Memorandum submitted by Swan Turton solicitors
1. The Unrestrained Power of the Press
i. In his book "The Insider" Piers Morgan (who edited both the News of the World and the Mirror) told us that the press was becoming progressively more powerful and aggressive. In his evidence to the Culture Media and Sport Committee on 25 September 2003, Max Clifford stated that "Paul Dacre is virtually a law unto himself." A feral press is not a new problem; the military dictator Napoleon Bonaparte observed that "Four hostile newspapers are more to be feared than 1000 bayonets." The great campaigner for the abolition of slavery, William Wilberforce was concerned about the press of his époque misleading its readers over the key political issues of the day.
ii. In a recent speech a judge of the European Court of Human Rights (the "ECHR") (Judge Loukis Loucaides) has set out the problem from a 21st Century perspective:-
"One should not lose sight of the fact that the mass media are nowadays commercial enterprises with uncontrolled and virtually unlimited strength, interested more in profitable, flashy news than in disseminating proper information to the public, in controlling government abuse or in fulfilling other idealistic objectives. And although they may be achieving such objectives incidentally, accidentally or occasionally, even deliberately, they should be subject to certain restraint out of respect for the truth and for the dignity of individuals. [...] Furthermore they should remain legally accountable to the persons concerned for any false defamatory allegations. Like any power, the mass media cannot be accountable only to themselves. A contrary position would lead to arbitrariness and impunity, which undermine democracy itself."
iii. The outrage of the News of the World in response to losing the Mosley privacy action filled two entire pages. Its determination to be above any form of regulation (legal or otherwise) could not have been made clearer by this defiant final paragraph of editorial outrage at the decision:-
"The News of the World will not be gagged by the rich and powerful.
iv. The media in general and the press in particular wield enormous power via the virtual monopoly that they have of the dissemination of information. Although journalism has often been referred to as the "fourth estate of the realm", Sir Louis Bloom-Cooper QC quotes Oscar Wilde's view of the "fourth estate" from The Soul of Man where he states that "at the present moment it is the only estate. It has eaten up the other three. The Lords Temporal say nothing, the Lords Spiritual have nothing to say, and the House of Commons has nothing to say and says it. We are dominated by Journalism."
v. The press has the power to affect government policy, glean intimate details of the lives of the rich and famous by offering huge bribes to their staff to betray their confidence; and if there is no actual information about issues of public interest, then much of the time the press simply makes it up. It can undertake much of these activities safe in the knowledge that because very few have the means of challenging it legally and there is no effective regulation, there is no sanction to fear. The right of an individual to seek a determination by a court that allegations made by the media against him/her are untrue was lost in 1999 after a massive investment of legal funds by Newsgroup Newspapers. Now more than ever an effective form of press regulation is needed.
vi. The need for effective regulation of the press has however been long been recognised. At Appendix 1 I attach a summary of the process whereby the Press Complaints Commission ("PCC" or "the Commission") came to be formed in 1991. While since then there has been recognition that whilst the PCC does appear to have had some marginal success in raising press standards, it has not succeeded in gaining the confidence of its scrutinisers as an effective and independent means of press regulation. It is not hard to see why that is the case, and why the claim by the PCC on its website to be 'independent' is manifestly and comprehensively untrue.
vii. As I set out below, the PCC is structurally and culturally incapable of fulfilling the role as guardian of the interests of the general public against those of the immensely powerful commercial empires that control our press. It was supposed, as determined at the time it was set up in 1991, to have the public's interest as its sole concern. That was because it was decided that if it also bore responsibility for protecting the freedom of the press that would represent a serious conflict of interest. Plainly any such organisation would also cease to be independent of the entity it was tasked with regulating.
viii. However a senior figure at the PCC has recently given two speeches at which I was present where the truth slipped out, and the obvious conflict of interest was affirmed as the PCC was described as having a dual role of protecting the public and preserving press freedom (see Appendix 2 at page 2, second paragraph) - as even its very Code betrays. Professor Robert Pinker (International Consultant and founder member of the PCC) made the same point at a recent media conference saying that the "PCC protects media freedoms". However no-one who has dealt with it regularly on behalf of claimants seriously doubts the predominance of the PCC's pro-press agenda, as its submissions to Parliamentary Committees make no less clear.
ix. Lord Puttnam recently told the House of Lords Select Committee on Communication that the PCC was "essentially a cartel. It is a self-regulatory organisation that will very seldom do anything that will discomfit [the press] or make its life difficult". Alistair Campbell before the same Committee described the PCC as a "cosy media club". My own experience of dealing with it on a regular basis since its inception suggests that it is indeed a cartel, set up for the principle purpose of ensuring that - contrary to its claimed purpose - press freedom is preserved to the greatest possible degree against any form of effective regulation, and to the massive detriment of the rights of the individual.
x. The matter is put beyond doubt by opinion research that I have commissioned which shows that the practice and structure of the PCC is comprehensively at odds with the aspirations of the general public it is supposed to represent. It is apparent that in each case the PCC's modus operandi is set against what the public wants for its regulator and that the interests of the press have been favoured at the expense of those which the PCC is supposed to serve. This is set out at Appendix 3, and is discussed in detail below.
xi. This paper is written from the perspective of a consumer of the PCC's services and on behalf of the many clients of mine who, despite my best efforts, have conspicuously not been provided with a fair means of making complaints against the press.
2. The Importance of an Effective Means of Resolving Complaints Against the Press
i. I concentrate in this paper on the role of the PCC in resolving complaints made against the press about breaches of the PCC Code of Practice ("the Code"), rather on its broader regulatory role. I attach a copy of the Code at Appendix 4. I base this paper in part on my own experience of dealing with the PCC over all the 18 years of its existence, and the consistent failure that I have observed on its part to show impartiality and commitment to redress the grievances of those who turn to it for help. I know from many conversations I have had over the years with users of the PCC that my views are widely held. However, many of those who hold those views also have clients in the press whose feathers would be seriously ruffled if they were ever aired.
ii. The PCC's structural and institutional lack of independence, which is evident from its constitution, personnel and practice, fatally compromises any regulatory role it has. However, it is the PCC's role in resolving complaints made against the very industry whose interests it represents as a press lobby group (as is evident from its submissions to the Culture Media and Sport Committee and as its senior personnel have admitted) which is the subject of this paper. As I set out below, there is the clearest evidence that it places the interests of its sponsors above those of its charges, which by virtue of its very title, are those who complain about the activities of the press.
iii. The power of the press to wreck lives is no small issue. I have acted for clients who have had nervous and physical breakdowns, seen their marriages destroyed and even attempted suicide in the face of press onslaughts. One non-celebrity client found that a journalist had interrogated her young downs syndrome son about the state of her marriage to a celebrity. Another celebrity client found that a national newspaper was offering her neighbours substantial sums of money to sign a statement saying that she neglected her children. There are many other such stories, but the recent reports of the Information Commissioner and the jailing of Clive Goodman show that the press exhibits contempt for legal/regulatory restrictions of their activities unless they perceive that a credible sanction is the alternative.
iv. For 99% of the population, the existence of the right to privacy and reputation as supposedly guaranteed by Article 8 of the European Convention on Human Rights (the "Convention") is illusory because of their inability to fund litigation to protect those rights. The lack of legal aid coupled with the onslaught of the press against the use of contingency fees, guarantees that it will remain the case that only a tiny proportion of the population can seek the assistance of the courts. For them, an effective regulatory body over the press is essential. But do they have it in the PCC?
v. It is inevitably difficult for any species of self regulation to inspire confidence. A Commission which has been set up by the press, administering a Code written exclusively by the press, which is funded by the press and whose staff members are ultimately employees of the press is not likely to inspire confidence. If you add to this that 7 of the 17 commissioners are newspaper editors, no right for complainants to attend adjudications, and no substantive right to appeal then inevitably alarm bells ring.
3. The PCC's Structural Bias in Favour of the Press
i. You are walking down the street and a burly policeman jumps on you and beats you up for no reason. You take exception to this and make a complaint against the policeman. Imagine being told that your assailant has insisted that your complaint of assault is to be adjudicated by a body set up and funded by the police, where the relevant law has been written by the Police, nearly half the adjudicating panel are serving police officers - most of whom themselves have a well documented record for such things. The same body also campaigns for ever greater liberty for the police to act in a way which infringes the rights of the individual without legal liability. So it is with complaints to the PCC.
ii. Except that the situation is worse at the PCC. 7 of the 17 PCC members (i.e. the editors) know that the decisions that they make in adjudicating complaints will directly impact on their own liberty to publish what they will in the future. Consequently they have a direct interest in the outcome of the complaint. Not only that, but the remainder of the PCC's adjudicating body appear to lack any direct experience of (for example) oppressive press harassment, intrusion into their private lives etc. The neutral non-press contingent also lacks the requisite balancing bias in favour of the victim, as (in my analogy) the police will have for the perpetrator. But so it is with the PCC, where the editors on the Commission will inevitably have a commercial bias towards the paper.
iii. Nobody would seriously suggest that complaints against police officers such as that on behalf of the family of Jean Charles de Menezes should be dealt with by the policemen's trade union - the Police Federation. However, that is precisely the position so far as complaints against the press are concerned. In a recent address given to a media law conference, Professor Robert Pinker described; "its dual roles as a defender of press freedoms and of citizens from abuses of those freedoms by the press". He repeated this observation a few months later at a subsequent conference I attended and after I had raised this very point with the PCC.
iv. It is inconceivable that a body of commissioners can both lobby and campaign on behalf of the press, and also form disinterested judgments on whether it has abided by the terms of its Code, a Code which of course the Commission itself has also written via a committee which has no lay members. This innate bias towards the press emerges in the "public interest" section of the Code, where it is stated that; "There is a public interest in the freedom of expression itself" - a reference to Article 10 of the Convention. Any allusion to the public interest in upholding the rights of the individual enshrined in Article 8 of the Convention is conspicuous by its absence, despite this supposedly being the very purpose of the PCC.
v. The presence on the Commission of so many representatives of the press is justified (as I understand it) by the supposed expertise which they bring to the process of resolving complaints. They are also said to be the "peers" whose judgment other parts of the press so fear. But can there be any doubt where their sympathies will lie when being asked to pass judgment on their peers, particularly on issues where their own editorial and commercial interest are directly affected? No credible explanation has ever been offered that I am aware of as to why there is no lay element on the Code committee.
vi. In administrative law, natural justice is a well defined concept comprised of two fundamental rules of fair procedure. We are concerned here with the first which stipulates that "a man may not be a judge in his own cause". This rule against bias is by no means a recent development and can be traced back though medieval precedents to the ancient world. Over a century ago Lord Campbell stated that all tribunals should "take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence". This has since been reformulated in the oft cited quotation that "justice should not only be done, but should manifestly and undoubtedly be seen to be done".
vii. Though most decided cases on natural justice concern decisions of the Courts, the rules extend beyond those fora. In fact, Halsbury's Laws of England states:
"The situations in which a duty to act fairly or in accordance with natural justice will arise cannot be exhaustively listed and have tended to expand as the case law has developed. In order to establish that a duty to act fairly applies to the performance of a particular function, it is no longer necessary to show that the function is analytically of a judicial character or that it involves the determination of a lis inter partes, or the determination of a personal right [...] Earlier dicta to the effect that a duty to act in accordance with natural justice arises only in the performance of functions of a judicial nature must now be regarded as incorrect. [...] A duty to act in accordance with natural justice will arise when a decision directly affects any propriety or personal right or interest. For example, decisions which affect a person's livelihood [...] family or personal life."
viii. Surely then, an organisation such as the PCC that wields such influence and is the only port of call for most of those whose rights have been infringed by the press should be under a duty to and be seen to act in accordance with the rules of natural justice. The activities of the PCC affect not only those who complain, but also those who derive information from the press and whose opinions are formed by it. If there is no effective safeguard or remedy against misinformation then we are all the losers.
