House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Seventh Report

5 SHOULD SELF-REGULATION BE RETAINED?

48. This is not a report which examines in detail all aspects of self-regulation of the press, as we noted earlier. In the remaining paragraphs, however, we consider the merits of self-regulation in principle, and we identify some of the issues about the existing system raised in evidence and which may deserve further consideration at a later date.

The principle of self-regulation

49. There are two elements of self-regulation. On the one hand, individual editors themselves have responsibility for regulating the conduct of their staff and the standards applied in obtaining news stories and photographic material; on the other hand, there is the watchdog, in the shape of the Press Complaints Commission, charged with codifying standards across the industry, examining possible breaches and imposing sanctions when necessary. The PCC is, or should be, merely a backstop—the system depends ultimately on the standards applied by editors. As we have concluded above, these standards are not always as high as they should be. Newspapers failed to observe the Code's provisions on harassment when publishing photographs of Ms Middleton obtained in circumstances which caused distress; controls over the activities of staff reporters have been shown to be alarmingly lax in some cases; and an atmosphere of complacency surrounds the industry's approach to the lead offered by the Information Commissioner in encouraging editors to investigate the past behaviour of their staff.

50. It would be wrong, however, to infer from these failings that there has been a decline in standards across the board. Mr Hinton said that he thought that the press industry was "far better at measuring its conduct than it was 20 years ago",[77] and the establishment of the PCC is perceived to have had a significant effect in improving standards.[78] Events too have played their part: Mr Satchwell, Director of the Society of Editors. suggested that the circumstances of the death of Princess Diana had brought about a "sea change" which had led to a rewriting of the Code, not least in stating that it should be followed in its spirit as well as to the letter.[79] Mr Edwards, royal photographer for The Sun, confirmed that Princess Diana's death had caused him to look every day at what he did and to consider how he approached photographing members of the Royal Family.[80] The conviction of Clive Goodman may have damaged the standing of the press in one respect but it has jolted at least one editor into adopting higher standards as a result, and the Press Complaints Commission has reinforced the message for all newspaper and magazine publishers. The prominence given in the media to Mr Goodman's conviction and sentencing was huge, and the MediaWise Trust observed that his imprisonment, followed by the resignation of the editor of the News of the World, is likely to have had a more lasting effect on press behaviour than sanctions imposed by the PCC.[81]

SELF-REGULATION OR EXCLUSIVE RELIANCE UPON THE LAW?

51. One alternative to self-regulation is to rely exclusively upon the law to maintain standards amongst journalists and photographers, deter them from intrusive behaviour and punish those that overstep the mark. In some areas, however, the protection afforded by the law as it currently stands is less than that offered under the Code of Practice, for instance in the identification of children in cases involving sex offences or in regulating payments to people who might reasonably be expected to be called as witnesses in criminal trials even though proceedings had yet to become active.[82] In certain areas, such as data protection, interception of communications and harassment, the law is clear and well-developed; but the same cannot yet be said for the law relating to respect for privacy. A right to respect for private life is enshrined in Article 8 of the European Convention on Human Rights and incorporated into UK legislation under the Human Rights Act 1998. At present this has not developed into a right to privacy in UK law. Instead, a series of cases have begun to develop a right to protection using as a starting point the existing law relating to breach of confidence. The previous Culture, Media and Sport Committee recommended that the Government should "bring forward legislative proposals to clarify the protection that individuals can expect" in relation to privacy.[83] The Government rejected the recommendation, saying that the interests of freedom of expression and of privacy could weigh differently in different cases, and that it was the job of the courts to strike the balance on a case by case basis. It believed that there were no signs that courts were systematically striking the wrong balance.

52. The arguments against a privacy law have been well rehearsed over the years, and there was little support in evidence to our inquiry for a "privacy law" setting out the boundaries for an individual's right to privacy specifically from media intrusion. The Press Complaints Commission was opposed, citing the need for flexibility to recognise the differing circumstances of each case;[84] and so was the NUJ.[85] The MediaWise Trust stated that it had "always taken the view that a privacy law directed specifically against the media is inimical to press freedom", and it was confident that the protection afforded by the Human Rights Act and by the powers of the Information Commissioner should suffice as a safeguard against unwarranted intrusion.[86] The PCC also argued that a privacy law would make redress available only through the courts, and that redress would cease to be free or fast, in contrast to the PCC complaints procedure.[87] In the absence of a "privacy law", however, we note that judgements in a number of recent cases have established case law which extends individuals' rights of privacy. This trend looks set to continue and, it has been claimed, may result in the introduction of a privacy law through the back door.

