Privacy and Injunctions - Joint Committee on Privacy and Injunctions

Privacy and Injunctions - Joint Committee on Privacy and Injunctions Contents

CHAPTER 5: Better Regulation of news publications

152. A key part of the process of ensuring the correct balance is struck between privacy and freedom of expression, and of ensuring that where injunctions are granted they are upheld, is played by the media themselves. Often it is the decisions of editors on whether to publish a story that are argued in court; and the media who are parties to injunctions. To prevent cases going to court it is in their interests to have robust procedures in place to ensure individuals' rights to privacy are respected, and that where they rely on the public interest in justifying publication of a story there is sound evidence for that.

The Press Complaints Commission

153. The Press Complaints Commission (PCC) was established by the industry in 1991. The Commission has 17 members: 10 lay members[159] and seven editors. The PCC is funded by newspapers and magazines paying an annual levy to the Press Standards Board of Finance (Pressbof). The chair of the PCC is appointed by Pressbof. During our inquiry the Rt Hon Lord Hunt of Wirral was appointed as chair of the PCC.

154. The PCC has two main functions. The first is to maintain and promote the Editors' Code of Practice, which is written and revised by the Editors' Code Committee. The Committee comprises editors of national, regional and local newspapers, alongside the chair and director of the PCC (though the chair of the Commission is not chair of the Editors' Code Committee). The second function is to deal with complaints from members of the public about potential breaches of the Code by newspapers and magazines.

155. Clause 3 of the Editors' Code of Practice is about privacy (see Box 5). Other clauses, such as those relating to intrusion into grief and harassment, also have privacy aspects to them. Clause 3, and other privacy-related clauses, are subject to exceptions where they can be demonstrated to be in the public interest. The Code's guidance on the public interest is in Box 2 in Chapter 3.

BOX 5

PCC Editors' Code of Practice clause on privacy

3. Privacy

i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information.

iii) It is unacceptable to photograph individuals in private places without their consent.

Note—Private places are public or private property where there is a reasonable expectation of privacy.

156. The PCC is not a statutory body. The Government have no control over its powers, procedures or membership. There are no legal means of enforcing its rulings or compelling membership. Rather, its remit is given to it by the industry.

The need for reform of the PCC

157. On 13 July 2011 the Prime Minister announced that an independent public inquiry, led by the Rt Hon Lord Justice Leveson, would be set up to consider the culture, practice and ethics of the press. This followed ongoing revelations about phone hacking at the News of the World. In setting out the remit of the inquiry, the Prime Minister said—

"He [Lord Justice Leveson] will make recommendations for a new, more effective way of regulating the press—one that supports its freedom, plurality and independence from Government, but which also demands the highest ethical and professional standards."[160]

158. It is expected that Lord Justice Leveson will report on the first half of his inquiry in autumn 2012.

159. It is almost universally recognised that the system of oversight or regulation of the press needs major reform. It was a point repeatedly recognised by our witnesses.[161] The PCC recognises the pressure for it to change.[162] In March 2012, shortly before we reported, its chair announced that the PCC had agreed to disband, to be replaced by a successor body. In this chapter we consider how privacy issues are managed by the PCC, and offer recommendations on how the future system of regulation can best be equipped to provide protection of privacy and redress when it is infringed.

160. The Press Complaints Commission was not equipped to deal with systemic and illegal invasions of privacy. In this chapter we set out what a reformed media regulator should look like and do.

Privacy and the PCC

161. Witnesses from the press offered a strong defence of the PCC. Arguments in its favour include the fact it is well known to the public and its services are well used.[163] It was suggested that the vast majority of the PCC's work goes unseen, except to the public who are involved in cases with the PCC and to the press. The PCC's role in arbitration was said to be effective.[164]

162. Several editors of regional newspapers explained that they used the PCC for pre-publication advice, on an informal basis, on privacy issues.[165] Regional newspapers viewed it as a mark of shame to have a PCC ruling against them, and would do everything possible to avoid one.[166] They also explained that they were not typically interested in the "celebrity" privacy stories which have been the subject of much of the debate in this area.[167]

163. However, a significant body of opinion believes that the PCC ineffectively deals with privacy issues. This increases the likelihood of legal options being pursued. For some individuals, legal options are not affordable; a better regulatory provision is therefore required.

164. The reformed media regulator needs to play a leading role in resolving privacy complaints. For this to happen, the regulator needs to have recourse to far more effective and timely sanctions than the PCC has. It needs to be, and be seen to be, independent of the newspaper industry. All major news publishers, including online publishers, should come under its jurisdiction. These views inform our subsequent recommendations.