4. Automatic Presumption of Bias
i. The rule against bias is applied in two broad categories of case. The first is where an adjudicator has a direct interest in the outcome of the matter or can otherwise by reason of a direct interest be regarded as being a party to the action. An automatic, irrebuttable presumption of bias is thereby raised.
ii. Until Paul Dacre (editor of the Daily Mail and editor in chief of Associated Newspapers which includes the Daily Mail, the Mail on Sunday, the Evening Standard and the London Metro) recently stepped down as a member of the PCC to take up the position of chairman of the code of practice committee (the "Committee") (which reviews and revises the voluntary code of standards that the PCC adjudicates) he regularly sat in on adjudications involving his publications. I enclose at Appendix 5 copies of some of these PCC adjudications where Mr Dacre sat in his dual capacity. Mr Dacre however had a direct financial and personal interest in the outcome of issues on which he was adjudicating and so should not have had any role on the PCC.
iii. The sources of financial interest are twofold: not only are the 7 PCC members on the payroll of their respective publications, but the PCC as an institution is funded by an annual levy paid by the very newspapers and magazines that appear before it. As Mr Dacre observed in his recent speech to the Society of Editors (see below), restrictions on press freedom result in less papers being sold. That means that PCC adjudications directly impact on the profitability of the newspaper group he represents. This is even more plainly the case now that a formal system of precedent has been instigated by the PCC. This means that not just Mr Dacre but all press representatives know that every decision that they make in favour of a complainant will mean their own editorial and commercial interests will be directly affected. Not just Mr Dacre's adjudications are therefore plainly biased. As to the direct and immediate personal interests of PCC members, this can be further illustrated by the following example.
iv. I acted for a client who had been romantically linked with a leading parliamentary figure. I made a complaint of press harassment on behalf of that client when she was pursued by photographers accompanied by her infant child near the home of her elderly parents. I wrote to a particular title asking them not to publish an infringing photograph taken in circumstances contrary to paragraph 4 of the Code, but that title nonetheless did so. Although the editor of that title was not one of the commissioners that decided the complaint, all those editors that were on the Commission well knew that had they upheld the complaint their own scope for publishing similar photographs would have been severely restricted, creating a direct personal interest in the outcome of the complaint. Unsurprisingly then the complaint was rejected.
5. Justice Must be Seen to be Done
i. Even if there is no actual bias, the mere appearance of bias is sufficient to taint a decision where "the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." At section 15 below I recount a conversation I had recently with a cabby, who was astonished to learn how the PCC was constituted i.e. that it was not a genuinely independent body. I am sure that the vast majority of "fair-minded and informed" observers would also strongly suspect bias on the part of the PCC as presently constituted if they knew the truth.
ii. So not only is the PCC funded by the very newspapers and magazines that appear before it, but 7 of its commissioners are also gainfully employed by those same publications. Moreover, complaints against the commissioners' counterparts in rival or sister publications are going to be reluctantly upheld for fear of restricting their own liberty to publish.
iii. If Paul Dacre says that restrictions on press freedom impact on newspaper sales then newspaper editors on the PCC will inevitably be perceived to have a direct interest in the outcome of adjudications because any reduction in the ambit of what the press can report will have a direct effect on their profitability.
iv. Those grounds unarguably raise an irrebuttable presumption of bias. Even if they did not, then at the least they give rise to a clear perception of bias rendering PCC adjudications unlawful applying the well established principles of natural justice, and contrary to the fundamental human right to a fair hearing enshrined in Article 6 of the Convention.
6. The Structural Bias in favour of the Press Breaches well Established Principles of Natural Justice
i. The clear and obvious bias that the PCC carries in favour of the press means that no informed complainant can approach such a body with any assurance of a fair hearing. Nor do the opaque PCC procedures inspire confidence. Complainants are not allowed oral hearings, nor to attend or send representatives to the hearings where their complaints are adjudicated. The meetings are neither transcribed nor even fully minuted (or at least if they are, no-one outside the Commission is allowed access to any record of them). What is worse, there is no appeal from an adjudication of the Commission; whilst there is a very narrow ambit of procedural complaint about how the Commission has arrived at its adjudication, there is no challenge available to the actual outcome.
ii. The only appeal to a decision of the PCC is through the Courts via the Judicial Review procedure. But again, 99% of the population is effectively barred from this option by not having the means to fund litigation. Furthermore, it would seem that in any case, the PCC considers itself to be above the law as it "reserves its position as to whether or not [it is] a body which is subject to judicial review." The then Master of the Rolls, Lord Woolf, suggested that "Whether or not [the PCC] is subject to judicial review should be determined in a case after full argument."
iii. The above statements were made by the Court in R v The Press Complaints Commission, ex parte Ian Brady in 1996. Over a decade has passed since and we still do not even know if the PCC is subject to judicial review. Like its sponsor, the press, the PCC would clearly prefer to be above the law. We do know that the Court has stated that it will intervene when "it would be clearly desirable to do so." In this context, the advantages in Mr Bradley's proposals for reform of press regulation (see below) would seem even more significant and attractive. He would set up an independent Press Standards Board to which either party can appeal the decision of his proposed adjudicator.
iv. However, in my experience, the PCC's public protestations as to its practices and effectiveness far outstrip the reality. The experience of those at the coal face differs radically from the rosy picture which is painted by the Commission about levels of satisfaction, the effectiveness of their sanctions and the independence of their adjudication system. A complainant who is told that the PCC approves a correction where the dimensions of the offending article are some seventeen times greater will inevitably conclude that the PCC has an overwhelming bias in favour of the press.
v. The criticism of the PCC contained in this paper must however be balanced by a commendation of some of the PCC staff who are patient, sympathetic, and do the best they can when their help is sought - particularly its Deputy Director Stig Abell. Press standards are probably better as a result of the PCC than they would be if the Commission did not exist, although since the law has also played an important part in forcing the press to show greater respect for the rights of the individual it is very difficult to measure its real impact.
vi. As I set out below, the press takes far more notice of the courts because they have the financial sanctions that the PCC lacks. The Commission has however made some important adjudications, and some of those have informed the decisions of judges in cases which concern newspaper stories. The PCC has done some work in mitigating the worst excesses of the press and should be commended for that. But the majority of my clients have found that too often the PCC has manifested its lack of independence by failing those who have looked to it to for protection when the press has wronged them. Cases like the McCanns and Robert Murat show that the press still readily opts for sensation/profit over accuracy.
7. Paul Dacre Exposes the Perils of Self Regulation
i. As I set out above, you cannot prepare a study on the PCC or the press without considering the role played by Paul Dacre both as an editor and leading figure in the PCC. This was one of the points missed in the overwhelming and well justified criticism of Paul Dacre's recent speech to the Society of Editors (the full text of his speech is at Appendix 6) where he made a severe and unjustified disparagement of Mr Justice Eady over that judge's independent minded decisions that have restrained the press's power to infringe the rights of individuals. What then does his speech tell us about how safe self regulation is in the hands of the PCC as a body, and Paul Dacre in particular?
ii. Mr Dacre was a Commissioner between 1999 and 2008 at which point he became Chairman of the Code Committee, the body of senior journalists who are exclusively responsible for the PCC Code. In these circumstances one might assume that he would be a careful adherent to the Code; not only have his titles signed up to it, but he has also personally endorsed it via the recent review of the Code by his committee which found no reason to amend it.
iii. It is striking that only a few days after Mr Dacre gave his speech Sir Christopher Meyer, in what seem to be his valedictory remarks, called for the press to "raise its game to keep self regulation". It certainly will if its current game is measured by Mr Dacre's speech.
a. The Dacre Speech
i. There are many remarkable elements of Mr Dacre's speech. Early on, he commends a practice at the Sunday Express where his father was a reporter concerning the Readers' Letters Column, which was apparently placed early in the paper and was the responsibility of the Deputy Editor. This is what Mr Dacre went on to say about this column:
"[...] at the risk of provoking collective cardiac seizure amongst the army of ethics professors at our proliferating media colleges, I can exclusively reveal that the staff were paid handsome bonuses to write such letters."
ii. The absence of any apparent concern about readers being serially deceived in this way is striking in a speech in which Mr Dacre was scathing in his attack against the "arrogant and amoral judgments" of Mr Justice Eady. Mr Dacre said that these judgments were "inextricably and insidiously" imposing a privacy law on British newspapers.
b. Monumental Double Standards the speech espouses
i. We should remind ourselves of the terms of Paragraph 1 of the PCC's Code, and of the fact that Mr Dacre was for many years a Commissioner and is now Chairman of the PCC's Code Committee:
(i) The Press must take care not to publish inaccurate, misleading or distorted information, including pictures.
(ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and - where appropriate - an apology published."
ii. There are so many ways in which Mr Dacre's speech breaches this Code in its letter and spirit that it is difficult to do it justice in this paper. Mr Dacre's evident approval of the routine forging by the Sunday Express of readers' letters indicates not only a patronising contempt for the readers of that newspaper (and presumably his own), but also shows that he does not have the slightest respect for his own Code which such activity very obviously breaches.
iii. As has been pointed out both in a letter to the Times signed by four of the country's leading QCs in this field, and further in an article by Desmond Browne QC (the current Chairman of the Bar Council) in the New Law Journal, Eady J's actual record cannot possibly justify the allegation that he is a dedicated enemy of press freedom with "an animus against the popular press and the right of people to freedom of expression".
iv. Firstly, Eady J interprets statute as delivered to him by Parliament. Article 8 comes via the Human Rights Act 1998, which was extensively debated in Parliament and after much lobbying, included specific safeguards for the press, particularly in the form of Section 12 (4), which states that: "The Court must have particular regard to the importance of the Convention rights to freedom of expression [...]". Mr Dacre's claim that Gordon Brown would have to get a privacy law through Parliament is remarkable since not only do we already have one, but it is precisely replicated in the PCC's own Code.
v. Mr Dacre appears to have forgotten that amongst the elements of the PCC Code which he recently endorsed is Paragraph 3 which provides protection for the privacy of the individual and which reads as follows: "Everyone is entitled to respect of his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify intrusions into any individual's life without consent." This provision reproduces virtually verbatim the very element of the Human Rights Act to which he takes such a violent objection in his speech, describing it as "wretched".
vi. Why then is the provision of the Human Rights Act on which Eady J bases his decisions to be found in Mr Dacre's own Code? If it is so objectionable why did Mr Dacre not simply delete it as part of the recent review? The answer is that whereas the Courts require the press to abide by the terms of Article 8 of the Convention, the PCC does not.
