The price of freedom

The phone hacking scandal that engulfed the News International group, leading to the closure of the News of the World, has called into question the whole system of regulation of the press in this country. On one hand this is surprising, since the conduct in question was criminal and is now being investigated as such by the police. But dissatisfaction with the press’s self-regulatory system has resulted in a head of steam for tighter oversight on a much wider level.

Chief scapegoat has been the Press Complaints Commission (PCC), the non-statutory body established in the early 1990s to set editorial standards and hear complaints that these have been breached. Inquiries carried out by the PCC in 2007, and again in 2009, failed to uncover evidence of systematic or widespread malpractice by News International journalists. Its 2009 report, which concluded that the problem of phone hacking was a historical one, was withdrawn when the current scandal broke.

The leaders of the three main UK political parties have all called for the PCC to be replaced, and at least one online attempt to defend its record attracted some pretty hostile comment in response (see http://bit.ly/of0fKq). But we do in this country also value the freedom of the press – a freedom used to great effect not long ago in relation to MPs’ expenses. How, then, do we protect that freedom while guarding against its abuse? The Journal asked solicitors and others working in media how a balance might be struck.

Subject to the law

Criminal law aside, there are various current legal constraints on the press, as Austin Lafferty, the Society’s current Vice President and a regular adviser on media issues, comments: “Newspapers and other media organisations take a risk in exposing people who may – or may not – have done wrong.

“Hefty libel damages are available to a person wrongly accused, or indeed someone against whom the paper cannot actually prove their allegations. News organisations don’t like the stigma of getting it wrong and having to apologise, much less pay out large sums when they are all leaking money and circulation every year.

“Also there is a growing privacy law, which previously had been based on breach of confidence, but is now firmly based on the Human Rights Act (article 8). This prevents prying where there is no public interest.”

David McKie of Levy & McRae, also a media adviser, adds to that list the Data Protection Act, which in addition to regulating data controllers, imposes criminal penalties on those who obtain data unlawfully. (A more extensive note by McKie on breach of confidence, as well as this Act, can be found below.)

Seeking a remedy

More contentious is the question, are such remedies effective?

The career of Alistair Bonnington, recently retired from BBC Scotland, has included advising newspaper and broadcast media, as well as taking complaints against the former. Strongly of the view that most Scots do not have the means to take a case to court, especially against a well funded media organisation, he also believes that a new body is needed as the PCC is simply too media-heavy and biased in their favour.

“It’s almost impossible to win a case with the PCC when you are an individual”, he says. “They almost always find in favour of the newspaper. And they are not helped by having a very small budget as well.”

Bonnington admits his PCC experience goes back some years, but he is supported by Cumbernauld solicitor and former Society President Ian Smart. “Many years ago I adopted a policy of advising clients who wished me to complain to the PCC on their behalf that such a step was a waste of my time and their money”, said Smart. “I know that some have nonetheless chosen to pursue that route themselves, but I have never come across a single client who has had a satisfactory outcome from such a complaint.”

Smart agrees that the fault is not the PCC code, but the “complete failure” of the Commission to enforce it: he cannot recollect having seen a correction or apology in a national newspaper attributed to PCC intervention.

For the defence

Undaunted, PCC members insist that their body has been unfairly pilloried. John McLellan, editor in chief of the Scotsman and a member for the past three years, insists that the PCC’s recent record is a good one, and that much effective work takes place behind the scenes but goes uncredited.

“The vast majority of complaints are sorted out before they get to rulings”, he says. “We meet once every six weeks and we have probably five rulings to make at each meeting. But every week we see 200-300 cases: some are thrown out, but in a large number sufficient remedial action has been offered or taken.

“If members of the public don’t think it’s enough, the PCC will then decide whether the paper has made a reasonable offer, but there are also many cases where there have been breaches of the code but sufficient remedial action has already been taken.”

Beyond actual complaints handling, he adds, the PCC “is also proactive in issuing advice on behalf of members of the public, high profile and low profile, if they feel they are likely to be or are being subjected to harassment”. In some cases also, it has developed its code beyond what is required by law, such as in relation to suicides, where the code restricts reporting of details that might assist copycat action.