Independent regulation

165. The PCC is perceived as not independent of the press.

166. At the start of 2011 Northern & Shell Ltd, which owns the Express and Star newspapers, withdrew from the PCC. This technically happened by it ceasing to pay subscriptions to Pressbof. Since then its newspapers have no longer been regulated by the PCC. One of the main reasons behind their decision to withdraw was their lack of confidence in the independence of adjudications. Richard Desmond, chairman of Northern & Shell, suggested that some members of the PCC were "hypocritical" and that Northern & Shell had been unfairly singled out for criticism by competitors.[168] Private Eye has also not subscribed to the PCC, partly because it views it as lacking independence.[169]

167. There is a strong argument for the industry having high-level representation on any new regulatory body. Knowledge and experience of the industry is important for any new regulator. One suggestion was to divide the whole concept of the Press Complaints Commission into two sections, the section that makes the rules and the section that enforces them. There would be no objection to an editor being on the part that makes the rules, but the part that enforces them should be entirely independent.[170]

168. Lord Hunt of Wirral outlined to us his emerging proposals for reform of the PCC. In addition to the complaints-handling function currently undertaken by the Commission, a second standards or compliance arm would be added, proactively to uphold standards across the industry. Where severe breaches of the Code were found to have occurred, it would be possible for the Commission to issue fines against publications.[171]

169. The management board of the new commission would have an independent majority but, Lord Hunt suggested, would still need close knowledge of the industry.[172] The board would comprise around five people, three of them independent of the industry. The complaints-handling function of the Commission would be delivered in much the same way as at present.

170. We believe that the reformed media regulator must be demonstrably independent of the industry and of government.

171. Knowledge of the industry, however, will be essential to the good operation of the reformed regulator. We recommend that industry representatives form a substantial minority of the body that determines complaints. These representatives should have considerable experience of working in the print media, but should not be a full-time employee of any news publisher or have a demonstrable conflict of interest.

172. Lord Hunt suggested that, under his proposals, the body which sets the rules—currently the Editors' Code Committee—would continue to comprise mainly editors, but with some independent members.[173] The importance of journalistic representation on this body was referred to by witnesses.[174] Adherence to the Code is often included in contracts of employment for journalists.

173. It is important that the body that draws up the code of practice of the reformed regulator benefits from the knowledge of those working in the industry. There should be some members, including its chairman, drawn from outside the industry.

Inclusion of all major publishers

174. As outlined above, Northern & Shell publications are not part of the PCC structure. Richard Desmond indicated to us that Northern & Shell publications could re-join the reformed regulator.[175] It is notable, however, that Northern & Shell were able to leave the PCC unilaterally and without any sanction. It undermines the credibility of the regulator if major publishers are able to opt out of regulation.

175. Proposals have been made for a "kite-mark" system, which would denote that publications are members of the new regulator. Such a kite-mark would be a symbol of quality and standards, demonstrate that there are established grievance procedures for subscriber publications and perhaps confer benefits on subscribers. Publications that are not kite-marked could be penalised in terms of their advertising rates.[176]

176. Lord Hunt of Wirral suggested that "there could be a badge of respectability, of accuracy", and suggested that he would consider how a kite-mark system could be tied into advertising rates.[177] A way to achieve that might be found through working with the Incorporated Society of British Advertisers, the representative body for British advertisers.

177. Other benefits could flow from voluntarily signing up to the regulator, or to a kite-mark system. It was suggested that only those who sign up would receive analyses by the Audit Bureau of Circulations (an industry body that independently verifies and reports on media performance, including circulation figures).[178] There might also be incentives in terms of privileged access to information, such as membership of the parliamentary lobby or government press accreditation.[179]

178. We discussed in the last chapter the difficulties of enforcing injunctions against bloggers and users of social media compared to the relative ease with which they can be enforced against print newspapers and their online editions. It might be possible in future for bloggers voluntarily to sign up to a code of practice.[180] However, Martin Clarke, publisher of Mail Online, thought that it would not be possible to compel bloggers to join a regulatory system without requiring it by law.[181] Theoretically, a kite-mark system could be a means of bringing major bloggers into a system of regulation in future, given that some bloggers obtain around 50% of their income from advertising.[182]

179. It is essential that membership of the reformed media regulator extends to all major newspaper publishers. It should no longer be possible for a title unilaterally to opt out of regulation with no sanction forthcoming.

180. We recommend that significant penalties be imposed on news publishers who are not members of the reformed media regulator. For example, major advertisers should require membership as a condition of advertising in news publications, including on blogs.

