Evidence to the Joint Committee on Privacy and Injunctions from CPBF Chair Julian Petley

This evidence to the Joint Committee on Privacy and Injunctions is submitted by Julian Petley, Professor of Journalism and Screen Media in the School of Arts at Brunel University. He is also Chair of the Campaign for Press and Broadcasting Freedom, a member of the editorial board of the British Journalism Review and a member of the advisory board of Index on Censorship. However, this submission is made purely in his academic capacity. In view of the breadth of the Committee's enquiry, he has addressed only questions in Sections Two and Four of the Call for Evidence.

SECTION TWO

How best to strike the balance between privacy and freedom of expression, in particular how best to determine whether there is a public interest in material concerning people's private and family life?

Have there been and are there currently any problems with the balance struck in law between freedom of expression and the right to privacy?

The answer to this question depends very much on where one is standing. If one is the owner or editor of a popular newspaper then doubtless the answer will be that the latter has been allowed to predominate over the former, but if one is the victim of invasions of privacy by the press, then exactly the opposite is likely to be the case.

Who should decide where the balance between freedom of expression and the right to privacy lies?

Currently this decision lies with the courts, and as long as Parliament refuses to enact a specific privacy law (see below), this is where it should lie.

Should Parliament enact a statutory privacy law?

Yes, although it should be borne in mind that the Human Rights Act and the law pertaining to breach of confidence can be used in certain circumstances to protect privacy and punish invasions of it by the press. The clear advantages of Parliament enacting such a law are that it would have greater democratic legitimacy than the current arrangements, and that clear and specific public interest safeguards could be built into the legislation (see below). 

Should Parliament prescribe the definition of 'public interest' in statute, or should it be left to the courts?

Parliament should prescribe the definition of the 'public interest' in a specific privacy law, and the courts should interpret it on a case-by-case basis. Contrary to the nonsense written in much of the press  about judges being 'dictators in wigs, this is how our constitutional arrangements prescribe that our democracy should work.

Is the current definition of 'public interest' inadequate or unclear?

There are in fact various definitions of the public interest currently available, the most substantial (and satisfactory) of which is offered by the BBC Editorial Guidelines. These state that the public interest  includes but is not confined to:

•    Exposing or detecting crime
•    Exposing significantly anti-social behaviour
•    Exposing corruption or injustice
•    Disclosing significant incompetence or negligence
•    Protecting people's health and safety
•    Preventing people from being misled by some statement or action of an individual or organisation
•    Disclosing information that assists people to better comprehend or make decisions on matters of public importance.

The Guidelines also add that 'there is also a public interest in freedom of expression itself'. In the specific matter of  the public interest and intrusions of privacy, the Guidelines include the following useful points:

•    When using the public interest to justify an intrusion, consideration should be given to proportionality; the greater the intrusion, the greater the public interest required to justify it
•    The BBC must balance the public interest in freedom of expression with the legitimate expectation of privacy by individuals.  Any infringement of a legitimate expectation of privacy in the gathering of material, including secret recording and doorstepping, must be justifiable as proportionate in the particular circumstances of the case.
•    We must balance the public interest in the full and accurate reporting of stories involving human suffering and distress with an individual's privacy and respect for their human dignity.
•    We must justify intrusions into an individual's private life without consent by demonstrating that the intrusion is outweighed by the public interest.
•    We normally only report the private legal behaviour of public figures where broader public issues are raised either by the behaviour itself or by the consequences of its becoming widely known.  The fact of publication by other media may not justify the BBC reporting it.
•    Although material, especially pictures and videos, on third party social media and other websites where the public have ready access may be considered to have been placed in the public domain, re-use by the BBC will usually bring it to a much wider audience.  We should consider the impact of our re-use, particularly when in connection with tragic or distressing events.

The Ofcom Broadcasting Code is much less expansive, noting that 'where broadcasters wish to justify an infringement of privacy as warranted, they should be able to demonstrate why in the particular circumstances of the case, it is warranted. If the reason is that it is in the public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy. Examples of public interest would include revealing or detecting crime, protecting public health or safety, exposing misleading claims made by individuals or organisations or disclosing incompetence that affects the public'. It also adds that 'legitimate expectations of privacy will vary according to the place and nature of the information, activity or condition in question, the extent to which it is in the public domain (if at all) and whether the individual concerned is already in the public eye … People under investigation or in the public eye, and their immediate family and friends, retain a right to private life, although private behaviour can raise issues of  legitimate public interest'.

Eight out of the sixteen clauses in the Press Complaints Commission's Editors Code of Practice  are subject to exception where a story is thought to be in the public interest. Clause 3 of the Code concerns privacy, and is subject to this exception. This clause lays down that:

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. In this respect, the Code adds that 'private places are public or private property where there is a reasonable expectation of privacy'.

