Memorandum submitted by Department for
Culture, Media and Sport (DCMS)
INTRODUCTION
1. The Committee last considered these and
other issues during the 2002-03 Session with their inquiry on
Privacy and Media Intrusion.
2. This paper will be considering what improvements
and clarifications there have been in the legislation, in the
self-regulatory system and in voluntary action since then. One
thing that has not changed is Government support for self-regulation.
We stated that support in our memorandum for the 2003 inquiry,
reiterated it in evidence to the Committee and again in our response
to the Committee's recommendations. We believe that a press free
from state intervention is fundamental to UK democracy. We would
not therefore seek to interfere with what a newspaper or magazine
chooses to publish. Nor do we believe that the press should be
subject to controls on their freedom of expression that are any
stricter than those that apply to the rest of the population.
3. This does not mean that we believe that
there should be no restrictions on what may be published, as we,
as a society, recognise that restrictions have to be placed on
our freedom of expression in some circumstances. We will be discussing
some of these restrictions and considering their effectiveness
in this memorandum.
4. Context is important and we should note
the enormous numbers of newspapers we still read in the UK. Around
12 million national papers are sold every day with sales rising
to 13 million for Sunday papers. And these figures do not take
into account our thriving local and regional newspapers, and magazines.
Considering the enormous number of articles, words, journalists
and readers, it is perhaps surprising that there are so few complaints.
5. In 2005 (the last year for which full
statistics are publicly available) the Press Complaints Commission
(PCC) received 3,654 complaints. 12.5% of those cited concerns
about privacy. This makes it the second highest category of complaints,
although it is a long way behind the front runner, "accuracy",
which attracted 67.4% of complaints. Nonetheless, almost 500 complaints
on the matter is a substantial number, even though not all of
these were actually matters for the PCC to investigate.
6. We do not wish to diminish the experience
of those that have had cause to make complaints, or to diminish
the seriousness of the occasions where the Editors' Code of Practice
or the law has been breached. And we do not believe that anyone
would suggest that there is no room for improvement. However,
the mechanism for securing that improvement must in our view be
consistent with the maintenance of an appropriate balance between
the need to protect individual privacy and freedom of expression.
7. The Committee has indicated that it will
be looking at four areas during the inquiry:
— whether self-regulation by the press
continues to offer sufficient protection against unwarranted invasions
of privacy;
— if the public and Parliament are
to continue to rely upon self-regulation, whether the Press Complaints
Commission Code of Practice needs to be amended;
— whether existing law on unauthorised
disclosure of personal information should be strengthened; and
— what form of regulation, if any,
should apply to online news provision by newspapers and others.
We will look at each of these.
Whether self-regulation by the press continues
to offer sufficient protection against unwarranted invasions of
privacy
8. It is vital to note that while the Editors'
Code of Practice offers a layer of protection, it is not the only
protection. The Code is complementary to the Law. There are various
laws protecting different aspects of privacy. For example, the
Data Protection Act 1998, the Human Rights Act 1998, and the Regulation
of Investigatory Powers Act 2000. Indeed, it was under the powers
of this last Act that Clive Goodman of the News of the World
was jailed for his part in plotting to intercept private telephone
messages. It so happens that the Code overseen by the PCC also
covers this issue. Its Chairman, Sir Christopher Meyer has made
it clear that the PCC deplores this breach of the Code as well
as the law. As a general rule, the PCC does not investigate matters
if they are sub-judice. This must be right as there is the danger
that they could prejudice the outcome of a trial otherwise and
find themselves in contempt of court. The Commission had announced
that it would conduct an inquiry with the editor of the News
of the World, but he resigned in the aftermath of the trial.
However, the PCC is following up the matter with the newspaper's
new editor, and more widely with other editors of other national
and regional newspapers to see what can be done to ensure that
this does not recur. It will be publishing a review with recommendations
for best practice, if necessary, once its investigation is complete.
