Who needs a privacy law?

A recent report by the UK House of Commons’ culture, media and sport select committee into privacy and media intrusion called for measures that offered ‘clarity over the protection that individuals can expect from unwarranted intrusion by anyone – not the press alone – into their private lives’ (1).

This was widely reported as a call for a privacy law to curb unwarranted intrusion into private lives. But at the time, Tessa Jowell, secretary of state for culture, media and sport, commented: ‘The government continues to believe that a free press is vital in a democracy and that self-regulation is the best regulatory system.’ (2) So what does the report actually show? In short, that press freedom is being undermined with or without a specific new law.

Most of the committee’s report focuses on the Press Complaints Commission (PCC), the self-regulatory independent organisation set up in 1991 and funded by the press industry to mediate between newspapers and the public. You would think that a government which ‘has no plans whatsoever to legislate in this area, or to interfere with the way the PCC operates’ (3) and one that ‘will not try to tell the industry what they should change’ (4) would remain silent on how the press deals with complaints. Not so. Jowell’s submission of evidence to the committee offered a string of questions which she hoped the PCC would consider (4).

Jowell asks: ‘Is there a case for devising an appeals mechanism that is not only independent of the government but also seen to be free of undue industry control?’ (4) She points out that 41 percent of people whose case was considered by the PCC were dissatisfied and that an ‘independent appeals mechanism’ would dispel any ‘lingering suspicions about the fairness of the [PCC] complaints procedure’ (4).

Follow the logic here. A government minister suggests that the PCC, an organisation that was set up by the press to regulate its own work, should not regulate part of its own work. How would this allow the PCC to be independent and free of external influence?

To Jowell, independence means independence from government, but also from ‘undue industry’ control. This is a kind of third way approach to press self-regulation. It acknowledges that direct interference of the press by government would incite cries of ‘censorship’, whereas other forms of external scrutiny would seem less antagonistic. In essence, of course, this is not about press freedom at all. It is simply a discussion about the most effective forms of regulation.

Amid all the confusion about the likelihood of a privacy law being introduced into the UK, what is often forgotten is the extent to which press freedom is already compromised: not least by self-regulation, through the PCC. The PCC was established in 1991 to renew faith among the press, the public and the government in the ability of the press to regulate itself. But why should journalists need to prove they can regulate themselves to the satisfaction of governments? For the press to be free it should be up to journalists and editors to decide how they arbitrate readers’ complaints, and what standards of journalism they should adopt.

As the select committee’s proposals indicate, there is a tendency of any self-regulatory organisation to be dragged in to an ever-closer relationship with the state and find more ways to restrict press freedom. Jowell’s current approach to the PCC explicitly avoids telling it what to do, while positing ideas for change in the form of questions that cannot easily be ignored.

The same softly-softly approach to media regulation is also contained with the culture, media and sport select committee’s report. Although the committee concludes that ‘the PCC does seem to have the confidence of the government’ (5), it has called for the PCC to ‘make itself available to give evidence to this committee at regular intervals for discussion on progress with its agenda for change’ anyway. (6)

Select committees can compel individuals to attend hearings as part of evidence gathering for their reports, but this is quite different to asking representatives from organisations to attend committees regularly as a general rule. What the PCC does, after all, is offer a forum for the resolution of complaints between the press and the public free of charge. It may not resolve cases to the satisfaction of all parties, but it is not a court of law or publicly funded, so why should it be called to account in this way? If politicians are as committed to press freedom as they say they are, they should be offering less, not more, interference.

But the select committee’s agenda is about less freedom and more regulation. All its proposals for the PCC, from fining errant newspapers to increasing the number of lay members and ensuring that newspaper apologies feature more prominently, are aimed at inspiring the confidence of the government, parliament and the public in the organisation. The report’s summary notes that: ‘The key to this [self-regulatory] system must be that it commands the full commitment of the industry itself as well as the confidence of the government, parliament and, crucially, the public. To these ends the measures we recommend are aimed at enhancing: the independence of the PCC and aspects of procedure, practice and openness….’ (7)

So confident is the select committee in pushing for PCC policy changes through suggestion, while paying lip service to the idea that this will improve the PCC’s independence, that its goes so far as to suggest how members of the PCC should act in their own organisation. Recommendation 15 of the report notes: ‘There should be an explicit presumption that they [the press members of the PCC] are not there to represent the interest of their associations but to offer the benefits of their particular expertise whilst acting independently….’ (8).

