Barendt, Eric --- "Britain rejects media privacy law" [1995] PrivLawPRpr 68; (1995) 2(6) Privacy Law & Policy Reporter 109

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Britain rejects media privacy law

Eric Barendt criticises the UK White Paper on media intrusions.

So there is after all to be no privacy law in Britain. The British Government has, after an interval of two years, replied to Sir David Calcutt's highly critical review (Cm 2135) of press self-regulation by the Press Complaints Commission (the commission) and to a report by the House of Commons Select Committee of March 1993. The latter had recommended some strengthening of the commission and the appointment of a statutory press ombudsman to act as a court of appeal from commission rulings, with power to supervise the publication of apologies and corrections in newspapers and to order the payment of compensation. The Select Committee Report had also recommended the enactment of various criminal offences to penalise unauthorised surveillance and taking of photographs, and the introduction of a tort of privacy.

The Government's White Paper, Privacy and Media Intrusion (July 1995, Cm 2918), rejects all these recommendations. The commission is to carry on, with the government encouraging the newspaper industry to make further improvements to the self-regulation procedures. Broadly, it considers industry self-regulation preferable to the introduction of statutory bodies, such as the tribunal recommended by Calcutt or the ombudsman proposed by the Select Committee. It welcomes the improvements already made to the commission in the last two years, in particular the change in its composition in favour of a majority of lay members and the tightening up of the code to deal with bugging and long-range photography (the Code).

The White Paper sees no objection in principle to the introduction of the criminal offences proposed by Calcutt and the Select Committee. These would make it an offence, among other things, to enter private property with intent to obtain personal information with a view to publication, to place or use a surveillance device on private property without the consent of the occupant or individual watched, and to take a photograph of an individual on private property without his or her consent and with a view to publication. Although it was always envisaged that there would be wide public interest defences, the Government concludes that there are insuperable problems in drafting such offences in such a way as to make plain what conduct is criminal and what defences should be available to safeguard bona fide investigatory journalism.

The White Paper is also enthusiastic about the introduction of a privacy tort. Two years ago the Lord Chancellor issued a consultation paper asking for views on how a privacy tort should be framed. It was clear that the Lord Chancellor favoured its introduction, as did a majority of those replying to his paper. In the meantime, a scandal erupted about the publication of the photographs of the Princess of Wales working out in a West End gym which, had it come to court, would have raised confidentiality and privacy issues. Yet now the Government doubts whether there is sufficient public consensus to justify statutory intervention. Moreover, it prefers self-regulation.

The terror of the press

In short, the White Paper rejects any legal developments which might protect the individual against invasions of privacy by the press. It came to this conclusion after two-and-a-half years' consideration of other reports which had favoured the introduction of legal remedies. What is the explanation for this delay and pusillanimity? The answer is simply that the Government in Britain is terrified of the press, which has largely turned against it since the last general election in 1992. It would prefer not to antagonise newspapers which for the most part are enthusiastically Tory and whose support is crucial to its chances at the next election in 1996 or 1997.

Equally the press has for years been anxious about the introduction of a privacy law, particularly the civil tort, which would significantly impair its freedom to snoop on politicians and celebrities and publish stories and photographs about their private lives. At the end of last year Lord Wakeham, a former Cabinet Minister, was appointed chairman of the Press Complaints Commission, with the intention that he would ward off any attempts at legislation. The manoeuvre has succeeded brilliantly. Lord Wakeham has introduced some significant changes; in particular, instituting an independent appointments committee to select commission members and incorporating the Code in the employment contracts of editors and senior journalists. This latter change enables newspaper owners to discipline editors and others who have been found to offend the Code. Wakeham encouraged Rupert Murdoch to reprimand the editor of the News of the World for invading the privacy of a relative of the royal family.

In fact, a large part of the White Paper consists of an exchange of letters between Lord Wakeham and the Secretary of State for National Heritage. Britain now has, as it were, government by correspondence, rather than a government of principle. For the White Paper is an exceptionally feeble document. It fails to address the arguments of principle: is privacy a fundamental human right, as the European Convention and many national constitutions assert? If so, how should it be protected? It ignores the view of Sir David Calcutt who concluded that the Press Complaints Commission was ineffective. It also does not explain why individuals whose privacy is invaded by a radio or television program may complain to an independent Broadcasting Complaints Commission, which can order the broadcaster to publish its findings; but, there is to be no equivalent redress for those injured by the press or, for that matter, by book publishers. Instead, the new Secretary of State, Virginia Bottomley, makes a number of tentative suggestions for improvements to the Commission in her letter to Lord Wakeham. Among them is the idea that the newspaper industry should establish a compensation fund which would compensate members of the public whose privacy has been injured. This is ludicrous because all newspapers and magazines would be compelled to pay a premium to cover the handful of offending tabloids. The Government seems to discourage the responsibility of particular newspapers, just as it has abdicated its own responsibility to reform the law.

Professor Eric Barendt, Goodman Professor of Media Law, University College London.