Status of the regulator

181. The most certain way to compel membership of the regulator would be to require it by statute.[183] An Act could grant the reformed media regulator legal powers over all publishers, thereby not allowing the possibility of opting out of regulation. A statute would also give full force to the sanctions levied by the regulator.

182. There is concern about the notion of a statutory regulator of newspapers. Some fear that a statutory regulator would overly encumber freedom of expression.[184] Some fear it would chill the free press and even put newspapers out of business.[185] There is concern that any Bill proposing statutory regulation could be a vehicle for political interference with the press.[186]

183. The status of the successor to the PCC under Lord Hunt of Wirral's reforms would be underpinned by a series of rolling commercial contracts signed with publishers, lasting perhaps for five or ten years.[187] He was confident that all major publishers would sign the contracts. Once they sign they would be legally bound by the new system. That would involve having to comply with the sanctions of the regulator, including fines.

184. Comparisons can be drawn between the PCC and Ofcom, a statutory body established by the Communications Act 2003. Some thought that the regulatory functions of the PCC should be vested in Ofcom.[188] Broadcasters, however, opposed having the same regulatory framework for broadcasting and print media, arguing that different media provide different offerings to the public, so should be regulated differently.[189]

185. An option short of a full-blown statutory regulator would be to have a self-regulating body undertaking day-to-day regulation, but backed up by a statutory body with overall responsibility for regulation.[190] This is a regulatory model used in other fields. The Solicitors Regulation Authority exercises day-to-day self-regulation of solicitors, but is backed up by the Legal Services Board, an independent statutory body.[191] Similarly, Ofcom has a statutory duty to maintain standards in broadcast advertising, but has devolved to the Advertising Standards Authority day-to-day responsibility for broadcast advertising content standards, including responsibility for writing the relevant code.[192]

186. Regulation of the press must be independent of government. But it is clear that the current system of self-regulation is broken and needs fixing. The industry must play a key role in establishing reformed structures, and we welcome the initiative taken by Lord Hunt of Wirral in bringing forward industry-led proposals for replacing the Press Complaints Commission.

187. To be successful Lord Hunt of Wirral's proposals must create an independent, powerful regulator which governs all major publishers and has the confidence of the public. However, decisions on the future of media regulation cannot be left to the industry alone to determine. At this stage we do not recommend statutory backing for the new regulator. Instead, assuming Lord Hunt's proposals are adopted by all publishers, we recommend that a standing commission comprising members of both Houses of Parliament be established to scrutinise the process of reform over the coming years. The standing commission will report annually to Parliament on the progress of reform and the effectiveness of the reformed regulator. The annual report should be debated in both Houses. The standing commission must have the power to call for papers and summon witnesses.

188. However, should the industry fail to establish an independent regulator which commands public confidence, the Government should seriously consider establishing some form of statutory oversight. This could involve giving Ofcom or another body overall statutory responsibility for press regulation, the day-to-day running of which it could then devolve to a self-regulatory body, in a similar manner to the arrangements for regulating broadcast advertising.

189. Whatever form of regulation there is, the regulator must be able to be held to account. It is common practice for bodies exercising a public function to publish an annual report. In many cases an annual report enables the relevant parliamentary body to examine the effectiveness of the institution and to question those responsible for running it. The reformed media regulator should adhere to such corporate governance standards.

190. The reformed media regulator must publish an annual report. In order to provide an appropriate level of ongoing accountability, the chairman should appear before the standing commission at regular intervals.

Access for complainants

191. One of the key strengths of the PCC is that it is free of charge for complainants.[193] Access is easy, and a 24-hour hotline is available for those wanting to raise urgent concerns with the Commission. The PCC thought that the response rate for complaints was fast.[194] Witnesses from the newspaper industry highlighted the advantages offered by a service that is free of charge to users.[195]

192. The fact that the PCC offers a cost-free service is one of its biggest strengths. The reformed regulator should ensure the service is free of charge for users.

Effective sanctions

APOLOGIES

193. Apologies are one of the principal tools available to the PCC when seeking to remedy grievances. In any cases where a published apology is negotiated, prominence must be agreed in advance by the Commission. The PCC stated, "The vast majority of all corrections and apologies negotiated by the Commission are published on the same page or further forward than the original transgression."[196] Whilst this may be so, one of the complaints we heard was that apologies were usually of a much smaller size than the original offending article.[197]

194. In most cases, it is difficult to provide an appropriate remedy for a breach of privacy through an apology. Whilst an apology may satisfy those who have been the victims of inaccuracy or defamation, it cannot make private information private once again.[198]

195. Where the reformed regulator is involved in negotiating an apology, it should have the power to determine the location and size of the apology the newspaper is required to publish, and the day of publication.

