Memorandum submitted by the National Union
Journalists (NUJ)
INTRODUCTION
1. The National Union of Journalists is
the TUC-affiliated union representing journalists working in the
UK, Ireland and internationally. The union was formed in 1907
and currently has approximately 40,000 members working as journalists
or on editorial content in newspapers, broadcasting, web-sites,
news agencies and public relations.
2. The NUJ has always seen the relationship
between democracy and journalism as important and has had a code
of ethics since 1936. This code helped to inform the current Press
Complaints Commission code.
3. The union's rules allow it to discipline
members who breach its code and even expel them from membership
for serious breaches. The code contains a clause on privacy:
6. A journalist shall do nothing which entails
intrusion into anybody's private life, grief or distress, subject
to justification by overriding considerations of the public interest.
4. This has been strengthened recently and
the code is presently undergoing a major review by the union's
Ethics Council which is charged, under the union's rules, with:
the responsibility for the promotion and enforcement
of the professional and ethical standards of the union, with particular
reference to the enforcement of the union's code of conduct and
with researching and debating ethical issues in media freedom
and regulation.
5. A motion is before the union's Annual
Delegate Meeting, to be held in April, outlining a new code that,
it is proposed, would have the following privacy clause.
A journalist:
5. Does nothing to intrude into anybody's
private life, grief or distress unless justified by overriding
consideration of the public interest.
6. The Ethics Council is made up of members
of the union directly elected by the members from the various
industrial sectors of the union as well as representatives from
the union's Black Members Council, Equality Council and Disabled
Members Council.
7. The Union's Annual Delegate Meeting discussed
privacy as recently as 2001 agreeing the following motion:
ADM recognises that it is a mark of a free and
democratic society that all people have a right to respect for
their private and family life, their home and their correspondence.
ADM also believes that people have both a right to know what is
being done in their name and a right to information on which to
base their choices and that this might legitimise the revelation
of information that by the earlier definition should remain private.
ADM believes the only way to determine which
information should be revealed and which remain private is for
a journalist to test whether the information is in the public
interest—which is not the same as information that will
interest or titillate the public.
ADM declares that information revealed in the
public interest is that which is required for members of the public
to use to determine their intentions and opinions to seek to ensure
probity and honest dealings amongst the civil and military authorities,
the judiciary, politicians and all those holding positions of
public authority or who have courted prominence in all walks of
life.
THE RIGHT
TO PRIVACY
8. The NUJ supports the right to privacy,
although we would like to stress that this is a general right
and not one limited solely to media invasions. Invasions of privacy
by CCTV, the police, the intelligence services or commercial operations
without the authority of the law, and therefore democratic accountability,
are just as damaging to a free society as invasions of privacy
by the media.
9. All citizens should have the right to
respect for their private and family life, their home and their
correspondence. Their privacy should only be invaded if there
is good reason to believe it is in the public interest so to do,
whether this is because they are believed to be committing a crime
or social misdemeanour, misleading the public in some way or endangering
the health and safety of themselves or others.
THE RIGHT
TO FREEDOM
OF EXPRESSION
10. The NUJ believes strongly in the right
to freedom of expression and sees it as a vital freedom that underpins
all other public freedoms. Without the right to publish a wide
range of views, investigate and publish the activities of the
powerful and what they are claiming to do in the name of the public,
there can be no democracy.
11. However, the union is also acutely aware
that the right to publish in the public interest is very different
to having the right to publish what will interest the public and
therefore sell newspapers. The public may want to know about the
private lives of celebrities but that does not mean that they
need to know in order to protect their democratic rights.
12. That said, there are those who seek
to improve their status in society as well as their earning power
by courting publicity and presenting themselves to the public
as a certain kind of person and it is certainly in the public
interest to present a true picture of these people to the public
who have supported them on the basis of the image presented. When
a person has entered public life and attempted to capitalise on
their image or popularity, the public has a right to know the
truth about them.
13. There is also an argument that there
is a public interest in the freedom of expression itself; whilst
agreeing it is better to know than have unnecessary secrets, the
union finds this an unacceptable position when people are hurt
for no good reason by such exposures. Whilst freedom of expression
is a human right that requires public support, the random destruction
of people's reputations for no good reason other than to boost
a newspaper's circulation or a TV show's ratings is not in the
public interest and is the point at which freedom of expression
has to bow to the right of individual privacy.
The Select Committee's questions:
14. The Select Committee asks if self-regulation
offers sufficient protection against unwarranted invasions of
privacy. There is little evidence that it does. This is not because
self-regulation cannot be made to work, simply that the PCC chooses
to keep levels of protection to an absolute minimum in order not
to interfere unnecessarily with the activities of the organisations
funding it.
