Memorandum submitted by the National Union of Journalists

 

 

Introduction

The National Union of Journalists is the TUC-affiliated union representing journalists working in Great Britain, Ireland and internationally. The union has 38,000 members working as journalists or on editorial content in newspapers, broadcasting, websites, news agencies and public relations.

 

The NUJ has always seen the relationship between democracy and journalism as important and has had a Code of Professional Conduct since 1936. This code helped to inform the current Press Complaints Commission code.

 

The union's rules allow it to discipline members who breach its code and even expel them from membership for serious breaches. The code was reviewed and rewritten in 2007. The union's Ethics Council is charged by 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.

 

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.

 

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.

 

The union is also acutely aware of the distinction between the right to publish in the public interest and the right to publish what will interest the public and thereby 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.

 

However, there are individuals who seek to improve their status or earning power by courting publicity and presenting themselves as a certain kind of person, and the NUJ believes that it can be in the public interest to present a true picture of them to the public. 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 in order to make appropriate judgments about them.

 

There is also a public interest in freedom of expression itself; but the union believers that the random destruction of people's reputations simply 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:

Why the self-regulatory regime was not used in the McCann case, why the Press Complaints Commission (PCC) has not invoked its own inquiry and what changes news organisations themselves have made in the light of the case

The NUJ is not surprised that the PCC was not used in the McCann case, nor that the PCC did not invoke its own inquiry. It is likely that the PCC would not have upheld complaints from the McCanns since it is arguable whether there is direct evidence that the articles concerned breached the PCC Code of Practice, which does not prevent speculation.

The PCC is a complaints body. It has no other purpose. It does not investigate ethical issues of concern of its own accord. Its predecessor, the Press Council, produced a series of reports following in investigations of key reporting events, which allowed lessons to be learnt. The PCC has steadfastly refused to be so proactive and while it occasionally produces guidance, this is limited to specific advice on individuals' addresses or on photographing the UK royalty. We believe that the PCC should act proactively, investigating the coverage of major stories or stories that have sparked particular concern about the ethics of their coverage.

 

Whether the successful action against the Daily Express and others for libel in the McCann case indicates a serious weakness with the self-regulatory regime;

There is no protection for reputation in the PCC's regulatory code -- nor in the NUJ's. The redress for the McCanns was in libel law. The NUJ's code does seek to ensure that journalists differentiate between fact and opinion. The PCC code has a similar clause.

We do not believe it would be appropriate to try to regulate for protection of reputation in the PCC code. What the NUJ has consistently campaigned for is a "conscience clause" for journalists in the code. This would allow reporters who feel they are being pressured to produce material that is not supported by evidence, or whose reporting is being stretched beyond credulity in its presentation, to refuse that assignment. This could have been helpful in the McCann case.

The NUJ wants to see such a conscience clause to be built into contracts of employment, but failing that we believe that the PCC should at the very least have a confidential contact point for journalists, allowing them to make contact when they feel they are being asked to act unethically or if they feel their material is being used in an unethical way; we would like the PCC then to investigate without putting reporters' career at risk. Evidence that journalist had contacted the PCC could be used in an employment tribunal, in the event of employers taking action against them. The NUJ operates such an "Ethics Hotline" itself, which many reporters have found helpful.

 

The interaction between the operation and effect of UK libel laws and press reporting;

UK libel laws and the operation of conditional fee agreements have a chilling effect on reporting in the UK. The NUJ agrees that people's reputations should not be harmed purely for the entertainment of readers and to increase circulations; nor should someone's reputation be damaged by lies, smears or innuendo. However, in order to report on the fitness of people in public life, whether politicians, those in public office or those who deal with the public through their business or personal inclinations, it is necessary to expose wrongdoing or anti-social behaviour. We believe there should be a "public figure" defence to libel, such as exists in the US. This would mean that someone in public office would have to prove there has been either a reckless disregard for the truth, or malice, when damaging information about them has been published. Refusing to print corrections or clarifications would be evidence of reckless disregard. At the moment, there is less risk to a newspaper in publishing true, but private revelations of some private citizen's sex life, than there is about publishing details of corruption in business or political life. This is not acceptable and the libel laws should be amended.

The NUJ very much welcomes the development of the "Reynolds Defence" to defamation cases, effectively establishing qualified privilege where a publication can shown it has met has met certain standards in producing the article in contention. These standards are those the union expects from its members - checking information, affording a right to comment and so on. They also effectively set a "public interest" criterion that is also welcome. However, we are concerned that Reynolds cannot be fully exploited by the courts because of publications' reluctance to defend cases for reasons of cost.

