REPORTS Press Freedom - How the Beast was Tamed

Colin Munro”

Consider these terms of rcfcrence: In the light o f recent concern about the dangers to freedom o f speech, to examine those aspects o f the law which enable public authorities (including the courts) to regulate o r restrain the publication of information by newspapers and broadcasters, or to rcquire persons who disseminate information to the public to rcveal the sourccs of that information; and to make recommendations as to what measures are needed to give further protection to frccdom o f speech as the fundamental value of our democratic society.

These were not the terms of reference of the Calcutt Committee, which was appointed by the Government in 1989 to report on privacy and related matters.’ They were (subject to the addition of a few minor embellishments) the terms of reference of a Justice committee which reported in 1990, shortly before the Calcutt Committee, and to very different effect.2 Calcutt was asked:

I n the light o f the recent public conccrn about intrusions into the private livcs o f individuals by certain sections o f the press, to consider what measures (whether legislative o r otherwise) are needed to give further protcction to individual privacy from the activities o f the press and improve recourse against the press for the individual citizen, taking account o f existing remedies, including the law on defamation and breach o f confidence; and to make recommendations . 3

The answer you get depends on the question you ask, and the question presented to the Calcutt Committee assumed that the mischief lay in the freedom allowed to the press rather than the limitations upon that freedom, and invited the respondents to choose between different possible remedies for the ill. The Government’s approach might seem to be a curious inversion of the principles to which it is morally committed by its acceptance of the European Convention on Human Rights. Under Article 10 of the Convention, the right to freedom of expression is paramount, and the limited exceptions which may be made are only such as are ‘necessary in a democratic society’ and permissible only to the extent that they correspond to a ‘pressing social need’ and are proportionate to the end to be achievedSJ The committee was not unaware of the requirements of the Convention. Indeed, it purported to ‘start from a position that freedom of expression is ~re-eminent’~ and considered that ‘any additional constraints upon the press should be limited to the minimum necessary to tackle any genuine abuses.’6 However, it is in the nature of a liberty that some persons may ‘abuse’ it, and it is not obvious that restrictions ought to be imposed on the liberty merely because of that unless, of course, one operates under that preconception.

*Professor of Constitutional Law, University of Edinburgh.

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Report of the Cortrrnittcle oii Privucy uird Reluted Mcirters, Cni I 102 (1990). Freedoin of Expressiorr tint1 the I ~ i w (1990). 01) cit note I , para 1 . 1 . Sio~dry Tirtres v Uiiircd Kitighri (1979) 2 EHRR 245. cip cit note I , para 3.18. up cif note I , para 2.9.

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Constrained as they were, the Committee displayed the classic symptoms of ambivalence. A minor moral panic lay behind its establishment. Two private members’ bills, the Right of Reply Bill and the Protection of Privacy Bill, had attracted substantial parliamentary support in the 1988-89 session before their eventual failure. At about the same time, some libel awards and settlements at high levels had been interpreted as signifying public revulsion at the activities of sections of the press. In the cool light of day, the evidence was perhaps less compelling. Members of Parliament, as public figures and persons anxious to be shown to best advantage, are scarcely disinterested in debates about the boundaries of privacy. Awards and settlements in libel cases are arguably no higher in real terms than they were fifty years ago.’ People may say, when canvassed by opinion pollsters, that they find newspapers disgusting, over-intrusive, and inaccurate, but the News of the World has a weekly sales figure in excess of five million, and The Sun has I 1 million readers daily. The Committee recognised that the evidence which they had from complainants (following well-publicised invitations to submit any) was self- selected, and that many objections were only on grounds of taste. They noted too that the statistics of complaints about infringement of privacy recorded by the Press Council and the Broadcasting Complaints Commission did not reveal a rising trend. Ultimately they conceded that they had ‘no reliable evidence to show whether unwarranted intrusion into individual privacy has or has not risen over the last 20 years. ‘8

If reliable evidence were lacking, anecdotal evidence could fill some of the gaps, and one particular incident came to loom large, as the lazy reporter might say, in the demonology. Sunduy Sport journalists gained access to the hospital room of a television actor and photographed him, after he had undergone brain surgery following an accident. However, their conduct is regarded, one suspects that the Committee protests too much when it declares that ‘we have no intention of basing our recommendations on a single intrusion by a maverick newspaper.”’ Not only is the incident referred to several times, directly or indirectly, but it quite evidently shapes some of the specific recommendations. The adventitiousness of this is rather worrying. It may be salutary to test rules and recommendations against concrete examples, but one would wish to throw in some which could point the other way. The danger is that instances of ‘abuse’ and bad taste, because they are conspicuous, come to mind, while the continuous benefit derived by having a free press is liable to be taken for granted in a country which has enjoyed it for so long.

