Memorandum submitted by Peter Burden
Author of: News of the world? Fake Sheikhs & Royal Trappings
Commentator on privacy law and press transgression.
Contributor to national media and www.press4privacy.org campaigning website.
From the topics listed, I have identified three specific problems affecting the right of the press to publish and the right of individuals to protect their privacy, on which I should like to comment.
1. A Statutory Criminal Offence of 'Invasion of Privacy'.
While privacy law is being developed in British courts as common law off the back of the 1998 HR Act, defendants only appear as a result of a civil suit brought by an injured party. While a judge in such a civil case has the option to impose 'punitive' or 'exemplary' damages by way of deterrence, they are averse to awarding massive windfalls to plaintiffs. As result, financial penalties are not hurting defendants and some papers appear ready to accept any award to a plaintiff as an 'occupational hazard' or knowingly instigate publication treating it as a 'professional foul'.
Only in a criminal court could truly deterrent penalties be applied, with the option to impose custodial sentences for offending editors and reporters, as well as substantial fines to be paid into public funds. If the provisions of Article 8 of the HRA are to be fully supported under UK law, a statutory crime of Invasion of Privacy should be established in the UK, as in other European jurisdictions, where a greater cultural regard for personal privacy already exists.
The press are naturally anxious to retain their freedom to publish. This will not suffer, as long as newspapers are in pursuit of genuine, significant news stories, when they may rely on the well-established and strongly supported 'Public Interest' defence against charges of privacy invasion.
Such legislation would be helped by clear, statutory definitions of 'Public Interest', and 'Invasion of Privacy'.
2. A Legal Obligation on Editors to Disclose before Publication
Recent court rulings have shown that there is a particular shortcoming within developing privacy law. Even when a paper is penalised in court as a result of a successful breach of privacy action, the damage to the plaintiff's public image is already done and can never effectively be undone. Any new privacy law should make it a legal obligation on the part of editors to alert individuals whose privacy they are about to breach, of their intended publication, thus allowing the target an opportunity to test the legality of a story in court before it is published, rather than after, when the damage is irrevocable.
A judge could order an interim injunction (or not), against which a paper could appeal, and if the story was then found to be defensible as in the Public Interest, or not to fall within the parameters of privacy invasion, the paper could go ahead and publish lawfully - and with a clear conscience.
3. A Statutory Independent Press Watchdog
The existing watchdog, the Press Complaints Commission was set up in the early '90s as the industry's self-regulatory body, in spite of the Calcutt Committee's recommendation to institute an independent body. In view of the performance of the PCC over the last 17 years, it is clear that self-regulation isn't working. The reasons for this are well-documented and I do not intend to expand at this point.
There is a stronger case now, in light of the recent increase in transgressions, for the establishment of a well-constituted statutory body with real teeth - quasi-legal powers to hear evidence and to impose meaningful sanctions. Such sanctions could include the withdrawal of a recidivist editor's right to edit or the loss of one or more days' publication. This body should be composed of people outside the industry (although in some cases with direct former experience of it) and would offer a first port of call for plaintiffs. The Watchdog would also take action on its own initiative. If transgressions could be resolved satisfactorily at this level, it would provide substantial savings in court time and public costs. Plaintiffs would retain the option to take their cases to the High Court if they wished and were prepared to risk the greater costs involved.