Guest post: Adam Fellows – “Press Rights v Privacy Rights”

I didn’t make it to last week’s Bindmans debate at UCL, “Freedom of the Press versus Privacy Rights: Time for Parliament to draw the line?” but fortunately Adam Fellows (@fellowsadam and @eatplaylaw on Twitter) has written it up for those of us who missed it. His account is reproduced here, with his permission.

UCL and Bindmans co-host an annual debate on a topic concerning the Press, and this year saw the fourth such debate in the series. With all that has gone one in the preceding twelve months, this debate was incredibly ‘on-topic’ and was unsurprisingly incredibly packed with attendees from such large law firms, news organisations, and others involved in the Press.

The speakers for the debate were:

The chair of the debate was Hugh Tomlinson QC of Matrix Chambers., with introductions made by Professor Dame Hazel Genn DBE, Dean of Laws at UCL, and Tamsin Allen, partner at Bindmans LLP.

Tomlinson started by setting a few ground rules for the discussion and two key questions: is it time for a privacy law, and is it time for statutory regulation of the Press? With the Leveson Inquiry in full flow and being broadcast, people are incredibly aware of the power of the Press, more so than during the time of the Calcutt Commission which advised the creation of a Press Complaints Commission.

The first speaker up was Tessa Jowell, who said she was basing her talk on her time at DCMS. For her, this is a key moment in time for a change. Her view was that we should not get stuck in past events, and that this period was something bigger than just between politicians and the media. It was the shock of the NewsCorp dealings with the police to get the public concerned with this issue: the public are more discerning than they are given credit for and the knowledge of the relationship between politicians and the media is well known.

She followed this with the point that nobody was that interested in the revelations about public figures; the public expect it as part of a celebrity’s media relationship. However, despite the revelations, a free Press is a must. The alternative is a lot worse, so there must be a better way to get a good settlement and a good balance.

Jowell said that she has no sense of political scores being settled by the hearings [AF note: though this may need to be re-evaluated in light of the Dacre/Grant spat]. The Press should be free, but needs a better understanding of what is acceptable as a method of getting a story. The Press should also be free of those with discernible vested interests, including those of the editors (especially their pact of mutual protection). There is a clear need for duality and balance; when the Press works along those lines it does its job best. The CMS committee is doing an excellent job of redrawing that balance.

Technology is allowing people to self-inform, and it is moving quickly. In Jowell’s opinion, the Leveson Inquiry is solving yesterday’s problems. There still needs to be concern about the ability of everyone to access justice relating to the Press, not just the rich. Serving in public life should be upheld as a good thing, but there is a risk that the quality of people coming forward will degrade due to the press risk. As DCMS Secretary, Jowell believed that media literacy was something to be promoted, especially the notion of words and timing. Instead, she feels that regulation is only the starting point; we need to look to an engaged and assertive public demanding the freedom of an intelligent Press.

Martin Moore followed up; he agreed with Jowell in that privacy as an issue is far bigger than the Press. Moore made reference to a Mark Zuckerberg interview where he stated that the age of privacy is over, and he would have made all information public from the start. He pointed out that the practical boundaries of private life have changed, the restraints have almost disappeared, publication is easy – especially with Facebook. He pointed to the suicide of Tyler Clementi -  the publication of videos and the consequences show that the practical restraints have gone, but we need something to replace them. People generally believe that there should be some privacy protection; people should respect the line between the public and the private. If there are no formal constraints, some agencies will use any means to get the story.

However, Moore pointed to the increased use of legal constraints to fill the gap of the now-defunct practical restraints, but this causes further tensions about where the line lies. That this legal protection exists is sensible, but the real question is how to protect the journalist’s right to intrude in the public interest.

This public interest defence barely exists in the protection legislation that is used often, using the case against the Guardian journalist to reveal her source as a good example of this. He set out some themes that form a public interest defence in codes created for organisations:

(i)           preventing the dissemination of misleading information;

(ii)          disclosing decision making for the public interest;

(iii)         for health and/or safety;

(iv)         to prevent corruption; or

(v)          for the prevention of crime.

However, the one that never gets included is to test allegations of hypocrisy. A right of intrusion would better define the line between public and private. Good journalists will have the confidence to act, bad journalists will think twice.

Gill Phillips followed Moore. Her talk was based upon the Press’ perspective. The state of a democracy is shown by the health of its press. She doesn’t believe that statutory regulation is the answer, but there needs to be a new way of regulating. However, in that search for a new way, we must keep our perspective. Phone hacking is not a failure of regulation, but rather an instance of criminality at a paper and a failure of the police to investigate. Since printing has started, there have been state attempts to control the Press [AF note: a legal history lesson is always welcome].

Illegal printing has in the past resulted in hanging or disembowelling. However, this control works both ways, with the Press involved in a back-scratching relation with the political elite. History tells us that the instinct of those in power is to control the Press strongly, but this is coupled with the knowledge that regulation distorts access to the truth. Phillips suggested that a form of ‘PCC max’ is required, as self-regulation was never full self-enforcing, but also pointed out that questions exist over blogging, as they operate on the edge of reporting. There will always be those who engage in luminal activities, and more top down regulation will not help, so it is not needed. What needs to be remembered is that this moment in time is part of a wider battle over access to information.