ADJUDICATIONS

196. If the PCC finds there has been a breach of the Code and is unable to negotiate an appropriate remedy with the offending publication it may issue a critical adjudication. As well as the PCC publishing the ruling itself, it requires the newspaper concerned to publish the adjudication in full, with due prominence and a headline reference to the PCC.

197. We were told that regional editors saw it as a matter of professional pride not to have a PCC adjudication against them and that most editors would seek to avoid a referral to the PCC.[199] Richard Desmond's withdrawal of Northern & Shell newspapers from the PCC following criticism from the Commission over stories regarding Madeline McCann illustrates that criticism from the regulator, whether by published adjudication or other public means, can have an effect upon newspaper editors and proprietors.

198. Where a newspaper has been found to be in breach of the industry code, we consider public criticism from the regulator, including negative adjudications, to have a significant effect in providing rebuke and modifying behaviour. However, we do not believe this is sufficient.

FINANCIAL SANCTIONS

199. The PCC does not at present have the power to fine newspapers or to require them to pay damages to victims of breaches of the Code. It can, in some circumstances, negotiate donations to charities or ex gratia payments, but only if the publication in question wishes to do so. This is in contrast to the broadcast regulator Ofcom, which can levy significant fines[200] and, in extremis, can revoke a broadcasting licence.

200. It has been suggested that giving the reformed regulator the power to fine publications would imperil the current cost-free service, as it would add complexity to the system. Disputes would become more protracted, and more time would be taken to resolve them. Lawyers could become involved, and newspapers might have to take out insurance.[201]

201. However, there was widespread support amongst our witnesses for the reformed regulator to be able to levy fines upon those who breached the Code.[202] Lord Hunt of Wirral said that fines should form a part of the new regulatory system, being set at a proportionate level and perhaps added to publications' annual subscriptions.[203] The power to levy fines would give the regulator considerably more leverage pre-publication.[204]

202. We recommend that the reformed regulator should have the power to fine newspapers for unwarranted breaches of privacy. This will encourage publishers to consult the regulator on potentially controversial stories before publication.

Arbitration and mediation

203. As it is costly to pursue privacy claims in the courts, it has been suggested that they could be more quickly and cheaply resolved through arbitration or mediation—a process sometimes known as alternative dispute resolution. The new regulator could provide pre-publication mediation of privacy issues. Another (not necessarily incompatible) suggestion was for a mediation or arbitration body to carry out a similar function to that of the courts when considering applications for privacy injunctions.

204. An arbitration body, comprised of independent assessors, could receive representations from the media party looking to publish a story, and from the party claiming their privacy would be infringed by publication. The body would weigh and analyse the claims, before giving a ruling as to whether publication should go ahead. The process would be conducted in private, and would be less formal than court processes.[205]

205. Lord Hunt of Wirral explained that he was contemplating a mediation or arbitration body as part of his own proposals for reform, but that further work was needed. He compared the likely work of such a body with that of the financial ombudsman service.[206]

206. It might be possible for a formally established arbitration body (for example as part of the reformed media regulator) to be recognised as part of the legal process. Failure to seek resolution through arbitration prior to litigation might be taken into account by the court in awarding damages or costs.

207. There might however be some practical difficulties with a new arbitration body. Newspapers are usually in a race against rivals to publish stories. They may find it very difficult to wait until the arbitration is over because of the risk of a leak.[207]

208. There are other issues to address in establishing any new arbitration body that has jurisdiction pre-publication. These include the question of whether the decisions of the body will be binding and, if so, how that could be done without ousting the jurisdiction of the courts. Editors may understandably be reluctant to allow another body to decide on what can appear in their publications. It would be necessary for them to have confidence in the body.

209. One of the principal tasks of the reformed regulator should be to play an increased role in arbitrating and mediating privacy disputes. This would reduce the likelihood of recourse to the courts, with all the attendant costs, and will therefore benefit newspapers and claimants. It will also help achieve the other objectives set out in this report.

159 Lay members are appointed by a nominations committee of the Press Complaints Commission, comprising three lay members and an independent assessor who monitors the process. Back

160 HC Deb, 13 July 2011, col 312. Back

161 For example, Professor Steven Barnett said that the PCC has "completely failed as a regulator, as a self-regulator." (Q 136) Back

162 Q 1594. Back

163 Newspaper Society. Back

164 Q 228. Back

165 QQ 211-2 and 228. Back

166 Q 226. Back

167 Q 210. Back

168 Q 623. Back

169 Private Eye para 1. Back

170 Q 720. Back