15. The number of complaints made to the
PCC has risen steadily over its 16 years of operations from 1,963
complaints in 1991 to 3,654 in 2005. The figure is anticipated
to go up again in 2006. Privacy complaints average 12.73% of the
total. This is a fairly consistent figure with a low of 11.4%
in 2003 and 2004 and a high of 14.7% in 1999. Intrusion is dealt
with as a separate category and this represents an average of
3.66% of all complaints made. (PCC annual reports 1991-2005).
Of course in many cases, the complainant is complaining of both
invasion of privacy and intrusion.
16. Despite the number of complaints made
almost doubling in 15 years, the number of complaints adjudicated
by the PCC has fallen consistently year on year. An average of
58 complaints were adjudicated each year in the 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, only five were upheld. Although only
12.73% of complaints made concern privacy, an average of 21.69%
of complaints adjudicated concern privacy and 32% of these are
upheld.
COMPLAINTS ADJUDICATED
BY THE
PCC
17. Self-regulation as operated by the PCC
means the absolute minimum of interference. The PCC sets much
store by its claim to resolve most complaints to the satisfaction
of all parties—a claim it must make if it is to justify
adjudicating so few complaints. Yet most resolutions could and
should have been made by editors without the interference of the
PCC. Publishing an apology, correction or reply should be standard
practice and should not need direction by the PCC. The PCC should
be adjudicating more complaints and applying penalties. Adjudicating
more complaints would give stronger guidance to editors and journalists;
applying penalties would mean regulation would be taken seriously.
18. The PCC itself is flawed as a structure.
Its members are a mix of editors and the public, but it has no
real power to do anything except adjudicate the complaints that
are identified for it by the secretariat. Whilst the Charter Compliance
Committee was a welcome step forward, it is only a small step.
Without penalties, more involvement from other sectors of the
industry including working journalists, and more power for the
Commissioners to decide on complaints before resolution, the PCC
risks being merely a façade of protection to allow proprietors
to continue to make money out of intrusive and sensationalist
copy.
19. The Committee asks whether the PCC's
code requires amending. The PCC's code is typical of its type
and covers the key elements of journalistic ethics. It is not
so long that journalists cannot remember its key points, nor is
it so short as to miss out important areas. With the exception
of the discrimination clause, which is seriously flawed, the code
is entirely appropriate. However, what is missing is any real
power to apply it. What has been noteworthy over the past two
years is that the number of adjudications has fallen dramatically,
and that several of those complaints that have been adjudicated
and upheld have involved such serious errors on the part of the
newspapers in question that to do otherwise would risk sparking
public outrage. It is important to note that those newspapers
making serious mistakes have accepted their error and made moves
to minimise the chances of a repeat. In one instance a newspaper
sent information from a confidential source to the subject of
a story asking for comment on points made with the source's name
still attached. In another a newspaper used the name of a victim
of sexual assault in a tribunal case. Both were appalling breaches
of the code and were dealt with as such.
20. However, many cases that might benefit
the industry by offering the guidance that comes from an adjudication
were not adjudicated. There is little pressure to adjudicate,
especially in privacy cases, because little is achieved whilst
there are no penalties applied other than the publication of the
adjudication. In practice, the present system works against the
person complaining of invasion of privacy—the only penalty
is to have their situation thrust again into the public eye, even
if it is done anonymously.
21. The union is surprised that more than
5,000 people would complain over 16 years about invasion of privacy
to an organisation whose only form of redress is to instruct the
offending newspaper to publish their adjudication "in full
and with due prominence" since this can only risk them having
their privacy invaded a second time. The union believes there
must be many people whose privacy is invaded who feel helpless
and forced, in the end, just to put up with it or to accept a
largely meaningless resolution.
22. The question should not be whether the
code needs to be amended, but how the PCC should be applying it
more often and more rigorously by adjudicating more cases and
how significant penalties for breaching it should be applied.
For instance, should the complainant have the right to insist
on adjudication even if offered a resolution, a right they might
take if there were the possibility of serious penalties being
levied against the publication?
23. The PCC and the industry has long said
that penalties would be inappropriate; there is the problem of
equity and the problem of turning such cases into extended legal
battles.
24. The problem of equity of fines (the
obvious penalty) is easily dealt with. Fines could be levied as
a sum, varied by the seriousness of the complaint, factored by
circulation, advertising rates or some other factor defined by
category of publication. For instance, a 50p levy factored by
a circulation of 24,000 would mean a £12,000 fine for a small
weekly. This might be a stinging blow for a small newspaper, but
would not be critical. The same levy for The Sun would
mean a fine of almost £2 million. Such a large fine for a
national newspaper might well mean that it was worth its while
to seek judicial review in order to overturn the result. However,
it would prove to people that the system had teeth and would certainly
make newspapers more careful about breaching the code. It might
also of course lead to the breakdown of self-regulation, but if
self-regulation means there can be no way to apply penalties to
enforce the code, then maybe it should not continue. Perhaps the
industry should be asked if it would prefer self-regulation with
fines, or statutory regulation.