Rejected Routes

Right of Reply Law The Committee was naturally bound to consider the different kinds of solutions proposed in the private members’ bills. Mr Tony Worthington’s Right of Reply Bill10 would have established a quango of 21 commissioners, appointed by the Home Secretary. The commissioners would have adjudicated within 28 days on

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10 tlC Bill 101 (1988-89).

For example, the award ofdaniages (E25,OOO) in Youssoicpc?ffv MGM Picrrtres (1934) SO TLR 581 was equivalent to about f7S0.000 today. SCC Bloni-Cooper, V i a Tiuies, 28 June 1988. 01) cir note I , para 4.8. 01) cir note I , para 13.20.

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complaints from ‘any person or body of persons’ that a newspaper had published a ‘factual inaccuracy’ which it had failed to correct on request, and would have had power to require the publication of a ‘correction.’ The Committee, in a short summary of the laws of some other countries,Il noted that some practical diffi- culties had arisen in the operation of the statutory right of reply law in Germany. Had it made further researches, it might have discovered that in France the right has been interpreted as applying even to theatre criticism and book reviews, and that the Cour de Cassation has held that, because the right was absolute, its exercise was not limited to those seeking to use it for legitimate reasons.I* That remarkable conclusion is no doubt explained by the courts’ reluctance to be drawn into deciding when claims are justified and when they are not, but that is exactly the issue which would arise all too frequently.

In any event, the Committee did conclude fairly easily that legislation to provide for a right of reply did not offer a practical solution, and that in many cases of complaint it would be difficult to establish the facts in a short time. In this conclusion, they were surely right. One has only to imagine the kinds of complaints which might be brought by, let us say, the government of Iran, the Church of Scientology, the Metropolitan Police, Lonrho, and the major and minor political parties, to entertain doubts about their being satisfactorily resolved within a few weeks by a panel of persons, at hearings without disclosure of documents or cross-examination. A more fundamental objection to the proposal could be the inappropriateness, in a free society, of empowering government appointees to tell editors what to publish, including material which they may believe, or even know, to be false. In the United States, the Supreme Court condemned a right of reply law as unconstitutional, precisely because it compelled editors to publish words or material which they might not wish to. 1.1

A Privacy Law By contrast, a right to privacy has been developed by the American courts, although its effect is restricted, so far as the press is concerned, by the protection of freedom of speech in the First Amendment. The creation of a right of action through judicial development has been considered impossible in England, and there was confirmation of this in Kaye v Robertson,14 when the hospital photograph episode was tested in court. In the Court of Appeal, Leggatt LJ recognised that only the legislature could now create a right to privacy, although neither he nor Bingham LJ forbore from offering Parliament their advice on policy.

Legislation to create a tort of infringement of privacy had been considered a generation ago by the Younger Committee,IJ which came out against it, principally for the practical reason that it did not think that the concept of privacy was susceptible to any satisfactory definition. The Younger Committee’s preferred solution was to recommend a number of specific improvements, some involving changes in the law and some in the sphere of self-regulation. In a similar fashion, the Calcutt Committee

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op cit note I , ch 5 . Ward and Redmond-Coopcr, ‘The Right of Reply in England, France and the United States’ (1983) 4 Journal of Mediu L m v arid Practice 205. Miami Herald Publishirtg Co v Torrrillo, 418 US 241 (1974). Thc judgments are reproduccd as Appendix I to the Report. An interlocutory injunction was granted in respect of malicious falsehood. so as to restrain the defendants from publishing anything which might be understood to convey that thc plaintiff had voluntarily permitted an intcrview or photographs. Report of tkc. Cottituittee on Privacy, Cmnd 5012 (1972).

