Memorandum submitted by The Campaign For
Press and Broadcasting Freedom (CPBF)
The CPBF was established in 1979. It is the
leading independent membership organisation dealing with questions
of freedom, diversity and accountability in the UK media. It is
membership-based, drawing its support from individuals, trade
unions and community based organisations. Since it was established,
it has consistently developed policies designed to encourage a
more pluralistic media in the UK and has regularly intervened
in the public and political debate over the future of press regulation
in the United Kingdom.
Does self-regulation by the press continue to
offer sufficient protection against unwarranted invasions of privacy?
1. The CPBF supports the right to privacy
as laid down in Article 8 of the European Convention on Human
Rights: "Everyone has the right to respect for his private
and family life, his home and his correspondence". This right
is not, of course, absolute, and has to be balanced against other
rights, not least the right to freedom of expression as enshrined
in Article 10 of the ECHR. It is vitally important that the media
possess the right to publish material which is in the public interest,
and there are certainly occasions when this right trumps the right
to privacy. However, in far too many cases the right to privacy,
whether of a public figure or of an ordinary member of society,
has been trampled upon not in the public interest but simply on
the grounds that it is of interest to certain sections of the
public (which is another matter entirely) and will thus sell newspapers.
2. In point of fact, complaints regarding
privacy account, on average, for just over 12% of the total complaints
made to the PCC in any one year, with complaints about intrusion
accounting for an average of 3.66% of the total. This does not
necessarily mean, of course, that people do not care about press
invasions of privacy; it may well be the case that they see no
point in complaining to the PCC and/or have more faith in other
means of redress. Ever since the courts found themselves unable
to restrain the Sunday Sport from perpetrating a grotesque
invasion of the actor Gorden Kaye's privacy, judges have been
gradually but determinedly developing a privacy tort out of a
combination of confidentiality legislation and the ECHR. (It is,
of course, this which lies behind newspapers' strident and ill-informed
campaigns against the Convention, although they lack the honesty
to say so, hiding instead behind the ludicrous and threadbare
pretence that they are protecting Britain from "foreign"
interference). In the Campaign's view, the British press has only
itself to blame for this state of affairs, one which the PCC could
have largely prevented were it an effective regulator. We thus
do not regard self-regulation by the press as offering sufficient
protection against unwarranted invasions of privacy.
If the public and Parliament are to continue to
rely upon self-regulation, does the Press Complaints Commission
Code of Practice need to be amended?
3. In the Campaign's view, the Code itself
is an unobjectionable document which needs not amending but enforcing.
In order to realise how little relationship it bears to what appears
in the national daily and Sunday press one has only to read it,
and then read the papers themselves. The first thing that one
will rapidly realise is that whilst Clause 1(iii) worthily intones
that: "The Press, whilst free to be partisan, must distinguish
clearly between comment, conjecture and fact", across the
press the distinction between editorial and comment has largely
collapsed, with front page stories in papers such as the Sun,
Express, Mail and others frequently reading as strident opinion
pieces. Indeed, Britain's papers are far better described as viewspapers
rather than newspapers—and ones which offer an extremely
narrow range of views at that.
4. If the Code is honoured far more in the
breach than in the observance, then the situation regarding how
the Commission deals with actual complaints is even more seriously
flawed. First of all, a large number of complaints are rejected
as falling outside the scope of the Code. That this has not led
the PCC to change the Code so as to be able to address matters
which are obviously of wide public concern suggests that it actually
regards the Code as a useful filtering system.
5. Second, despite the number of complaints
received almost doubling in 15 years, the number adjudicated by
the PCC has fallen consistently year on year. An average of 58
complaints were adjudicated each year in the Commission's first
10 years but an average of only 31 were adjudicated in each of
the last six years. 2006 saw a new all-time low, with only 22
complaints being adjudicated. Of these, a mere five were upheld.
The Commission, of course, argues that this is a mark of its success,
as it exists primarily to effect a process of conciliation between
newspapers and complainants. However, we regard such an argument
as largely specious, since it ignores the crucial fact that the
power relationship between a complainant and a newspaper editor
is a massively unequal one, let alone the awkward matter of the
"conciliator" being part-financed by the paper which
is the subject of the complaint! In short, the PCC's relationship
to the industry which it is supposed to regulate is exactly like
that of a customer relations department to the company of which
it is a part. No-one would call the latter "independent"
of the company, and nor can the PCC be considered so.
6. Third, the Code's clause on discrimination
seems almost explicitly designed to filter out complaints about
the kind of racist and inflammatory reporting which most concerns
many people, and which is so besmirching the reputation of the
British press on a global level. However, as we note below that
the Committee has itself already addressed this question in an
earlier report, we will not elaborate further. Instead, we would
like to put before the Committee a complaint which the Campaign
made to the PCC about what we consider to be racist and inflammatory
reporting. We deliberately avoided making this complaint under
the clause on discrimination, with all its attendant difficulties,
choosing instead the one on accuracy. We tell this story not out
of pique, but simply as the best way of illustrating why we have
not the slightest faith in the PCC as a self-regulatory body.
