Written evidence submitted by the National
Union of Journalists
INTRODUCTION
The National Union of Journalists (NUJ) is the
TUC-affiliated union representing journalists working in Great
Britain, Ireland and internationally. The union has 38,000 members
working as journalists or on editorial content in newspapers,
broadcasting, websites, news agencies and public relations.
The NUJ has always seen the relationship between
democracy and journalism as important and has had a Code of Professional
Conduct since 1936. This code helped to inform the current Press
Complaints Commission Code.
The union's rules allow it to discipline members
who breach its code and even expel them from membership for serious
breaches. The code was reviewed and rewritten in 2007. The union's
Ethics Council is charged by the union's rules with:
the responsibility for the promotion and enforcement
of the professional and ethical standards of the union, with particular
reference to the enforcement of the union's code of conduct and
with researching and debating ethical issues in media freedom
and regulation.
The Ethics Council is made up of members of
the union directly elected by the members from the various industrial
sectors of the union as well as representatives from the union's
Black Members Council, Equality Council and Disabled Members Council.
The NUJ believes strongly in the right to freedom
of expression and sees it as a vital freedom that underpins all
other public freedoms. Without the right to publish a wide range
of views, investigate and publish the activities of the powerful
and what they are claiming to do in the name of the public, there
can be no democracy.
The union is also acutely aware of the distinction
between the right to publish in the public interest and the right
to publish what will interest the public and thereby sell newspapers.
The public may want to know about the private lives of celebrities
but that does not mean that they need to know in order to protect
their democratic rights.
However, there are individuals who seek to improve
their status or earning power by courting publicity and presenting
themselves as a certain kind of person, and the NUJ believes that
it can be in the public interest to present a true picture of
them to the public. When a person has entered public life and
attempted to capitalise on their image or popularity, the public
has a right to know the truth in order to make appropriate judgements
about them.
There is also a public interest in freedom of
expression itself; but the union believers that the random destruction
of people's reputations simply to boost a newspaper's circulation
or a TV show's ratings is not in the public interest and is the
point at which freedom of expression has to bow to the right of
individual privacy.
THE SELECT
COMMITTEE'S
QUESTIONS:
Why the self-regulatory regime was not used in
the McCann case, why the Press Complaints Commission (PCC) has
not invoked its own inquiry and what changes news organisations
themselves have made in the light of the case
The NUJ is not surprised that the PCC was not
used in the McCann case, nor that the PCC did not invoke its own
inquiry. It is likely that the PCC would not have upheld complaints
from the McCanns since it is arguable whether there is direct
evidence that the articles concerned breached the PCC Code of
Practice, which does not prevent speculation.
The PCC is a complaints body. It has no other
purpose. It does not investigate ethical issues of concern of
its own accord. Its predecessor, the Press Council, produced a
series of reports following in investigations of key reporting
events, which allowed lessons to be learnt. The PCC has steadfastly
refused to be so proactive and while it occasionally produces
guidance, this is limited to specific advice on individuals' addresses
or on photographing the UK royalty. We believe that the PCC should
act proactively, investigating the coverage of major stories or
stories that have sparked particular concern about the ethics
of their coverage.
Whether the successful action against the Daily
Express and others for libel in the McCann case indicates a serious
weakness with the self-regulatory regime
There is no protection for reputation in the
PCC's regulatory code—nor in the NUJ's. The redress for
the McCanns was in libel law. The NUJ's code does seek to ensure
that journalists differentiate between fact and opinion. The PCC
code has a similar clause.
We do not believe it would be appropriate to
try to regulate for protection of reputation in the PCC code.
What the NUJ has consistently campaigned for is a "conscience
clause" for journalists in the code. This would allow reporters
who feel they are being pressured to produce material that is
not supported by evidence, or whose reporting is being stretched
beyond credulity in its presentation, to refuse that assignment.
This could have been helpful in the McCann case.
