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Article Story:
THE PRESS COMPLAINTS COMMISSION - SOME MYTHS ABOUT
SELF-REGULATION
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Date: 01.07.2003
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The Anomaly of a Wholly Unregulated Print Press
The recent report of the Culture, Media and Sport Committee has
highlighted some of the deficiencies in the current form
self-regulation provided by the Press Complaints Commission.
The PCC undoubtedly fulfils an important function, and has some
valuable work in raising press standards above their very low level
at the time that the PCC came into existence. However, from
the perspective of a practitioner whose advice is commonly sought
by individuals (celebrity and otherwise) whose privacy and/or
reputation have suffered at the hands of the print media, neither
the Code, nor the procedure, nor the remedies provided by the PCC
are adequate for the issues which they are supposed to address.
Unlike the broadcast media, the print media is effectively
unregulated. Despite the claims made by the Press, itself of
a high degree of regulation (where usually a series of laws all we
are bound by are trotted out) there is in fact virtually no
external control over what is published by the newspapers.
This is apart from the role of the Courts as arbiters between the
rights of the press and the individual, whose jurisdiction appears
to be thoroughly resented by the less responsible faction of the
print press. Indeed of the two, the government appears to be more
afraid of the print media than vice versa. If that were not
the case, then the print media would have been brought under the
auspices of the new Ofcom to ensure that both the print and
broadcast media enjoy the same degree of regulation. Even if
only for the sake of allowing the two branches of the media to
compete on a level playing field, this was surely the appropriate
step to take. However, any regulation of the print press, in
particular by the government, has had to be done
surreptitiously.
Privacy, Freedom of Expression and Human Rights
This is most clearly the case when it comes to a Privacy
Law. The response of the government to the call by the
Culture, Media and Sport Committee for a privacy law was an
immediate rejection of the idea. However, the government has
already effectively introduced a privacy law by bringing (albeit
obliquely) the provisions of the European Convention on Human
Rights into the jurisprudence of this country. Article 8 of
that convention does endow the citizens of all the states which
signed up to that Convention with a right to a private life, while
Article 10 of the same Convention provides to the media a qualified
right to the freedom and expression. The Courts have so far
reacted to this by extending the ambit of the law of confidence,
but the effect of the introduction of Article 8 cannot be denied
and was readily foreseeable given its interpretation in other
European jurisdictions. This rather renders disingenuous the
immediate rejection by the government of a statutory codification
of the privacy law in response to the Committee’s
recommendation. It leaves responsibility for legal protection
for the basic Human Rights of Privacy in the hands of the
Judiciary.
One of the myths which pervades the debate concerning the role
of the PCC is that there is anything inconsistent between a legal
system which provides for both a right of privacy and of freedom of
expression on one hand, and a free press on another. There
are no serious contributors to this debate who suggest that there
should be any greater government control over the press than the
broadcast media (which appears to flourish within the qualified
freedom that it enjoys), or that it should be prevented from
publishing material which the subjects (including MPs etc) would
object to. The real issue is whether there should be a form
of legal defence and redress available to the individual (or
corporate entity) in circumstances where material is published
about them by the media (and in particular the print press) which
either wrongly damages their reputation, or invades their
privacy. Ofcom’s codes of practice, (and those of its
predecessors), and the role which it has as a statutory regulator
affords some protection to the individual vis-á-vis the broadcast
media. It is for that reason that most privacy battles have
been fought with the print media.
The Unique Quality of Privacy
The media can infringe the rights of an individual broadly in
one of two ways. It can rob that individual wrongly of his
reputation/good name. It can also rob the individual of his
or her privacy. Both of these can be devastating in their
impact, both in the sense of causing anguish and distress and
impacting on the individual's ability to relate to family, friends
and society. In that sense, they both infringe on the Article
8 right. However, unlike privacy, the reputation of an individual
is at least to some extent capable of restoration, although it is
an extremely difficult process.
However privacy, once lost, can never be restored. Once
material about an individual's private life has ceased to be
confidential, it can never again become so. That is one of
the reasons why it is so essential for there to be a
prior-restraint procedure to protect the individual – something
which the press, via its mouthpiece, the PCC so vigorously
opposes. The Courts recognise the distinction between issues
of reputation (libel) and privacy (breach of confidence), by making
injunctions to stop defamatory material being published extremely
difficult to obtain. However, injunctions to prevent breaches
of confidence are much more readily granted. This is as it
should be, since the loss of privacy is irredeemable.