Solicitor Campbell Deane of Bannatyne Kirkwood France & Co agrees that it is unfair to label the PCC as a self-serving body. “I have oft been a critic of the PCC, but there is no doubt that it now commands more observance within the industry than it once did”, he state. Although it cannot award damages or compensation, its current stance that an adjudication requires to be published with equal prominence to the original story “has done much to dissuade editors from a cavalier attitude towards the terms of the code”.

Watchdog with teeth?

But if the PCC has no actual powers of enforcement, how can it achieve observance of its rulings? The main sanction, says McLellan, is that if an editor doesn’t comply, they are reported to the publisher, “and ultimately the buy-in the industry can give, and I think it would be willing to give it, is that a repeated failure to comply with PCC instructions would result in disciplinary action and ultimately the sack”.

Deane suggests that papers will comply for fear that self regulation will be seen to have failed if they do not. “In short, better to comply than be codified under statutory reform. That is why they play ball with the placement of adjudications.”

Aamer Anwar, who acted for Tommy Sheridan in civil and criminal trials, disagrees that the present position is adequate. Too dominated by the industry it is supposed to regulate, the PCC is not an effective force, he argues, nor are civil law sanctions: “as we have seen from the News of the World, most tabloids feel immune from any defamation actions as they are often beyond the reach of even the rich”.

Starting points

Accepting the jurisdiction of the PCC also remains a voluntary act, and the Daily Express and Daily Star were withdrawn from it in January this year by their publisher, Richard Desmond’s Northern & Shell. McLellan accepts that that much has to change.

“All of us who remain in the system are aggrieved that people can just come out of it, make a commercial decision not to give the money”, he comments. “It’s quite clear that ‘no change’ is not a tenable position for us to take. How you make sure that top-level publishers don’t opt out will be a matter of discussion by the Leveson inquiry. But there’s nobody in the industry who doesn’t accept that there have to be changes, and that these have to be meaningful and not just window dressing.”

Other things McLellan would accept are compelling papers to carry pointers on their front page to corrections, better positioning, and use of branding so there is more attention drawn to adverse rulings.

Lafferty believes it would suffice if the PCC undergoes “a retread and update of its code, its powers and its leadership”. Anything more would threaten press freedom. “The system works – it had been ignored by some who will rue the day.”

Standards and sanctions

Bonnington, however, believes that much more radical action is needed if public confidence in the press is to be restored – including a new independent body in place of the PCC, with power to award damages, require a retraction and apology in a case of defamation or invasion of privacy, and also deal with the question of prominence. At present, he says, papers can effectively buy off the individual by offering an extra couple of thousand pounds compensation if they will accept an apology buried away inside.

The new regulator would also be able to take action on standards, a point supported by Anwar: “The PCC has demonstrated its complete failure as a regulatory body by ruling that: ‘a headline should be regarded as a comment and so not subject to clause 1 (accuracy) of the Editors’ Code’. How can an effective regulatory body argue that headlines have no need to be accurate?… There is a clear need for a statutory body with power to make sanctions against the media where privacy has been wrongly invaded or reputations wrongly trashed by the media.”

Deane disputes that the step of conferring financial powers is necessary, since the courts are available for libel and privacy suits – a view shared by McKie, who comments: “The law is complex in this area, but, used properly, where both criminal and civil sanctions apply, they can be extremely effective.” That, of course, takes us back to whether such remedies are sufficiently accessible.

Lafferty describes them as “partly effective”. “The problem is that there is no right to legal aid for defamation except in very special and unusual circumstances, and the last time I tried to get it for a client I was not impressed. And any legal challenge is a daunting prospect for a private individual or even small businessperson.”

But, he adds: “Certainly, the threat of damages and expenses, and a fortiori having to fetch up before the beaks for a contempt of court charge, makes most editors, at least in Scotland, toe the line as best they can. Not wolfman, but something more than sheepman.”