7. On 2 August 2005 we complained to the
PCC about the front page story of the Express, 27 July
2005. Specifically, we complained that the headline "Bombers
are all spongeing [sic] asylum seekers" was inaccurate as,
at the time that this was written, the identity of two of the
suspected bombers was unknown. Furthermore, the headline was inaccurate
even if it was taken to apply only to the two alleged bombers
(Muktar Said Ibrahim and Yasin Hassan Omar) who had been identified
at the time of writing, since neither was an asylum seeker. Ibrahim
arrived at fourteen in 1992 as a child of refugees fleeing Eritrea
and was given exceptional leave to remain; he applied to become
a British citizen in November 2003 and was granted a passport
in September 2004. Omar, meanwhile, arrived at eleven as an unaccompanied
minor from Somalia; he was also granted exceptional leave to remain,
and, in May 2000, indefinite leave to remain. The inaccuracy about
their being "asylum seekers" was also repeated in the
first line of the article, which stated that: "The suicide
bombers who tried to murder scores of Britons were asylum seekers
who raked in more than £40,000 in state handouts, it emerged
yesterday".
8. A further inaccuracy concerned the repeated
failure to put the words "alleged" or "suspected"
before each and every use of the words "bomber" and
"killer" throughout the text—the Express, like
nearly every other newspaper in Britain, committed a serious inaccuracy
by simply ignoring the plain, if to them inconvenient, fact that,
under British law, suspects are innocent until proven guilty.
9. We could also have added, but did not
do so, believing that the charge sheet was already quite long
and serious enough, that the inclusion of the highly pejorative
adjective "spongeing" [sic] in the headline was a clear
breach of Clause 1(iii) of the PCC Code which states that: "The
Press, whilst free to be partisan, must distinguish clearly between
comment, conjecture and fact".
10. On 4 August we received an acknowledgement
which stated, inter alia, that: "The editor of the
Daily Express is currently a member of the Press Complaints
Commission. However, as his newspaper is the subject of your complaint
he will of course not take part in any discussion or consideration
of the complaint by the Commission".
11. By 30 September, having heard nothing
from the PCC, we wrote again, to be told on 4 October that: "The
Commission is currently considering this matter and we hope to
be able to send you its decision in the very near future".
This turned out to be 15 November, when we discovered that our
complaint had been rejected.
12. The Commission pointed out, as it usually
does when faced with complaints such as this, that the article's
subjects had not themselves objected to it. The fact that they
were in absolutely no position to do so is so obvious as barely
to need stating. More important, in our view, is to draw attention
to the Culture, Media and Sport Committee's fifth report of Session
2002-03, Privacy and Media Intrusion, whose section devoted
to "Proactivity and Third Party Complaints" argued,
inter alia, that the acceptance of third party complaints
"is as important in issues of prejudicial and pejorative
references to minority groups as it is on privacy matters".
The Express headline about which we complained is a textbook
example of just such a reference.
13. The PCC, however, produced a second
excuse for inaction on our complaint. This concerned the relationship
of the offending headline to the article itself. The PCC pointed
out that: "While the Commission had previously censured newspapers
for front-page headlines that have been insufficiently clarified
or qualified by the following article—particularly by text
that appeared within the body of the newspaper—it did not
consider that that this example raised a similar breach of the
code. The terms of the headline were clarified in the body of
the article on the front page—that the two men had previously
been "given sanctuary" by Britain and had therefore
been involved in seeking asylum—and the Commission considered
that readers would not have been misled as a result". However,
as noted above, the article itself, as well as the headline, claimed
that the men were asylum seekers. Furthermore, the PCC's suggestion
that being "given sanctuary" and seeking asylum are
synonymous is both specious and, in itself, highly inaccurate.
It is also remarkably hypocritical, coming as it does from a body
which, in October 2003, issued a statement on refugees and asylum
seekers which warned that: "The Commission is concerned that
editors should ensure that journalists covering these issues are
mindful of the problems that can occur and take care to avoid
misleading or distorted terminology". It is, however, extremely
significant that this is precisely the view of the editor of the
Express, Peter Hill, who, when he appeared before the Joint
Committee on Human Rights on 22 January 2007, stated that: "The
word `asylum seeker' is a bit of an odd one because what we are
really talking about is the system of sanctuary—people who
come to this country and are fleeing persecution and genuine threats
are effectively seeking sanctuary, in the way that people once
sought the sanctuary of the church".
