Two sides of the PCC
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I have been invited by the Editor of Media Lawyer to write this piece, to be set alongside an opposing view, the Editor having sat in an audience when I recently argued my case[1].
I had the pleasure of meeting Sir Christopher Meyer in recent weeks. He obviously cares passionately about the PCC. He jokingly said that I was swimming in a sea of heresies (his words). Of course, I say he is wrong, but he is entitled to his view. He added These are the sorts of difficult questions that must be asked and must be answered. It seemed rather at odds to the statement attributed to him in the PCC Annual Review 2005 in support of his proposition that critics of self-regulation were finally growing quieter I am not so complacent as to think that this is the disease cured. It is in remission. You might think that an odd and defensive position to adopt.
A few weeks earlier I had offered my views to a seminar of media lawyers and journalists. They occupy one end of the spectrum of the debate. As few lawyers specialise in my area (the other end of the spectrum, pure claimant media law, as opposed to defendant media law or a hybrid) the view tends to be less heard, but I assure you it is not mine alone, nor is it the view merely of my firm. On that occasion my views were described as scandalous (repeated I lost count about 3 times rather angrily, which was quite flattering I thought). This, incidentally, is my fellow lawyer writing the case for the PCC alongside this article.
I am often scandalous, but rarely I accept at 4 oclock in the afternoon (when I delivered the speech).
This was and remains my argument:-
a/ My speech concerns Privacy, the title of the conference being Privacy and the Media. It does not concern other areas of the PCC Code, it was not intended to (eg Inaccuracy as to which most resolutions and adjudications relate. According to the PCC 69.8% of complaints relate to inaccuracy and only 12.5% of their rulings relate to Privacy[2]. Perhaps this is because our newspapers are great respecters of privacy?);
b/Lord Sedley recently and publicly said that All one can safely say is that there is no serious case for preserving anything of the PCC, except its Code of Practice[3] Lord Sedley (for the non-lawyers) is the one who found[4] that, we have reached a point at which it can be said with confidence that the law recognizes and will appropriately protect a right of personal privacy and that the law no longer needs to construct an artificial relationship of confidentiality between intruder and victim;
c/ The European Court of Human Rights (ECHR) has already ruled that the UK fails to protect Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms. This is the overlooked one that says Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority. It found that the PCC has no real powers because, (i) It has no power to prevent publication of material, even the most flagrant and obvious invasion of privacy; (ii) It has no power to enforce its rulings; (iii) It has no power to grant any legal remedies to the Claimant; (iv) It has no power to award compensation; (v) It has no power to reimburse legal costs and expenses; and (vi) ruled that the power to award a fine (not that the PCC does) does not amount to an award of damages. The case was Peck v-UK [2003] ECHR[5]. I was accused by the deputy editor of the News of the World of getting my law wrong because he obviously hasnt read the case, Peck he said concerned TV and not the press, and I was misleading the audience. Sadly, I have read it far too often and have had cause to refer to it several times over the years. I suggest my critic does likewise at least one more time, as he might then appreciate that Peck considered not just broadcast journalism, but press journalism too. I refer him to paragraph 109 of the ruling[6]. He is plain wrong.
d/ If that were not enough, I say there is also an infringement of Article 6 of ECHR[7]. The PCC is not established by law. It is neither independent, nor impartial. The influence of 7 Editors on the Commission out of 17 members is obviously powerful. Of the remainder, 2 are PCC representatives, leaving 8 lay-people, none of whom can lay claim to having expertise or even prior experience in protecting claimants privacy. There are no oral hearings at which you might make submissions in person. You are not allowed to attend or to send representatives. Meetings are held in private and are no transcribed. There is no substantive appeal (although you can complain about the manner in which your complaint was handled). You can all but forget Judicial Review, even if you could afford it, as the Court will not intervene on a technical interpretation of the Code[8] and will defer to the PCC and be slow to interfere with its jurisdiction exercised in good faith[9]. This is not open, transparent justice. How on earth is that fair?