Max Mosley’s opening point was that we don’t want a controlled press, but neither do we want a press-controlled government. People who aren’t British citizens can control the actions of the British government [AF note: his mention of Tony Blair’s visit to Australia makes it clear who this is a reference to], and while the PCC has not failed to make the rules, it has not enforced those rules and cannot do so. He asked how we can enforce them without state control, and his suggestion was to separate the rule-making arm from the enforcement art, which should be completely independent. At this point Phillips interjected, saying that the creation of the free press has been a long fought battle, but admits that some changes do need to be made. Mosley said that there is a clear need to define the public interest in statute. Any such statute must contain some presumptions as to what the public interest is, but it is important that these presumptions can be rebutted. He also requested that any such statute allows the prevention of publication if it is required.

Following the speeches, there was time for some questions:

The first question looked at the Press and incivility; as women are being objectified and disabled people attacked for claiming benefits, what did the panel think of this?

Mosley pointed to the evidence given by Moy at the Leveson Inquiry which showed that this is a problem that is coming to the fore, including collusion with government departments over stories to help foster an attitude towards policies. Jowell furthered this by remarking that some papers focus more on the sales they make to certain groups more than the dissemination of information. However, she made the very important point that we can rely on drafting regulating principles well, to safeguard every reader from offence – we should rely on people being offended on behalf of others and to refuse to buy the paper.

Mosley set out a plan for a free tribunal that would give access to anyone feeling aggrieved by the Press, with a hearing being allowed on one of four grounds: defamation, accuracy, offence, and misleading information. Phillips also said that offence is a matter of internal culture, and the appropriate use of words. Complaints are also learning opportunities for the Press, working out when they go too far. It is the only way the Press learns, such as describing victims in a derogatory way, i.e. acknowledging that a murder victim is a prostitute when such a description is not required.

A second question noted that this is just a part of a wider debate, and asked what the panel thought about whether a press commissioner should be a privacy commissioner. Another question asks why no-one seems to have done anything about the police passing information to the press.

Jowell agreed that the police passing information is an accepted fact, that it helps to supplement the income. As the cases are dealt with by the relevant authority, the government didn’t look at the problem systemically. However, it is important to remember that most police don’t do this, that they feel ashamed and wish to reassert the professionalism of the police. Mosley did however ask why the Home Secretary has never required the Commissioner for Police to investigate. He also referred to Hugh Grant’s statements in evidence that a call to the police would lead the journalists to arrive before they do. Phillips agreed with this, as the journalists knew that Harry Redknapp was to be arrested; the question is how.

Tomlinson then brought the question back to one of a privacy commissioner. Moore said that that the idea sounds sensible but looking at the ICO, the commitment and practicalities regarding resources would need to be met and safeguarded to make it work. Mosley returned to his idea of a free tribunal to adjudicate matters.

Following on from this, a question was asked about who should sit on such a tribunal to ensure that it is a fair deal for both the press and public.

Mosley’s response was barristers or solicitors could the tribunal ‘judges’, but as with the PCC as it stands, it should be funded by the Press. He noted that this is cheaper than the overall cost of litigation. Jowell liked the idea of a tribunal and the presumptions for public interest in a statute, but also suggested that members of the public be used for the tribunal as well. Jowell said that any system would require proportionality and access to representation for those who want it.

A fifth question noted that the definition of public interest is a key issue but asked how it could be defined. Following that, should people in the public eye be held to a higher standard? A sixth question asked how the public interest matter sits with the need to sell papers, and a seventh question asked how privacy on the Internet can be protected. Can we draw a line?

Moore said that transparency can have a chilling effect on poor behaviour, and that the public interest is also about what isn’t in it, as well as what is. Jowell went further, saying that the consequence of press campaigns can also intensely damaging, pointing to the Daily Mail’s campaign against the triple vaccine which has been found to be untrue. Jowell believed that the Internet would have been a strong force for good in that. Mosley said that just because something is popular doesn’t make it right. For him, the net is just another medium – removing the power of its mystery is key. On the matter of public interest, Phillips believed that there should be positive criteria for public interest, including public information and encouraging debate. There should be a stronger and clearer definition of privacy, and the public need to be educated about the dangers of the net.

Analysis

What was clear from this was that there was no real debate around the matter as such: all the panel agreed that change, and drastic change at that, was needed. All also agreed that the freedom of the Press is important, and that the revelations we have all become familiar with are the work of only a very small number of individuals. It was however very interesting to note that the PCC was very rarely mentioned, and it seems that the panel reflected the public mood that the PCC is now a defunct organisation.

However, there was very little to be said about what could be done to effect this change. Mosley’s idea of a free tribunal is an intriguing one, fairly similar to a plan devised by Chris Bryant MP, and incredibly similar to the organisation Early Resolution which started up last year. However, this doesn’t seem to help with the problems of self-regulation that we have seen arise from the Leveson Inquiry. It was merely agreed that it was a difficult task, as it requires both a controlled and a free Press to exist. These ideas seem mutually exclusive, and the panel acknowledged this. Perhaps the silence on this from the panel was out of respect for the ideas that will come from the Leveson Inquiry, or perhaps it was more out of recognition for what a difficult question it is to answer.

About the author: Adam is a barrister, and was called to the Bar by the Inner Temple in July 2011. He wishes to practise in media and public law, and blogs on these subjects at www.adamfellows.com. He is also the treasurer of Independent Academic Research Studies, a youth-led think tank with the aim to empower young people and encourage them to engage in the political process and justice, and has since embarked on an LLM (distance learning) in Information Rights Law and Practice with an elective in media law and privacy.

This entry was posted in blogging, events, freedom of expression, guest post, human rights, media law, press freedom, privacy and tagged , , , , , , , . Bookmark the permalink.

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