Media law

By Amber Melville-Brown, Finers Stephens Innocent, London

What's new pussycat? The Queen on the application of Anna Ford and the Press Complaints CommissionWhile the press has been described as the watchdog of society, performing a vital role as a bloodhound in investigative journalism, the Press Complaints Commission (PCC) has suffered under the ignominious description of being a dog with a bark but no bite.

In the view of the newsreader, Anna Ford, the press's own watchdog has now been demoted to a 'pussycat'.In what is reported to be the first case of its kind, Ms Ford sought judicial review of the PCC's rejection of her complaint that her privacy had been invaded.

The matter arose over the publication in the Daily Mail and OK! magazine of photographs of Ms Ford while on holiday with her partner and children.

The pictures were taken at the quiet end of a public beach by the use of long-lens photography.

On 31 July 2001, her application for judicial review was rejected by the court.The PCC is the press's self regulatory body, the ostensible aim of which is to 'ensure that British newspapers and magazines follow the letter and spirit of an ethical code of practice dealing with issues such as inaccuracy, privacy, misrepresentation and harassment.' It is chaired by Lord Wakeham and consists of 15 other members, six of whom are editors of various publications.

Their role is to enforce the code to which members voluntarily agree to abide, with a view to maintaining the 'highest professional and ethical standards.' The relevant publication is required to carry, with due prominence, any PCC adjudication which criticises the publication under the code.Clause 3 relating to privacy, reads: 'Everyone is entitled to respect for his or her private and family life, home, health and correspondence.

A publication will be expected to justify intrusions into any individual's private life without consent.

The use of long-lens photography to take pictures of people in private places without their consent is unacceptable.

Note - Private places are public or private property where there is a reasonable expectation of privacy.'Despite representations that Ms Ford had believed the beach outside the hotel to be private, that she had chosen this holiday destination deliberately for its seclusion, and that she therefore had a reasonable expectation of privacy, the PCC said that it 'could not conclude that a publicly accessible Majorcan beach was a place where the complainants could have a reasonable expectation of privacy.'Mr Justice Silber made it clear at the beginning of his (draft) judgment that the court's function in relation to Ms Ford's application was not to conduct an appeal of the facts of the PCC's determination, nor to determine whether the use of long-lens photography in this case had infringed Ms Ford's privacy, nor that the publications had behaved wrongfully or unjustly by publishing the photographs.

Rather, it was to 'rule on whether [Ms Ford] had an arguable case to pursue her complaint by invoking the administrative court's limited but defined supervisory jurisdiction over the commission in relation to the determination.'The court considered whether and to what extent, in view of recent cases decided after the incorporation of the Human Rights Act 1998 (HRA), the courts should scrutinise any determination of the PCC.

It concluded that public bodies 'can, in appropriate cases, enjoy a discretionary area of judgment' and that in this case, the court should not interfere in the PCC's decision but should defer to the views of the body.

Although the minutiae of the High Court judgment has not received as much publicity as the question of Ms Ford's privacy and the use of long-lens photography, the decision is not a mere sideshow to the PCC determination.

In Mr Justice Silber's judgment, 'the commission does have a realistic margin of discretion in their judgment in the way in which they determine complaints...

In consequence, the courts will be deferential to and not be keen to interfere with decisions of the commission...'He continued: 'The 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 Ms Ford and Mr Scott [her then partner] to privacy and of the newspapers to publish', suggesting that the PCC is better placed to hear such applications than the court, despite a long list of cases before and after the incorporation of the HRA, which illustrates the court's willingness and compet-ence to address these issues.Ruling on the privacy of individuals is not a matter from which the courts shirk.

It is being considered in the high-profile case of Michael Douglas and Catherine Zeta Jones and Hello! magazine.

And actress Amanda Holden recently went straight to the courts to obtain an injunction on the grounds that her rights under the HRA had been breached, rather than invoke the PCC code over the alleged invasion of her privacy by the publication of long-lens photographs.

The model Naomi Campbell has also taken legal action rather than go to the PCC over the publication of photographs to which she did not consent.So consider this.

Will two different levels of privacy be generated through the consideration of these issues in the courts and in the PCC? Will the decisions of the PCC, being the press's own self-regulatory body, give the impression that it is not impartial, with more to gain than the courts in leaning away from individual privacy and towards freedom of expression?While this may appear a good thing for the press in the short term, if the 'pussycat' PCC is not seen to be protecting the rights of individuals who complain to it, it may find itself defending further calls for an end to self-regulation and the cat may be put out for more than the night.