CHAPTER 7: Conclusions and Recommendations
The following is a list of the conclusions and recommendations
that appear in the report. Their place in the main text is indicated
in the reference at the end of each paragraph.
Is the law working?
The balance between articles 8 and 10
We believe that the courts are now striking a better
balance between the right to privacy and the right to freedom
of expression, based on the facts of the individual case (para
32).
A privacy statute
We believe that any statutory definition of privacy
would risk becoming outdated quickly, would not allow for flexibility
on a case-by-case basis and would lead to even more litigation
over its interpretation. For these reasons we do not recommend
one (para 37).
We do not recommend a statute declaring in broad
terms the right to privacy. We disagree with criticisms that privacy
law has been "judge made" and does not have parliamentary
authority; it has evolved from the Human Rights Act 1998 (para
41).
Determining the public interest in private lives
We do not recommend a statutory definition of the
public interest, as the decision of where the public interest
lies in a particular case is a matter of judgment, and is best
taken by the courts in privacy cases. As an alternative, we expect
the reformed media regulator, in conjunction with other regulators,
to publish clear guidelines as to what constitutes the public
interest, and to update them where necessary (para 50).
Injunctions and section 12 of the Human Rights
Act 1998
We do not think that section 12(4) of the Human Rights
Act 1998, in requiring the courts to "have particular regard
to the importance of the Convention right to freedom of expression"
when considering whether to grant any relief, means that article
10 has precedence over article 8. The practical effect of the
claimant satisfying section 12(3) (see below) means that article
8 does not have precedence over article 10. However, we support
the decision of Parliament to make clear in law the fundamental
importance of freedom of expression and would be concerned that
removing section 12(4) might suggest that this is no longer the
case. We do not recommend any alteration to the law in this area
(para 59).
Departures from the principle of open justice should
be exceptional and should only happen when they are essential.
We strongly welcome the arrangements made by the Master of the
Rolls to monitor and publish figures on the number of anonymised
and super-injunctions granted and the circumstances in which they
are granted (para 64).
We recommend that super-injunctions and anonymised
injunctions that were granted before the Master of the Rolls'
committee's report and are still in force are reviewed by the
courts to ensure they are still necessary and are compatible with
that committee's conclusions on open justice. Those reviews should
be prompted by the courts writing to the parties concerned. Once
reviewed figures on them should be published (para 65).
When an injunction is granted the court should consider
fully its effect on individuals restrained by the injunction,
such as the effect on their ability to seek legal advice or funding
for legal representation, or to report relevant matters to the
authorities. Guidance on this should form part of the Practice
Guidance issued by the Master of the Rolls (para 69).
We recommend that interim injunctions granted in
one jurisdiction in the United Kingdom are enforceable in the
other two jurisdictions in the same way as final injunctions are
(para 74).
Privacy, celebrities and public figures
We believe that those who actively seek publicity,
especially for gain, should accept that this will mean enhanced
interest in their private lives by the media. This should not,
however, mean that they sacrifice all rights to privacy. The degree
of public exposure of an individual, and the extent to which they
have sought it and gained from it, are relevant factors for the
courts to take into account in determining a privacy claim. This
will depend on the facts of the particular case (para 80).
We reject the view that because an individual exposes
his or her children to publicity the children become fair game
for the media. We believe that parents who expose their children
to public gaze for their own commercial gain or publicity are
irresponsible and make it harder for them to defend their children's
right to privacy in other circumstances. However, even in those
instances there must be exceptional reasons for it to be in the
public interest for the media to publish information affecting
the privacy of children (para 81).
Commercial viability of the press
The media play a vital role in furthering public
debate, exposing wrongdoing and enhancing democracy. Whilst there
is clearly demand for scandal and gossip, this should not stray
into intrusion into people's private lives without good reason.
Chief executives and boards of holding companies should take responsibility
for ensuring that news publishers uphold high standards, with
processes for protecting privacy firmly adhered to (para 89).
Improving protection of privacy
Online enforcement
We believe the Attorney General should be more willing
to exercise his power as Guardian of the Public Interest to bring
actions for civil contempt of court in respect of breaches of
injunctions online. The threshold for him intervening should be
lower. Such action would provide a strong deterrent against future
such breaches (para 104).
We recommend that, when granting an injunction, courts
should be proactive in directing the claimant to serve notice
on internet content platforms, such as Twitter and Facebook. Beyond
that, claimants in privacy cases should make full use of notice
and take-down procedures operated by responsible internet service
and social media providers, who should also seek to disseminate
best practice and discourage illegality amongst users and other
providers (para 109).
Where an individual has obtained a clear court order
that certain material infringes their privacy and so should not
be published we do not find it acceptable that he or she should
have to return to court repeatedly in order to remove the same
material from internet searches (para 114).
Google acknowledged that it was possible to develop
the technology proactively to monitor websites for such material
in order that the material does not appear in the results of searches.