 

The impact of conditional fee agreements on press freedom, and whether self-regulation needs to be toughened to make it more attractive to those seeking redress;

CFAs have made it very difficult for newspapers to defend lawsuits, since the surcharge on costs that lawyers are able to impose makes them so high that few newspapers will risk a fight and nearly all will pay off the suit at an early stage -- no matter how strong the evidence, or the compliance with Reynolds criteria. Only publishers with very deep pockets dare contemplate fighting a case; regional newspapers have effectively stopped defending libel cases altogether. This is one reason for the continuing decline in serious investigative journalism, since newspapers will not risk attracting lawsuits.

 

The observance and enforcement of contempt of court laws with respect to press reporting of investigations and trials, particularly given the expansion of the Internet;

Fewer court cases are reported now in the UK than ever before. The days of local newspapers sending one or two reporters to cover the courts every day are long gone. Staff reporters only attend to cover the big sensational cases.

Often the courts will seek to anonymise a defendant, or to limit publication of certain evidence, only to find that with the posting of reports online, accessible in countries outside the jurisdiction, the information will appear on the internet. UK law prevents the naming of minors of the victims in sexual offence cases, but again this can be thwarted by the web.

In major murder or other serious cases there is a high temptation to publish potentially prejudicial information post-arrest and pre-trial, in contravention of the 1981 Act. Again such details can be published on the internet from abroad. With such information in the public domain, easily accessible to any potential jury member, it is difficult to see the present contempt laws as serving much useful purpose. In any case, there are very few cases indeed of contempt for pre-trial publication; virtually all have been over what has been published during a trial.

Research from the US, where full publication has always been allowed, suggests that this would not lead to wholesale miscarriages of justice. However, such a change after years of judicial censorship in the UK would probably lead to problems. The UK is one of the few countries that do not have the need for responsible court coverage in its ethical codes. The right to a fair trial and the right to be presumed innocent, as established by the Human Rights Act, could be used to ensure some fairness, but it would be a number of years before the balance between fairness and publication was achieved.

 

What affect the European Convention on Human Rights has had on the courts' views on the right to privacy as against press freedom

The NUJ supports the Human Rights Act and therefore the European Convention and believes that its effect on the courts has been beneficial.

 

Whether financial penalties for libel or invasion of privacy, applied either by the courts or by a self-regulatory body, might be exemplary rather than compensatory;

The NUJ believes that the PCC should be able to fine newspapers for breaches of its Code of Practice. The PCC opposes this but the NUJ finds its arguments unconvincing. The PCC adjudicates very few cases each year, and even fewer are upheld (between ten and 20 each year). Not many of these are privacy intrusions - indeed, most of the worst cases upheld are thoughtlessness rather than malice. To fine in those cases would rarely lead to more than five cases a year on present statistics, but since these would be the worst cases and ones where the PCC would have decided the newspaper had deliberately or recklessly breached the code, the fine would send out a message that the PCC has teeth and would be prepared to bite. We believe its objection is rooted in a fear that the PCC would risk losing the industry's support and probably collapse.

As to the courts, we believe that current balance is about right. Any attempt to strengthen the existing law on privacy would be likely, in the NUJ's view, to put serious journalistic investigation at risk. Much of "celebrity" journalism is really public relations, done with the participation of the subject, so legislation to protect privacy further than the courts are doing already is likely to increase the publication of this kind of information, at the expense of genuine journalistic enquiry in the public interest. The jailing of Clive Goodman in 2007 showed that the law can apply strong penalties to journalists who abuse private information.

 

Whether, in the light of recent court rulings, the balance between press freedom and personal privacy is the right one.

The NUJ supports the right to privacy, though 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 are just as damaging to a free society as invasions of privacy by the media.

 

Citizens' 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 Union's Annual Delegate Meeting discussed privacy in 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.

We believe that despite the outrage expressed by many editors desperate to justify what are often quite outrageous intrusions into the private lives of public figures, the moves made by the courts to firm up the law of confidence and apply it to privacy claims are largely justified. Key cases such as Loreena McKennitt, Max Mosley and others from Europe have helped to draw a reasonable and straightforward line between private and public. While there have been one or two cases where the judgements have been more difficult to interpret and apply - the Naomi Campbell case, for instance, where the courts decided it was in the public interest to publish the story, but not in the public interest to publish the pictures that were the main evidence in support of the story - generally the line identified has clearly distinguished between private and family life and public life.

 

Additional comments:

We would ask the committee to consider the importance of journalists being responsible for their professional conduct. Newspaper editors insist that they are solely responsible for ethical conduct within their newspapers. While they are certainly responsible for what is published, they are not, nor can they be, entirely responsible for everything done in the name of the newspapers. The PCC is insisting that its Code of Practice is written into the contracts of employment of journalists, which concerns the NUJ. We believe that journalists are responsible for their work and are therefore entitled legally to refuse instructions they consider unethical, through a "conscience clause" as outlined above in this submission.

 

Professor Chris Frost,

Member of the NUJ's National Executive and Chair, NUJ Ethics Council

January 2009