c. The Issue of Accountability
i. One of the points which Mr Dacre makes is about the lack of accountability of Mr Justice Eady. Mr Dacre was not elected by anybody, either to his immensely powerful role as Editor of Associated Newspapers, or on the Commission. In his evidence to the Culture Media and Sport Committee on 25 September 2003, Max Clifford stated that "Paul Dacre is virtually a law unto himself."
ii. Unlike Eady J, whose decisions may be appealed (not once but twice), the PCC does not allow any substantive appeal against its decisions. Unlike Court 13 where Eady J sits and where the public and press are free to attend, the public is excluded from the PCC's adjudications, as even are the representatives of the Claimant. You cannot obtain transcripts of the meetings of the PCC and nor can you (unlike the judicial system) know which way individual commissioners have voted. The PCC allows newspaper editors to make decisions on issues where they have the clearest possible self interest, and (so far as morals are concerned) it tolerates amongst its members (as it did with Mr Hill, the now ex editor of the Express) serial breaches of its own rules.
iii. In fact Eady J has a good record of endorsement by the appellate courts. In McKennit v Ash the Court of Appeal made a point of commending his judgment as they elected to uphold it. Mr Dacre's criticism of his Mosley judgment overlooks the fact that the News of the World has more than adequate resources to appeal it if it wishes. If Eady J is the lone judicial maverick Mr Dacre claims, then not only would an appeal have been mounted, it surely would have granted without demur.
d. Eady J's decision in Mosley brought praise from the Public
i. The outcry from the press generally and Mr Dacre in particular would have one believing the public is devastated that Eady J is robbing them of the benefits of unfettered press freedom because it will no longer be able to read about the various sexual exploits of individuals like Max Mosley. On the contrary, in the wake of the Mosley Judgment, and notwithstanding both the selective reporting of the case and the tidal wave of propaganda from the press, the public has overwhelmingly expressed its support for Eady J's decision and Mr Mosley's victory over the News of the World. This shows just how out of touch Mr Dacre is with the opinions of the general public - which failure is no less true of the PCC, as I set out below.
ii. More than 90% of the comments posted on the national newspapers' websites supported the decision. The majority was less overwhelming on the News of the World's website. This might be explained by self interested editing by the paper or the fact that both critics of the Judgment and supporters of the paper would be most inclined to post their comments on its own site. The general consensus amongst the vast majority of the public who expressed an opinion was that this was an unwarranted invasion of privacy and that the News of the World, in addition to the press as a whole, is merely getting now what it has deserved for a long time.
iii. Many people disagreed with the outcome of the case merely on the basis that they believe that the award of £60,000 was not a strong enough deterrent for the News of the World and its ilk, and that the damages award should have been substantially higher. These comments indicate that there are those of the public who think the judge was "far too lenient". Several individuals described the Judgment as a triumph for "common sense" which recognises that "what is of interest to the public, is not necessarily in the public interest", as one comment on the Guardian's website reads. A blogger on the Daily Mail website remarks that "In a nutshell, one of the biggest faults in this country at present is the failure of all parties to recognise where 'public' ends and 'private' begins. This is a victory for common sense."
iv. The following comment, also from the Daily Mail's website, captures how many feel about the conduct of the News of the World: "The arrogant News of the World has long thought itself above the law. I fancy it will think twice in future about what it publishes. And I hope plenty of other people whose privacy has been breached now take this miserable rag to the cleaners." The public appears to have no respect for the editorial values of the News of the World, or the red tops as a whole, describing them as "muck-raking", "smut", and "exploitative." One individual commenting on the News of the World's own website issues his own verdict: "My verdict? NOTW is both legally and morally guilty of intrusion of privacy on a private person's life with the sole purpose of financial gain."
v. So it seems that Mr Dacre is wrong even about the views of the readers of his own titles in particular and the Great British Public as a whole whose interests he purports to represent. They seem not to share his vehemently self interested views on the rights and wrongs of Eady J's decision in that case at least. The discrepancy then between the liberty the press thinks should granted to it and the views of public is made plain, as it is via the survey which I have commissioned on key press regulation issues
e. Mr Dacre's own Record
i. Let us also not forget that titles edited by Mr Dacre featured at the head of the list of newspapers identified in the Information Commissioner's recent report into the unlawful accessing of private personal data by journalists. Top of the league table was the Daily Mail, where nearly 1000 transactions were identified undertaken by nearly 60 of Mr Dacre's journalists. Fourth in the league table was the Mail on Sunday with 266 illegal transactions by over 30 more of Mr Dacre's journalists. To what extent did Mr Dacre exercise his moral judgment in disciplining or firing those of his own organisation involved in this illegal activity? None appears to have faced any disciplinary action whatsoever.
ii. Mr Dacre's moral values came to the fore when his journalists paid the partner of Brian Paddick (the openly gay former Metropolitan Police Commander) £100,000 to reveal explicit details of their sex lives. At the time Mr Dacre seemed to think that morality required that the partner be asked a series of intrusive and prurient questions concerning his sexual relationship with Mr Paddick. It was only after Mr Paddick sued and was paid substantial damages, that Mr Dacre's title accepted that the information should not have been published. It was of course published contrary not only to the law but contrary to Mr Dacre's own Code. The law was forced to step in because one of the PCC's own commissioners was not prepared to abide by the PCC's own Code.
iii. Mr Dacre's railing at the sums paid to those who act for claimants against newspapers must also be seen in the context of his own remuneration, which is apparently over £1.2 million a year. He clearly feels this is a justified sum for him to receive as a defender of democracy and press freedom. As for those who are charged with the defence of the rights of the individual, I strongly suspect that not one of those whom he accuses of profiting from the CFA regime earns as much as he does, and most earn a fraction of that sum.
i. It is unlikely that Mr Dacre's titles will be publishing the appropriate correction and apology to Eady J in the light of the manifold breaches of the PCC Code that they have committed in reporting Mr Dacre's speech, and the right that Mr Justice Eady enjoys by virtue of Article 8 of the Convention not to have his reputation unfairly damaged. The monumental hypocrisy on the part of Mr Dacre - a leading figure in the PCC for many years - in making these allegations against Eady J in breach of the obligations of the PCC Code over which he presides could not more starkly illustrate how the system of self regulation of newspapers needs radical change.
8. The PCC's Misleading Propaganda
i. The PCC's glossy Review magazine paints a rosy picture of the work of the PCC which is substantially odds with the experience of my clients. However, even its Editor's Code Book (the "Book") cannot be relied on to comply with the accuracy stipulation of its Code. I have been familiar with the Book since its publication in 2005. As a regular user of the PCC, I have had the opportunity to compare the contents of the Book with the actual practices of the PCC. That has led me to conclude that some of the Book is little more than a sophisticated form of propaganda, containing seriously misleading statements about the practices of the PCC. For example on page 24 of the Book the following is said about the meaning of the term due prominence:-
"[The Commission] has always taken the view that due prominence does not mean equal prominence [...]"
ii. In fact, in direct contradiction to what is stated the PCC has not always adopted that position. In fact, precisely the reverse is true. When its Chairman addressed the meaning of this very phrase before the Culture Media and Sport Committee in May 2003, he said something very different. Sir Christopher Meyer said that:
"When they do apologise or a correction has to be published or a negative adjudication comes out, these things should be at least as prominent as the original transgression".
Pressed on this subject, Sir Christopher Meyer repeated his assertion:
"Yes, otherwise it is ridiculous. They should be, as I said, at least as prominent as the original transgression".
iii. Unfortunately, the PCC has repeatedly departed from Sir Christopher Meyer's claims to the Committee. Only a few weeks after these statements were made, I quoted them to the PCC concerning a complaint. The PCC in an angry draft adjudication (which was subsequently softened) clearly objected to my temerity in expecting it to comply with its Chairman's own statements and approved the correction which was approximately 5% of the size of the original article. It then stated that it would take no further action thus leaving my client without a remedy.
iv. More recently, on a complaint which I made on behalf of a mother of three children (one of whom is disabled) over an entirely false allegation that she and her children had thrown their celebrity husband/father out of the house, again I was told by the PCC that a correction of approximately 5% of the original story was adequate. When it was eventually published by the national newspaper, it was hidden on a page which was otherwise taken up almost exclusively with advertising. This was despite the fact, as I had made clear in correspondence, the family was very distressed about the story and keen for it to be corrected with sufficient prominence for the correction to come to the attention of at least the same proportion of readers as the offending article.
v. The Code also records the obligation on the part of editors to respond within 5 days to complaints. Here is the relevant quotation:-
"It is one of the Commission's targets to resolve complaints in 35 days [...] in practice this means replying to the PCC's initial response to the complainant within 7 days and then reacting promptly to any new PCC questions or suggestions of a remedy to the dispute".
vi. I have been dealing with the PCC since its inception in 1991. I recall few occasions when a substantive response from a newspaper has come within 5 days, and I only recall the PCC actually censuring a newspaper once for this failure, albeit in the mildest of terms. On that occasion a series of letters over a period of weeks was simply ignored by the newspaper, which garnered the mildest expression of "regret" at the end of the adjudication. A recent complaint took over 16 weeks to resolve because of consistent failures by a national magazine to deal with correspondence promptly.
vii. The Code also specifically places the onus on editors to prove allegations about which complaints have been made. This is made clear in the following paragraph:-
"The burden of proof, as always in the PCC system falls on the Editors. If they wished to claim the story was true, then they will need to demonstrate that there were no significant inaccuracies or distortions and that it was not misleading."
viii. In fact, the practice of the PCC is in my experience generally the reverse. Unless overwhelming evidence is advanced by the complainant, the Commission will decline to adjudicate the complaint. Even when overwhelming evidence is provided to the PCC it still will decline to provide the complainant with a remedy.
ix. Last year I made an accuracy complaint on behalf of a TV presenter and model. Despite the overwhelming evidence that the claims made by the newspaper were unfounded (four witnesses against one for the newspaper), the PCC declined to adjudicate. By contrast, when legal proceedings were threatened against the newspaper over the same issue, presenting it with an unbiased forum for the adjudication of the identical complaint, the newspaper promptly capitulated and published a correction. This is the clearest possible evidence of the press' clear understanding that it enjoys an overwhelming home advantage at the PCC which it does not enjoy in front of the unbiased judiciary of the Court.
9. Assessing the Effectiveness of the PCC against its own Criteria
i. We can draw little comfort from the structure, personnel and procedure of the PCC. The PCC itself is however adept at producing reports and statistics which appear to prove its effectiveness as a regulator. But does the Commission really provide an effective service to complainants? How is it to be judged in terms of its results?
ii. When measuring the effectiveness of any regulatory or judicial body, it is difficult to fairly review value judgments that it makes as part of its work. Who can say whether a judge or adjudicator is right or wrong about a verdict, any more than difficult issues to do with privacy and accuracy are easy to judge without access to all the information that the adjudicator has to hand.
iii. The difficulty with the PCC procedures is that, rather like those at Guantanamo Bay, no one can attend the adjudication meetings, listen to the debate or read the evidence. Because of the alarming opaqueness in its procedures, the observer is reliant on the summaries of the arguments given in the PCC adjudications which (in my experience) are carefully drafted selectively to support the adjudication that the Commission has arrived at. Those adjudications do not do justice to the contrary arguments and in some cases either omit them altogether or blatantly misrepresent them. So what yardsticks can we use to judge the effectiveness of the PCC in upholding the rights of the public against the intrusions and excesses of the press?
iv. Here is a reality check on the claims made by the PCC to be both "fast", "free" and "fair". My own long experience of dealing with the PCC coupled with the experience of some of my own clients vividly illustrates the reality that the PCC is none of these things.
