One of the many reasons why the Press Complaints Commission’s claim to be independent is unsustainable is the makeup of its Code Committee. No genuinely independent complaints body would fail to include any independent representatives in the process of formulating its rules. The PCC does just that.
Swan Turton recently commissioned a survey of the general public about the policies and make up of the PCC. 93% of respondents said that the Code Committee should not be composed solely of press representatives. The other results of the survey were similarly at odds with the PCC’s approach to its regulatory role.
The PCC appears to be completely untroubled by this anomaly, so when a committee of newspaper editors makes changes to the code that regulates what they themselves can publish, the sensation is that of watching a referee who is wearing the same colours as the opposing team walk towards the goalposts with a saw and shovel. This is particularly so when the chairman of the Code Committee (Paul Dacre) has gone on record to say that any restrictions on journalistic freedom hit the press where it is most tender – in its pocket.
Perhaps that is why on 24 September it was the Press Standards Board of Finance that announced three changes to the PCC Code, which are to come into effect on 19 October. The changes were summarised by PRESBOF as follows:
“Privacy – Clause 3 has been amended to make clear that the PCC will take into account relevant previous disclosures made by the Complainant.”
This change (as the press release says) reflects the policy of the Commission in making its adjudications as well as that of the Courts. If you have already put specific areas of your life in the public domain, then a newspaper is entitled to pray that in aid should a complaint be made.
Presumably the purpose of the second change is to offset the other two pro-press ones. Here is the reference to it in the press release:
“Harassment – Clause 4 will require journalists in situations where harassment could become an issue to identify themselves if requested to do so.”
As any claimant practitioner (or harassment victim) will tell you, this is the equivalent of a stipulation by the Police that when you confront a burglar they should hand you a piece of paper stating their name and contact details. It will, of course, never happen because no journalist or photographer who is intending to breach the Code is ever going to provide a prospective complainant with a means of seeking redress. This rule is entirely spurious, and of no value whatsoever in protecting the rights of individuals who face press harassment.
3. Public Interest
The most interesting change is to the public interest provision. This is how it is put in the press release:
“The Public Interest – exceptions will include journalistic activity where editors can demonstrate a reasonable belief that they were acting in the public interest at the time.”
The Code Committee says that it has taken legal advice on this change to the Code. However, all the UK legal authorities concerning privacy identify the test for the public interest defence as objective rather than subjective, so it is difficult to imagine the basis on which this advice could have been given.
What does the new Public Interest Provision really mean?
Another mystery comes in the changed wording of the relevant paragraph. Here it is (with the new section in bold):
“Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest.”
The clumsily drafted revised provision appears to make this a cumulative rather than an alternative requirement, i.e. not only must editors demonstrate “fully how the public interest was served,” they must also show that they “reasonably believed that publication, or journalistic activity, would be in the public interest.” The problem is (as explained above) that at the PCC the referee who has written the rules is hired and paid by the opposition, so he is likely to interpret the rules accordingly.
If the PCC interprets the Code as per the wording of the press release (rather than according to the revised wording of the Code) then this has the effect of transferring the risk of breaches of the Code from the multi-nationals who publish the relevant articles for profit to the individual complainants whose privacy has been invaded. PRESBOF’s press release does not tell you why the Code Committee has done that, but you probably do not have to look much further than the membership of the Code Committee to answer that question.