Does self-regulation of the print media really work? Lawyers tell Nigel Hanson that the press complaints commission needs to acquire the muscle of broadcast regulator Ofcom


Fifteen years after David Mellor memorably warned a rampant British press it was ‘drinking in the last chance saloon’, the Press Complaints Commission (PCC) has published an upbeat annual report.



Besides blaming media lawyers for causing delays and being irrelevant to its procedures (see [2004] Gazette, 24 June, 4), it coolly attributes a 39% increase in the number of complaints last year – 3,649 is a record since its inception in 1991 – to greater public awareness.



The report also lauds its system of print media self-regulation as a mechanism for balancing competing public and private interests in a democratic society.


But solicitors are sceptical about the PCC’s performance. Many see it as a toothless watchdog that is too close to its paymaster, the newspaper and magazine industry.


Under a new chairman, Sir Christopher Meyer, the 17-member commission has boosted its slim majority of lay members over the press contingent to 10:7. Yet editors still form an influential bloc and the organisation continues to be funded through a levy on publications that are free to walk away if disgruntled. Solicitors also criticise what they consider to be the PCC’s weak investigatory powers and inability to impose fines.



David and Victoria Beckham experienced some of its procedural inadequacies with their complaint against the Sunday Mirror last November. The PCC was unable to make an adjudication on the disputed facts, openly conceding it lacked power to summon or cross-examine witnesses.



Nigel Tait, a partner at London firm Carter-Ruck, who acts mainly for claimants, thinks the existing system of self-regulation lets clients down. ‘Generally, we feel the clients get a brush-off from the PCC and so we tend not to use it,’ he says.


Bias is a concern. Mr Tait says: ‘If you go to a court you are guaranteed an independent and impartial tribunal – article 6 under the Human Rights Act – but whilst you will find many references to the PCC being independent, you will not find the word “impartial” in the PCC’s own description of itself.


‘This is a fundamental and incurable problem with the PCC. How can you put your trust in an organisation which is inherently prejudiced?’


He accuses the PCC of turning a blind eye in insisting last year’s increase in complaints was caused by it becoming more user-friendly rather than a rise in press excesses.


He says: ‘It is Nelsonian blindness for the PCC to attribute the massive increase in numbers of complaints to them as “an encouraging sign of accessibility of the commission”.


‘If the Law Society recorded a rise in the number of complaints to them about solicitors, would that be an encouraging sign?’


Ever since the Calcutt Report of 1990, the PCC has been fighting a rearguard action against the prospect of a full-blown privacy law and statutory controls. Last year, it escaped intact following a favourable Department of Culture, Media and Sport select committee on press intrusions. The government opted to continue self-regulation for print media while the Communications Act 2003 brought television, radio and other telecommunication industries under the umbrella of super-regulator Ofcom, which has superseded five previous regulators: the Broadcasting Standards Council (BSC), Independent Television Commission (ITC), Oftel, the Radiocommunications Agency, and the Radio Authority.


The PCC’s code of practice, compiled by editors themselves, is constantly evolving to meet new challenges.


Clause 16 was amended in March 2003, for example, to prohibit payments to witnesses, or those who might reasonably be expected to become witnesses, once proceedings are active. Adherence to the code is written in to the employment contracts of most editors – something the PCC claims gives it real teeth.


But lawyers say Ofcom’s sanctions command more respect. Ofcom can impose fines in fulfilling its duties of protecting the public from ‘harm’ and ‘offence’ and safeguarding against unfair treatment. It can also prevent a broadcast being repeated, force a broadcaster to publish an adverse adjudication on air, and in extreme cases, shorten or revoke a licence.


Michael Skrein is a partner in the media department at City firm Richards Butler. who has acted in libel proceedings for Hollywood stars such as Kim Basinger, Clint Eastwood and Mel Gibson. He says the PCC’s shortcomings, including its inability to resolve factual disputes, are harming the interests of both the press and the public.


People are entitled to a ‘third way’, says Mr Skrein, between the extremes of suing the press and simply giving up. But as things stand, he often advises clients not to bother with the PCC because he has little confidence in its outcomes.


Mr Skrein, who acts for Express Newspapers, says poor self-regulation only makes it more likely that people will litigate and demand more restraints.


He says anyone aggrieved by a radio or television broadcast has meaningful recourse to a ‘third way’ thanks to Ofcom’s mightier sanctions, which he sees as understandably tougher than controls on print media because of broadcasters’ ‘greater ability to penetrate the home’.


Mr Skrein says: ‘We don’t know how Ofcom is going to work yet, the jury is still out, but Ofcom’s predecessors have provided a powerful alternative to the courts previously. Ofcom has sanctions that broadcasters take seriously. Claimants’ lawyers might scoff at that, but I think it’s true.’