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was to make a number of specific proposals but also recommended against the creation of a statutory tort of infringement of privacy for a variety of reasons, including arguments of principle and practical concerns, such as the inaccessibility of legal processes. It was recognised that there were difficulties, not only with the awkward concept of privacy, but also in the countervailing defence of public interest which, as was conceded, would necessarily have to accompany it. Mr John Browne’s Protection of Privacy Billi6 would have allowed a defence to the tortious public use or public disclosure of private information when there existed ‘a public interest or public benefit in the information being so used or disclosed’ which outweighed the interest in upholding its privacy. Whatever doubts we may have about judges doing the weighing (and we might have many, in view of frequent indications of judicial antipathy to the media), the more obvious problem is that newspapers would be faced daily with hundreds of such decisions. How far is the sexual deviancy of a family doctor of legitimate interest to his patients? How far is a schoolteacher’s adherence to Satanism of legitimate interest to parents? Is there a public interest in revealing the true behaviour of pop stars or sportsmen, who may serve as role models to thousands of adolescents? If a Member of Parliament has an affair and is deceiving either his family or his mistress, is the public interest served by allowing voters to know, so that they may form a view about his stewardship of office? These are formidable difficulties, and we may be thankful that the Committee appreciated them. However, their several reservations could apparently be overcome, for in a parting shot there is a warning that the case for a privacy law might have to be reconsidered, should improved self-regulation not work.

Strengthening the Law

The price for avoiding, or at least postponing, a general right of privacy is made up of two portions, consisting of more effective self-regulation and of some additions and amendments to the law.

Confidence and Defamation Existing laws, including the laws of trespass, defamation, and breach of confidence, do provide partial protection for some aspects of privacy, and the Committee considered their potential for development. But, perhaps because of the haste with which the Committee sought to satisfy the Government’s demands, their conclusions on these points are rather tentative. Sensibly, the Committee recognised that ‘most of the serious infringements of privacy . . . involve no relationship or duty of confidence.’I8 However, it is strange to read that they were unsure about the benefits which the creation of a statutory tort would bring, for the reason that ‘the law of confidence . . . will continue developing.’“’ The word ‘developing’ might be viewed as a euphemism in this context, given the capacity of the law of confidence to be employed in unforeseen and sometimes controversial ways.*O Moreover,

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HC Bill 122 (1988-89). op c.if note I, para 12.5. op cif note I . para 8.7. iDid. Munro, ‘Confidence in Government’ in Clarke (ed), Corifiderifiolify orid fl i t- Ow (Imdon: Lloyd’s of London Press, 1990).

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there has been a thorough examination of the area by the Law Commission, and their proposals (which included a draft Bill) are still awaiting implementation.21

Some tentative conclusions are also offered on defamation.22 The unavailability of legal aid was thought to be an unjustified anomaly. The possibility of a simplified action, by allowing a right of action in the county court, was favoured. Reforms introduced earlier in the year by the Lord Chancellor, which included a power for the Court of Appeal to vary damages awards, were coinniended. It is hard to resist the conclusion that the Committee, mindhl that a committee in the Lord Chancellor’s Department was also reviewing the law of defamation, made its examination rather cursorily. That is only one unfortunate result of a division of labour which may possibly have been ill-conceived.*j

New Offences The Committee proposed new laws in order to prevent some of the physical intrusions which it regarded as unjustified. It identified the principal kinds of objectionable intrusions as involving harassment, surveillance, or trespass. Existing laws, for example the Public Order Act 1986 (sections 4 and 5 ) , the Interception of Communi- cations Act 1985, and the Criminal Law Act 1977 (sections 6 and 7), as well as the civil remedies for trespass and nuisance, offered some patchy protection. Legislation to extend the torts of trespass or nuisance did not commend itself to the Committee. The law would be widened to an undesirable extent, and the mischief would not even be cured, as the remedies would not work effectively against diverse groups of people. A general tort of harassment, and a general offence of harassment, were rejected on similar grounds. But the creation of more limited offences which, as the Committee says, are ‘targeted at specific abuses by the press’24 was favoured. The suggestion is that thesc acts should become offences:

(a) Entering private property, without the consent of the lawful occupant, with intent to obtain personal information with a view to its publication.

(b) Placing a survcillance devicc on private property, without the consent of the lawful occupant, with intent to obtain personal information with a view to its publication.

(c) Taking a photograph, or recording the voice, of an individual who is on private property, without his consent, with a view to its publication with intent that the individual shall be identifiable.25

‘Private property,’ it is proposed, should be defined so as to include ‘any private residence, together with its immediate curtilage . . . in addition, . . . hotel bedrooms . . . and those parts of a hospital or nursing home where patients are treated or accommodated.’ It should be a defence, it is suggested, if the act is done:

(a) for the purposc of preventing, detecting or exposing the commission of any crime, or other seriously anti-social conduct; or

(b) for the protection of public health or safety; or (c) under any lawful authority.26

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Law Commission, Brccrch uf Cunjk/ertt.e, Ctnnd 8388 (I98 I ) . op cir note I , ch 7. Another conseqiience, perhaps, was thc failure to consider whcthcr the ideal setting for a right of reply would he anlongst thc dcfcnccs in dcfianiiition. up cir note I , pars 6.32. op [*it note I , para 6.33. up cir note I , pitril 6.35.