The PCC's Editors' Codebook  unhelpfully describes the public interest as 'impossible to define', but in the Code itself it is nonetheless defined, albeit sketchily, as including, but not being confined to:

i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.

The PCC also notes that:

•    There is a public interest in freedom of expression itself.
•    Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest.
•    The PCC will consider the extent to which material is already in the public domain, or will become so.
•    In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.

Should the commercial viability of the press be a public interest consideration to be balanced against an individual's right to privacy?

The short answer to this question is 'no'. The question rests on an argument which has been advanced both by certain journalists and certain members of the judiciary.  Thus Daily Mail editor Paul Dacre argued in a speech to the Society of Editors in 2008 that  'if mass circulation newspapers, which, of course, also devote considerable space to reporting and analysis of public affairs, don't have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process … If the News of the World can't carry such stories as the Mosley orgy, then it, and its political reportage and analysis, will eventually probably die'. Similarly Lord Woolf  in A v B and C (the 2002 Gary Flitcroft case) noted that  'any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is in the public interest', and that 'the courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest'. There is, however, a fundamental flaw in this argument, namely that the newspapers which devote the most space to scandal devote the least to matters of genuine public interest (as defined variously in the previous section).

Furthermore, the few stories on matters of public interest which they do contain are generally so tainted by editorialising and bias that they are largely worthless as news. Can anyone seriously argue that, now that the News of the World has actually died, the political life of the country is really any the poorer for it?       

Should it be the case that individuals waive some or all of their right to privacy when they become a celebrity? A politician? A sportsperson? Should it depend on the degree to which that individual uses their image or private life for popularity? For money? To get elected? Does the image the individual relies on have to relate to the information published in order for there to be a public interest in publishing it (a 'hypocrisy' argument)? If so, how directly?
Should any or all individuals in the public eye be considered to be 'role models' such that their private lives may be subject to enhanced public scrutiny regardless of whether or not they make public their views on morality or personal conduct (i.e. in the absence of a 'hypocrisy' argument)?

These two sets of questions clearly arise from the kinds of defences frequently put forward by newspapers accused of breaching people's privacy. Such defences, however, simply fail to take into account contemporary judicial practice in the area of privacy, so perhaps the most helpful way of addressing these questions would be briefly to outline the current legal position, which, with respect, renders the questions largely redundant.

Once again, the question of the public interest is paramount. Courts will be far less concerned with whether the person whose privacy has been or is about to be invaded is famous than with whether the breach of their privacy rights is in the public interest, in the sense discussed earlier. A key case in this respect is Von Hannover v Germany (2005), in which the European Court of Human Rights stated that it 

Considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of 'watchdog' in a democracy by contributing to imparting information and ideas on matters of public interest … it does not do so in the latter case.

Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned … this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant's private life.

As in other similar cases it has examined, the Court considers that the publication of the photos and articles in question, the sole purpose of which was to satisfy the curiosity of a particular readership regarding the details of the applicant's private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public.

The Court also cited approvingly  Resolution 1165  of the Parliamentary Assembly of the Council of Europe on the right to privacy which, in 1998, criticised  the 'one-sided interpretation of the right to freedom of expression' by certain media which attempt to justify infringing the rights protected by Article 8 of the Convention by claiming that 'their readers are entitled to know everything about public figures'. In addition, the Court endorsed the principle that 'anyone, even if they are known to the general public, must be able to enjoy a “legitimate expectation" of protection of and respect for their private life'. A similar line was followed by Baroness Hale (albeit not in a case involving privacy) in Jameel v Wall Street Journal Europe SPRL (2006), when she argued that the public have a right to know only if there is 'a real public interest in communicating and receiving the information. This is, as we all know, very different from saying that it is information which interests the public – the most vapid tittle-tattle about the activities of footballers' wives and girlfriends interests large sections of the public but no-one could claim any real public interest in our being told all about it'. In this respect it's perhaps worth quoting Max Clifford's remark on Radio 4's The Media Show on 18 May 2011 to the effect that 'I've got to be honest and say I've probably broken more stories than anyone in Britain in the last 25 or 30 years, although I've stopped a lot more than I've broken. But probably [only] 20% of the stories I've broken you could justify on the grounds of public interest, a real public interest, that's all'.