53. While we accept that a complainant who brings an action to uphold their right to privacy under the Human Rights Act is entering very uncertain territory, and that a codification of what is private and what is in the public interest would be of value, we doubt that it could be achieved successfully and we agree with the Government in its reasons for opposing such a law. To draft a law defining a right to privacy which is both specific in its guidance but also flexible enough to apply fairly to each case which would be tested against it could be almost impossible. Many people would not want to seek redress through the law, for reasons of cost and risk. In any case, we are not persuaded that there is significant public support for a privacy law.

54. We do not believe that there is a case for a statutory regulator for the press, which would represent a very dangerous interference with the freedom of the press. We continue to believe that statutory regulation of the press is a hallmark of authoritarianism and risks undermining democracy. We recommend that self-regulation should be retained for the press, while recognising that it must be seen to be effective if calls for statutory intervention are to be resisted.

Issues for future consideration

THE CODE OF PRACTICE

55. The Code of Practice is central to self-regulation: it is the instrument on which editors should rely to guide them in decisions on whether a practice is acceptable or not, and it provides the yardstick by which the Press Complaints Commission assesses complaints. Significantly, we received no representations in favour of large-scale changes to the Code. The NUJ was largely content with the existing text, observing that it covered the key elements of journalistic ethics and was neither so long that journalists could not remember its key points nor so short that important areas were missed out.[88] Professor Chris Frost, Chair of the NUJ Ethics Council, also told us that the public interest defence was "reasonably sound".[89] We note that the Code Committee instituted in 2004 an annual review of the Code, inviting suggestions for amendments from "civil society".[90]

56. Importantly, the Code commands support amongst editors and the industry at large.[91] The Editors' Code Committee told us that "the guiding principle, since 1991, has been that only a Code drafted by editors would command the necessary authority to deliver universal compliance".[92] Mr Esser, Executive Managing Editor of the Daily Mail, argued that "the huge strength of self-regulation is that the Editors' Code has been produced by the editors and they have signed up to it: so there is no real pressure upon editors to break it".[93] The Code can also require higher standards from journalists than are required by law.[94] It may have failed to prevent Clive Goodman from actions which were unethical and indefensible, but so did the law, as the Editors' Code Committee pointed out.[95]

57. The NUJ proposed that a conscience clause should be inserted into the Code of Practice, formally establishing a right for journalists to refuse to carry out editors' instructions if they believe it would be unethical to do so. The NUJ told us that it received complaints from "lots of members" who had been put under pressure by their editors to breach both the Code of Practice and the NUJ's ethics code in pursuing a story.[96] The MediaWise Trust hinted at similar concerns, noting "a fault-line of tawdry and slipshod journalism driven by competitive pressures".[97]

58. Mr Horrocks, Editor of the Manchester Evening News, cast doubt upon the NUJ's suggestion, saying that it was "just not my experience".[98] Witnesses representing the Daily Mail and the Mirror Group titles agreed.[99] The PCC was similarly unconvinced and told us that this was more properly a matter for an employment contract between an editor and a journalist, and it was content that standards would be upheld through the inclusion in contracts of a clause on respect for the Code of Practice.[100] In the limited time available, we have not been able to resolve what appear to be conflicting statements on whether journalists come under pressure from editors to breach the Code. We nonetheless support the inclusion in staff contracts of a clause requiring adherence to the Code of Practice as a condition of employment, which we believe would safeguard journalists who believed that they were being asked to use unethical newsgathering practices.

THE APPLICATION OF THE CODE TO ONLINE CONTENT

59. When announcing our inquiry, we invited comment on what regulation, if any, should be applied to online news provision by newspapers and others. The Code already applies to online versions of publications; the real issue at the time that we announced our inquiry was whether the Code's provisions should be extended to cover material which was not a parallel online version of printed matter (such as video reports from correspondents or user-generated content hosted on newspaper websites). We noted in our recent inquiry into new media and the creative industries plans by one major regional newspaper group to convert 70 newsrooms to allow reporters to file video reports.[101]

60. Not for the first time, the announcement by the Committee of an intention to investigate a particular area has co-incided with (or shortly preceded) an announcement by the Press Complaints Commission of action to be taken. In this case, the PCC announced on 8 February 2007 that it would extend its remit to cover audiovisual material on newspaper and magazine titles' websites where two key requirements were met:

That the editor of the newspaper or magazine is responsible for it and could reasonably have been expected both to exercise editorial control over it and apply the terms of the Code; and
That it was not pre-edited to conform to the on-line or off-line standards of another media regulatory body.[102]

The PCC indicated that the Code would not be applied to material streamed or disseminated live, nor would it apply to user-generated material posted via blogs or chatrooms. We note Ofcom's observation that, even though an editor might not have control over the content of a live broadcast, he or she would have control over the decision to provide the live feed in the first place, and that an editorial judgment would need to be made before such a broadcast about the risk that content might intrude upon privacy.[103]

61. We believe that it was right for the PCC to extend its remit to cover editorial audio and visual content on newspaper websites. Questions remain, however, about whether it should have gone further. Editors bear a measure of responsibility for all content on their publications' websites, whether or not they have editorial control over it. We did not explore this issue fully in evidence, although we have no doubt that it will be in editors' interests for their publications not to host any user-generated content which is in breach of the law or of the Code of Practice.