The NUJ wants to see such a conscience clause
to be built into contracts of employment, but failing that we
believe that the PCC should at the very least have a confidential
contact point for journalists, allowing them to make contact when
they feel they are being asked to act unethically or if they feel
their material is being used in an unethical way; we would like
the PCC then to investigate without putting reporters' career
at risk. Evidence that journalist had contacted the PCC could
be used in an employment tribunal, in the event of employers taking
action against them. The NUJ operates such an "Ethics Hotline"
itself, which many reporters have found helpful.
The interaction between the operation and effect
of UK libel laws and press reporting
UK libel laws and the operation of CFAs have
a chilling effect on reporting in the UK. The NUJ agrees that
people's reputations should not be harmed purely for the entertainment
of readers and to increase circulations; nor should someone's
reputation be damaged by lies, smears or innuendo. However, in
order to report on the fitness of people in public life, whether
politicians, those in public office or those who deal with the
public through their business or personal inclinations, it is
necessary to expose wrongdoing or anti-social behaviour. We believe
there should be a "public figure" defence to libel,
such as exists in the US. This would mean that someone in public
office would have to prove there has been either a reckless disregard
for the truth, or malice, when damaging information about them
has been published. Refusing to print corrections or clarifications
would be evidence of reckless disregard. At the moment, there
is less risk to a newspaper in publishing true, but private revelations
of some private citizen's sex life, than there is about publishing
details of corruption in business or political life. This is not
acceptable and the libel laws should be amended.
The NUJ very much welcomes the development of
the `Reynolds' Defence to defamation cases, effectively
establishing qualified privilege where a publication can shown
it has met has met certain standards in producing the article
in contention. These standards are those the union expects from
its members—checking information, affording a right to comment
and so on. They also effectively set a "public interest"
criterion that is also welcome. However, we are concerned that
Reynolds cannot be fully exploited by the courts because
of publications' reluctance to defend cases for reasons of cost.
The impact of conditional fee agreements on press
freedom, and whether self-regulation needs to be toughened to
make it more attractive to those seeking redress
CFAs have made it very difficult for newspapers
to defend lawsuits, since the surcharge on costs that lawyers
are able to impose makes them so high that few newspapers will
risk a fight and nearly all will pay off the suit at an early
stage—no matter how strong the evidence, or the compliance
with Reynolds criteria. Only publishers with very deep
pockets dare contemplate fighting a case; regional newspapers
have effectively stopped defending libel cases altogether. This
is one reason for the continuing decline in serious investigative
journalism, since newspapers will not risk attracting lawsuits.
The observance and enforcement of contempt of
court laws with respect to press reporting of investigations and
trials, particularly given the expansion of the internet
Fewer court cases are reported now in the UK
than ever before. The days of local newspapers sending one or
two reporters to cover the courts every day are long gone. Staff
reporters only attend to cover the big sensational cases.
Often the courts will seek to anonymise a defendant,
or to limit publication of certain evidence, only to find that
with the posting of reports online, accessible in countries outside
the jurisdiction, the information will appear on the internet.
UK law prevents the naming of minors of the victims in sexual
offence cases, but again this can be thwarted by the web.
In major murder or other serious cases there
is a high temptation to publish potentially prejudicial information
post-arrest and pre-trial, in contravention of the 1981 Act.
Again such details can be published on the internet from abroad.
With such information in the public domain, easily accessible
to any potential jury member, it is difficult to see the present
contempt laws as serving much useful purpose. In any case, there
are very few cases indeed of contempt for pre-trial publication;
virtually all have been over what has been published during a
trial.
Research from the US, where full publication
has always been allowed, suggests that this would not lead to
wholesale miscarriages of justice. However, such a change after
years of judicial censorship in the UK would probably lead to
problems. The UK is one of the few countries that do not have
the need for responsible court coverage in its ethical codes.
The right to a fair trial and the right to be presumed innocent,
as established by the Human Rights Act, could be used to ensure
some fairness, but it would be a number of years before the balance
between fairness and publication was achieved.
What affect the European Convention on Human Rights
has had on the courts' views on the right to privacy as against
press freedom
The NUJ supports the Human Rights Act and therefore
the European Convention and believes that its effect on the courts
has been beneficial.
