Privacy and the Press

In November, Lord Wakeham, Chair of the UK Press Complaints Commission, delivered the 1997 Press Council Fellow Address to the Sydney Institute. Jack Herman reports.

After noting how honoured he was to be receiving the 1997 Australian Press Council Fellowship, first because of the strong bonds between the Australian Press Council and the UK's Press Complaints Commission, and, secondly because of his very warm regard for David Flint, "who has done so much for [your] Council and for the World Association of Press Councils stoutly to promote the cause of press freedom not just in Australia but across the globe", Lord Wakeham noted that he would like to do three things.

The first was to talk in general terms about how best the press can seek to reconcile personal privacy with the public's right to know? The second was to relate how the PCC has been performing in the past few years - particularly in regard to that difficult issue of privacy. And the third thing is to share some thoughts with you about how the British newspaper industry's Code of Practice is likely to develop in coming months.

Privacy

Lord Wakeham noted how "the dreadful events two months ago in Paris focused world-wide public attention on to the issues of privacy and the press. Not just in the United Kingdom, but here in Australia and across the globe, people have been asking questions about the way in which the media operates, how it gathers news, what it publishes, and how it treats high profile people." But, he asserted, it had to some extent always been with us.

"At the risk of being controversial (which is usually something a former Government Chief Whip in the British Parliament likes to avoid at all costs) I have to say that I think it never will go away - for one very good reason: in a free and open society, there must always be controversy about the protection of personal privacy - at least so long as there is a free press. ...

"At one end of the scale, is it possible to report on the question of corruption in Government - or indeed to uncover it - without reporting on the private activities of those involved? I doubt it.

"And in another part of the newspaper market, is it possible to report on the tragic circumstances of a road accident, or a burglary, or an outbreak of a disease without including some of the personal details of those involved? Again, I doubt it."

Lord Wakeham also acknowledged that many celebrities actively court publicity and put up with the resulting intrusion into their private lives. To an extent, newspapers and magazines are doing them as much a service as they are their readers - who in turn like to be informed about the lives of the rich and glamorous.

"... the odd glimpse into the lives of those who fascinate us in the world of sport, or the arts, or show business, can be intoxicating. But that is not an intoxication created by newspapers; it is one they reflect. Newspapers and magazines carry stories about [such people] because they know that the public has an unquenchable thirst for them.

Lord Wakeham argued that privacy would be an issue unless "a once free press had been subjected to such stringent laws and penalties that it no longer dare report on matters of legitimate public interest" or the public loses "all interest in casting the odd glimpse into the secret world of those in the news.

"I don't think either of those events are going to happen [so] the question must be how best to combine respect for personal privacy with the legitimate rights of the public for access to information and knowledge.

"I have always been quite clear that law is not the answer ...

"Indeed ... the whole debate about whether law ever could assist in the protection of personal privacy is growing increasingly out-dated. Even if it were desirable, how could you ever subject the press to a special legal regime which would inevitably limit the public's access to information through newspapers and magazines ...?

"There are many other reasons why a law would not be the answer. One of the most compelling is that ... it could only ever be available to the rich, and in particular to those who did not object to their private affairs being dragged openly and in great detail through the Courts. A law would be for the wealthy and for the thick skinned.

"Another compelling reason against a privacy law always has been ... the death knell it would sound for the robust, investigative journalism which must be one of the bedrocks of a free society."

How then do you protect privacy in free societies such as ours? And how do you do it in a way that such protection is accessible to ordinary people as well as to the wealthy?

According to Lord Wakeham the answer to protection of privacy, accessible to the ordinary as well as the wealthy, is effective self regulation. He argues that it is self regulation alone which can combine both the freedom and the responsibility of the press. And the Press Complaints Commission, seven years old in January, is at the heart of the system of self regulation in Britain.

"It is designed to do all those things the law never could do.

• Unlike the law ... it is cheap, accessible and flexible.
  
  
• Unlike the law, it works for the 90% of ordinary people who complain ... about alleged invasions of privacy - as well as for the 10% who are either in the public eye or are institutions or businesses complaining on someone's behalf.
  
  
• Unlike the law, it is private. With self regulation, an alleged intrusion into privacy is not compounded by a lengthy and very public Court case ... It is conducted in private so that those who really have suffered need suffer no further.
  
  
• And finally, unlike the law, it works in a way which means that those with something to hide have no legal powers to stop legitimate investigations in their tracks or halt publication of unpalatable truths. Except in a few instances relating to harassment, we act only after we have received a complaint about something that has actually been published. We are not therefore in the business of pre censorship.

Lord Wakeham views the Code of Practice administered by the PCC as central to self regulation. The Code is drawn up by editors for editors. It is a simple document - designed to do a number of things: to provide editors with a basic set of ethical guidelines, which will assist them in making decisions; to set out in an accessible format a set of tools to assist journalists in the gathering of news; to give the Commission a yardstick by which to assess complaints and make an adjudication; and to act as a benchmark for people who complain as to what their legitimate expectations are from a publication. Like the Australian Press Council's Statement of Principles, the Code covers basic areas such as accuracy, privacy and harassment. But it also provides special protection for particularly vulnerable groups of people - including children, those in the care of a hospital, victims of sexual assault, those suffering in grief or shock and the innocent relatives and friends of the perpetrators of crime. "For those groups it provides protection over and above the law". The Code works - because it is simple, easy to understand and flexible. It can develop over time, and indeed it has.