10. The PCC is Not Fast
i. A recent complaint against the Star illustrates the complete falsity of the claim by the PCC to be fast. The complaint was made on the day of publication of the offending article. Well over 12 weeks elapsed before there was a substantive response to this complaint, in the sense that the paper accepted the article was misleading or offered evidence to support it. If it were true that the PCC was "fast" the newspaper would have been given a short deadline within which to respond and it would have been possible to adjudicate this complaint within a few days.
ii. Such a short deadline would present no problem for the compliant newspaper title. The PCC Code stipulates that care should be taken before publication to keep copy accurate. The Editors' Code Book says that before publication a paper should apply these tests: "Are there reasonable grounds for believing the piece is accurate? Have proper checks been made? Have the likely complainants been given an adequate opportunity to respond?" If these precepts were actually heeded by the press, then all that would be required is the production of the material on which the article was based. That should take 24 hours. In fact they very rarely are.
iii. In the complaint against the Star, as in a number of others in my experience, the newspaper was allowed to delay the process by making bad points which the PCC permitted to cause delay and expense by simply not summarily dismissing them. The situation was that the newspaper had (as it eventually admitted) published an article which contained not an iota of truth. It engaged in extended obvious chicanery to persuade the PCC not to do what any "fair" supervisory entity would do; adjudicate that the newspaper had breached the terms of the PCC Code.
iv. The PCC declined to take effective action and adjudicate the complaint despite the fact that nearly 90 days after the complaint was made the newspaper had still not produced a scintilla of corroborative evidence. This is far from an isolated instance. I made a complaint recently on behalf of a celebrity whose privacy was seriously infringed and a whole series of letters to the paper over a period of weeks were ignored. All that the PCC did was add a sentence to the adjudication saying that the failure to respond to my correspondence was "regrettable".
v. That is the only sanction that has been applied in the 17 years I have been making complaints despite delay on the part of the papers being endemic. Accordingly, the claim in the Editors' Code Book that the PCC "[...] takes a stern view of unnecessary delays in righting [...] incontestable errors [...]" is simply untrue. There is therefore scant justification for the claim that the PCC is "fast".
11. The PCC is Not Free
i. The PCC publishes a Code by which the actions of the press are judged by the Commission in a quasi judicial capacity. It is accompanied by the Editors' Code Book which is over 100 pages long and which attempts to aid in the interpretation of the Code, some of which is not at all easy to construe as the PCC itself concedes. The difficulty in interpreting the Book is evidenced not least by the PCC's apparent inability to do so consistently. It also concedes that its interpretation of its own statute must reflect the movements in the law.
ii. The PCC also operates a system of "stare decisis"; i.e. that there is now a body of "case law" which it looks at in considering its adjudications and has now taken to citing previous decisions accordingly. In these circumstances, it is plainly a quasi judicial process. Complainants for whom these adjudications are very important need to make their complaints via individuals who are familiar with the relevant "law" and procedure in order to have a fair chance of that complaint being successful.
iii. The complainant therefore must have access to expert advice when making a complaint to enjoy equality of arms because at newspapers PCC complaints are dealt with by experts in PCC procedure and media law who have the benefit of decades of experience and training. They deploy procedural points in an attempt to evade the adjudication of complaints. They advance supplementary technical/semantic arguments on behalf of newspapers which I have to address to ensure that my client's complaint is not summarily dismissed (as the vast majority of complaints to the PCC are).
iv. In these circumstances it is wholly unrealistic to characterise the PCC as "free". For litigants, the real cost of legal process is not the nominal court fees, but the cost of engaging professionals to protect their rights. The PCC is no different except, unlike the courts, complainants to the PCC cannot recover those costs. Consequently, where the PCC knows that complainants are professionally represented yet indulges newspapers in requiring me not only to address the points made by the newspaper, but supplemental points made by the PCC, the cost to the complainant is substantially increased - costs which they cannot recover.
v. The PCC thereby also permits papers to deploy precisely the same tactic as they would litigation, namely to grind down the resolve and resources of the complainant by making the journey towards a resolution of the complaint both lengthy and expensive. The claim by the PCC to be "free" is, therefore also seriously misleading.
12. The PCC is Not Fair
i. Even with the benefit of professional representation the PCC is plainly not "fair" for complainants. The practical consequence is that complainants who are fortunate enough to have both an alternative legal route and the means to pursue it must expend substantial costs to reverse obviously biased adjudications of the PCC. This was the experience of one of my clients who was the subject of the most obviously unjust adjudication by the PCC concerning and article in the Mirror and had to spend around £1million in legal fees to reverse it in the courts because the PCC does not permit and independent appeal. For him the PCC was certainly not "free"; it just added to the cost of obtaining justice.
ii. As I have set out above, a TV presenter/model client made a complaint against the Independent where the account in the newspaper suggesting she was a racist was contradicted by 4 witnesses, 3 of which were independent. The paper could offer no corroboration whatsoever for the article. The Editors' Code Book claims that "the burden of proof as always in the PCC system falls on the editors". Despite this claim the PCC declined even to adjudicate the complaint. However, when the paper was then presented with the prospect of an independent adjudication of my client's complaint via the courts, it promptly backed down. Just as the Mirror in the above case, the Independent knew perfectly well that the PCC was a biased organisation which would endorse obviously bad defences, which bias they could not rely on in the High Court.
iii. The fairness and independence of the PCC can, however, be most readily judged by how it uses its one sanction (an apology/correction/adjudication). This is accepted in the otherwise thoroughly disingenuous page of the Review magazine which addresses this issue where the issue of the size of the correction/apology is simply ignored. This is despite the fact that, as the PCC well knows, it is a key issue for complainants.
iv. As I set out in more detail below, the PCC's sole sanction is administered in a way which also could not possibly be characterised as "fair" when infringing articles are permitted by the PCC to be corrected by slithers of text of around 5% the size of the original. In one of those cases my client was the wife of a celebrity and mother of his 3 sons (one of who is disabled), who was complaining about a false story claiming that they had thrown the father out of the family home. The tiny correction was then hidden amongst a page full of adverts - just as the Review magazine claims will not be permitted. Even if there was not already the clearest possible evidence of press bias on the part of the PCC, there is no conceivable justification for newspapers being permitted to publish corrections of such contemptuous brevity.
v. The proof of the PCC's bias/unfairness in this respect is unchallengeable because the only beneficiary of such adjudications is the press since it is in the interests of both the complainant and the general public that corrections are (to quote its chairman) "at least as prominent as the offending article". You have to adopt a meaning for the word "prominence" which is starkly at odds with its plain and dictionary meaning to exclude the issue of size - as the propaganda arm of the PCC does in its magazine. Had the PCC's claim to be a "fair" (or "independent") institution had any justification at all, such blindingly obvious instances of unfairness would not be endorsed by the PCC on a regular basis.
13. The Issue of Prominence
i. Paragraph 1 of the Code is by far the most commonly relied on by complainants to the PCC. It concerns accuracy - perhaps the most important value we need in newspapers if they are legitimately to participate in our constitutional process. Sub paragraph (i) sets out the duty on the press to take care not to publish inaccurate material. Sub paragraph (ii) is the PCC's sole sanction for breaches of sub paragraph (i).
ii. Sub paragraphs (i) and (ii) of the first paragraph of the Code appear to be straightforward in their meaning. They read as follows:-
iii. I will base a further assessment of the PCC's claim to be fair on its own stipulation that corrections should be published with due prominence. A common sense interpretation of those words would be for there to be some equivalence of prominence between the offending article and the correction - not least for the purely practical reason that the more prominent the offending article the more people will read it. So it must be with the correction. Plainly it would be a mockery of the term due prominence (or at least you might think so) if the dimensions of corrections were permitted to be a tiny fraction of the offending article in which the appropriate prominence for the news item has already been determined.
iv. This is where the rubber really hits the road, not least because it is the PCC's sole sanction, it having eschewed any form of financial sanction, including the awarding of professional costs to complainants who have opted for equality of arms with the paper. If the PCC cannot be seen to be fair in the imposition of its sole modest sanction against its creators and funders, then we are entitled to be profoundly suspicious about both its effectiveness and independence generally.
v. The issue of prominence is therefore the acid test of the PCC's independence from its Fleet Street paymasters, and as such it is enlightening to examine the vested interests which provide the context of the PCC's deliberations on this subject. If an article is inaccurate there are three interest groups who are concerned in determining how visibly redress is given. For two of those three, the greater prominence given to the correction or adjudication the better. For only one of those groups is it preferable for the prominence given to corrections and adjudications to be as minimal as possible. If that minority interest group takes precedence then the PCC's cover is comprehensively blown.
vi. For the first of those groups, the complainant(s), their family, friends etc, the more people who read the correction the better. One aspect not (so far as I know) addressed by the PCC but well understood by the law courts, is the fact that a story of any note published by a newspaper will be picked up and repeated by other elements of the media - other newspapers, radio, television, news websites etc. This is particularly so of front page articles. The same cannot be said of retractions. The original story will also of course be repeated by the newspapers' readers during the normal process of social intercourse. So an equivalent degree of prominence is an absolute bare minimum for the complainant to be justly served because even then there will be many poisoned by the original false story who receive no antidote.
vii. So it is with the readership of the paper and the public generally (i.e. those that glean the false information via other media - especially where front page stories are concerned). This is my second group. The more of them that learn the truth the better. They have rights too. The receipt of information is one of the Article 10 rights. One such right is not to remain misinformed by the newspaper to which they have paid money to learn the truth of what is going on in the world. For both the readership and the complainant, a correction of at least equivalent prominence is essential to ensure, so far as possible, that the same number at least see the correction as did the offending article.
viii. It is only the newspaper (my third group) onto whose interests such a principle would impinge. If their readers are fully informed as to the lack of accuracy for which they are paying, then the newspaper might suffer a financial consequence for not taking sufficient care to get their facts right before publication. This is also the very space that the press sells for profit in the form of advertising which would be lost if used for corrections. The managing editor of a leading tabloid effectively admitted as much in a letter concerning a complaint I conducted recently.
ix. So here is the acid test as to the PCC's ability to be a true guardian of the rights of complainants and the general public, and its commitment to be "fair". If it flunks the administration of its sole sanction (which is all it has in its armoury to protect the complainant) then the PCC is undoubtedly failing those who have legitimate grievances against the press. If it does so in favour of the very industry it is supposed to be regulating then the case against for bias is proven.