9. There have of course been other changes
since the Committee's 2003 inquiry, including changes to the legal
structure. The 2004 von Hanover judgement in the European
Court of Human Rights, for instance, changed the understanding
of the circumstances in which one might have a reasonable expectation
of privacy. The Court ruled that the public does not have a legitimate
interest in knowing where a public figure is (in this instance
Princess Caroline of Monaco) and how she behaves generally in
her private life, even if she appears in places that cannot always
be described as secluded, and despite the fact that she is well
known to the public.
10. But the PCC had also been moving in
this direction and developing its own "case law" which
concluded that, sometimes, one might have a reasonable expectation
of privacy even in public places.
11. Newspapers have taken this change on
board, and have revised their ways of working so that now, for
instance, photographs of celebrities in a public place where they
happen to be with their children will usually have the faces of
the children pixelated. Indeed, in a recent adjudication, the
PCC found against Hello magazine after it took and published
photographs of a celebrity and her children which were taken on
a beach. The magazine undertook not to publish unpixelated photographs
of the children again. This is an increasingly common—and
welcome—practice across newspapers.
12. Even more recently, News International
and Hello magazine have taken responsible action to
announce that they would not be using paparazzi photographs of
Kate Middleton in their publications when she was being followed
around by photographers while going about her daily life. These
actions effectively "killed" the market for these freelance
photographers, and meant that Ms Middleton was left alone.
13. Since 2003, when last the Committee
considered these matters, the PCC has made 970 rulings that relate
to privacy, thereby building up a considerable body of expertise.
It has had to consider a formal adjudication in 72 of these cases.
In 2006, the average time taken to reach a ruling in a privacy
case was 34 days; thus, it offers a speedy alternative to legal
options. We look forward to the PCC review and recommendations
on how editors should ensure that journalists adhere to the Code.
If the public and Parliament are to continue to
rely upon self-regulation, whether the Press Complaints Commission
Code of Practice needs to be amended; and whether existing law
on unauthorised disclosure of personal information should be strengthened
14. Again, we must point out that self-regulation
is not the only protection available; there are other routes,
and sometimes it is appropriate for people to take one of the
legal options. However, in matters of privacy, for example, they
often prefer to use the PCC as it is much quicker than a legal
option, much more discreet, and of course, much cheaper.
15. Journalists are not exempt from the
law. They must abide by it just as we all do. And from time to
time, we consider changes in areas which have an impact on journalism.
16. For example, we have recently completed
a consultation exercise on proposals to increase penalties for
the deliberate and wilful misuse of personal data under sections
55 and 60 of the Data Protection Act 1998. The proposal to introduce
custodial penalties as an option available to the courts was generally
welcomed. We will be introducing legislation as soon as Parliamentary
time allows, with the intention of creating the availability of
a sentence of up to six months' imprisonment on summary conviction,
and up to two years on indictment. We believe that the introduction
of custodial penalties will be an effective deterrent to all those
who seek to procure or wilfully abuse personal data. We also believe
that the current financial penalties do not sufficiently deter
potential offenders from engaging in the illegal trade in personal
information. Nonetheless, in recognition that there are circumstances
where the obtaining, disclosing or procuring of personal data
can be justified, we will be retaining the current defences including
the public interest defence, which may be available in cases of
legitimate investigative journalism.
17. Similar beliefs are reflected in the
public interest exemption available for many clauses of the PCC
Code. If required to do so, an editor must be able to demonstrate
that his action or one he has sanctioned is in the public interest.
The PCC uses the following definitions of public interest, although
it acknowledges that this is not exhaustive:
The Public Interest
1. The public interest includes,
but is not confined to:
(i) Detecting or exposing
crime or serious impropriety.
(ii) Protecting public health
and safety.
(iii) Preventing the
public from being misled by an action or statement of an individual
or organisation.
2. There is a public interest
in freedom of expression itself.
3. Whenever the public interest
is invoked, the PCC will require editors to demonstrate fully
how the public interest was served.
4. The PCC will consider the extent
to which material is already in the public domain, or will become
so.
5. In cases involving children
under 16, editors must demonstrate an exceptional public interest
to over-ride the normally paramount interest of the child.