However, the power to restrain publication by the press of
material disclosure of which would be a breach of the fundamental
right to privacy enshrined in Article 8 is an essential feature of
any civilised society. It is extraordinary therefore that the
PCC, whose role is supposed to be to provide some bulwark between
the press and its subjects, should be seen to so vehemently oppose
it. The only possible explanation for this is that it is
campaigning on behalf of its paymaster, the print press.
Freedom Under the Law – or Freedom From the Law
It comes down to this; does the press accept that it should
function within the rule of law or not? If it should, then
the provisions of the PCC Code which concede (inter alia) that the
privacy of the individual is something which is properly protected
even from a vigorous and “free” press, are therefore ones which
should equally appropriately fall within the bounds of legal
protection. If the print media considers that it should be
permitted to operate outside the bounds of the law (as it as least
implicit in some of the more violent contributions by editors from
the tabloid realm) then it should come clean and say so.
If the press does not consider that it should enjoy effective
legal immunity, then the human right recognised in the European
Convention should be one which is enforceable against the print
press just as it is meant to be enforceable against other very
powerful entities. As the PCC’s own submission to the
Committee conceded; “… newspapers and magazines wield great power –
and in most mature civil societies, they choose to make clear that
they wish to wield it responsibly, and within a framework of high
ethical standards”. Presumably the print press would want its
Article 10 rights to be respected and legally enforceable. It
is hard therefore to imagine any justification for it resisting the
entitlement of others to enforce other Articles at the Human Rights
against it.
The alternative offered by the print press to a proper degree of
legal regulation appears to be self-regulation (if that is truly
the appropriate term) by the print press itself via the Press
Complaints Commission. This is an entity which the press
funds, representatives of the press make up a substantial
proportion of its members (two short of a majority), and which
adjudicates on a code which has been drafted by the press.
Surely this is not an adequate form of protection for the
individual from one of the most powerful entities in the world.
The Truth About Self-Regulation
The Code, procedures and remedies are not adequate for the task
which they are supposed to fulfil. The problems with the Code
begin at paragraph 1, the section dealing with “Accuracy”.
Paragraph (i) obliges the print press to “take care not to publish
inaccurate, misleading or distorted material…”. Paragraph
(ii) then reads:-
“whenever it is recognised that a significant inaccuracy,
misleading statement or distorted report has been published, it
should be corrected promptly and with due prominence.”
Any practitioner who takes on the press concerning published
inaccuracies will tell you that it is generally extremely reluctant
to concede any transgression on its part (as illustrated by its
preference for corrections to be the size of a postage stamp deep
in the middle pages of a subsequent edition). If then the
newspaper in question resists the suggestion that it has published
inaccurate material, then the burden of proof lies on the
complainant to prove the inaccuracy in order to obtain a positive
adjudication from the PCC. The difficulty is, as many PCC
adjudications attest, it does not have the necessary forensic
machinery to make tested adjudications on factual issues, and will
often therefore simply decline to do so. Where does a
complainant go then for a remedy if that complainant knows that a
breach of the Code has occurred?
Some of the Disadvantages Faced by the Complainant
The complainant suffers from two additional disadvantages when
the complaints procedure is under way. The first is that the
complainant must either take their chances on their own, and my
experience is that newspapers take far less notice of respective
claimants when not represented by lawyers than when they are
represented by lawyers; or the complainant must fund equivalent
expert legal assistance to that enjoyed by the newspaper, for which
he knows he will not be reimbursed. Otherwise, when the PCC
procedure itself gets underway, unless complainants can fund their
own lawyer to fight their corner, they will usually be faced with a
legal team from the newspaper which will not only be of a high
quality, but will also have enormous experience of the PCC Code,
previous decisions, methodology, personnel and ethos (more even
than any lawyer in private practice). Complainants who choose
to proceed via lawyers do so knowing that that investment is
irrecoverable, resulting in an inevitable let cost of invoking a
procedure which neither carries a financial penalty for the
newspaper, or the financial benefit to the claimant. The
Claimant must therefore make the unattractive choice of having to
pay for expertise and prospects equivalent to that of the
newspaper, engage in the PCC's processes at a clear
disadvantage.
