Media law

Media law

Media intrusion

There is only one thing in the world worse than being talked about, and that is not being talked about, according to Oscar Wilde in The Picture of Dorian Gray.

If he was right, then privacy, that shy and retiring character who shuns the media spotlight and keeps himself to himself, must be secretly pleased with the furore he is currently causing.

At the end of June, the House of Commons Culture, Media and Sport Committee published its report on privacy and media intrusion, including 34 conclusions and recommen-dations, made against a backdrop of more than 50 years of debate 'over ways to reconcile freedom of expression by the media...

with respect for the private lives of individuals'.

This is, according to the report 'essential in a democratic society'.

Since then, major and minor developments in common law, statute and European law have resulted in a state of uncertainty.

It is with this in mind, that the committee set out its proposals for enhancing the independence of the Press Complaints Commission (PCC), the code of conduct, the efficacy of sanctions and 'the clarity over the protections that individuals can expect from unwarranted intrusion by anyone - not the media alone - into their private lives'.

The committee took written evidence from, among others, former complainants, legal experts, editors, trade associations, the PressWise Trust, the National Union of Journalists, the BBC, ITN, Clive Soley MP, the BSC, the new Office of Communications (Ofcom), the Lord Chancellor's Department (as was), Tessa Jowell MP, Secretary of State for Culture, Media and Sport, and PCC chairman Sir Christopher Meyer.

It also heard oral evidence from a small number of people who had submitted written evidence.

In summary, and notwith-standing that the committee acknowledged that standards of press behaviour, the code of conduct and the performance of the PCC had improved over the past decade, it asked whether the improvements had gone far enough.

While it considered all areas of the media, the weight of evidence, both positive and negative, was focused on the PCC and the newspaper press.

The report sets out various conclusions and recommen-dations in full and also summarised these.

It is helpful to see these in brief:

- Ofcom should undertake a thorough review of how complaints to broadcasters should be tackled.

- Doorstepping by film crews should only be undertaken in important cases of significant public interest.

- The BBC should participate fully in Ofcom's review and should consider an individual's preference for their complaint to be dealt with by an independent body by making its own system more independent or referring matters to Ofcom.

- Ofcom, broadcasters and the PCC should tackle the issue of 'media scrums', described by Lord Wakeham as 'a form of collective harassment'.

- The PCC should consider establishing a twin-track procedure whereby complainants can request a judgment by reference to the code on their case, where they did not want mediation.

- The PCC should consider establishing a dedicated pre-publication team to handle enquiries from the public to consider issues that arise pre-publication, and issues relating to media harassment.

- The code's ban on intercepting telephone calls should be updated to reflect the communications revolution, to include mobile devices and e-mails.

- The code should include a new element that journalists be entitled to refuse an assignment on the grounds that it breaches the code.

- The code should explicitly ban payments to the police and intermediaries - such as private detectives - for information.

- The assurance of the PCC chairman that candidates for the role of lay commissioner would be put on a proper, open and transparent footing, was welcomed.

- The PCC would command more respect, it found, if: lay members were appointed for fixed terms under open procedures; press members were appointed for fixed terms from across the industry; press members who persistently offend were required to stand down, on a 'three strikes and you're out' basis; the lay majority were increased by at least one; the appointments commission were to appoint an independent figure to implement the procedural appeals, including a regular, external audit of the PCC's processes and practices; the committee were re-established with a significant minority of lay members; a more consistent approach to foreseeable events heralding intense media activity were taken; the text of a PCC adjudication were clear and consistent to ensure visibility and easy identification; a PCC adjudication were 'teased' on the front page of the publication obliged to publish it; a league table of performance were included in the PCC's annual report.

- Annotating press archives as to their sensitivity and accuracy for serious matters should be automatic and the publications should be responsible for removing relevant articles from publicly available databases.

- A 'gently punitive' and a 'modestly compensatory' element should be added to the PCC's armoury.

- A gearing between the number of adverse adjudications and the registration fee should be introduced.

- A fixed scale of compensatory awards should be agreed within the industry, for serious cases, without the need for any lawyers to be involved.

- Offending newspapers should be responsible for costs of the complainant, including the costs of transcripts, but not legal fees.

- Sir Christopher's offer to return in a year's time to report on progress was accepted, but this did not substitute for action on the committee's own initiative and the PCC should make itself available to give evidence to the committee at regular intervals.

- The PCC should investigate the issue of illegal payments to police officers, perhaps with the co-operation of the Information Commissioner and/or the Police Complaints Authority.

Steps should be taken by the Home Office and police authorities to overhaul the guidance and measures aimed at preventing such behaviour by the police and the media.

- The Information Commissioner is charged with the responsibility of ensuring that all public and commercial entities are aware of their responsibilities under the Data Protection Act.

- The government should reconsider its position and bring forward legislative proposals to clarify the protection that an individual can expect from unwanted media intrusion by the press, or anyone, into their private lives, in order fully to satisfy the obligations on the UK under the European Convention of Human Rights.

Parliament should be allowed to undertake its proper legislative role.

Times are-a-changing for broadcasters, too, with Ofcom being charged with the responsibility to strengthen and improve codes and procedures and with regulation of the broadcasters.

However, according to the Department of Culture Media and Sport: 'The government has no plans whatsoever to legislate in this area, or to interfere with the way the PCC operates.'

And while Sir Christopher has given an assurance that he and his colleagues would read the report's recommendations 'in detail', he reiterated that as an independent body 'the PCC is not obliged to accept any of them'.

This may be considered by its supporters as further evidence that Sir Christopher intends to keep the PCC independent and to 'serve the interests of the public'.

However, its gainsayers may take this immediate caveat as another indication that the major recommendations in the report will be ignored.

By Amber Melville-Brown, Schillings, London