So not only should the PCC’s internal structure be altered to suit the committee, the attitude of journalists needs changing too. How can the press be truly free to be independent if they are being told what mindset to adopt by a body of MPs?

One minute members of the government, the House of Lords and MPs are treating the PCC with kid gloves. The next it is clear that softly-softly suggestions for change are done in the context of threats of statutory control if the ‘independent’ organisation doesn’t improve to their liking. For example, Baroness Scotland, parliamentary secretary to the Lord Chancellor’s department, told the committee during discussions with the PCC about payments to witnesses that if the PCC ‘had not been minded to change their rules and their code of conduct’ then ‘we would have had to legislate’. As she put it: ‘we wanted to hear from them [the PCC] whether they wanted to discharge their duty or whether they wanted us to do it for them.’ (9)

In early 2003, Lord Puttnam, who chaired a joint committee of MPs and peers examining the draft communications bill, recommended that the PCC should be a self-regulatory independent organisation but also be accredited by Ofcom, the statutory organisation being set up with powers over broadcasting and telecommunications (10). In June, Lord McNally, the Liberal Democrat deputy leader in the House of Lords, tabled an amendment to the communications bill giving Ofcom powers to direct the PCC to impose penalties on newspapers. If this became law, any publication found breaching the PCC’s code could be fined up to £500,000 (10). Proposals such as these blur the line between a self-regulatory body and the state until it ceases to exist.

I am not arguing here that elected representatives in parliament should be silent about press organisations or standards. What needs highlighting, however, are the implications for democracy in using the powers of the state to undermine the press. Such powers undermine everyone’s right to free speech: and that is why everyone, not just media moguls and journalists, should be worried about the political pressure brought to bear on journalists.

Although the PCC is run by the press industry, which has considerable economic power, it does not follow that how it deals with complaints about newspaper and magazine content requires scrutiny by external authorities. The organisation deals with words and pictures, not something that potentially could threaten the public’s health and safety. Nevertheless the PCC is said to need an ‘ombudsman’, or extra tiers of regulators to check the self-regulators – as if it was identical to a company manufacturing something like nuclear fuel.

In a free society, journalists and editors should be able to decide what to say without having their words subjected to some kind of health and safety test before they reach the readers. Rather than their words being suppressed by the state, they should be judged by the audience.

What particularly excites the select committee into a regulation frenzy are the methods used by journalists to gather information. Door-stepping people who have refused interviews and secretly filming without due regard to the public interest are of concern. Payments to police officers and informants are mentioned in the committee’s report as issues that ‘the PCC must investigate’ (11). Yet journalists are not above the law when they amass information about individuals’ private lives: they are charged or locked up like anyone else when they do something illegal. So why do PCC members need to act like policemen?

A gradual merging of self-regulation and legal regulation is placing the PCC under increasing pressure to tighten the rules on press freedom. Despite all the rhetoric about its independence, the PCC is considered by the committee to be a ‘quasi-judicial body’ (12). That is, the PCC’s rulings are considered by some to be a replacement for court judgements.

To Mr Justice Silber, ruling in an application brought by newsreader Anna Ford for Judicial Review of a PCC decision, the ‘[Press Complaints] Commission is a body whose membership and expertise makes it much better equipped than the courts to resolve the difficult exercise of balancing the conflicting rights…(of) privacy and of the newspapers to publish’ (13). Sir Louis Blom-Cooper QC, a former chairman of the Press Council (which regulated the press prior to the PCC), has argued that the PCC ‘should pay proper regard to the applicable law’ – as if it were the role of an independent press complaints organisation to interpret the law on press freedom rather than develop press codes on journalistic standards (14).