Press Complaints Commission

Lord Wakeham then set out some thoughts on how successful the PCC has been in practice in six main areas.

"First, I do not believe there can be any doubt that standards within the British press have risen very significantly in recent years. Ten years ago there were far too many unjustified intrusions by a handful of publications into the private lives of ordinary people - and it was those that lead to the closure of our own Press Council in 1990 and the establishment of the PCC. Today those sorts of stories hardly ever occur. When they do, they are very much the exception rather than the rule - and inevitably incur severe censure from the PCC if a complaint is made.

"Secondly, it is possible to judge by the sorts of complaints we receive the areas where the Code has produced tangible results. ... Since 1991 there have been only a handful of complaints about invasions of privacy in hospitals and there have been only very rare complaints about the interviewing and photographing of children. ...

"Thirdly, it is quite possible to discern how standards are being raised because of either the Commission's case law or ... specific guidance to editors on difficult issues. Matters such as the publication of home addresses - once a source of many complaints - have been tackled in a way which means breaches of the Code are now very rare. ...

"Fourthly, we can see self regulation working to protect privacy in a number of more high profile cases." In particular Lord Wakeham noted the undertaking not to publish unauthorised pictures of Prince William while at school and the way the press reacted to the terrible events in Dunblane where the press left the town en masse, allowing local people the space they needed to grieve.

"Fifthly, I am quite clear that editors do respect the PCC and fear its censure - which is another important hallmark of the success of self regulation. Newspapers fight like fury to avoid a critical adjudication - which many of them see as devaluing their product - and the best way to do that is not to breach their own Code of Practice in the first place.

"And ... possibly [the] most important point, there has been a seachange in the last five years in attitudes towards accuracy. When editors get something wrong today, they admit it and put it right ... When we do get complaints - 75% of which are about accuracy - some 8 in 10 of those are resolved by a correction or apology ... That is a significant success story and a marked strength of self regulation."

Development of the Code

Lord Wakeham did not see press self-regulation as a perfect system. And it occasionally needed rejigging. He referred to the proposals he had made in the wake of the death of Diana, Princess of Wales, to tighten the Code. He gave two reasons for this need to tighten the Code. The first is that self regulation would not succeed over the long term if newspapers were complacent with a perception of success. The second was to argue that the development was not revolution but evolution. Many of the proposals he made were ones on which the PCC had already been working.

He saw the Code as a living document. It was constantly changing as a result of suggestions from the industry or from the Commission's own judgements. He argued that this is a strength of self regulation: it can adapt swiftly and flexibly to changing circumstances in a way that a statute never could.

Lord Wakeham then outlined his suggested strengthening of the rules on personal privacy.

"One of the principal changes is that for the first time the Code will give special protection to the children of those in the public eye - and not just the famous but the infamous as well. It will say that in any story about the child of someone famous, there must be a justification for the story other than the relationship with one or both parents. I am also proposing to place a ban on the payments to children for stories about themselves or other children - which will, I think, do a great deal to cut down on the market for intrusive stories about minors.

"The Code will also introduce new rules on harassment that aim ruthlessly to cut down on the market for paparazzi pictures in the United Kingdom. Editors will no longer be able to take pictures that have been obtained by 'persistent pursuit'. ...

"The new Code will contain a new definition of private property - on which journalists should not take pictures without consent - to include those places where individuals might have a legitimate expectation of privacy. ... I am also proposing for the first time, as well, a definition of what constitutes a 'private life' - home life, family life, health and correspondence. ...

"My proposals also seek to introduce new rules on the sympathetic publication of material about those suffering from grief or shock. At the moment, our Code says that when individuals are in a state of grief, newspapers should make enquiries of them with due sympathy and discretion. I also believe that at such times, newspapers should also normally write about them in such a way too."

On the right to know - the freedom to be informed - Lord Wakeham quoted Abe Rosenthal, the editor in the 1970s and 1980s of the New York Times. Speaking about the threats constantly posed to freedom of expression he said that:

Resentment against the press comes from many things ... [But] most of it comes from the virtues rather than the failures of the press, the unpleasant virtues of telling the people the truth about Vietnam, Watergate, corruption in government or in business, the aggressiveness and cantankerousness which are part of our make up and function.

We annoy the hell out of people. And we have our faults, by God we have our faults. There are scores of publications I wouldn't read, let alone work for. But there is a difference between resenting the press or even loathing it, and trying to control it. [That is why] we have the First Amendment ... written not to protect the press from the admiration of Government but from the loathing of government, all branches of government.

Lord Wakeham noted that the press has its faults - but it fulfils a crucial role in a democratic society. It must be free to annoy, and free to attract the contempt of those it scrutinises. And it must be free to do those things in the name of the public interest.

Jack R Herman

see also
Index on privacy material

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