Wider issues

McLellan argues that transforming the PCC from a complaints body to a standards body will require a very different setup, and also another look at the way the PCC is funded. He also warns of possibly unintended consequences if the PCC is empowered to impose financial sanctions.

“The system we have at present enables somebody to make a complaint straight to the PCC, and have that complaint dealt with extremely quickly at absolutely no cost to themselves. That’s a huge benefit of the current system and I think more statutory restraint on the PCC would put that at risk.

“Certainly if every complaint came with a potential price tag, it would change the whole nature of engagement with it in ways that are difficult to predict right now, but I think what it would definitely do is slow it up. Because, in terms of newspaper companies’ insurance policies, as soon as we get a formal complaint we put it straight into the hands of our lawyers. That’s a much more expensive way of dealing with it than through the PCC.”

Smart has an alternative line, drawing on changes in the regulation of the legal profession – the independence of which is equally jealously guarded, but where Scotland and England have each found ways to achieve independent monitoring of the way regulation is undertaken.

“That seems to me to be the way forward in relation to press regulation… Only regulated publications would be entitled to describe themselves as such, and any publications not claiming that imprimatur would suffer simply from public opinion, concluding that, without that regulation, the published material could not be accepted as being either fair or true.” All publications would, of course, be equally subject to the law of defamation and the like.

Professor Neil Blain, head of Film, Media and Journalism at Stirling University, flags up the issue of ownership as an alternative to expecting the PCC to take up all the slack. “If in the UK we minimised or in whatever way diluted the concentration of media power, then I imagine a future or reorganised PCC would first of all be less likely to be influenced by very powerful owners or editors.

“The other step would be to ensure greater distance from current centres of media power on the part of PCC members, and to increase sanctions. It would also in general terms be possible to design a future Commission’s terms of reference in order to put a premium on proactive monitoring of abuse, and a real commitment to action. Overseeing this in turn could become an active function of a parliamentary committee (rather than a minister), so we’d have political responsibility at arms’ length.”

He adds: “Other than these things, I think the room for innovation is limited. A better, more active and more socially responsible form of self-regulation is far preferable to more legislation on media content.”

One other question for Blain, as to which he is “personally agnostic”, is whether there should be a Scottish PCC. “There’s seldom been much logic in having devolved cultural responsibility at Holyrood while excluding media culture, which is such a huge part of culture generally. There are also large economic and democratic issues for Scotland in relation to our media provision. There are complications, though, such as the increase of circulation of London titles in Scotland, and questions about remit.”

Precious freedom

None of those approached, however, suggests that the media should acquire a regulator similar to broadcasting’s OFCOM – a “behemoth of a quango”, in Bonnington’s words, with a vast budget compared with the PCC and a very strict, hands-on approach. While pointing out that the lines are becoming blurred as both make use of the internet, Bonnington agreed that the two media continue to pose distinct regulatory issues, and OFCOM is unsuited to a newspaper role.

Neither McKie nor Deane can envisage the press becoming subject to the same rules. “Enforcing political impartiality during election periods, for instance, would represent probably the biggest sea change in press freedom ever known in this country”, says McKie. Deane adds: “Would you really want Parliament to lay down legislation as to what could or could not be published?” (MPs’ expenses again, quite apart from the effect on freedom of expression.)

Anwar too accepts that a crucial balance has to be struck: “Good journalism usually by its very nature operates on the margins of the rules, and occasionally breaks them. No society will accept that hacking the phone of a murder victim is in the public interest.

“However, there are times when the case for overriding public interest in disclosure can be made.”

“The principle at stake is to what extent the freedom of the press should be further eroded”, says McLellan. “And that’s where the rump of the Leveson debate is going to focus on.”

The Editors’ Code (extracts)

Accuracy

(i) The Press must take care not to publish inaccurate, misleading or distorted information, including pictures.

(ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and – where appropriate – an apology published…

(iii) The Press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact…

*Privacy

…(ii) Editors will be expected to justify intrusions into any individual’s private life without consent…

*Clandestine devices and subterfuge

(i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.

(ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means….

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.