x. The Shorter Oxford Dictionary defines "prominence" as "standing out so as to strike the attention; conspicuous". "Due" is defined as "fitting, proper". Any practitioner who debates the issue of "due prominence" with lawyers from the newspaper industry will know that their interpretation of that phrase is a correction of a fraction of the dimensions of the offending article (or part of the offending article which is inaccurate). However, common sense dictates that since there are authoritative surveys about how many people see the offending publication depending on its size, place in the newspaper etc, then there must be a cogent rationale for departing from that principle when it comes to the press' obligation to correct inaccuracies under the PCC Code.
xi. The calculation of prominence is well understood by the newspaper industry because it is its stock in trade; newspapers sell prominence in the form of advertising. The amount of prominence you buy is set out as a mathematical computation measuring column inches against the amount paid. This computation is set out for the prospective purchasers of prominence in the print press in the form of a rate card. When you buy prominence from a newspaper it is carefully calculated to measure the amount of people who will be influenced by it, which (as both the newspaper and the advertising world knows) depends both on how early in the newspaper the space purchased appears, and how much of it is bought.
xii. It is with this knowledge that the newspaper industry has always resisted giving anywhere near "due prominence" to corrections and apologies in its pages as stipulated by paragraph 1(ii) of the PCC Code. The two most likely reasons for this resistance are commercial judgment and journalistic vanity. The former because any sustainable interpretation of the term "due prominence" would result in a newspaper ceding valuable advertising space to comply with its responsibilities under the Code. The latter would require an admission of error.
xiii. One aim of this article is to achieve common sense interpretations of the plain words of paragraph one of the PCC Code, and thereby make the paragraph effective. At present, the insistence of the press on publishing corrections/apologies which are derisory in size compared to the original undermines the whole purpose of the sanction. As the opinion survey I have commissioned shows, the public is in no doubt that the prominence accorded to corrections should be at least as great as the original. The majority actually thought it should be greater.
xiv. The following section sets out to analyse how prominence applies to advertising space sold by the press in its publications, followed by an application of the variables that determine effectiveness of advertising space to corrections/apologies.
14. When it comes to Prominence, Size Matters.
i. Although it is generally accepted that "there is a 'common sense' belief that a press ad which has colour, larger size, is positioned on the 'best' page, etc, must have an advantage", when it comes to objective confirmation of just how much added value these features provide, very little seems to be actually documented. In assessing the likelihood of an advertisement being seen and noted by a reader, studies have considered elements ranging from whether it is on a right hand page versus a left hand page; in colour or black and white; in a large size or a small size; at the front versus the back of a publication; and so on.
ii. The overwhelming consensus seems to be that the bigger the advertisement, the greater the impact. Two reports in particular establish this; that of the Billetts Consultancy in 2001 and Medialogue in 2005. Research conducted on the Guardian's change in format from a broadsheet to a 'Berliner' and its effect on advertising revenue also concluded that "the driving factor for ad effectiveness is page dominance".
iii. The classic work in this field, Project Cosine, a study by JWT on newspaper advertising effectiveness confirmed that "measured by column centimetres (ccm), the level of ad noting increases with size." A copy of this work is attached at Appendix 7.
iv. Project Cosine also found that there are significant gains from being in the front third part of the paper: "For both the broadsheets and tabloids, the pure scores for 'position in paper" are clear - front third positions outperform the back third, in broadsheets threefold and in tabloids more than double." Gallup & Robinson's Magazine Impact Research Service is reported to have come to a similar conclusion: "advertising appearing in the first third of a magazine tends to be as much as 45% better at generating recall then ads in the last third."
v. It is therefore clear that the size and positioning of an advertisement within a publication will impact on its effectiveness. Once colour and pictures are added into the equation (a study conducted by the Chisholm Business on behalf of the Newspaper Society found, inter alia, that the most commonly looked at part of an advertisement is the main picture and that colour can greatly improve its effectiveness) the prominence of the majority of apologies published is a farce. How a black and white textual correction, 5% of the size of the offending article in the latter pages of the publication can be considered as prominent where defamatory article featured on the front cover, in colour, with images and headlines, simply beggars belief; not only does it not accord with 'common sense' but is also contrary to the same principles (established through objective research) that publications apply to their own advantage when selling advertising space.
vi. The extent of this imbalance is even more apparent when applying the factors in Project Cosine relating to the physical dimensions and placement of an advertisement to readership figures. Referring to the Modelled Performance of Tabloid Newspaper Ads (Mono only) and then approximating figures, an advertisement 228ccm in size would have an ad noting of about 15%. In the case of the Sun, with a readership of three million, some 450,000 readers will have noted that advertisement. Say a further advertisement, 5% of the size of the original (i.e. about 11ccm in size) is then published, less than 3% of readers will have noted it; some 90,000 readers. Then taking into account that according to that survey "front third positions outperform the back third [...] in tabloids more than double", the number of readers that noted the second advertisement may be halved, resulting in 45,000 readers; 10% of the number of readers that noted the first advertisement, or 1 in 10 readers. This figure does not even take into account further reductions in ad noting where the original advertisement is in colour but the second is in mono (see Colour vs Mono - Modelled Performance of all Ads). Although these figures are clearly approximations, to state that the first advertisement is of "equal" or even "due prominence" with the second is an abuse of the English language. I believe that this is also applicable to corrections/apologies.
15. So what is the Common Sense Solution?
i. The common sense solution was set out most clearly to me recently by a London cabby (see below); the prominence of a correction should be equivalent to the material it corrects. As I also set out below, this is overwhelmingly the view of the general public.
ii. This is hardly surprising as it is mere common sense. It also applies the same principles as advertising to the issue of prominence, since it is prominence that you buy in advertising in mathematically calculated quantities. If different criteria are applied then we are according commercial issues (and the interests of the big business) greater weight than issues of truth and accuracy (and the interests of the general public).
iii. The other reason why this is plainly the common sense approach is that the newspaper has already at the point of publication determined how important the story is, and therefore where it should be published according to the various grades of prominence for news copy. The amount of column inches, where those inches are located and whether the story will be supported by a picture is a carefully judged editorial decision. It is one however from which newspapers unhesitatingly resile from when it comes to correcting a mistake in the article. The fact that the PCC permits such complete volte faces when it comes to the publication of corrections speaks volumes about its true agenda.
iv. The Parliamentary Assembly of the Council of Europe has taken the same common sense view on the issue of prominence (see Appendix 8 at paragraph 14(iii)). It made the following statement concerning the obligations of the press to correct its own mistakes:
"When editors have published information that proves to be false, they should be required to publish equally prominent corrections at the request of those concerned".
v. Even those who are not great fans of the European influence would be hard put to challenge this proposition as it also reflects the views of the general public (as evidenced by our opinion survey). So where does the PCC stand on the issue of prominence? As I will now illustrate, it has said one thing to Parliament via its Chairman, but has acted in an entirely contrary manner.
16. What has the PCC said on the issue of prominence?
i. The approach of the Parliamentary Assembly of the Council of Europe on the issue of prominence was apparently the one unequivocally adopted by Sir Christopher Meyer in his answers to his House of Commons, Culture, Media and Sport Committee in May 2003.
ii. Sir Christopher was one of the witnesses giving evidence to assist the Committee in deciding whether to recommend greater degrees of regulation of the press. The context of Sir Christopher's words on the subject of prominence was an attempt by the PCC to resist any statutory encroachment upon the present system of self regulation. Sir Christopher made the following explicit and lucid observations on the subject, as recorded in Hansard:
"When they [the newspapers] do apologise or a correction has to be published or a negative adjudication comes out, these things should be at least as prominent as the original transgression".
Pressed on this subject, Sir Christopher Meyer later repeated his assertion:
"Yes, otherwise it is ridiculous. They should be, as I said, at least as prominent as the original transgression".
On the issue of front page "transgressions" he had the following to say:
"What I am saying is this. If we go to formal adjudication, you come out with a formal adjudication, and had there been some hideous transgression on the front page, then I would expect the adjudication to be published, or at least start on the front page, depending on how long the adjudication was going to be. I think that would be entirely reasonable."
iii. As a practitioner who regularly conducts PCC complaints for clients my interpretation of Sir Christopher's words to Parliament on this issue was in line with the plain meaning of the words he used; that apologies and corrections should be "at least as prominent as the original transgression" (see Q986 at page 12 of Appendix 9) - and that meant both their size and position. My guess is that Gerald Kaufman and his committee will have come to the same conclusion. In fairness to Sir Christopher, I should record that not only does he vehemently reject this interpretation, but he has also made express criticism of those who (like me) have sought to place any such interpretation on those words. When I read them in Hansard however, they seemed clear enough to me and formed the basis of my advice to clients on the issue, since they appeared to me to be both authoritative and clear in their meaning. The full text of Sir Christopher's evidence is at Appendix 9.
iv. Sir Christopher's observations concerning a "transgression" that appears on the front page were also significant. Front page stories create unique problems for the complainant for a number of reasons. Firstly, millions of non purchasers of the newspaper will see at least the headline of the article in news stands, paper shops, libraries, being read by their fellow passengers on the train etc. Millions more will see the front pages held up on late evening news programmes on the evening before they hit the news stands, and the various breakfast news programmes on the following morning. Front page newspaper headlines are reported on the radio, news websites and news digest magazines.
v. In these circumstances, the only way there can be any proportionality or fairness in the correction (for there to be any prospect of an equivalent number of people taking it in) is for it to be placed in the same position as the original article. So when Sir Christopher talked about the need for a front page adjudication (or at least one that begins on the front page), this seemed to me to be no more than a common sense acceptance of what was required in those circumstances.
vi. My new found optimism about the PCC's approach to these issues was however to be dashed shortly after the Hansard account of Sir Christopher's assertions on the subject of prominence was published upon my asking the PCC to adjudicate on the issue of prominence in the context of its chairman's remarks. As I set out below, the assurances that he gave to Committee on front page articles are being contradicted by the PCC even as this paper is written.
17. Has the PCC acted consistently with these statements?
i. The correct interpretation of the term "due prominence" arose as an issue for a complainant only a matter of weeks after Sir Christopher Meyer had made his observations on behalf of the PCC to the Parliamentary Committee. The complaint was made to the PCC after the newspaper had (after some weeks of resistance) eventually conceded that there was no truth in the article at issue.
ii. As the Editors' Code Book tells us, and as always happens in practice, it is the editor of the offending newspaper who decides what prominence will be given to a retraction/apology. Since the editor also determines the wording and thereby the length of the apology/retraction, the complainant is entirely at the mercy of the person who has wronged them in the first place in order to set the record straight. This results in the slightly alarming situation of the miscreant stipulating the severity his own sanction.
iii. In this case, in line with the usual practice of the press in these circumstances, the newspaper offered the complainant a correction which was 6% of the size of the original article (which it had conceded was 100% incorrect). Taking Sir Christopher Meyer at his word, and relying on the Editors' Code Book statement that the PCC can rule on such an issue, I cited his observations to the Culture, Media and Sport Committee in resisting adjudication by the PCC that the tiny correction offered would comply with the PCC Code stipulations.
iv. It therefore came as a considerable surprise to me (and my client) to be told via the PCC's adjudication that "due prominence" in this case did indeed mean a correction which was a mere 6% of the original article's size. Furthermore, it was clear from the rather acid terms of the adjudication that the Commission did not take kindly to being asked to act in a way consistent with Sir Christopher's representations to Parliament.
v. A few weeks later, an article which was six pages long starting on the entire front page was adjudged by the PCC to be corrected with "due prominence" by means of a few column inches on page two of the relevant newspaper. Neither complainant thought this a common sense interpretation of the term "due prominence". Neither adjudication was consistent with what the PCC had said to Parliament via its chairman only a few weeks previously. The proposition that after publishing a completely incorrect advertisement on behalf of an advertiser, and a newspaper would then offer to correct the original mistake with a subsequent advertisement which was substantially less than 10% of the original size is of course ludicrous.
vi. As the newspaper industry knows, prominence is something which can readily be measured and sold. So far as both complainants and the general public are concerned, it appears they are presently being sold short by the PCC on the issue of "due prominence". At Appendix 10 I attach 2 examples of corrections/apologies where I have challenged the PCC over the issue of prominence, and the PCC has specifically approved corrections which are less than 10% of the size of the offending article. This makes a mockery of the term "due prominence", and is incontrovertible evidence of press bias on the part of the PCC.