e/ I question whether the PCCs statements in public reveal the true picture, even though I accept they are offered in good faith (i) [10], Compensatory Powers - for which there is no evidence of demand by Complainants. I repeat that I have yet to be instructed by a client who does not, post publication of private matters, demand compensation; (ii) Never had an objection from a successful complainant that their adjudication was not published sufficiently prominently[11]. In my experience, prominence is a thorny subject and a client expects an apology of no less prominence than the original, offending piece. This is plain common sense, it is how the public reacts. How can a full page article be corrected by a small retraction in a column?; (iii) Last year we hit a record of 3,654 complaints. This is, in fact, an increase of 6 complaints in 3 years.[12].
e/ However, I acknowledge that there are some good points. I described the Code itself in my seminar as a fantastic document, a living Code that changes to meet the challenges of the times. The problem is that many journalists choose to ignore it and are free to do so. I also acknowledged that many journalists are highly professional and do follow it. I explained that you can use it to your advantage as a Claimant, as follows:
(i) Under Section 12(4) of the Human Rights Act 1998[13], the Court must take the Code into account. The Preamble to the Code expressly says that It is essential that the Code is honoured not only to the letter, but in the full spirit. That is a powerful statement when put before a Judge on an injunction. If you can locate a copy of the Editor's Guidelines from Presbof, then this will help too as it has case studies apparently on how to interpret the Code properly. It's yours for £5. You have to send off for it in the post. This and internal newspaper guidelines are disclosable documents.
(ii) PCC adjudications are important precedent. The Court has ruled that it will pay particular regard to a breach of Clause 3[14]. If the PCC has found a breach on similar facts in the past, then it is likely the Court will follow suit. Follow, therefore, the PCC's findings in favour of the Claimant with care.
The fact that the PCC might be considered free or fast, or that it satisfies some members of the public is a fudge and nowhere near enough. The entitlement, no matter how famous they be, is to the protection of their fundamental freedoms and human rights â including Article 8 Privacy. Everybody. This is not merely my view incidentally, but as we all know it is the stated view of both the House of Lords (Naomi Campbell) and The European Court of Human Rights (Princess Caroline of Monaco). And the PCC woefully fails to deliver.
My opinion is based on experience and my exercise of freedom of expression. I stand by it. If it is controversial or even scandalous, then frankly, tough. I am entitled to it. That is what defendant media law is all about, isn't it? Sir Christopher, for one, found it helpful and stimulating. I end with this - the PCC's stated agenda for the next three years, More of the same convince people that this is happening[15]. Those who are unconvinced might label that the old art of Smoke and Mirrors.
Simon Smith
Partner
Schillings
September 2006
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[1] This article represents the personal view of the author only.
[2] The PCC's Annual Review 2005
[3] Sex, Libels & Video-Surveillance, The Blackstone Lecture, Pembroke College, Oxford (13th May 2006).
[4] Douglas/Hello! (Court of Appeal)
[5] 44647/98 [2003] ECHR 44 (28 January 2003)
[6] 109. The Court finds that the lack of legal power of the commissions to award damages to the applicant means that those bodies could not provide an effective remedy to him. It notes that the ITC's power to impose a fine on the relevant television company does not amount to an award of damages to the applicant. While the applicant was aware of the Council's disclosures prior to the Yellow Advertiser article of February 1996 and the BBC broadcasts, neither the BSC nor the PCC had the power to prevent such publications or broadcasts.
[7] In the determination of his civil rights against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
[8] R-v-PCC, ex p Stewart-Brady [1997] EMLR 185
[9] R-v-PCC, ex p Anna Ford, unreported, 31st July 2001
[10] January 2004 Response by the PCC to the House of Commons Select Committee, Culture, Media and Sport.
[11] As above.
[12] The PCC's Annual Review 2005