We find their objections in principle to developing such technology
totally unconvincing. Google and other search engines should take
steps to ensure that their websites are not used as vehicles to
breach the law and should actively develop and use such technology.
We recommend that if legislation is necessary to require them
to do so it should be introduced (para 115).
When issued with an injunction, media organisations
should only circulate the notice to those employees who have authority
to publish. An up-to-date list of these individuals should be
maintained by each organisation, and made available to the court
upon request (para 119).
Remedies
We reject the case for a statutory requirement to
pre-notify. However, the reformed media regulator's code of practice
must include a requirement that journalists should notify the
subject of articles that may constitute an intrusion into privacy
prior to publication, unless there are compelling reasons not
to (para 127).
If a complaint is made to the new regulator about
an individual's right to privacy having been infringed and that
individual was not given prior notification of the story, the
publication should be required to explain why they did not do
so. If it was because it was in the public interest not to, the
publication should state how, and with whom, the public interest
was established at the time (para 128).
Courts should take account of any unjustified failure
to pre-notify when assessing damages in any subsequent proceedings
for breach of article 8 (para 129).
Whilst damages for breaches of privacy are never
as good as preventing the breach in the first place, the maximum
level of damages that has been awarded is too low to act as a
real deterrent. We recommend that the courts should have the power
to award exemplary damages in privacy cases, if necessary by giving
the courts that power through legislation. In deciding whether
to award exemplary damages the courts should take into account
the financial situation of the media organisation concerned (para
134).
Costs and access to justice
The costs of a privacy action are prohibitive to
many possible claimants, and can also act to stifle the freedom
of the press. Judges and legal representatives must take all possible
steps to manage costs more effectively. In particular, we recommend
that the practice direction which limits cost capping to exceptional
cases should be removed for privacy actions (para 141).
Access to justice is essential for those whose privacy
is infringed. Conditional fee agreements have provided people
of limited means with the ability to take action when their right
to privacy has been infringed; they have also been used by defendants
in privacy cases. We have not sought to enter the wider debate
on the future of CFAs, but stress that following the reforms to
them it is important that access to justice is maintained for
all citizens when seeking to protect their right to privacy (para
147).
Many individuals cannot seek redress for a breach
of privacy because the legal costs are beyond their means. It
is essential that a reformed media regulator provides an alternative
route, which is cost free, to prevent and redress breaches of
privacy (para 150).
Better regulation of news publications
The need for reform of the PCC
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 (para 160).
Privacy and the PCC
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 (para 164).
Independent regulation
We believe that the reformed media regulator must
be demonstrably independent of the industry and of government
(para 170).
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 (para 171).
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 (para
173).
Inclusion of all major publishers
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 (para 179).
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
(para 180).
Status of the regulator
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 (para 186).
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 (para 187).
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 (para 188).
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 (para 190).
Access for complainants
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 (para 192).
Effective sanctions
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 (para 195).
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 (para 198).
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 (para 202).
Arbitration and mediation
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 (para 209).
Parliamentary privilege and injunctions
Freedom of speech in Parliament and injunctions
The absolute privilege for freedom of speech granted
by Article IX of the Bill or Rights 1688 is part of the very foundation
of our parliamentary democracy. This privilege places a significant
responsibility on parliamentarians to exercise it in the public
interest. The presumption should be that court orders are respected
in Parliament; and that when a member does not comply with one
he or she can demonstrate that is in the public interest or enables
the parliamentarian to discharge his or her parliamentary duties
(such as representing constituents) (para 219).
Compliance with injunctions in Parliament
We regard freedom of speech in Parliament as a fundamental
constitutional principle. Over the last couple of years a few
members have revealed in Parliament information covered by injunctions.
We have considered carefully proposals for each House to instigate
procedures to prevent members from revealing information subject
to privacy injunctions. The threshold for restricting what members
can say during parliamentary proceedings should be high. We do
not believe that the threshold has yet been crossed (para 230).
If the revelation of injuncted information becomes
more commonplace, if injunctions are being breached gratuitously,
or if there is evidence that parliamentarians are routinely being
"fed" injuncted material with the intention of it being
revealed in Parliament, then we recommend that the Procedure Committees
in each House should examine the proposals made to us for new
restrictions with a view to implementing them (para 231).
Media reporting of parliamentary proceedings
The free and fair reporting of proceedings in Parliament
is a cornerstone of our democracy. The publication of fair extracts
of reports of proceedings in Parliament made without malice is
protected by the Parliamentary Papers Act 1840. This cannot be
fettered by court order. However, there has been a degree of confusion
that causes us the very gravest concern that this freedom is being
undermined. The media must know whether or not they are liable
to proceedings for contempt in reporting parliamentary proceedings.
We therefore recommend that qualified privilege should apply to
media reports of parliamentary proceedings in the same way as
to abstracts and extracts from Hansard. If legislation is introduced
the opportunity should be taken to update the 1840 Act in a clear
and comprehensible way (para 241).
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