18. The wording of the Code is entirely
a matter for the Press Complaints Commission, and the Code Committee.
It is important to state that the press choose to restrict the
freedom of expression available to other people in recognition
of the responsibility that comes with that right. We applaud the
fact that they do this, and think that it is right for the industry
to continue to review the Code and update it, as they have shown
that they are ready to do, should that be necessary. Of course,
such changes can come into effect much more quickly than changes
to legislation would require.
What sort of regulation, if any, should apply
to online news provision by newspapers and others
19. The general law applies to online material,
just as it would to newspapers and broadcast material.
20. Online versions of newspapers are also
covered by the Editors' Code of Practice. Additionally, the Press
Standards Board of Finance, responsible for the funding of the
PCC, has recently announced that the PCC's remit should be extended
to include audio-visual material on newspaper and magazine websites.
We welcome this extension. This is in recognition of the fact
that online versions of newspapers and magazines are no longer
just a simple replication of their printed form. The PCC will
oversee material provided that the editor of the newspaper or
magazine is responsible for it (rather than something found by
clicking on a link, for example), and that it has not already
been edited to conform to the standards of another regulatory
body.
21. The websites of broadcasters play an
important role in providing online news that is trusted by the
public. We believe that the news standards of broadcasters are
becoming even more important in an increasingly crowded media
landscape.
22. Simultaneous broadcast streams using
the Internet fall to be regulated as broadcasting (eg ITV1 over
Homechoice), but broadcasters also offer on-demand news services
(eg the news websites of the BBC, ITN or Sky). Broadcasters' on-demand
provision is not regulated the same way as that which is broadcast.
23. The BBC Agreement specifies that the
BBC must do all it can to ensure that controversial subjects are
treated with due accuracy and impartiality in all "relevant
output", which includes online content. Licences for other
broadcasters issued by the independent telecommunications regulator,
Ofcom, contain similar provisions for their news and current affairs
broadcasts to be accurate, impartial and authoritative but this
is not extended to their on-line content. Nonetheless, broadcasters
have a strong incentive to maintain their brand quality by maintaining
similar standards on-line.
24. We are not aware of any significant
complaints that the on-line content of broadcasters is any less
accurate or impartial than the news they transmit over the airwaves,
so we do not at present propose any changes to the regulation
governing on-line news provision by broadcasters.
25. Other "news" provision can
extend from international news services which, like broadcasters,
will have a strong incentive to maintain or develop widespread
trust (an example is Reuters' website) to amateur provision of
news or comment. Where there is no business incentive to establish
or maintain widespread trust, websites have tended to find their
own levels of trust, through self-correcting feedback mechanisms
(the most notable example being Wikipedia's "You can edit
this page right now" principle). There is no role for Government
intervention in such sites, many of which will fall outside UK
jurisdiction, but there is a role for Government and industry
to promote media literacy so that users approach the web with
both confidence and a healthy scepticism.
EUROPEAN REGULATION
26. In December 2005, the European Commission
published draft amendments to the Television without Frontiers
Directive (TVWF). These would have extended EU content controls
to a wide variety of online and new media services with moving
pictures. The Commission's proposals specifically excluded "electronic
versions of newspapers and magazines", but it was not clear
whether they would have covered news sites which operate online
only and do not have a corresponding print version, or newspaper
and magazine websites which materially differed from their print
versions.
27. Following discussions between Member
States, in November 2006 the Council of Ministers agreed a General
Approach to revising TVWF which covers television broadcasting
and "TV-like" services only, ie video-on-demand: the
latter would be subject only to basic content standards. The European
Parliament has adopted a similar approach. Negotiation of the
Directive is continuing and we expect it to last for most of the
rest of 2007.
CONCLUSION
28. In the Government's view, the combination
of relevant legislation and the Editors' Code of Practice, provides
a workable framework to secure an appropriate balance between
freedom of speech and the need to protect privacy. That's not
to say that newspapers never get it wrong. But we believe that
the safeguards in place are the right ones; they are appropriate
and proportionate, and they are generally effective.
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