While print media may be entitled to more latitude to ensure free speech, he says, there is scope for the PCC to get tougher and provide more effective self-regulation. Just a few landmark decisions could change the legal climate overnight.


‘The world of media lawyers is a tiny world,’ says Mr Skrein. ‘Word would get around very quickly.’


Skrein: 'third way' Sarah Webb, a partner at Russell Jones & Walker, has mixed views on the PCC. She says: ‘In limited circumstances it works quite well. If you are really just looking for a factual correction in respect of the regional press, it can work well. But where I don’t think it works is for a more serious story which is defamatory or involves a breach of confidence or privacy.’

Ms Webb says the PCC is perceived to have a history of ‘fobbing people off’, making legal action necessary. She cites the example of a vet who complained, without satisfaction, of being seriously libelled by the national press and local newspapers in Wales. It was apparent from correspondence between the newspapers and PCC that nothing was going to happen. ‘We got involved in the case and issued letters of claim, and we are getting offers to settle,’ she says.


The stakes can often be worth a fight. Although libel damages have reduced, Ms Webb says the courts regularly award celebrities £40,000-£50,000 damages for unjustified intrusions of privacy. In her view, the code does cover all the key issues, but self-regulation fails when it comes to enforcement. ‘When there’s a breach, newspapers may get a rap on the knuckles but it doesn’t cost them anything,’ she says.


The PCC set up a Charter Compliance Panel in January to scrutinise its decision-making. Jennifer McDermott, a partner at Lovells who acts both for complainants and newspapers, says this was ‘a step in the right direction’. She too laments the inferiority of the PCC’s sanctions compared with those available to Ofcom. She says: ‘The fact that Ofcom can fine and really hurt in the pocket is the main difference. It would reassure clients with a complaint if the PCC could do this as well.’



As regards legal developments, Ms McDermott, who lists the Daily Star among her clients, says the PCC is ‘out of step’ on increasingly sophisticated privacy jurisprudence following rulings of the European Court of Human Rights in the Geoffrey Peck and Princess Caroline of Monaco cases.



Peck v UK (ECHR 28/01/2003; application no. 44647/98) involved a man caught on CCTV unsuccessfully trying to commit suicide by cutting himself with a knife in Brentwood High Street. Images from the CCTV were published on television and in local and national newspapers. The PCC rejected a complaint from Mr Peck on the basis that the incident took place in public. The ITC and BSC, meanwhile, upheld his invasion of privacy complaints and the ECHR awarded him damages after finding his article 8 right to respect for his private life was violated.



In Princess Caroline’s case (Von Hannover v Germany, ECHR 24/06/2004; application no. 59320/00) the court ruled that paparazzi pictures taken of her on holiday or shopping with her family breached her article 8 rights. Ms McDermott says: ‘Even a celebrity can have a private life, and if she’s photographed in a public place, say on holiday or outside a school, there may be a claim. But the PCC would hold that you don’t have a reasonable expectation of privacy in a public place.’



The code says long-lens photography of people in private places without their consent is unacceptable, adding that private places are public or private property where there is ‘a reasonable expectation of privacy’.


Ms McDermott accepts the PCC is fast, free and independent to the extent that editors on the commission will not adjudicate a complaint against their own publications. But her overall verdict is damning: ‘Because it’s so toothless, newspapers don’t worry about it too much.’



Similarly, Amber Melville-Brown, a consultant with London-based David Price Solicitors & Advocates and the Gazette’s media law columnist, says the PCC is ‘a dog with a bark but no bite’. Arming it to the teeth with monetary sanctions, however, could prove unworkable. She says: ‘I find it hard to see that any fine that the PCC could sensibly award – if it wishes to keep the membership of the press – would have any significant impact when compared to the amount of money that the newspapers make from publishing the kind of sensationalist stories which would be likely to attract any penalty.’



PCC spokesman Stephen Abell remains sanguine amid the flak.


He says critics should not to focus on the lack of financial penalties; adverse adjudications are a sufficient deterrent because they are treated ‘very seriously within the industry’. And the vast majority of people who complain to the PCC are satisfied with the service and outcome, he says. ‘Removing money from the equation helps make the process very quick,’ he adds.


Mr Abell emphasises the work that the PCC is undertaking across the country to ‘empower people to complain’. Complaints may have risen, but there has been a decline in the number of proved breaches of the code as a proportion of overall complaints.


As regards lagging behind on privacy law, he insists the commission is flexible enough to adapt with the times.


With government support and what Sir Christopher describes in the annual report as ‘the generally benevolent political attitude towards self-regulation that we currently enjoy’, the PCC may have succeeded in crawling from the last chance saloon to the lounge bar.


But media lawyers clearly think the indulgent host should call time soon on its lack-lustre performance.



Nigel Hanson is a freelance journalist