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Terms of Reference

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George South | 17:01 UK time, Monday, 6 June 2011


Here are the draft terms of reference for the PM Privacy Commission. Listeners have until Monday 13th June to offer suggestions and alterations (by email or in the comments), as well as proposals for potential witnesses.

  1. To determine the circumstances and extent to which an individual's private life should be open to public scrutiny.
  2. To establish whether there is public confidence in the current practices of the media with respect to the privacy of individuals and the extent to which new communications media represents a special challenge.
  3. To assess the extent to which current legal measures restricting media reports are seen to be proportionate and have public confidence.
  4. To consider if current regulatory regimes are seen to have sufficient powers to ensure good practice in media reporting.
  5. To receive evidence from interested parties.
  6. To recommend measures which may increase public confidence in media reporting in the UK and the protection of individual's privacy.

Comments

  • Comment number 1.

    I think that it is important that the enquiry does not only concentrate on so-called "celebrity" cases. I understand that in the Family Courts, super injunctions have been imposed on parents which prevent them discussing their case with their MPs even where there is a possibility of their children being removed from their care.

  • Comment number 2.

    Under section 3 would that include looking at parliament i.e.recent parliamentary privlige and classification of goverment notices such as the D notice.

  • Comment number 3.

    Proposed changes are : Where does openess and transparency becomes more important than an individuals right to privacy?

    BTW I would of tweeted this but unsure if Eddie or Jocarr would listen to twitter....

  • Comment number 4.

    What activities open a person's life to legitimate public interest?
    If a person is selling their image or name for publicity or advertising purposes, does this require that they are truthful in their representations of their image? If they are not truthful, should their deception be publicised in the media? Do the courts have a right to perpetuate the deception?
    If the person's family is liable to be embarrassed by publication of details of the activities of the person, is it the revelation of the truth or the activities themselves that are at fault?
    If a person is not using their name or image publicly, should they and their family automatically be protected by the law? An example would be a person named by the police in a criminal enquiry but not found guilty of the crime.

  • Comment number 5.

    The terms of reference do not consider State exploitation of the data it obtains and holds - for example the DVLA selling vehicle keeper data to the private sector (parking firms) or to motor manufacturers for marketing purposes. Applies to the police selling accident data to a range of interested parties. What do the Commissioners think of this degree of bending the law. Should the courts become involved? The Information Commissioner?

  • Comment number 6.


    I recently heard it suggested that one reason for seeking injunctions/super-injunctions is that if you go to the police to report attempted blackmail, your story (if you are famous enough) will be all over the popular press within 24 hours. I wonder, therefore, whether it might not be a good idea to include the nature of the relationship between the police and the media in the terms of reference.

  • Comment number 7.

    The terms of reference 1, I am an unsure to the purpose of this term. Is it to determine the circumstances of said particular case and/or of which should be made public. Should part there of a case be made public then media and public interest would natuarlly speculate the missing parts not made public. I believe this term of reference should identify whether or not a particular case is actually within the public interest. It should be an "all or nothing" publication of fact given it is neccessary for public to know. What is the fundamental argument/the discreet reason for the media to have "freedom of press" (call it as you may) .................to sell publications for profit. The media have no interest in relevance of an accusation so long as it sells.

  • Comment number 8.

    I don't understand how to find this blog - as there is another somewhre where I think I put my comment but now I can't find it!
    anyway i will try again: here goes...

    For goodness sake Eddie, ask the question clearly? How exactly should we use vegetables and fruit right now - and salad? Must we cook everything which implies that E Coli dies in cooking? Should we peel which implies it is in the skin the skin only and can't be killed in the cooking? What is the case? I just ate some Jersey potatoes after scrubbing but leaving on the skins! What about that? PLEASE CLEAR THIS UP for the sake of the farmers and us RATHER THAN SENSATIONALISE THE STORY. Ask the soil association..............! Also are British farmers affected as you did not say Thanks

  • Comment number 9.


    What is the point of inviting contributions if they are still in moderation FOUR AND A HALF HOURS LATER?

  • Comment number 10.

    Sid@6 "if you go to the police to report attempted blackmail, your story (if you are famous enough) will be all over the popular press within 24 hours" - surely if you go to the police with a complaint of this kind it would be totally unprofessional (at best) for it to then be leaked to the press and the police could be prosecuted?

    pithy, I gather you've found this particular thread but I'm not entirely sure it is the right one for your fruit and veg comment - though it is a good comment.

    Looks to me like the Blog Tsar has posted several threads on the one topic - this could get a bit confusing.

  • Comment number 11.

    Plugged on PM
    Plugged on Twitter

    Wait two weeks for anything to appear here and three posts come in and once - two of which have now been closed for comments!

    Sorry but it really is a mess and hardly a surprise that pithy was a little confused...

  • Comment number 12.