18. Prominence - Case Study One; The News of the World publishes an Article alleging Sex between Paul Burrell and Princess Diana
i. This was an allegation that was so sensational it unsurprisingly took up the entirety of the front page of the 15 June 2008 edition of the News of the World along with the whole of pages 4, 5 and virtually all of pages 6 and 7. Those pages only concerned the allegation that Paul Burrell had sex (including sex of the kinky variety) with Princess Diana in various places including the bath. But was (as always) a cocktail of other stories, some new, some rehashed. However, the News of the World chose to claim on its front page that the "FULL SHOCKING STORY [could be found on] PAGES 4, 5, 6 & 7."
ii. The adjudication from the PCC set out its conclusion that "there was a strong likelihood that the omission of any denial from Mr Burrell may have misled readers into believing that he accepted [the] allegations. Given the startling nature of the claims, and the narrow basis for them, the newspaper should have contacted the complainant and published his position on the matter. Readers could then have made their own assessment as to the value of his comments in the context of the piece and the light of his reputation."
iii. However, in the News of the World of 30 November 2008 only about a third of page 28 was taken up with the PCC adjudication on the allegations carried by the paper that Paul Burrell had had sex with Princess Diana. There was not even any mention of it on the front page. This means that millions of people who saw the headline either passing a newspaper stand, buying another newspaper in their newsagent, on breakfast television etc would have been none the wiser that Mr Burrell had even complained to the PCC, let alone that there had been an adjudication in his favour by its appearance around a third of the way into the newspaper.
iv. This adjudication came more than 20 pages behind the last of the 5 pages that carried the original story, and took up approximately 6% of the column inches of the original article. If the PCC's own glossy publicity is to be believed, this should not happen. In its Review magazine of 2007 it boasts proudly; "Looking only at apologies of newspapers, not one appeared more than five pages further back than the original [...]". It also boasted that the Daily Express had been taken to task for running an apology 28 pages back from the original article; which by a remarkable co-incidence is almost exactly the distance between the first page of original article and the PCC adjudication in this case.
19. Prominence - Case Study Two; Peaches Geldof - The Daily Star
i. On 29 September 2008 the Daily Star published two articles concerning Peaches Geldof (Appendix 11). One was on the front page and one was on page 5. The page 5 article was inaccurate and offensive. However, Ms Geldof's principle concern was the front page article, and in particular the headline, which read as follows:-
"PEACHES: SPEND THE NIGHT WITH ME FOR £5K"
The rest of the front page article was in similar terms:
"GLAMOUR girl Peaches Geldof is bagging thousands of pounds a night from people desperate for her company, we can reveal.
Peaches and her girlie pals rake in the mega-bucks fees for providing their services at A-list parties.
A source said: "It's a nice little earner for something that is fun".
ii. This article was published by the newspaper knowing full well that it was entirely untrue. Shortly after publication of the article, on 29 September 2008 Ms Geldof sent a letter to the Editor of the Daily Star and complained to the PCC about the articles. It eventually conceded this and agreed to an apology in the following terms;
"In our edition of 29 September we ran an article on our front page and page 5 about Peaches Geldof. The front page article carried the headline "PEACHES: SPEND NIGHT WITH ME FOR £5K". The article went on to state that "Peaches and her girlie pals rake in the mega bucks for providing their services at A-list parties". We now accept that Peaches does not charge a fee to attend parties or events like London Fashion Week as was claimed in the article. We also apologise to Peaches for the implication in the headline that she provided services of a personal or sexual nature for the payment of a fee."
iii. The newspaper would however not concede that the apology should appear on the front page. The justification for the paper for not publishing the apology on the front page was set out in a letter from Nicole Patterson dated 15 October 2008, where she advanced the following arguments:
" This apology will not appear on the front page of the Daily Star. The subject matter of the apology and of the complaint is not proportionate with a front page apology. The headline on page one was a taster for the article as a whole, which appeared on page 5. I have stated that the headline did not support the copy on page 5 but that was where the bulk of the story was. Ms Geldof complains of the article as a whole including pictures on page 5 therefore, the proportionate response is an apology on page 2."
iv. I sent an email to Stephen Abell (Deputy Director of the PCC) on 9 December 2008 setting out the key issues so far as my client was concerned:-
The commission should bear in mind that our client is a teenage girl. Furthermore she has already suffered severe personal trauma by the loss via heroin overdose of her mother when she was a child. This extremely offensive headline and accompanying article suggesting she is in some way engaged in prostitution has caused her very considerable stress and embarrassment.
The Article bears the following banner headline:-
"PEACHES: SPEND NIGHT WITH ME FOR £5K"
The Article features a picture of our client and comprises of the following text:
"GLAMOUR girl Peaches Geldof is bagging thousands of pounds a night from people desperate for her company, we can reveal.
Peaches and her girlie pals rake in the mega-bucks fees for providing their services at A-list parties.
A source said: "It's a nice little earner for something that is fun".
There is absolutely no doubt that the words used by the paper were carefully chosen to allege that my client was offering some form of sexual services for money, as a number of Google searches of those words clearly show. The article specifically uses the word 'night', rather than 'evening' to describe what can be bought from our client for £5,000, and as I set out below the words of the article will undoubtedly be associated by readers with the sex trade.
Google Searches of some of the words on the front page of the Daily Star article.
On searching for "girl £5000 night", the majority of the websites that appeared as a result of the Google enquiry were in reference to sex or sexual services, for example this article http://findarticles.com/p/articles/mi_qn4161/is_/ai_n14457141 about call-girls.
A search for "glamour girl" returned results that included the website of "Montreal's best elite escort service" (http://www.glamourgirlmontreal.com/)
A search for "thousands of pounds a night for her company" returned a number of results related to the sex industry, for example this article http://www.dailymail.co.uk/tvshowbiz/article-390174/Heather-high-class-hooker-paid-thousands.html which exposes Heather Mills as a prostitute
A search for "spend night with me" also returned some results which were explicitly advertising or requesting sexual favours, for instance this classified advertisement http://classifieds.justlanded.com/en/Netherlands_North-Holland_Amsterdam/Personals_Erotic-encounters/Which-Lady-want-to-spend-a-horny-night-with-me
The Key Issue of the Millions of Non-Purchasers of the Paper
It is unarguable that millions of individuals (more than actually purchased the paper by a substantial margin) will have read only the front page headline along with my client's picture. These will include (but are not exclusively) viewers of breakfast television programmes where headlines of the national newspapers are shown to camera, people passing newspaper stands at railway stations, underground stations, airports, petrol stations etc; people visiting newsagents to buy their own papers, people reading front pages from fellow passengers on tubes, trains, buses etc.
For most of those millions, the only words will have read were as follows; "PEACHES: SPEND NIGHT WITH ME FOR £5K". None of these are going to get the benefit of an antidote, even if it is in smaller letters on the same page, and therefore nor will my client, unless it is placed on the front page in a way which will enable it to be read from the same distance as a front page headline with letters 3.5 cm high accompanied by a photograph of my client.
As I set out above, both this headline and the accompanying front page text use terminology clearly redolent of sexual services, and the 'antidote' (if it is one) does not come till page 5, and will have been seen by no non-purchasers of the paper, who must outnumber purchasers by a hundred to one.
The Significance of this Story Appearing on the Front Page
One of the key issues in this complaint is the very fact that these words were published on the front page, the story took up the whole of the front page (apart from a topless picture of a glamour model in a thong), and was claimed to be an "exclusive".
A report that merely informs readers that my client charges an appearance fee for fashion shows and parties would certainly not qualify as an 'exclusive', or take up most of the front page of a national newspaper. In the mind of anyone seeing this front page for the story to be sufficiently sensational to warrant such prominent status it must concern something far more significant than the mere commercial basis on which our client attends celebrity events.
However, it is the very fact that those words have been placed on the front page which is even more significant in communicating some sort of highly scandalous sexual activity on the part of our client - if it were not so why would it warrant a front page exclusive. The reader is therefore left in no doubt of just how sensational the news must be allied with clearest implication in the actual words used by the newspaper that our client is exchanging some form of sexual favour for £5,000.
The Star has accepted the Principle that Front Page Stories warrant Front Page Apologies
The Star has in the past acknowledged the appropriateness of front page apologies being corrected on the front page. I have already sent copies of the front page of the Daily Star dated 16 February 2001 which made an allegation against Gerri Halliwell (for whom I acted) that she was having an affair and the subsequent front page apology which confirmed that she was not having an affair. I see no good reason why this laudable precedent should be departed from in this case.
The PCC has accepted the Principle that Front Page Stories warrant Front Page Apologies
I also remind you of the words of the Chairman of the PCC when asked about how front page stories should be corrected. Giving evidence in front of the Media Culture and Sport Committee of Parliament Sir Christopher Meyer said that:
"When they do apologise or a correction has to be published or a negative adjudication comes out, these things should be at least as prominent as the original transgression".
Pressed on this subject, Sir Christopher Meyer repeated his assertion:
"Yes, otherwise it is ridiculous. They should be, as I said, at least as prominent as the original transgression".
On the issue of front page "transgressions" he said:
"What I am saying is this. If we go to formal adjudication, you come out with a formal adjudication, and had there been some hideous transgression on the front page, then I would expect the adjudication to be published, or at least start on the front page, depending on how long the adjudication was going to be. I think that would be entirely reasonable."
The Seriousness of the Breach
Finally, on the issue of proportionality, I remind you that before publication the Star had been told unequivocally that the story even that my client was paid to attend Celebrity parties was untrue (i.e. £5,000 for her attendance at an evening function) - a point which it has never been denied by the paper. The suggestion that my client has been making herself available for a night at a rate of £5,000 (i.e. exchanging her sexual favours for money) is also one that the paper very well knew was untrue at the time of publication. There is therefore a substantial additional degree of fault on its part, and that should be taken into account on the issue of whether it should publish an apology and correction to our client on its front page.
v. The Commission was therefore asked to consider the correspondence passing between the Complainant and Mr Abell. We were eventually sent a decision which is at Appendix 12. The Commission maintains that the front page article does "not carry a specifically inaccurate claim" (when in fact it carries four), and that their front page does not carry the implication that Ms Gedof is exchanging sexual/personal favours for money. The correction apology was published on page 2 where only a minute fraction of those who saw the original allegations will actually see it. Whereas the combined area of 2 inaccurate articles was 1149 cm² the correction covered an area of 30cm². This represented approximately 2.6% of the area of the original articles. It will also have been seen (at most) by the purchasers of the paper only, but not seen by the millions of non purchasers of the paper who saw the original article.