January 1991 I Press Freedom - H o w :he Becis1 IS Totned

Civil redress, it was recommended, should also bc available for these offences, in the form of injunctions and damages or an account of profits against a publisher.

The Home Secretary who, on behalf of the Government, accepted most of the Report wholesale, prudently indicated that ‘careful thought will necd to be given to the detailed formulation of the offences and the precise scope of any defence.’*’ What is most questionable about these proposals is their being drafted in terms of ‘a view to . . . publication.’ This country has not had a law of the press, in the sense of a body of law imposing special duties and conferring special privileges on the press, over and above ordinary citizens. Indeed, the notion has previously been rejected.28 But these proposals, if enacted, would take us down that path. I doubt whether the principle is a sound one on which to discriminate, for it is not clear why a particular act should be a crime if it is carried out for journalistic purposes but not when it is carried out for other (possibly less meritorious) purposes. There would seem to be a good case for making it an offence to place a surveillance device on private property without the consent of the occupier or lawful authority, whatever the purpose in doing so. Whether there should be a general criminal offence of trespass is more problematic, and so far governments have not been persuaded of the merits of such a course. The proposed photography offence seems to owe something to the success of the paparazzi in capturing sunbathing celebrities or pregnant princesses. As drafted, it would not seem to prevent the publication of photographs taken for another purpose but later given or sold to a newspaper. It is also not clear whether extraterritoriality is intended, and as ‘publication’ is not defined for the purpose of the proposal, the width of the offence is uncertain. In this respect possibly, and in some other respects definitely, the implementation of the Calcutt proposals would affect not only the press but other media as well, even though the Committee regarded broadcasting as being outside its remit.29

If the press were to be made subject to special laws, then it might be appropriate for the press to demand special privileges too. Constitutions which incorporate a body of law on the press may prohibit some forms of abuse of freedom, but they will also typically, for example, prohibit prior censorship, may provide for a right of access to public officials, and may guarantee protection of confidential sources.

Sel f-Regula tion

Along with the new offences proposed and a few other specific reforms,3o the central recommendation of the Committee was that self-regulation should be given one last chance.

Out with the Old Self-regulation, in the form of the Press Council, has existed since 1953. The Press Council may have done its best in the circumstances, but it has commonly been 27 HC Deb vol 174, col 1123, 21 Junc 1990. 28 The Faulks Committee considered hut did not favour a defcnce of qualified privilcge for thc media

in discussing matters of public interest. It ‘would place newspapers . . . in a spccial position. We are against crcating such a position.’ Report ofthe Comniitree on Defiitncirion, Cmnd 5909 (1975). para 211. up cir note I , para 2.5. In considering Icgal restrictions on press reporting (ch lo), the Committec supported the extcnsion of the statutory prohibition on idcntifying rape victims to the victims of other scxual assaults, and made other rcconimendations lor inclusion in a code of’ practice.

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criticised for the inefficiency and unfairness of its procedures (which included a requirement that complainants waived the right to sue) and the slowness and ineffec- tiveness of its adjudication^.^' There had been reforms, such as the introduction of a fast track procedure in 1984, and since 1989, under the chairmanship of Mr Louis Blom-Cooper QC, the reform process had been energised, with constitutional reforms under way and a new code of practice promulgated for the press. Many newspapers had made other efforts to put their house in order, for example by appointing ‘ombudsmen’ for the investigation of complaints.

But, if this were not too little, it was deemed to be too late. The Committee’s principal objection to the continuation of the Press Council was claimed to be the ‘inherent conflict’3z between its roles of defending the freedom of the press and hearing complaints from the public. Any inconsistency is perhaps more apparent than real, because the proper handling of complaints in such a way as to raise standards ought to assist in defending the freedom of the press. However, perceptions are important and, if the Council did not seem to enjoy the confidence of the public, neither did it appear to command the respect of the newspaper industry, as its underfunding demonstrated in one way and the response of offending newspapers to its adjudications in another.