Tellingly, the PCC’s submission to the Committee makes a big
point in at least two places about how complaints conducted by
lawyers take longer to resolve. Clearly the PCC/press prefer
adjudication to take place where the press is legally represented
and the complainant is not. The first point is that certainly
from my experience of the national newspapers is that most
complaints they face are dealt with by lawyers employed by the
newspaper. The second point is that it may well be that those
represented by lawyers strike an appropriately harder bargain
during the mediation process, or fight their client’s corner harder
during the adjudication process. In fact, the PCC submission
gives no reason for its statistic that legally-conducted complaints
take longer to resolve, but the purpose of this propaganda against
an evenly-matched contest does appear to be self-serving.
Generally contests where there is equality of arms take a little
longer to resolve than walk-overs.
Worse still, the newspaper lawyer will have regular access to
and discrete briefings from the PCC staff during the process
whereby the complaint is adjudicated. This appears to come
about because of the bona fide attempts on the part of the PCC
staff at mediation. However, this also has the effect of
enabling the newspaper to know the progress of the complaint, its
likely outcome etc in making judgements as to what ground it must
give to avoid an adverse adjudication. The provision of the
PCC of this inside information creates yet a further disadvantage
to the complainants in the PCC process. This problem can only
be solved if (as the Committee Report suggests), a twin-track
procedure is established at the PCC whereby its roles as mediators
and arbitrators under the Code are kept entirely separate.
When the complaint is adjudicated on by a committee whose
procedures are secret, but yet which contains a considerable
representation from the print press itself, those elements will
inevitably consider the impact of any adverse adjudication against
another newspaper on his or her own title. This is
particularly now that a body of “case law” is being established,
and earlier adjudications referred to who is going to want to
establish a precedent which may later be used against them.
At the end of this process the very most which a complainant can
expect to get is an adjudication to the effect that the newspaper
breached the Code – and nothing more, and no right of appeal if the
adjudication goes against them (as most appear to do). The
complainant has not had a real opportunity to test the almost
inevitable “we stand by our story” response of the newspaper.
For all the complainant knows, all but one of the lay members of
the Committee may have found in his or her favour, and only one
persuaded by the industry members to bring about an adjudication in
the newspaper’s favour. If the complainant has come to the
reasonable conclusion that he or she is going to have the best
prospects of a positive adjudication if represented by an
equivalent level of expertise as that enjoyed by the newspaper,
then there is no prospect whatsoever of that investment being
recoverable (whether the adjudication is for or against the
complainant). However, while the newspapers campaign so
violently against any kind of codified privacy law then those which
the PCC describe as few “satisfied” customers have no competitor
procedure against which to compare that to the PCC.
The Commercial Imperative
In one sense we do not have a free press at all. The print
media all compete in a tough commercial market, and must assess
their content in a way which will (they hope) maintain or increase
their market share and profit margins. Newspapers breach the
PCC Code for commercial gain. The more flagrant the breach,
the more substantial is the likely commercial gain. The nude
pictures of Sarah Cox and her husband were published in order sell
more copies of the People newspaper, and thereby increase
profit.
If there is no counter-balance to the commercial pressure on
newspapers to convert invasions into people’s privacy (or
trespasses on their reputation) into money, then they are bound to
continue. The ability of the Courts to award damages (and
costs) is therefore a vital balance to the commercial pressure on
the press to breach even the modest bounds of its own Code in order
to ensure its place in the readership ratings, advertising revenue
etc.
The Inevitable Appearance of Bias
How can it be right in these circumstances that the press should
insist that the only remedy available to complainants such as Ms
Cox is one where a body created and funded by the press adjudicates
a complaint based on a Code which the press has drafted, by means
of a commission on which the press is substantially represented,
and where the newspaper is defended by lawyers expert in the field
in circumstances where the PCC will not make an award of costs to
the claimant for equivalent expert assistance, where the PCC’s sole
power is to make finding that the newspaper has breached the Code
(to its own commercial advantage), but no financial penalty is
imposed on the newspaper, or compensation awarded to the
complainant, and where there is effectively no appeal against its
determination.