20. The Benefits of Corrections/Apologies being of Equivalent Prominence
i. The effect on a newspaper of the prospect of a genuine sanction for breaches of the PCC Code is dramatic. The threat to a newspaper of a legal action where their actions are not judged by a tribunal of its own making can have a remarkable impact on its desire to correct inaccuracies in its news pages. I took on a front page story of a tabloid newspaper on behalf of a celebrity client that was not only inaccurate, but also defamatory. Faced with a libel action the newspaper in question suddenly decided that on this occasion the appropriate place to correct an inaccurate front page story was with equivalent prominence (i.e. on the whole of the front page) and that "promptly" meant the following day. The value of this to the newspaper was commercial - it 'mitigated' the damage (i.e. the monetary cost of the original libel). This is a stark contrast to the attitude taken by newspapers where there is only the prospect of a mere (cost free) PCC complaint under the current regime.
ii. Not only would the complainant benefit, but if newspapers are truly held to account for inaccuracies and intrusions into privacy by adjudications which everyone can see, then such activity will be substantially reduced. The reason for that is because when corrections, apologies, and adjudications are published with sufficient prominence, then not only will the complainant have obtained a proper remedy, but equally importantly, the readers will know when newspapers have breached their own Code of Practice. Readers can then make judgments as to what newspapers they purchase on an informed basis. This will in turn mean that there will be a commercial incentive on the press to comply with the Code.
iii. The sad reality is that until that becomes the case, the press will take the same view as Rupert Murdoch when he famously (admittedly some years ago) could not even remember the name of the PCC. While the press itself does not take the PCC seriously we cannot be safe in the PCC's hands. But this all could be changed (in my view) by the stroke of a pen. If the word 'due' was replaced in the phrase 'due prominence' with the word 'equivalent', then the scope of the PCC to fail its constituents would be substantially reduced.
iv. Better still would be the replacement of the words "due prominence" in the PCC Code with the very words used by Sir Christopher in his evidence to the Parliamentary Committee; namely that corrections and adjudications should be "at least as prominent as the original transgression". We would then see a press far more motivated to get things right in the first place, and therefore adopt far higher standards as a result. I believe it would also meet the expectation of the man in the street.
v. Alas, while the Code Committee is made up entirely of newspaper delegates there is no prospect whatsoever of that happening. However, as I set out below, 96% of the public think that is what it should say.
21. The Perception of the Man in the Street
i. Recently I got into a taxi and had this remarkable conversation with the cabby. When he learnt that I was a media lawyer, the first thing he said (wholly unprompted) was how outrageous he thought it was that he would read a story that covered say a whole page, and the correction was only the small fraction of the size. He then went on to say that he thought the newspapers should be required to publish an apology/retraction which was at least the size of the offending article.
ii. When I told him that the PCC was created by the press, funded by the press, appointed by the press, the Code was written by the press, and that seven of the seventeen Commissioners were Editors, he was completely astonished. He thought (and he was confident that all his friends thought likewise) that the PCC was some kind of government organisation and exercised a genuine regulatory role. He then said that it was absurd for the press to regulate itself, since it was plainly no real form of regulation.
iii. This is almost literally the "Man on the Clapham Omnibus", and it was a truly remarkable confirmation that the general public expect the body that regulates the press to be truly independent, and finds the PCC's failure to ensure that corrections enjoy the same prominence as the offending article as a clear regulatory failure. It therefore indicates that there may be public support for any campaign to improve the quality of press regulation.
iv. One of the striking contrasts in the reaction to the decision of Eady J in Mosley is the outrage bawled out of the pages of the press (and the tabloid press in particular), as contrasted with the overwhelming majority (around 90%) of those who commented on newspaper blog sites on the outcome. Virtually all of the comment from the general public was in favour of the Mosley decision and in stark contrast to the self interested views expressed by most editors and journalists.
v. As usual, Roy Greenslade was the journalistic voice of reason, and warned that the methodology of the News of the World was actually a danger to press freedom. Anyone who actually reads the judgment of Eady J will recognise how right he is. For a review of his judgment and the reaction of the public see my article Where is the law of privacy after Mosley? at Appendix 13. Plainly then the public is in favour of some reasonable restraints being applied to press freedom.
vi. Nobody would doubt that if the public's view were sought in a survey, then the clear majority would say that front page stories should be corrected on the front page, that the size of corrections should be at least the equivalent of the original, that the PCC should allow complainants to attend adjudications, that there should be a right to appeal against its decisions etc. If we have had to tolerate a wholly different form of self regulation for around 19 years under the PCC where in all these issues the press interest has taken precedence what does that tell us about its claim to be independent?
vii. Has the PCC ever invested in a survey to establish what the public really wants in a regulator - rather than just attending to the preferences of the large corporate entities that fund it and own the papers that it is tasked to regulate. Of course not! If it had it knows perfectly well that the answers would not be to the liking of its sponsors. So my firm has funded a survey that does answer those questions. The results are startling in their contrast to the form of regulation operated by the PCC. .
22. A Survey of Public Opinion of the Policies and Practices of the PCC
i. There are a number of respects in which the policies and practices of the PCC appear designed to fulfil the objective for the PCC identified by Professor Robert Pinker (i.e. to protect press freedoms) rather than serve the interests of the general public, whose rights/interests are being infringed by the press. I have identified a number of these above, and in order to prove beyond doubt that the PCC is primarily committed to preserving press freedoms at the expense of the interests of those who have reason to complain against it, I drafted a set of survey questions. I set them out below in full, along with the percentages of the general public who selected from the options which the survey offered them.
ii. The preface to the survey was as follows:-
"BACKGROUND; The PCC (Press Complaints Commission) is a self regulatory body which deals with complaints from members of the public about the editorial content of newspapers and magazines. The PCC's sole sanction is to oblige newspapers and magazines to publish agreed corrections or PCC adjudications."
iii. The survey was a modest one, and intended principally to provoke a more comprehensive consultation process with the general public in order to establish what it wants in a regulatory body - something which I do not understand that the PCC has ever undertaken. It was undertaken by the Spot On Group and taken from 100 individuals - 50 male and 50 female - which I understand is the minimum number necessary to obtain a statistically significant result. Here then are the questions and percentage figures for the answers which the survey generated:-
1. Should the size and position of corrections/adjudications published by newspapers be:
a. Less prominent than the original; 4%
b. Equal prominence to the original; 40%
c. More prominent than the original. 56%
2. Should inaccuracies on the front page be corrected:
a. On the front page; 66%
b. On an inside page. 34%
3. Should journalists be permitted to speak to children under 16:
a. Only on issues involving their own or another child's welfare with parental consent; 31%
b. Only with their parents' consent; 67%
c. Not at all. 2%
4. Should the Committee that writes the PCC Code of Practice be comprised of:
a. Only representatives from the press; 6%
b. Representatives from the press and the general public; 69%
c. Representatives from the press and representatives for complainants; 24%
5. Should meetings of the Commission to adjudicate complaints be recorded by:
a. A transcript; 3%
b. A minute prepared by the PCC; 1%
c. Both. 96%
6. Should a complainant (or his/her representative) be allowed to attend the meeting of the Commissioners which adjudicate their complaint?
a. Yes 99%
b. No 1%
7. Should there be an independent appeal from PCC adjudications?
a. Yes 99%
b. No 1%
8. Should the PCC be able to impose financial sanctions?
a. No; 0%
b. Yes - a fine for the newspaper; 4%
c. Yes - compensation for a successful complainant; 2%
d. Yes - awarding professional costs to the complainant 5%
e. A combination of these financial sanctions. 89%
9. Should the Commission be comprised of:
a. A combination of press representatives and non-press members; 55%
b. Press representatives and representatives for complainants; 41%
c. Non-press members only. 4%
iv. On the issue of prominence (question 1) only 4% agreed with the PCC's policy that corrections/apologies should have less prominence than the original. Well over 90% thought that they should be at least as prominent as the original, and a striking 56% thought that they should be more prominent than the original.
v. As to question 2, two thirds of those questioned thought that front page infractions should be remedied by front page apologies. This is again in stark contrast to the practice of the PCC - notwithstanding the protestations of Sir Christopher Meyer when he attended before the Committee in 2003 to give evidence. The practice of the PCC is very different.
vi. As to question 3, the PCC Code answers with proposition A. Only 31% of the population agree. 69% consider that children should enjoy more protection than the PCC Code provides.
vii. As to question 4, the PCC considers that representatives of the press should write the Code. Only 6% of the public agree with that. The other 94% think there should be some independent representation on that Committee.
viii. As to question 5, PCC adjudications are only reported by a minute prepared by the PCC. 99% of the population disagree with that policy, and require both a minute and transcript of the meetings.
ix. As to question 6, complainants are not allowed to attend adjudications. Only 1% of the public agree with this and 99% think a complainant should be allowed to attend.
x. As to question 7, the PCC refuses to permit an independent appeal from its adjudications. 99% of the general public disagree with them.
xi. As to question 8, the PCC refuses to impose financial sanctions. 100% of the population disagree with that policy.
xii. The only respect in which the PCC is supported is that the Commission should be a mixture of press and non press members (question 8).
23. Should Parliament legislate in this area at all?
i. The press resents and will fight vigorously any effective form of regulation, complaining always that the right to free speech is a fundamental aspect of our democracy that must remain sacrosanct. However the output broadcasters are subject to a much more robust statutory regulation in the form of Ofcom which has the power to impose hefty fines. There is no good reason why there should be any different regime for the output of the press.
ii. At one end of the regulatory scale there are the Police who protect us from criminal activity and at the other entities like the Advertising Standards Authority who seek to ensure that members of the public are not misled by powerful corporate advertisers. Like advertisers, newspapers enjoy the freedom of expression guaranteed by Article 10 (1) of the Convention:
"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises."
iii. However, as the Convention makes it clear via Article 10 (2), this freedom is qualified, and with it comes certain responsibilities:
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
iv. Nobody doubts that advertisers should not be permitted to abuse their right to free expression by being permitted to mislead potential purchasers of their products with impunity. However, the consequences of inaccurate advertising are generally less severe and wide ranging than when the press misleads us. Plainly a properly enforced obligation on the part of the press to take care over the accuracy of its reporting (recognised also in the PCC and National Union of Journalists' Codes) is also one that is necessary for a democratic society.
v. The Convention also includes a right to personal privacy and integrity in the form of Article 8:
(1) "Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
vi. It has been established by a number of ECHR judgments that the right enshrined in Article 8 of the Convention also includes the right to a reputation. It is also said to be a right to personal integrity. It is beyond reasonable argument that it must include the right not to have inaccurate information about you put into the public domain.
vii. Parliament should take all necessary steps to ensure that the Article 10 right to disseminate information is not abused by false information being published by the press. To this end, subsection 1 of Article 10 of the Convention specifically includes a right to receive information. In order to preserve that right there must therefore be a means of correcting misinformation when it is disseminated by the press.
viii. The press must be subject to an adequate degree of regulation in order to discourage it from making factual claims about individuals (or organisations and corporations) which are inaccurate. Also, the rights granted to individuals under Article 8 of the Convention must have an effective means of being enforced, and the government has an obligation to ensure that that means exists.
ix. The courts cannot adequately fulfil this role. Apart from the expense and delay which is inevitable in a fully fledged legal process, in any legal action against the media the massive financial imbalance between the Claimant and the media entity which is being challenged not only disincentivises potential legal claimants but also is a very telling feature in who wins any litigation. Associated Newspapers for example turns over well in excess of £2 billion per year. But even that is dwarfed by the financial power of News Group Newspapers.
x. Just as the creation of employment tribunals followed recognition that the significant imbalance between the financial and logistical resources of the employee and the employer needed a bespoke forum to allow work grievances to be dealt with, so such a forum should be created by the Government for those who have a legitimate grievance against a media corporation over something that it has published about them. So far it has left it to the press industry itself to create that forum in the form of the PCC.