In with the New The Committee called instead for the establishment of a Press Complaints Commis- sion, to be funded by the newspaper industry, which is warned that ‘adequate funding on a guaranteed basis is essential if a self-regulatory body is to operate effec- tively. ’I3 The Commission would have an independent chairman and members, numbering no more than 12, appointed by an Appointments Commission ‘itself . . . independently appointed, possibly by the Lord Chancellor. v4 The Commission would not seek to promote the freedom of the press. Its task would be to consider complaints of unjust or unfair treatment by newspapers or periodicals and of unwarranted infringements of privacy through published material. It should also promulgate, monitor and implement a new, tougher code of practice (and the Committee composes its own model code, as a foundation to be built There should be clear conciliation and adjudication procedures to ensure that complaints are handled with minimal delay, and complainants would not be asked to waive their legal rights. So that the publication of intrusive material might be prevented, there should be a 24-hour ‘hotline’ enabling people to contact the Commission, which could contact editors. Adjudications might include a recommendation that an apology be given to a complainant, and in some cases the nature and form of an appropriate reply or correction would be specified. Effectiveness would be ensured by the public commitments to observe all the procedures and pronouncements of the new Commis- sion which would be expected (in the headmasterly sense) of the press, if it wishes self-regulation to be retained.36

The suggested arrangements for the Press Complaints Commission are to be

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Royal Commission on the Press, Cmnd 6810 (1977); Robertson, People Against the Press (London: Quartet Books, 1983). op cit note I. para 14.29. op cir note I , para 15.34. op cir note I, para 15.20. op cit note 1 , Appendix Q. op cir note I , para 15.16.

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regarded as ‘one last chance’37 or ‘one final chance’’x to prove that voluntary self- regulation can be made to work. The report is certainly replete with warnings of the consequences of failure. If the newspaper industry were to fail to grasp this last opportunity, then a statutory system for handling complaints should be introduced. It might take either of two forms. If the problem were that ‘maverick publications persistently decline to respect the authority of the Press Complaints Commi~sion,’~~ then the Commission should be put on a statutory footing and given powers to enable it to require the publication of its adjudications. If, however, the press were to fail to set up and fund the Commission as recommended by June 1991, or if there were a serious breakdown of the system, rendering the Commission ineffective, then we are warned that there would ‘need to be a new statutory Tribunal able to adjudicate upon breaches of the code of practice and, where appropriate, grant injunctions and award compensation. ’40

Conclusion

Down the line, therefore, there lies something not obviously different from procedures for government licensing of what may be published. To all the existing grounds for seeking injunctions, there would be added the provisions of the fatter and fitter ‘code of practice.’ Such an increase in restrictions would deserve to be viewed with the utmost apprehension. Were there not such serious consequences in prospect, one might almost be amused by the heavy-handedness of the Calcutt Committee and the government which it served. The press had already been told that it was ‘on pr~bation’~’ by a Home Office minister, even before the Committee was set up. In the Report, the piling of warning upon warning reaches faintly ludicrous proportions. And the Home Secretary gratefully pockets the return catch: ‘This is positively the last chance. 14*

The Press Council put up an initial show of resistance to its fate, but its flow of funds was cut off. The Newspaper Publishers Association and the Newspaper Society have taken steps to arrange funding for a Press Complaints Commis~ion.~J Whether such a system, assuming its coming into being, can be regarded as ‘voluntary self-regulation’M is highly questionable. Something is hardly ‘voluntary’ if it is the product of duress, and it is scarcely ‘self-regulation’ to find oneself subjected to decisions of a body composed of members in whose appointment one has had no say, but merely the privilege of paying for. Perhaps it is better to drop the pretence. The Calcutt Committee has provided governments with a more effective scheme for regulating the press as well as a pretext for legislating, ‘albeit with some regret,’45 it is professed, if the beast is not yet tamed.

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op cir notc I , para 16. I op cir notc I , para 14.38. op cir note 1 , para 16.7. op cil note 1 , para 17.7. HC Deb vol 151, col 595, 21 April 1980. HC Deb vol 174, col 1124, 21 June 1990. In October, it was announced that Lord McGregor, chairman of the Advcrtising Standards Authority, was to chair the Press Complaints Commission, and a group of national ncwspaper editors also agreed that a ‘hotlinc’ system should operatc. op cit note 1 , para 14.38. HC Deb vol 174, cot 1124, 21 June 1990.

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