Crucial to any understanding of how the courts actually deal with privacy cases (as opposed to how newspapers would like the courts to deal with them) was the judgement in 2004 by Lord Steyn in the case of  In Re S (FC) (a child) (Appellant) to the effect that, when it comes to balancing Articles 8 (privacy) and 10 (freedom of expression) of the European  Convention on Human Rights, 'first, neither article has as such precedence over the other. Secondly, where the values of the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each'. In Max Mosley v News Group Newspapers (2008) Mr Justice Eady described this 'intense focus' on the individual facts of the specific case as a 'new methodology' which is 'obviously incompatible with making broad generalisations of the kind which the media often resorted to in the past, such as, for example, “Public figures must expect to have less privacy" or “People in positions of responsibility must be seen as 'role models' and set us all an example of how to live upstanding lives". Sometimes factors of this kind may have a legitimate role to play when the “ultimate balancing exercise" comes to be carried out, but generalisations can never be determinative. In every case “it all depends" (i.e. upon what is revealed by the intense focus on the individual circumstances)'. He also argued that 'one of the more striking developments over the last few years of judicial analysis, both here and in Strasbourg, is the acknowledgement that the balancing process which has to be carried out by individual judges on the facts before them necessarily involves an evaluation of the use to which the relevant defendant has put, or intends to put, his or her right to freedom of expression. This is inevitable when one is weighing up the relative worth of one person's right against those of another', adding that 'it is not simply a matter of personal privacy versus the public interest. The modern perception is that there is a public interest in respecting personal privacy. It is thus a question of taking account of conflicting public interest considerations and evaluating them according to increasingly well recognised criteria'. Well recognised, it would seem, by everyone involved except editors of certain newspapers, who repeatedly insist on attempting to run intrusive stories which will almost inevitably be subject to pre-publication injunction. Alternatively, of course, they are simply chancing their arm, which would certainly explain why they frequently don't even bother to turn up to contest an injunction once one has been requested.

Exactly the same line was followed by Mr Justice Eady in the much mis-reported case of CTB and Newsgroup Newspapers + Imogen Thomas (2011), in which he pointed out that 'one can rarely arrive at the answer in any given case merely by reference to generalities. It must all depend upon the particular facts of the case. It follows too that there can be no automatic priority accorded to freedom of speech. The relative importance of the competing values must be weighed by reference to the individual set of circumstances confronting the court. Of course the court will pay particular regard to freedom of expression, but that does not entail giving it automatic priority. All will depend on the value to be attached to the exercise or proposed exercise of that freedom in a particular case. It will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another's right to publish what has been described in the House of Lords as “tittle-tattle about the activities of footballers' wives and girlfriends"'.

Are damages a sufficient remedy for a breach of privacy? Would punitive financial penalties be an effective remedy? Would they adequately deter disproportionate breaches of privacy?

It needs to be stressed that once an individual's privacy has been breached, no legal remedy on earth is capable of 'un-breaching' it.  Therefore the penalty for any breach of privacy which cannot be defended by recourse to the public interest needs to be so severe as seriously to discourage newspapers from committing such a breach in the first place. A recent event such as the Christopher Jefferies case clearly demonstrates that certain newspapers are perfectly prepared to commit what they must know are flagrant breaches of the laws pertaining to both defamation and contempt, and the resulting penalties which have been imposed upon them by the courts are far too low to act as any kind of deterrent. The same is true of penalties in cases of breach of privacy. At the barest minimum, no newspaper should be allowed to benefit financially from illegally and unjustifiably breaching someone's privacy; thus any extra sales revenue generated by such stories should be automatically forfeited as part of the penalty for publishing them. But penalties also need to be both punitive (imposing a significant and substantial penalty for breaching the law) and exemplary (discouraging such breaches in future both on the part of the defendant and of other newspapers).  Since newspapers have repeatedly demonstrated that they are not in the least deterred by the relatively small fines currently levied by the courts, penalties clearly need to be greatly increased, being equivalent to the loss of at least a week's total revenue and, in the worst cases, at least equalling the heaviest fines levied by Ofcom for breaches of its Programme Code (for example, the £2m levied in 2007 on GMTV for cheating viewers who entered its premium-rate phone-in competitions).

Is Section 12 of the Human Rights Act 1998 appropriately balanced? Should the media's freedom of expression be protected in stronger terms? Or is there a disproportionate emphasis on the media's freedom of expression over the right to privacy?  Has Section 12 of the Human Rights Act 1998 ensured a more favourable press environment than would be the case if Strasbourg jurisprudence and UK injunctions jurisprudence were applied in the absence of Section 12?