24. So does the PCC fulfil that Role?
i. The PCC was created by the press. It is funded and appointed by the press. The Code of Practice is written by the press, and seven of the seventeen Commissioners are newspaper editors who have a direct commercial interest in keeping restrictions on what they publish to a minimum. Such a body cannot possibly provide a disinterested means of resolving complaints by an individual against the press. Even if it was possible for it to do so, since it is essential that justice is not only done, but seen to be done, no confidence can be had on the part of the general public in an entity which is so obviously merely a sub-division of the commercial press.
ii. It is difficult in a short paper to set out all the evidence that the PCC is an inadequate and hopelessly biased body. However as I set out above the clearest evidence of its innate bias in favour of the press comes from the license that it gives to newspapers to publish apologies/corrections which are a tiny fraction of the size of the offending article (or inaccurate portion of the offending article). The evidence of transparent bias and wholesale failure by the PCC to provide a fair and effective means of complaint is however overwhelming. This means that where complainants are being robbed of their rights, society as a whole is the loser.
iii. As the expert commentator Roy Greenslade, himself a senior journalist, regularly observes, the PCC achieves its intended function. That is to ensure that there is inadequate and ineffective regulation of the press, which in turn permits appalling infractions on the rights of individuals such as suffered by the McCanns (until legal action was taken) under the editorship of a PCC Commissioner. This same serial offender against the spirit and letter of the PCC Code was one of those that adjudicated on all the complaints cited above. Hardly surprising that the outcomes were so plainly unfair, as they will continue to be until the PCC is either fundamentally reformed or replaced by an entity that truly is "fast, free and fair".
25. A Summary of the PCC's Current Failings
i. The PCC is structurally and institutionally biased in favour of the press;
ii. It fails to live up to its claims to be fast, free and fair;
iii. Its policies and decisions fly in the face of public opinion;
iv. The PCC's real agenda emerges most clearly on the issue of prominence where corrections/apologies enjoy only a fraction of the prominence of the offending article. In administering its sole sanction the PCC blatantly places the interests of the press over the public.
v. It purports to fulfil a dual role of protecting the public from press excess and defending press freedom. These roles are mutually exclusive;
vi. Its Code is written exclusively by the press removing all independent influence from its core principles, and is therefore heavily press biased;
vii. Its procedures are opaque, secretive, and the PCC refuses to allow any substantive appeal from its adjudications;
viii. The PCC's remit in the 21st Century is anomalous;
26. Ofcom as an Alternative?
i. It is one of the most obvious anomalies of the British media that the broadcast media is regulated by Ofcom (a statutory and therefore quasi governmental organisation), yet the print media has no such formal regulation. Only the press created/appointed PCC has any regulatory role at all for the press.
ii. It is difficult to think of any credible argument for an entirely different form of regulation for the print press in the context of the rapidly convergent media. This is more so as all of the newspapers also publish via websites where they compete even more directly with the broadcast media than they do when publishing via their more traditional means of the news stand. While the Sun's readership has fallen to around 3 million, its internet readership (merely broadcast via computer) is rapidly rising and will shortly reach three times that figure.
iii. Pursuant to the Communication Act 2003, Ofcom (which is the equivalent of the PCC when it comes to determining complaints) is required "to consider and, where appropriate, adjudicate on fairness and privacy complaints." In doing so, it has delegated the determination of "fairness and privacy" complaints concerning broadcast content to a committee known as the Fairness Committee (the "Committee"). The relevant page from the Ofcom website is set out at Appendix 14. It makes clear (inter alia) that the Committee will be four strong and drawn from the Content Board. Its decisions are also "final [...] not subject to internal review, reconsideration or appeal."
iv. The page of the Ofcom website setting out the procedures that will be followed is at Appendix 15. The Content Board members who determine these issues are all in some way associated with the broadcast industry (see Appendix 16) and therefore are unlikely to have the interests of the complainant at the forefront of their mind. There is therefore an even greater lack of independence than the PCC. Accordingly there is a "real danger" of bias in their adjudications of complaints. In that sense they are even less suited to the task of independent regulation than the PCC commissioners.
v. Like the PCC the adjudication meetings are held in private, there is no indication of the voting, no transcripts are available etc. It is therefore a thoroughly unsatisfactory means of determining complaints by viewers of breaches of their privacy rights, or unfairness (i.e. the equivalent of paragraphs 3 and 1 of the PCC Code which deal with privacy and accuracy respectively).
vi. Ofcom does at least have the advantage of offering a consistency in regulation, along with some statutory powers to give it teeth. It also has a greater degree of independence from its industry, and so is undoubtedly preferable to the PCC.
27. A Proposal for fully Independent Regulation
i. Fully independent regulation of the press would not only create a fair, impartial and therefore effective forum for adjudicating complaints against the press but it would also improve standards, particularly on the issue of accuracy. The process of mediation of complaints would take place in the enervating context of a fully independent adjudication process for complaints if agreement between the complainant and the paper cannot be reached.
ii. The purpose of this paper is not to restrict press freedom at all - merely to bring the regulation of the press in line with the relevant principles of natural justice, and Human Rights law which provides that with the freedom of expression guaranteed by Article 10 of the Convention comes responsibilities. This includes a responsibility to effectively correct misstatements of fact when they have been made. Doing so effectively means firstly that the body which determines whether a statement/article is inaccurate is both free of bias, and seen to be so. It also means that sufficient steps are taken to ensure that no less a number of people are informed of the true state of affairs as were informed of the false state of affairs.
iii. As to the second requirement, the regulatory process should err on the side of the complainant when a complaint has been upheld, because no harm is done if more people are informed of the correct facts. The original harm remains undone if too few are disabused of the misinformation. This means that the only appropriate rule on the issue of prominence is that the correction should be (as the PCC's own chairman has said), "at least as prominent as the original transgression".
iv. In February 2005 Peter Bradley MP put forward his Rights of Reply and Press Standards Bill which made a number of radical proposals for wholly independent regulation of the press by giving complainants a statutory means of address short of litigation. A copy of the Bill is attached at Appendix 17. This included requiring newspapers to respond within 3 days of the complaint, and for the publication of a prominent correction in its news or editorial pages where appropriate. Mr Bradley's suggestion was to establish an independent press standards adjudicator who would arbitrate the publication and the complainant when they failed to reach agreement. The adjudicator would have powers (through the High Court) to require a publication to carry out a correction.
v. I believe that Mr Bradley's proposals are sound, and had they been adopted there would have been a considerable improvement in the regulation of the press. However, there was an evident lack of cross party support for it to become law (the results of that debate are attached at Appendix 18). It may be that Mr Bradley's radical proposals were perceived as bringing press regulation too close to government. Any change in the regulatory process will bring cries by the press of foul and claims that it is an attempt by the MPs to restrict press freedom.
vi. There would of course be not a scintilla of justification for this complaint as the broadcast media is regulated by a statutory body and is the press' direct commercial rival. Newspapers' content (including increasing amounts of audiovisual footage) is broadcast via their websites, and while sales of papers are in steady decline, visitors to their websites steadily increasing.
28. An Alternative non Statutory Model - the Advertising Standards Agency (the "ASA")
i. There is an agency which deals with publication issues, accuracy, free speech rights etc., which is both fully independent of government and of the industry that it regulates -the ASA. I attach at Appendix 19 a summary of its key aspects along with a chart contrasting the constitution of the PCC with that of the ASA. As emerges clearly from the comparison, the ASA is truly independent, and can not be accused of having an automatic presumption of bias, nor a "real danger" of bias in its determinations.
ii. It is also worth contrasting their Mission Statements. The ASA Mission Statement specifically states that in addition to applying the advertising codes, it also has been created to "uphold standards in all media on behalf of consumers, business and society" (emphasis added). The PCC Mission Statement conspicuously fails to state that its mission is to protect the interests of "consumers, business and society".
iii. It would be impossible for that to be its mission statement given its current make up and activity and since it was plainly (at least in part) a lobby group for the press industry to ensure greater liberty to publish whatever editors deem appropriate without bearing any responsibility for the consequences to the subjects of that copy. It has been clearly stated by a senior PCC officer that it has a dual role, which includes the protection of press freedom. The Code Committee of the PCC has no lay members, which means that there is no independence whatsoever so far as decisions are concerned as to what is and is not acceptable behaviour by the press.
iv. The next contrasting element is in the members section, where none of the individuals who determine complaints on behalf of the ASA have any connection with the advertising industry, whereas seven of the PCC are senior editors. Until recently, they included both Paul Dacre and Peter Hill, both of whom have a considerable amount of "form" so far as both PCC code infringements are concerned, whether they are dealt with in the PCC process or the legal process. The record of Mr Dacre is strikingly better at the PCC than it is in the courts, where complaints against his titles are determined by an entirely impartial process. Given the make up of the PCC this is hardly surprising.
v. My proposal therefore is that the PCC is reconfigured to reflect the same degree of independence as is evident from the ASA. In particular I recommend that:-
(a) The Mission Statement be revised for a new PCC making it clear that it exclusively serves the interests of the public, rather than the press;
(b) The Commissioners of the new PCC be entirely composed of individuals without connection with the newspaper industry. In the alternative, I would recommend there be an equal number of Commissioners who rather than being 'neutral', balance the press contingent by being drawn from those who regularly represent those who have suffered as a result of misconduct by the press;
(c) Hearings be open to complainants, recorded, transcripts made available, and that there be a proper substantive appeal procedure (part of the ASA procedure but absent from the PCC);
(d) The PCC Code be amended to provide that apologies, corrections and adjudications must be published with at least equivalent prominence to the offending article, or that part of the offending article which is found to be inaccurate if it is only inaccurate in part; and,
(e) The new PCC be given the power to make some form of financial provision such as the payment of compensation and reimbursement of professional fees.
PROFILE OF JONATHAN COAD
Jonathan Coad heads the litigation team at media firm Swan Turton and has been a specialist media lawyer dealing with the PCC on behalf of those who have grievances against the press for 18 years. He has also acted for the broadcast media defending high quality investigative journalism. He specialises in copyright, defamation and privacy and represents many well known personalities and organisations in the public eye.