Legal and political opinion is divided as to whether the PCC counts as a ‘public authority’ or an independent organisation under the Human Rights Act (15). As a public authority, the courts would have power to intervene in the internal affairs of the PCC to ensure that it abides by Article 8 on the right to respect for privacy and family life, whether PCC members agree with the judicial interpretation of this right or not. But if parliament or the judiciary start to credit PCC adjudications with the authority of a semi-legal nature, this provides a justification for further state scrutiny of the PCC and its work. As Guy Black, the PCC’s director, has commented: ‘We [the PCC] were never meant to be a watered-down version of the legal system.’ (16)

How has this state of affairs arisen? The political thinking that drives the assault on the PCC’s independence is that rights need qualifying, in the way that has been argued by prime minister Tony Blair: ‘[Respect] makes real a new contract between citizen and state, a contract that says that with rights and opportunities come responsibilities and obligations.’ (17)

In other words, the Human Rights Act may offer us a written formulation of our rights – but these must be qualified by other responsibilities. In relation to press self-regulation, the assumption is that the right to free association should be subject to external monitoring at least and statutory controls at most.

What has become of the idea that press freedom is a cause worth championing? Even Tom O’Malley from the Campaign for Press and Broadcasting Freedom does not believe that press independence has anything to do with being free from state control. To him, the fact that the PCC ‘is independent of any kind of public control’ is a problem. He would like a proprietor-controlled press complaints system replaced with a statutory complaints body (18).

The PCC may be dominated by media moguls and editors (as the National Union of Journalists has recently pointed out). It makes all kinds of (often arbitrary) decisions about what should and should not be published, which imposes a significant constraint on press freedom. But, being the press, at least it recognises the benefits of free speech. The state, on the other hand, has no such interest in protecting free speech; and greater state control could only mean greater regulation.

According to the PCC’s own website, ‘The Press Complaints Commission is an independent body which deals with complaints from members of the public about the editorial content of newspapers and magazines’ (19). Yet each time governments and parliamentary committees have asked the PCC to strengthen its codes of conduct it has responded, despite occasional protestations, in accordance.

For example, in 1993 the UK government asked the press to appoint a special press ombudsmen to oversee complaints. The press responded by creating the first post for a privacy commissioner to act specifically about privacy complaints on behalf of the public. In 1998, following calls by public figures for tougher measures against the media, which were precipitated by the coverage of Princess Diana’s life and death, the PCC drew up additional codes of practice on harassment and privacy (20).

This year the familiar war of words between MPs and the PCC is even more farcical. Those in favour of tougher media regulation argue that the press should not upset people by reporting certain kinds of stories. Defenders of self-regulation say that the PCC system is cheaper and faster than legal means of redress. When all the noise dies down, true to form the PCC will carry out most of the committee’s proposals – some of which were suggested by the PCC itself. For example, Sir Christopher Meyer, new chairman of the PCC, has agreed to report back to the committee on the PCC’s progress next year and has suggested that editors be censured more visibly.

There are times when the PCC appears to stand up to government pressure to remain independent. Meyer argues – contrary to the committee’s proposal – that the PCC should not have the power to fine newspapers. But how important is such opposition when the PCC concedes that journalists need to curb their behaviour ever more steadily year on year, and when the PCC Code of Practice becomes so detailed about what journalists are allowed to do that it reads more like a complex legal statute than a basic outline of journalistic principles?

This is not to say that journalists should never discuss media standards with MPs. The problem is how the PCC responds to criticism. It appears to consider internal policy only when parliamentary committees flag up press behaviour that is not to their liking and threaten sanctions.

Despite a decade of new PCC rules on privacy and harassment, media culture has become more, not less, revealing about private life. At a time when public figures and celebrities are revealing intimate details about their personalities and home life, the press reflects our confessional culture. It may also inflate society’s obsession with private life, but it should not be singled out as the main culprit.