Whether financial penalties for libel or invasion
of privacy, applied either by the courts or by a self-regulatory
body, might be exemplary rather than compensatory
The NUJ believes that the PCC should be able
to fine newspapers for breaches of its Code of Practice. The PCC
opposes this but the NUJ finds its arguments unconvincing. The
PCC adjudicates very few cases each year, and even fewer are upheld
(between ten and 20 each year). Not many of these are privacy
intrusions—indeed, most of the worst cases upheld are thoughtlessness
rather than malice. To fine in those cases would rarely lead to
more than five cases a year on present statistics, but since these
would be the worst cases and ones where the PCC would have decided
the newspaper had deliberately or recklessly breached the code,
the fine would send out a message that the PCC has teeth and would
be prepared to bite. We believe its objection is rooted in a fear
that the PCC would risk losing the industry's support and probably
collapse.
As to the courts, we believe that current balance
is about right. Any attempt to strengthen the existing law on
privacy would be likely, in the NUJ's view, to put serious journalistic
investigation at risk. Much of "celebrity" journalism
is really public relations, done with the participation of the
subject, so legislation to protect privacy further than the courts
are doing already is likely to increase the publication of this
kind of information, at the expense of genuine journalistic enquiry
in the public interest. The jailing of Clive Goodman in 2007 showed
that the law can apply strong penalties to journalists who abuse
private information.
Whether, in the light of recent court rulings,
the balance between press freedom and personal privacy is the
right one
The NUJ supports the right to privacy, though
we would like to stress that this is a general right and not one
limited solely to media invasions: invasions of privacy by CCTV,
the police, the intelligence services or commercial operations
without the authority of the law are just as damaging to a free
society as invasions of privacy by the media.
Citizens' privacy should only be invaded if
there is good reason to believe it is in the public interest so
to do, whether this is because they are believed to be committing
a crime or social misdemeanour, misleading the public in some
way or endangering the health and safety of themselves or others.
The Union's Annual Delegate Meeting discussed
privacy in 2001 agreeing the following motion:
ADM recognises that it is a mark of a free and
democratic society that all people have a right to respect for
their private and family life, their home and their correspondence.
ADM also believes that people have both a right to know what is
being done in their name and a right to information on which to
base their choices and that this might legitimise the revelation
of information that by the earlier definition should remain private.
ADM believes the only way to determine which
information should be revealed and which remain private is for
a journalist to test whether the information is in the public
interest—which is not the same as information that will
interest or titillate the public.
ADM declares that information revealed in the
public interest is that which is required for members of the public
to use to determine their intentions and opinions to seek to ensure
probity and honest dealings amongst the civil and military authorities,
the judiciary, politicians and all those holding positions of
public authority or who have courted prominence in all walks of
life.
We believe that despite the outrage expressed
by many editors desperate to justify what are often quite outrageous
intrusions into the private lives of public figures, the moves
made by the courts to firm up the law of confidence and apply
it to privacy claims are largely justified. Key cases such as
Loreena McKennitt, Max Mosley and others from Europe have helped
to draw a reasonable and straightforward line between private
and public. While there have been one or two cases where the judgements
have been more difficult to interpret and apply—the Naomi
Campbell case, for instance, where the courts decided it was in
the public interest to publish the story, but not in the public
interest to publish the pictures that were the main evidence in
support of the story—generally the line identified has clearly
distinguished between private and family life and public life.
ADDITIONAL COMMENTS
We would ask the Committee to consider the importance
of journalists being responsible for their professional conduct.
Newspaper editors insist that they are solely responsible for
ethical conduct within their newspapers. While they are certainly
responsible for what is published, they are not, nor can they
be, entirely responsible for everything done in the name of the
newspapers. The PCC is insisting that its Code of Practice is
written into the contracts of employment of journalists, which
concerns the NUJ. We believe that journalists are responsible
for their work and are therefore entitled legally to refuse instructions
they consider unethical, through a "conscience clause"
as outlined above in this submission.
January 2009
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