Section 12 was introduced into the Human Rights Bill purely because the press saw in Article 8 of the ECHR a threat to its commercial lifeblood of kiss 'n' tell stories, and campaigned  vociferously against the Bill as a whole. Solutions posed in all seriousness by the press included the complete removal of Article 8 from the HRA, or the blanket exemption of the press from it, leading Hugo Young to note with undisguised incredulity, in the Guardian, February 12 1998, that, 'unembarrassed by the fact that the Human Rights Bill is a general law, applying to every citizen in his or her relationship with state authority, [newspapers] demand that the press be treated differently ... They propose that the press, alone among institutions with public functions, should stand above international human rights law'. He concluded that 'the only press case against the Human Rights Bill is made by papers with a commercial interest in privacy violations that are indefensible. They will prate most loftily to defend the money they want to continue making basely'. These sentiments are as relevant now, if not more so, than on the day that they were written. Section 12 (4) was devised by Lord Wakeham  (then chairman of the Press Complaints Commission) and introduced by the then Home Secretary Jack Straw in an attempt to quieten press hostility to the ECHR in general and Article 8 in particular. Not only has it has manifestly failed in its purpose, but it also introduced an anomaly into the Act, and for the latter reason it needs to be removed. The whole problem with Section 12 (4) is that it simply ignores the implications of Britain having signed up to the ECHR. Thus when the master of the rolls Lord Neuberger appeared before the Joint Parliamentary Committee on the Draft Defamation Bill on 25 July 2011, he noted apropos Section 12(4) that 'it is impossible to enact the European Convention and then include a provision that seeks to give a different emphasis to the different Convention rights which would be given otherwise'. And at the same hearing, Court of Appeal judge Sir Stephen Sedley drew attention to Section 3 of the HRA, which requires that primary and subordinate legislation must be read and given effect in a way which is compatible with the rights guaranteed by the Convention, which the Act writes into English law.  

SECTION  FOUR

Issues relating to media regulation in this context, including the role of the Press Complaints Commission and the Office of Communications (OFCOM).

PCC

Do the guidelines in section 3 of the Editors' Code of Practice correctly address the balance between the individual's right to privacy and press freedom of expression? 

One is tempted to ask 'what guidelines'? The paucity of Section 3, allied with the sketchiness of the Code's definition of the public interest (see above), inevitably mean that the answer to this question is 'no'.

How effective has the PCC been in dealing with bad behaviour from the press in relation to injunctions and breaches of privacy?

The PCC has done its best on occasion to discourage the formation of media scrums, which can be regarded as attempting to protect people's privacy. However, its record on breaches of privacy in print hardly inspires confidence, which is presumably why people such as Max Mosley, Sara Cox, Ewan McGregor and J.K. Rowling have gone straight to court when their privacy has been infringed, and simply not bothered with the PCC. Admittedly in 2007 it did find on behalf of Elle Macpherson when she was pictured in a bikini on holiday with her children on the island of Mustique, but one can only conclude that this complaint was successful where previous ones of a similar nature (for example, those brought by Anna Ford and Kate Beckinsale) failed because not to have upheld the complaint would have flown in the face of judicial opinion and practice in the wake of Von Hannover v Germany as outlined above. The credit for the PCC's volte face thus lies entirely with the European Court of Human Rights and not with the Commission itself.

As far as I am aware, the PCC has had little or nothing to do with injunctions. Again, though, the point could be made that victims of press intrusion might have been less inclined to take the drastic (and costly) step of seeking pre-publication injunctions had they had any faith in the PCC's ability to stop their privacy being invaded in the first place, or to punish miscreants after the event in any significant fashion.

Does the PCC have sufficient powers to provide remedies for breaches of the Editors' Code of Practice in relation to privacy complaints?

As mentioned above, once privacy has been breached, there are no effective 'remedies' which can be applied; this is the kind of breach which simply cannot be healed. Punishment can be inflicted and compensation awarded, but these are not remedies. Unfortunately, however, the PCC does not have any meaningful powers in this area (or any other) because it possesses no effective sanctions.

Should the PCC be able to initiate its own investigations on behalf of someone whose privacy may have been infringed by something published in a newspaper or magazine in the UK?

Yes, and it should also accept third party complaints on behalf of those who, for one reason or another, are not in a position to complain personally.

Should the PCC have the power to consider the balance between an individual's privacy and freedom of expression prior to the publication of material – or should this power remain with the Courts?

Not only is it impossible to imagine the PCC as currently constituted being able to wield this power effectively, but one doubts whether it is sufficiently familiar with the full body of case law relevant to this particular balancing act. In this respect it does also need to be remembered that a former chairman of the PCC, Lord Wakeham, referred to the European Convention on Human Rights as the importation of 'alien legal concepts' into the UK's 'sovereign Parliamentary and judicial system', a view of the ECHR with which the majority of British newspapers all too obviously concur. The idea that they would take the slightest notice of  decisions reached by the PCC 'balancing' principles whose validity they resolutely refuse to recognise is, I'm afraid, to enter cloud cuckoo land.