To spearhead an enlightened debate on the media we need independent thinking – and independent forums in which to think. Bringing the PCC under the remit of the judiciary and parliament undermines the freedom of journalists to do so by creating a culture that is friendly to regulation and hostile to freedom. The reaction to cultural anxiety about trust and the erosion of media standards has been to tip the balance from free speech towards rule-making and state control. This is being done in a softly-softly fashion, but its cultural and democratic effects on a free press are brutal.

Tessa Mayes is a contributor to The Sunday Times and the British Journalism Review, and is on the editorial advisory board of Ethical Space, the International Journal of Communication Ethics. Restraint or Revelation? Free Speech and Privacy in a Confessional Age, a spiked-report by Tessa Mayes (2002), contains interviews with Neil Wallis (former editor of The People), Bob Satchwell (executive director of the Society of Editors), Clive Jones (chief executive of Carlton Channels) and Dorothy Byrne (commissioning editor of news, current affairs and business at Channel 4). It can be viewed online, or purchased from spiked (£10 plus postage and packing) by calling +44 (0)20 7269 9228.

(1) Summary, Privacy and Media Intrusion – fifth report of session 2002-3 Volume I, House of Commons Culture, Media and Sport Committee, p3, 16 June 2003

(2) Tessa Jowell, quoted in ‘Privacy law ruled incompatible with free press’, Adam Sherwin, The Times, 17 June 2003

(3) Introduction, Privacy and Media Intrusion – fifth report of session 2002-3 Volume I, House of Commons Culture, Media and Sport Committee, p13, 16 June 2003

(4) List of Written Evidence, Privacy and Media Intrusion – fifth report of session 2002-3 Volume II , House of Commons Culture, Media and Sport Committee, Ev. 347, 16 June 2003

(5) ‘The Press’, Privacy and Media Intrusion – fifth report of session 2002-3 Volume I, House of Commons Culture, Media and Sport Committee, p25, 16 June 2003

(6) Conclusions and Recommendations, Privacy and Media Intrusion – fifth report of session 2002-3 Volume I, House of Commons Culture, Media and Sport Committee, p7, 16 June 2003

(7) Summary, Privacy and Media Intrusion – fifth report of session 2002-3 Volume I, House of Commons Culture, Media and Sport Committee, p3, 16 June 2003

(8) Conclusions and Recommendations, Privacy and Media Intrusion – fifth report of session 2002-3 Volume I, House of Commons Culture, Media and Sport Committee, p.5, 16 June 2003

(9) Oral Evidence, Privacy and Media Intrusion – fifth report of session 2002-3, Volume II , House of Commons Culture, Media and Sport Committee, Ev. 763, 16 June 2003

(10) ‘Jowell facing calls to give Ofcom power to fine press’, David Rose, Press Gazette, 27 June 2003

(11) The PCC and the Law, Privacy and Media Intrusion – fifth report of session 2002-3 Volume I, House of Commons Culture, Media and Sport Committee, p37, 16 June 2003

(12) Conclusions and Recommendations, Privacy and Media Intrusion – fifth report of session 2002-3 Volume I, House of Commons Culture, Media and Sport Committee, p5, 16 June 2003

(13) The PCC and the Law, Privacy and Media Intrusion – fifth report of session 2002-3 Volume I, House of Commons Culture, Media and Sport Committee, p40, 16 June 2003

(14) ‘PCC wrong on pay rule’, Letter by Sir Louis Blom-Cooper QC, Guardian, 12 July 2003

(15) See the Human Rights Act (1998)

(16) ‘Press body queries fines plan’, Matt Wells, Guardian, 18 June 2003

(17) My vision for Britain, Tony Blair, Observer, 10 November 2002

(18) ‘Complaints on the press’, Letter from Tom O’Malley, Guardian, 19 June 2003

(19) What is the PCC?, Press Complaints Commission Website, 25 June 2003

(20) Restraint or Revelation? free speech and privacy in a confessional age, a spiked-report by Tessa Mayes, 2002