14. The PCC also defended the Express
on the ground that it was "expressing a view about particular
people connected with a recent news incident", which, since
the item purported to be a news story, and a front page one at
that, would appear to be completely at variance with the Commission's
own Code of Practice which, as noted above, states that: "Newspapers,
whilst free to be partisan, must distinguish clearly between comment,
conjecture and fact".
15. That it took the PCC more than three
months to come up with such sophistry is surely quite remarkable,
and most certainly gives the lie to two of the components of its
claim to be "fast, free and fair". We reproduce without
comment Roy Greenslade's observation in the Telegraph that:
"This is a shoddy decision and I hope reports that it follows
a threat by the editor of the Daily Express, Peter Hill,
to resign his membership of the PCC if its ruling went against
him are untrue". But whatever the shenanigans inside the
PCC which led up to this tardy, threadbare and intellectually
bankrupt judgment, the lessons for editors from this exercise
in excusing the inexcusable are clear for all to see: as far as
the PCC is concerned, inaccurate headlines are fine as long as
the inaccuracies are repeated—not to say embroidered—in
the main body of the text. And editorials masquerading as front
page news get the green light too. In this context we draw attention
to a headline in the Express, 3 January 2007, "How
the liberal elite is trying to gag us on asylum racket",
which was occasioned by the above-mentioned Joint Committee having
the temerity to request Hill to appear before it to discuss press
coverage of asylum seekers, and which was the subject of specific
criticism by committee member Lord Lester of Herne Hill.
16. In the Campaign's view, then, the main
problems with the PCC Code are that it contains too many self-denying
ordinances such as the discrimination clause, that its procedures
are opaque and thus open to abuse by editors, that it is not a
neutral umpire between two sides, and that it adjudicates far
too few complaints. We would argue, firstly, that measures need
to be taken to make self-regulation work effectively, so that
the PCC becomes a self-regulatory body which is taken as seriously
by the press as is the Advertising Standards Authority by the
advertising industry. Such a body would need to possess the power
to impose meaningful and substantial penalties, and to involve
at senior level working journalists with a genuinely reflexive,
self-critical attitude to the industry. Any re-vivified PCC would
also have to stipulate that journalists must have individual legal
protection to enable them to refuse assignments that they believe
are in breach of the PCC Code. Many journalists (including some
on the Express, who have actually complained—unsuccessfully,
inevitably—to the PCC about material in their own paper)
are as unhappy as members of the public at the kinds of stories
which routinely appear in British newspapers, sometimes, indeed,
under their own by-line. However, in the hyper-competitive environment
of the British press it is frequently virtually impossible for
journalists to withstand pressures from editors to run certain
kinds of stories, editors whose first loyalty is to circulation,
profit and the proprietor.
17. However, if the industry fails to make
effective self-regulation work, then steps should be taken to
establish a body, independent of both industry and government,
which has the responsibility for overseeing press standards and
protecting journalistic independence, and which has powers, under
statute, to enforce its decisions where negotiation and conciliation
fail.
Should existing law on unauthorised disclosure
of personal information be strengthened?
18. As noted earlier, the right to privacy
is being developed on several fronts at the moment, the current
case involving Niema Ash's book on Loreena McKennitt providing
a good example of one such development. In this context we noted
with particular interest the remark by media lawyer Mark Stephens
in Press Gazette, 5 February, to the effect that: "Tabloids
are going to have to reinvent the staple of the Sunday morning,
and I think we are going to be down to vicars and choirboys again.
Celebrities who can afford expensive lawyers and QCs are going
to be shielded from rigorous examination, whereas Joe Public,
who can't afford lawyers, is going to be the new victim of the
Sunday morning media". The idea that papers might simply
desist from publishing all such stories and concentrate on serious
news is, presumably, quite unthinkable.
19. It is our view, as stated above, that
the press and the Press Complaints Commission have only themselves
to blame for this state of affairs. The irony is, of course, that
laws developed in response to circulation-boosting, profit-driven
sensationalism and prurience will undoubtedly make more difficult
and put at risk serious journalistic investigation and reporting
which is in the public interest.
20. Meanwhile the Department of Constitutional
Affairs is seeking to increase penalties for revealing information
protected by the Data Protection Act, and we have just seen News
of the World associate editor Clive Goodman jailed for interception
of voicemail messages, along with the resignation of his editor
Andy Coulson over the same offence. At the same time, Press
Gazette, The Times and the Information Commissioner have all
revealed what many have suspected all along, namely that this
practice is endemic within the newspaper industry. In these circumstances
we find it absolutely staggering that the PCC views the jailing
of Goodman and the resignation of Coulson as effectively drawing
a line under the matter. Thus there is to be no enquiry into the
prevalence of these sorts of journalistic practices at the News
of the World in particular, nor any investigation into how
widespread is phone tapping in, or on behalf of, the industry
in general. All, in fact, that the PCC has done is to issue a
fatuously anodyne letter asking newspaper and magazine editors
to explain the `extent of internal controls aimed at preventing
intrusive fishing expeditions'. This is an utterly futile and
completely inadequate response, and we very much hope that the
Committee will subject the PCC to rigorous questioning on this
subject.