Leveson: the terms of reference

Part 1

1. To inquire into the culture, practices, and ethics of the press, including:

• contacts and the relationships between national newspapers and politicians, and the conduct of each;
• contacts and the relationship between the press and the police, and the conduct of each;
• the extent to which the current policy and regulatory framework has failed including in relation to data protection;
• the extent to which there was a failure to act on previous warnings about media misconduct.

2. To make recommendations:

• for a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government, while encouraging the highest ethical and professional standards;
• for how future concerns about press behaviour, media policy, regulation and cross-media ownership should be dealt with by all the relevant authorities, including Parliament, Government, the prosecuting authorities and the police;
• the future conduct of relations between politicians and the press;
• the future conduct of relations between the police and the press.

Part 2

[Deals with the extent of unlawful or improper conduct within News International, other media organisations and those responsible for holding personal data; police investigations of same and the conduct of the prosecuting authorities; corrupt payments or other inducements to, or complicity of, the police; and the extent of corporate governance and management failures at News International and other newspaper organisations, and the role, if any, of politicians and others in relation to any failure to investigate wrongdoing, and:]

In the light of these inquiries, to consider the implications for the relationships between newspaper organisations and the police, prosecuting authorities, and relevant regulatory bodies – and to recommend what actions, if any, should be taken.

Legal constraints: breach of confidence and data protection

David McKie's note on the current scope of the law (referred to in the main text under heading "Subject to the law")

Breach of confidence

A person’s telephone conversations and email traffic are, in principle, confidential in much the same way as written correspondence. The content of such communications is capable of being held in confidence (and usually is so held). An action for breach of confidence will lie where there has been a breach of an obligation of confidence assumed between the parties, or where the nature of the material necessarily implies that it is held in confidence.

If communications are hacked into, the obligation of confidence arises not so much from any pre-existing duty of confidence between the parties but “from the defendant having acquired by unlawful or surreptitious means information that he should have known he was not free to use”, to adopt the words of Buxton LJ in Ash v McKennit [2007] 3 WLR 194. It is clear from such cases as Campbell v MGN Ltd [2004] 2 AC 457 that an action for breach of confidence will lie in respect of the obtaining or disclosure of information which by its nature is confidential, and this will be so whether or not there is any pre-existing relationship of confidence between the parties.

English law has not historically incorporated a general law of privacy, but has developed individual forms of privacy protection consistently with the requirements of article 8 ECHR (right to respect for privacy) and article 10 ECHR (freedom of expression). In support of this Baroness Hale in Campbell v MGN Ltd stated: “The court should, in so far as it can, develop the action for breach of confidence in such a manner as will give effect to both article 8 and article 10 rights.”

This remark follows and approves the judgment of the Court of Appeal in A v B plc [2003] QB 195, in which Lord Woolf held that article 8 and 10 ECHR “have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified”. Lord Woolf CJ noted that, by reason of s 6 of the Human Rights Act 1998, the court was required not to act in way which is incompatible with a Convention right, but was able to do so “by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence”.

In principle, a person whose confidential information is about to be released (or seen or heard by others) is entitled to seek an interdict to restrain such release in breach of a duty of confidence. The court would still need to satisfy itself that damages were not an adequate remedy, and that the interdict should not be refused on the general principles affecting the grant of a discretionary remedy, such as the public interest in the disclosure of wrongdoing and the proper administration of justice.

Data protection

A person who is a data controller has a duty under s 4(4) of the Data Protection Act 1998 to comply with data protection principles in relation to all personal data with respect to which he is the data controller. The 1998 Act institutes its own enforcement regime, via the Information Commissioner, but a breach of the duty under s 4(4) would also be actionable as a breach of statutory duty.

A person who obtains data unlawfully is unlikely to be a "data controller", since he would not be in a position to determine the purposes for which and the manner in which any personal data are, or are to be processed, but is likely to be a person who has committed the offence under s 55 of the 1998 Act.

This defence has been broadened by a new s 55(2)(ca) which makes it a defence to show that the person acted with a view to the publication by any person of any journalistic, literary or artistic material, and in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest, although that would be unlikely to apply where a criminal act has taken place.