Anyone who has any doubt as to the true nature and agenda of the
PCC need no more than read its submission to the Committee.
It read as it was, a detailed submission on behalf of a press lobby
group to ensure that regulation of the press was kept to a minimum,
and in particular that it was not subjected to any further form of
legal restraint. This is not what you would expect from an
organisation which is supposed to be a bulwark between the hugely
powerful print media and those who might suffer damage because of
its transgressions. Here is just one example of the
unsustainable arguments made by the PCC on behalf of the print
media against it operating (so far as privacy is concerned) within
the confines of the law. This is one point from their
Executive Summary:-
“the alternatives to the PCC are impractical and
undesirable. Statutory controls would be impossible to
implement under the HRA, and privacy laws would be inaccessible to
ordinary people.”
It is certainly not the case that statutory controls would be
impossible to implement under the HRA. A privacy law which
recognises the Article 10 right enjoyed by the media, and the
Article 8 right enjoyed by the citizen would not only reflect the
balancing exercise which the Courts are currently undertaking, but
also which is inherent within the PCC Code itself. To suggest
that a privacy law would be “inaccessible to ordinary people” is
also just plain wrong. The nearest equivalent (the Law of
Libel) is open to everyone either as a litigant in person or who
instructs lawyers on the basis of a contingency fee, or who funds
proceedings in the traditional way. The alternative
(suggested by the PCC) that “ordinary people” are not given any
legal right to redress does rather betray the PCC’s real
agenda.
The Vital Role of the Courts
Historically, the Courts have been the last bastion of
protection for the individual against the executive, and/or the
ruling class. Historically that was the monarch and
aristocracy, and subsequently the political class. In the
21st century, few doubt that the media has become the ruling
class. The Courts should play the same role vis à vis the
media as it has done historically against its predecessors.
They should be empowered and equipped to prevent and/or redress
infringements by the media on the rights of the individual.
Self regulation plays a valuable part in raising and maintaining
press standards. Parliament by means of the Human Rights Act,
and subsequently the Courts, have rightly recognised in the
adjudication of legal disputes the importance of the PCC
Code. However, it cannot be right to rob the individual of
the protection of the Court when faced with so powerful a potential
oppressor as the popular press. To do so renders the rights
which the European Convention are supposed to provide illusory and
the individual little better off than he or she would be faced with
a state-controlled media under a totalitarian regime.
Conclusion
The PCC submission to the Committee betrays its true role as a
promoter of the interests (which are principally commercial) of the
press. A number of very poor arguments are made against the
introduction of a privacy ban, which arguments clearly have been
rightly rejected by the Committee. The lack of ability on the
part of the PCC to provide prior restraint, financial compensation
(or penalty), the remuneration of legal fees, future restraint
against the republication of stories, and its obvious (as emerges
from its submission to the Committee) pro-press agenda makes it
wholly unsuited to being the sole protector of the Human Rights of
the individual against the hugely powerful print media.
Exceptionally, this part of Professor Pinker’s contribution to the
debate (as part of the PCC’s submission) strikes the right
balance:-
“Article 10 of the Convention upholds the right to freedom
of expression and opinions and receives and imparts information and
ideas without interference by public authority… It should also be
noted that both the right to freedom of expression and to privacy
are made subject to various qualifications relating to the
consideration of public interest. This includes… the
protection of the rights and freedom of others” (emphasis
added).
Ultimately the protection of such rights must both
constitutionally and as a matter of practical common sense be the
responsibility of the Courts. Rather than the press putting
forward specious and self-interested arguments against the proper
framework for such protection, they should endorse and contribute
to it to ensure that it strikes the right balance between the vital
and proper rights of free speech, and the individual’s right of
privacy.
The alternative is an ad hoc process via case law, since
judiciary (apparently at present less fearful of the media than the
government) has shown itself willing to step in to protect the
individual against the media, despite severe attacks on them by
certain parts of the media when this has been done. It would
be more productive of the press to engage in constructive dialogue
as to how the twin but often conflicting freedoms enshrined in
Article 10 and Article 8 can be protected by means of properly
constituted privacy law.
Jonathan Coad
© Jonathan Coad 2003
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