    One might say that in a genuinely democratic society the most valuable rights are those the majority does not approve of. (After all, those the majority does approve of can get the backing of the government)


    So terms of reference should include:
    to what extent should rights, including those of privacy, thwart the democratic will?

    I recommend Amartya K. Sen as a witness.

  • Comment number 13.

    Dicky 84 : The aim of newspaper proprietors is of course to sell papers - but one has to recognise that a free press brought exposure of thalidomide, of MPs expenses and thousands of cases of wrongdoing in the fifty years in between. Of course, if we are looking at recent super-injunction cases, this is not on the same scale as those examples, and is aimed at increasing newspaper sales. There cannot be a public interest in releasing details of anyone's sex life although the public may be interested.

  • Comment number 14.

    Can you please discuss the kind of 'gagging order' that prevents someone who receives compensation in an out of court settlement from discussing either the arrangement or the amounts involved. While this may protect the wronged individual from having their private finances displayed to public view, it may also protect the wrongdoer from having the detail or the extent of their offence exposed.

    Do we need some explicit rules to cover what should and should not be permitted to be concealed?

  • Comment number 15.

    Lady Sue - it is indeed unprofessional, but nonetheless that is allegedly what happens, and I thought it worth having a look at in the overall context ...

  • Comment number 16.

    This comment was removed because the moderators found it broke the house rules. Explain.

  • Comment number 17.

    I think there should be an additional point to cover; to whit the extent of any legal framework within the UK can and/or should have the ability to curtail individuals and media organisations outside of the UK. We had the recent case of a Super Injunction being issued that was to cover the whole world in perpetuity. This sort of global blanket ban needs to be looked at...

  • Comment number 18.

    Proposals for potential witnesses.
    Surely someone who has been the subject of much media speculation and the target for much ribald comment over a number of years could give a good account of the effect of public scrutiny of a private life. Can I nominate Samantha from ISIHAC? Sure she has her knockers but I'm sure she would be interesting to talk to.

  • Comment number 19.

    Rex@13: agree with most of your comment but there is the prime example of Tiger Woods who had a certain public persona with regard to high morals. The exposure of his affair did have an impact, not only on his private life but on his public image, not to mention his income. Under those circumstances releasing details of his sex life did have rather more to it.

    Good point Anne@14.

    I take your point Sid - appalling that it happens at all.

    Fearless@17, hear, hear.

    Horse!



  • Comment number 20.

    18 - TIH

    Good choice, she'll be good at pulling something if the punters don't come and listen to the debate.

  • Comment number 21.

    I've emailed in my suggestions but thought I'd share here too. I think the terms of reference are a bit timid and narrow. There's no mention of freedom of expression or right to information, and since it appears not to be looking into data-protection or state issues, it should be clearer that it's "PM's commission on privacy and the press". So far as I can see, everyone appreciates desire to protect children, but realises injunctions can be too restrictive and abused by those with the resources to do so. So it's about suggesting a way to interpret Article 8 of the European Convention more narrowly.

    The formulation of question 1 contains a logical inconsistency if you
    assume the separation of private and public, so delete the word "private". Also expand to consider corporations, such as Trafigura (and
    maybe information shared with the state "in commercial confidence").

    Question 2 could be split into two - and I think "investigate" rather
    than "establish" each case. Question 3 should not be "legal measures",
    which sound like laws, but "legal practice". Append to Question 4,
    "while allowing investigation and reporting of matters in the public
    interest", and mention "law enforcement" as well as "regulatory regimes" (in connection with e.g. News International and phone hacking). As additional points, would it also be useful to investigate the "balance" in other signatories to ECHR? And look at establishing the rule against prior restraint (a principle dating back to the 17th & 18th centuries) as a principle?

    I'm not really sure if the commission would look at legal, ethical or practical issues (the first is informed by the second and third), but it might like to consider hypothetical cases under question 1, such as "if a
    campaigner against gay rights is known to have had a homosexual affair
    (regardless of whether the other partner has a right to privacy), is it
    in the public interest to know that, when normally it would be private?"

    If they're going to discuss privacy in the electronic sphere, there are overarching issues that could be separate points, such as to investigate how a Privacy Commissioner (like the ICO, but more focussed) could enforce rules such as on snooping and data breaches, and use of public resources (the police, electoral roll, DVLA mentioned above) either by eg police officers abusing their data access or where RIPA is in conflict with Article 8.

    As regards witnesses, I'd suggest civil liberties groups like Privacy International or Article 19, and Heather Brooke to talk about how difficult it can be to get "public interest". Also there would be more interest (and probably validity) if people directly involved were witnesses - by all mean Ryan Giggs or Max Mosley, but of course it's difficult for many of those "on the other side" (the individuals being "gagged") to contribute. One exception might be Sara Keays, if she were willing, who might also give a perspective on the situation before the HRA.