THE PRESS COMPLAINTS COMMISSION

62. Although we express our support in this report for the principle of self-regulation, we are not in a position—on the basis of limited oral evidence—to give a comprehensive view of the extent to which the system operated by the PCC is achieving its objectives from the standpoint of both the public and the press as a whole. We note that the PCC has strengths, for instance, it has:

Gained the trust and respect of the industry;[104]
Improved its website, which is now more helpful to users;[105]
Introduced a Charter Commissioner, who may on application review whether or not a case was handled fairly by the PCC, and the Charter Compliance Panel, which publishes an annual review of the quality of the Commission's service and which has the power to examine retrospectively any Commission complaints file;[106] and
Introduced a hotline for complainants.[107]

We also note evidence of high levels of satisfaction amongst complainants with the Commission's handling of their complaints during 2006.[108]

63. The PCC now undertakes more preventative work than previously, contacting individuals or organisations at the centre of high-profile stories to offer assistance, before the point where they have to make a complaint; liaising before publication between newspapers and those in the news, with the result that stories may be altered for publication or even not appear;[109] approaching individuals to ask whether they wished the PCC to pursue a matter which had been raised as a complaint by a third party; and targeting information towards people who might need the help of the PCC, for instance by providing information in witness rooms or in coroners' courts on how to complain through the PCC.[110] The PCC provided recent examples of such efforts.[111] Although not widely appreciated, this is some of the most valuable work undertaken by the Commission.

64. On the other hand, we note that:

The PCC does not command absolute confidence that it is fair;[112]
There is debate about whether the PCC should be more willing to accept third-party complaints;[113]
There remains scope for the PCC to increase awareness of what it can do, as its Director acknowledged to us;[114] and
There are criticisms that the PCC applies the Code of Practice with far too light a touch and that it should do more to enforce the Code and take editors to task for breaches.[115]

ADJUDICATIONS AND RESOLVED COMPLAINTS

65. The chief complaint made about the PCC in evidence was that it had a very limited repertoire of sanctions. There is in fact only one—the requirement upon an offending publication to publish in full and with due prominence an adjudication by the PCC upholding a complaint. Witnesses representing the press were adamant that the publication of adjudications was a "harsh penalty" and that "no editor wants to have in their newspaper an adjudication against them that their own community then sees".[116] The Code Committee added that a complaint to the Commission was taken very seriously and that there was "a genuine sense of failure and shame at being found in breach of the Code".[117] The PCC likewise noted that losing a ruling was "professionally embarrassing" and was regarded as "a black mark against an editor's judgment".[118]

66. The number of cases adjudicated each year has fallen from somewhere between 60-80 in each of the first ten years of the PCC's existence to an average of about 33 in each of the last six years. One third of complaints adjudicated in 2006 were upheld. Meanwhile, the number of cases resolved through conciliation is increasing, as we noted in paragraph 12. On the face of it, the increase in numbers of cases resolved through conciliation seems positive (and the PCC certainly sees this as an encouraging trend),[119] but editors may have an interest in seeking conciliation in order to avoid publicity, particularly if the ignominy of an adjudication upholding a complaint is as great as is suggested by industry witnesses. Summaries of such cases resolved through conciliation are listed on the Commission's website unless the complainant wishes otherwise, but there is no requirement upon the publication to publish the terms of the complaint or its resolution. Even though such cases will almost invariably have involved a breach of the Code, the fact that a breach has occurred will never be very visible to readers of the publication at fault.