What form of regulation, if any, should apply
to online news provision by newspapers and others?
21. Newspapers have of course, from the
very birth of Ofcom, hotly insisted that it should not have the
slightest power over online newspaper content. However, Ofcom
should be severely criticised for its decision last year simply
to forego any control over online versions of newspapers, and
the Press Complaints Commission should surely be formally censured
by this Select Committee for pre-empting its deliberations by
baldly announcing on 8 February that: "Following industry-wide
consultation it [PressBof] has agreed to extend the remit of the
Press Complaints Commission (PCC) to include editorial audio-visual
material on newspaper and magazine websites". Apparently
MPs and members of the public were not thought important enough
to consult, and few, we think, will be encouraged by Sir Christopher
Meyer's bland assurance that, as regulated by the PCC, "editorial
information in the digital age—regardless of the format
in which it is delivered—will be subject to high professional
standards overseen by the Commission".
22. If there is a free for all in the area
of online newspaper content, established broadcasters like the
BBC will risk having their own standards driven ever lower in
order to compete with the online versions of newspapers like the
Sun and News of the World. The standards of public
service broadcasting, and in particular the all-important requirements
for impartiality and balance, could be seriously jeopardised by
the effects of politically partisan broadcasting creeping in through
the back door. As Marc Webber, assistant editor of The Sun Online,
put it in Press Gazette, 9 February: "We have the
ability to provide video which accompanies the agenda of the paper".
Precisely—and online content driven by newspaper agendas
will, if not properly regulated, increasingly force the public
service broadcasters to compete with such content on its own terms.
Furthermore, Murdoch has made no secret of the fact that he would
like Sky News to become like Fox News, and his newspapers' demands
for the present impartiality regulations to be relaxed (thus making
this possible) will only increase with the advent of politically
partisan online broadcasting by newspapers. And again, a Fox-ified
Sky News would almost certainly put considerable pressure on the
public service broadcasters to become more opinion-driven and
politically biased.
23. Up until now, many newspaper websites
have been little more than cut and paste jobs from the hard copy
of the newspaper. However, many of these sites are increasingly
providing video journalism as well, and it is this innovation
on their part which should be of particular concern to regulators.
In recent weeks video coverage obtained by the Sun and
the News of the World (featuring Jade Goody, a 67-year-old
woman having twins thanks to IVF, and cockpit footage of the "friendly
fire" incident in Iraq) has actually led the established
bulletins on television. In future, the video-buying power of
the newspapers is going to have a tremendous impact on established
broadcasters, and newspaper websites increasingly make full video
coverage one of their strong selling points.
24. Nor is this development confined to
the national level. For example the Hull Daily Mail has
daily video news bulletins and employs thirty video journalists.
On the one hand this may indeed be a real innovation, but it simply
cannot be right that that site works under a totally different
set of rules to a BBC local tv or radio station. What kind of
fair competition can there be between a regulated and an unregulated
news provider? Furthermore, if local newspapers, many of which
are parts of powerful and well-resourced national and even international
newspaper conglomerates, are going to be allowed to enter the
local television arena in this unregulated fashion, this will
without a shadow of doubt discourage and endanger the kind of
local initiatives envisaged by Ofcom in its 2004 Review of
Public Service Television and Broadcasting, in which it stated
that: "Emerging digital technologies offer rich potential
for the future to develop local, regional and national services
that meet consumer-citizen needs considerably more effectively
than the current model of provision by the main networks".
25. In our view, online versions of newspapers
should therefore come within the regulatory scope of Ofcom, but
with a lighter regime than for conventional broadcasters. There
may be a case for suggesting three tiers of regulation. Should
this come about, however, there would need to be very clear signposting,
so that members of the public could know which kind of website
they were visiting, and which kind of regulatory regime was governing
it. The tiers could be as follows:
— Broadcasters using public airwaves,
and especially those funded by a licence fee, such as the BBC.
These would need to meet the highest standards, which are already
enshrined in their own guidelines. These guidelines should also
apply to their websites too.
— Online versions of newspapers. These
would need a greater degree of freedom than the above but cannot
expect to be entirely exempt from some of the basic regulations
which already apply to broadcasters, for example forbidding output
which is racist, sexist or encourages religious intolerance. There
should also be a requirement that online versions of newspapers
should offer balanced coverage during national and local elections.
— Free standing websites and weblogs.
These would be subjected to a lighter touch than online versions
of newspapers. Campaigning websites, whether for pressure groups
or political organisations, do need the freedom to express themselves
adequately.
February 2007
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