Changes to the PCC code
1 October 2009
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- PCC tightens rules aimed at preventing harassment by journalists
- New public interest test waters down the Code of Practice
- Privacy provisions are relaxed in the wake of failure to protect Fabio Capello’s privacy
The Press Complaints Commission has tightened existing rules intended to prevent journalists from harassing members of the public. The revised PCC Code of Practice (which is now in effect) requires journalists to identify themselves and whom they represent if requested to do so.
The change follows suggestions made by Schillings to the PCC earlier this year aimed at improving the existing voluntary Code of Practice, particularly in relation to press harassment.
Schillings regards the change to the harassment clause of the Code as a positive development. In theory the change should enable individuals suffering press harassment to effectively pursue their complaint against individual journalists and publications. By knowing the identity of a particular journalist an individual suffering harassment can make a formal request through the PCC that an individual journalist leave their property or refrain from pursuing them. Alternatively the individual may seek an injunction in the courts or refer the matter to the police.
What remains to be seen is whether journalists or photographers, particularly freelancers, will comply in practice with the new rules. Photographic agencies and the paparazzi who supply them with pictures do not consider themselves bound by the PCC Code of Practice so individuals suffering harassment from that quarter may be forced to take legal action. That said, the Code of Practice requires that newspapers should not use “material” (which includes photographs) which has been acquired as a result of harassment.
In addition to the PCC code, it is important to note that an individual is entitled to seek an injunction against a journalist or photographer where the level of intrusion is deemed harassment. If they are persistent, aggressive or otherwise cause an individual distress there may also be a civil or even a criminal complaint available.
Further changes, which also took effect from 19 October 2009 include:
RELAXATION OF THE TEST FOR "PUBLIC INTEREST"
Under the existing Code of Practice a number of activities such as harassment, invasion of privacy or intercepting telephone calls are prohibited unless a newspaper editor can demonstrate that such activities were in the public interest.
The PCC’s Code Committee - whose membership consists entirely of members of the media – has proposed, and the PCC has accepted, that from 19 October editors who engage in these activities will not have breached the Code of Practice if they can show merely that they “reasonably believed” at the time that what they were doing was in the public interest.
This significantly waters down the Code and is likely to lead to arguments over what constituted a “reasonable belief”, and, possibly to editors avoiding censure for some of the most serious misconduct prohibited by the Code.
The change leaves the PCC Code of Practice out of step with the law in areas other than under the Data Protection Act. For example in the context of privacy law if a newspaper published private information concerning an individual the newspaper would need to demonstrate, in defence to a claim for breach of privacy, that there was a public interest in the publication of the information which outweighed the individual’s right to privacy. This is a much sterner test and offers much greater protection to the subject of an intrusive newspaper story.
A “reasonable belief” that doing so was in the public interest certainly does not provide any defence to the criminal offence of intercepting private telephone calls and here again the PCC Code of Practice is out of step with the law and offers considerably less protection to individuals who may be targeted in this way by journalists or investigators acting on their behalf.
PREVIOUS DISCLOSURES TO BE CONSIDERED IN PRIVACY CASES
The Code is being changed to reflect the longstanding practice of the PCC in taking into account previous disclosures of information by individuals who complain that their privacy has been invaded. The Code now makes this explicit by stating:
“Account will be taken of the complainant’s own public disclosures of information.”
What is not clear is whether the PCC will take into account the fact that an individual has talked about one aspect of his life – for example his sex life – when deciding whether a press article revealing details of another aspect of his life such as his health or financial circumstances amounted to a breach of privacy. The wording of the new rule suggests that it will not. If so the PCC will remain out of step with the approach taken in the courts where it has been established that an individual may have publicly disclosed information about one aspect of her life does not disentitle her to a right to privacy in respect of other aspects of her life.
A STRENGTHENED PCC?
The PCC has stated that the changes are intended to strengthen the Code of Practice for the benefit of complainants. However, in a case of unfortunate timing, the announcement of the changes came the day after it was revealed that England Manager Fabio Capello and his wife’s privacy had been invaded by News of the World and Daily Mail despite repeated interventions on their behalf by the PCC.
On becoming England Manager 18 months ago Mr Capello had informed the press through the PCC that he wished his and his family’s privacy to be respected. Having noticed the presence of paparazzi photographers during a recent holiday with his wife in Spain Mr Capello contacted the British press, again through the PCC, to ask that he and his wife’s privacy be respected. The following Sunday the News of the World published intrusive pictures of Mr Capello and his wife enjoying a mud bath. The PCC were again alerted and a further warning sent to newspaper editors on the Sunday. The following Monday the pictures were republished in the Daily Mail whose editor Paul Dacre is chairman of the PCC Code Committee.
The newspapers concerned subsequently offered Mr Capello and his wife a private apology and made donations to the Sir Bobby Robson Foundation. However the incident leaves considerable doubt as to whether the PCC’s voluntary procedures are in practice effective. Had a legal notice been sent on Mr Capello’s behalf threatening legal action in the event of any breaches of his or his wife’s right to privacy it is doubtful that any publication would have occurred.
As the pre-eminent firm in using the law to protect reputations, privacy and confidentiality, Schillings will continue to promote the introduction for tighter guidelines in all aspects of individual privacy through voluntary regulation and legislation.