25. The NUJ also firmly believes that journalists
should have individual legal protection to refuse assignments
that they believe are in breach of the PCC's code of practice.
The Clive Goodman case throws into sharp relief the kind of pressures
that journalists feel themselves to be under in order to get stories.
We are not suggesting that the Editor of the New of the World
pressured Goodman into doing what he did, but had Goodman known
that he could have refused an assignment if he had felt pressured
to do it, things might have been different. The balance needs
to be swung back to the professional journalists to make a decision
about the story on which they are working rather than the editor
whose loyalties must be influenced by the importance of raising
circulation and profits. The editor should decide what goes into
the paper applying the PCC code, whilst the journalist must have
some say about the ethics of collecting and sourcing the story,
also applying the code.
26. The Committee clearly had the ordeal
of Kate Middleton in mind when launching this inquiry. TV coverage
of paparazzi packs following the prince's girlfriend around town
have upset the public and encouraged some newspaper proprietors
to claim the moral high ground by announcing they would not use
such paparazzi pictures. The NUJ remains unconvinced of such promises,
but also understands the difficulties facing the PCC and editors
over such issues. No-one controls the photographers following
Kate Middleton and in any case, a majority of the pictures are
sold abroad. Even if no newspaper or magazine covered by the PCC
ever used a picture of her again, photographers would still find
lucrative markets abroad. However, we believe that the Protection
from Harassment Act 1997 is sufficient to deal with such relatively
rare cases and these laws have been successfully applied before.
27. The Committee wants to know if existing
law on disclosure of personal information should be strengthened.
The right to privacy is developing on several fronts at the moment.
The courts are building the tort of breach of confidentiality
to cover invasion of privacy when it is needed protect personal
information that is revealed in a confidential relationship, or
a relationship that those involved should have known was confidential.
28. The Department of Constitutional Affairs
is seeking to increase penalties for revealing information that
should be protected by the Data Protection Act to custodial sentences
and the PCC's code on privacy and intrusion is perfectly clear.
Ofcom's and the BBC's codes on privacy are even more detailed.
Any further attempt to strengthen the existing law on disclosure
of personal information is likely, in the NUJ's view, to put at
considerable risk any serious journalistic investigation. Far
from reducing invasions of privacy, all that this increasing level
of law has done so far is to reduce serious investigation of the
sort that is in the public interest and for the purposes of improved
democracy and public protection and to increase the soft, frothy
"revelations" of the private life of this celebrity
or that or even of many private individuals with no claim to celebrity.
Since much of the celebrity material is really public relations,
done with the consent of the subject, any further legislation
in this area is only likely to increase the trend of only publicising
information for which there is permission and not that which is
in the public interest. The jailing of Clive Goodman has shown
that the law can apply strong penalties to journalists when dealing
with private information.
29. The Committee asks what regulation there
should be for online news provision by newspapers and others.
Ofcom regulates broadcast company news websites, the BBC regulates
its own news website and the PCC regulates news and magazine news
websites, recently announcing an extension of this to video and
audio from those sites. There are also a large number of relatively
new news and opinion websites unregulated by any organisation.
30. Tempting though it is to suggest that
the newspaper websites should be regulated by Ofcom, there are
problems. First it is admitting that the self-regulatory PCC is
not working and that a regulator with teeth is required to match
standards with broadcast linked websites. Secondly, if Ofcom regulated
the website while the host newspaper was still being regulated
by the PCC, it would require two different sets of regulation
to be applied to what is often the same news merely cut and paste
from the newspaper to the website.
31. The NUJ believes that all UK based news
websites should be regulated by Ofcom, with the exception of newspapers
and magazines. They should be regulated by the PCC which should
be obliged to operate a similar scheme of penalties to those available
to Ofcom. They should work closely with Ofcom to develop a partnership
system that would mean similar treatment for news websites of
all sorts, whether regulated by Ofcom or the PCC. This would allow
both bodies to apply similar protections and penalties whilst
understanding the different approaches required. It is likely
that this will require further development in the near future
but would be sufficient for the next five years.
Should the PCC be unwilling to accept this responsibility
of ensuring matched standards, regulation and penalties with sites
linked to broadcast companies and controlled by Ofcom, then all
news websites should be regulated statutorily by Ofcom.
February 2007
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