Self-regulation at law

By Sir Louis Blom-Cooper

15 November 1999 – The refashioning of the libel laws by the Law Lords in the case of Albert Reynolds v Sunday Times significantly broadens the defence of qualified privilege in disseminating information of public interest which at the time of publication the newspaper reasonably believed to be true.

The ruling has, however, major implications for editorial responsibility in general and press regulation, specifically in relation to privacy given the full effect of an important part of the provisions of the Human Rights Act which was added at the insistence of the newspaper industry.

The courts will now pay particular regard to the importance of the public right to receive frank and uninhibited communications on matters of public affairs so long as the press adopts a responsible attitude in investigating matters of public interest. A more expansive version of the presently-drafted Freedom of Information Bill should assist the process of journalistic access to information that currently has to be prised out of some other, potentially less reliable source. Parliamentarians should push for a better Bill to enhance journalistic ability to take advantage of the welcome development in the law of defamation.

How ought the Press Complaints Commission (PCC), as the watchdog of press conduct, react to this new found responsibility? While the PCC stridently proclaims the virtue of its self-regulatory system it has not been, in my view, successful in persuading the British public that the press is better behaved today than it was a decade ago. The PCC has, moreover, done little if anything to promote the right of the individual to protection of his or her privacy. In successfully persuading Parliament to amend the Human Rights Bill to give added recognition to press freedom in 1998, it unwittingly rendered itself subject to the judicial review from which it has ostentatiously dissociated itself in promoting a non-legal regime.

Section 12 of the Human Rights Act 1998 bears the marginal note “freedom of expression”, although it might, more accurately, be regarded as a trap for a legally untutored layman like Lord Wakeham. The Section provides that a court must have particular regard to the importance of the right to freedom of expression in actions against the media. In such cases the court is enjoined to have particular regard to the public interest in publication or (be it noted) alternatively to “any relevant privacy code”, by which Parliament meant the PCC’s Code of Conduct. Any court, which obeys the legislative command to have “particular regard” to the PCC’s Code of Conduct, will readily appreciate that fact. Lord Lester of Herne Hill and David Pannick in their excellent textbook on the Human Rights Act state; “Section 12 serves no sensible purpose”. But the Section does have an unintended consequence of over-zealousness on the part of Lord Wakeham. While the Section will certainly have an important liberalising effect in libel actions, it applies also to proceedings over conduct connected with journalistic material. The Section does place obstacles in the path of the Saturday afternoon interim injunction. This can no longer be granted on the principle of a balance of convenience; the court must henceforth be satisfied that the claimant is likely to win – a test which approximates to that for libel actions, which are hardly ever granted. The judge must, moreover, pay particular regard to the freedom of expression right and to the public interest, but also “to the extent to which the material has, or is about to, become available to the public”.

So Section 12 entrenches the right of free speech in newsworthy cases. But what about the cases where the news is unworthy – of no public interest because it is obtained by unwarranted invasion of privacy? The whole point of Section 12 was to give the media special privilege so that it could ward off privacy claims and injunctions. But it requires the court to “pay particular regard to any relevant privacy code”. The textbooks say that this means that judges should be willing to leave to the PCC the often difficult and sensitive decision whether an article is an unjustifiable invasion of privacy. That certainly is what Lord Wakeham and certain newspaper proprietors think it means. But, as Jack Straw, the Home Secretary, stated lucidly in the course of the Parliamentary process: “The fact that a newspaper complied with the terms of the Code operated by the PCC – or conversely that it has breached the code – is one of the factors the court should take into account in considering whether to grant relief”.

So one sees immediately what Lord Wakeham has done. He has given the judges, in privacy cases, the duty of taking in to account the PCC Code and deciding whether it has been breached. The point is, as Geoffrey Robertson QC said in this year’s Goodman Lecture at University College London, that Lord Wakeham has shot his paymasters, the press proprietors, in the foot. Section 12 puts the PCC Code firmly in the hands of the judiciary to interpret and adjudicate breaches. The consequence will be a rapid development of a privacy law, in precisely the way the newspaper industry tried to prevent.

Sir Louis Blom-Cooper was the last chairman of the Press Council, which was replaced by the Press Complaints Commission.

(Bulletin No. 1)

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