67. While editors do reasonably frequently exercise self-regulation through printing apologies or corrections (both in cases raised directly with the publication and in those resolved through the PCC), there is a common perception that the prominence given to an apology or a correction does not match that given to the story itself.[120] This perception is not always justified: Paul Horrocks, Editor of the Manchester Evening News, said that "we do not publish corrections on page 68 under the greyhound results—we print them in a page earlier in the paper than the offending article had appeared".[121] We doubt, however, that such a practice is universal. When we asked a representative of the Daily Mirror what approach the paper would take if a person were to complain about a false story in a front-page splash, the reply was revealing: "It would become a difficult issue and we would arrive at an amicable solution".[122] The witness acknowledged that there had been examples of front-page apologies. We note that the PCC now monitors the prominence of published corrections and apologies in cases which it has negotiated. In 2006, 74% of such corrections appeared either on the same page as the original item under complaint, or further forward in the paper, or in a dedicated corrections column.[123]

68. Rulings signal to editors the PCC's interpretation of the Code, and the NUJ argued that adjudicating and publishing rulings on more complaints would give stronger guidance to editors.[124] We are aware of suggestions that the low number of adjudications published by the PCC has contributed to the courts' readiness to develop common law on the right to privacy, but the PCC described this as "extremely unfair".[125] It maintained that there had been many adjudications in the early years of the Code's existence to set the boundaries, and that the need for adjudications had declined as the culture within the industry had changed.[126] It added that the Editors' Code Book was an accumulation of "jurisprudence" around each clause of the Code, providing editors with the necessary guidance.

69. The PCC marshalled a number of other arguments against issuing more rulings, suggesting that people who felt that they had suffered an intrusion into their privacy "usually want their complaint sorted out with a minimum of fuss" and that they "do not want the information under complaint repeated",[127] and it cited a number of examples in support of its case. It was suggested to us that complainants were anxious to see a resolution to their complaint but not necessarily to pursue it to an adjudication[128] or even a correction or an apology.[129] However, we note one case, cited by the Press Complaints Commission as an example of a benchmark privacy ruling, in which the complainant rejected the newspaper's offer of a public apology and stated that she wanted the matter adjudicated.[130] We also note that, for whatever reason, no complaint was made about harassment of Ms Middleton until March 2007, in response to publication of a photograph by the Daily Mirror. As that complaint was settled through conciliation, the Press Complaints Commission published no adjudication and the fact that there was a breach has not, therefore, received the exposure which we believe it deserves.

70. We support the principle of seeking a resolution of a complaint through conciliation and without going to formal adjudication, although we believe that it would be helpful to publish details of the resolution if the complainant so wishes. We believe that such a practice would enhance the public's view of the effectiveness of the Commission and would strengthen the understanding by the press and by the public of the principles which underlie the Commission's work.

FINANCIAL PENALTIES

71. Some witnesses who argued that sanctions imposed by the PCC were feeble and had minimal deterrent value favoured the introduction of financial penalties. The MediaWise Trust, for instance, believed that these should be imposed for breaches of the Code of Conduct, graded according to the severity of the breach. The scale suggested was £10,000 for an "extreme violation", £5,000 for a "serious breach", and £1,000 for a "significant intrusion". The NUJ, acknowledging that the impact of fixed sums would vary according to the size of the newspaper penalised, suggested as an alternative a scale based upon seriousness of the breach factored by circulation figures or by advertising rates.[131] It did not envisage that financial penalties would often be applied.[132] The MediaWise Trust also argued for compensation to be paid by editors to those had been wronged, in recognition of the effort, stress and possibly lost work time in pursuing a complaint.[133]

72. The PCC resists calls for the introduction of fines as penalties for breaches of the Code. It points out that there are no legal powers enabling the Commission to demand payment, with the risk that a publication could refuse to pay and the Commission's authority would be undermined. The PCC also pointed to a survey by MORI suggesting that other forms of redress—such as published apologies—were seen by the public as better forms of resolution of complaints.[134] The PCC Chairman said that "We do not do money. If we did money we would have lawyers, if we had lawyers the whole blinking thing would come to a grinding halt", and the Commission's memorandum warned of the danger of a compensation culture.[135] The PCC's memorandum also suggested that fines would hinder dispute resolution and perhaps be too small to deter editors from publishing "interesting but intrusive information".[136] We do not find all the PCC's arguments against the introduction of fines convincing. While there is little evidence that the industry would support financial penalties, if that was the price of maintaining a self-regulatory system the likelihood is that they would accept them. However, we accept that giving the PCC powers to impose fines would risk changing the nature of the organisation and might need statutory backing to make the power enforceable. This would be a major step which we would not recommend without a broader examination of the subject.

77 Q 74 Back

78 See for instance Mr Satchwell Q 58 and the Press Board of Finance Ev 84; Back

79 Q 72 Back

80 Q 68 Back

81 Ev 2 Back

82 Code of Practice, Clauses 7(1) and 15(ii) Back

83 Paragraph 111, Privacy and media intrusion, Fifth Report of the Culture, Media and Sport Committee, Session 2002-03, HC 458-I Back

84 Ev 51 Back

85 Q 23 Back

86 Ev 8 Back

87 Ev 51 Back

88 Ev 11. The NUJ had reservations about the wording of the clause on discrimination, which it described as "seriously flawed". Back