request. However, we recognise the force of the argument that an individual who seeks the protection of the PCC should make a formal complaint.

THE LAW ON HARASSMENT

47. We note that freelance photographers (and indeed members of the public taking pictures on mobile telephones) are not covered by Code and their activities cannot be curbed except to the extent that they rely on sales to UK titles.[74] Desist notices may not therefore have universal effect. The NUJ claimed that "the majority" of pictures such as those taken by photographers following Kate Middleton are sold abroad.[75] If the Code of Practice does not bite, then the only recourse open to someone being subjected to harassment is a civil action under section 2 of the Protection from Harassment Act 1997. For a public figure, this would be a high-profile and high-risk route, and for all those who bring such actions there is a financial risk. There is however no obvious workable alternative, and we note that the NUJ was satisfied that the Act was sufficient to deal with the relatively rare cases, noting that it had been applied successfully in the past.[76]

54 http://media.guardian.co.uk Back

55 Mr Satchwell Q 67; Editors' Code Committee para 4.8, Ev 27 Back

56 See further memorandum by the PCC, Ev 106-7 Back

57 A formal complaint was made in March 2007 against the Daily Mirror in relation to harassment on a later occasion. The complaint was resolved and the paper issued a public statement and agreed to publish an apology. Back

58 Q 80 Back

59 Excerpts reported in the Daily Telegraph 15 January 2007 Back

60 Ev 59 Back

61 Q 66 Back

62 Q 81 Back

63 The Concise Oxford Dictionary defines "harass" as "to vex with repeated attacks, trouble or worry". Section 7 of the Protection from Harassment Act 1997 states that references in the Act to harassing a person include alarming the person or causing the person distress. Back

64 PCC memorandum. Ev 60 Back

65 Ev 104. Harbottle and Lewis accepted that PCC had no direct right of action against the paparazzi. Back