    There is always a danger of either policy-makers or the judiciary pronouncing on internet issues while barely understanding any of the technical considerations. Judges, politicians and the media have a history of talking what is evidently trash to people who know their RFCs. Some of the usual pundits would be good, like Bill Thompson, Richard Clayton, John Naughton, Vicki Nash (of the Oxford Internet Institute), or even some outright geeks.

  • Comment number 22.

    hm, not sure if here's the best place for this comment (how many threads??) but...

    Surely creating a Commission is a sure way to "kick an issue into the long grass".

    Eddie - is this meant to be another type of Beach?

    but with long grass instead of sand....?
    [looks wistfully out of the window for a glimpse of summer]

  • Comment number 23.

    Whisht and Cedders,
    Good points both of y'all
    ;-)

  • Comment number 24.

    1) To determine the circumstances and extent to which an individual's private life should be open to public scrutiny. It's pretty easy. Have they done something that is in contrast (hypocritical) to something they do or say in public? If so (MP banging on about "family values" being caught having affair) then outing them as hypocrites is them being hoist by their own petard. If not then no i don't think it's any of my business.
    2) To establish whether there is public confidence in the current practices of the media with respect to the privacy of individuals and the extent to which new communications media represents a special challenge. There isn't. Unless you can get court bans to cover the world then the "special challenge" bit is nonsensical...and all restrictions should be removed bar libel/slander etc.
    3) To assess the extent to which current legal measures restricting media reports are seen to be proportionate and have public confidence. My thought is that current legal measures is rather vague. Whether it is a celebrity who has had sexual relations or an alleged rapist whom I think should have the right to anonymity until the point they are found guilty (innocent until proven so...) the issue is the same. Whilst investigations into their conduct (by police, court, media) are ongoing then they are innocent. Until such time as their guilt is proven (or admitted) then there ought not be anything printed/tweeted/published etc. Includes parliament and includes what Ian Hislop so scathingly calls "footballers and slappers". Slappers have feelings too.
    4) To consider if current regulatory regimes are seen to have sufficient powers to ensure good practice in media reporting. They don't...end of story. Consider alternatives to the current regulatory regimes would be better option.
    5) To receive evidence from interested parties. Newscorp excluded? Will that include them in all their many forms? How about input from Max Clifford who never appears far from these stories?
    6) To recommend measures which may increase public confidence in media reporting in the UK and the protection of individual's privacy. Well the break up of Newscorp/Sky would have done that but thanks to Vince Cable's slack mouthed comments (I ask you!) to journalists that didn't occur. Perhaps "to investigate whether the idea that no government/political party is able to confer any honour on any newspaper/agency/broadcaster/other for "services rendered" either whilst in or when out of office" would be practical and timely. The "wooing" of said organisations by politicians and vice versa to be outlawed.

  • Comment number 25.

    I'm not sure where you got your panel from either? Ex BBC chairman? Former cabinet minister with no obvious qualification bar being Robert Maxwell's PR in the past - this clearly qualifies her for something albeit not a Mirror pension! A lawyer! No offence but this is the great and the good. What do they know about media despicable and dubious practices? (Well Helen Liddle probably does!)

    Oh dear. I'd suggest that you have a less 'august' panel. How about a wrongly accused murderer/rapist or paedophile or maybe one of those paediatricians who have had their houses sprayed with "paedo" thanks to angry mobs turning up with paint cans after the media printed their name? What about someone who has been exposed on the "News of the World" front page only for the apology, when it is proven to be rubbish, to appear on page 54 in a small column? Perhaps David Laws MP after his experience of the press last year? Oh and just to be really ridiculous perhaps Jordan can be on the panel since she clearly values her/her children's privacy so much that they are never off the front pages of "Hello!" etc.

    I'd have had Ian Hislop (common sense) chairing, Nina Myskow (been there done that), someone non-famous who has been wrongly accused, a.n.other who has no connection with law/media at all for normal viewpoint - perhaps a premium rate number could have been used to apply....

  • Comment number 26.

    Lady Sue @ 19. I don't agree about Tiger Woods. Why should the public at large know or care how many partners he has been involved with. His wife and family, and perhaps even friends may care. For most he is a successful sportsman (and yes, one with a homely image). But he isn't a politician making laws about fidelity. He isn't a judge dealing with divorce settlements.As far as I know he isn't a marriage guidance counsellor. He is just a famous bloke, who has made a fortune, who had affairs and was caught. In the words of he well known comedian - "am I bovvered?"

  • Comment number 27.

    Rex: Tiger Woods has made a fortune from his top sportsman/family man image. It's little wonder that his sponsors have dumped him. He isn't just a famous bloke. And his hypocrisy should have been exposed.

  • Comment number 28.

    I would like to see an assessment of the question of ‘public interest’ discussed when it comes to the legitimacy of publishing the private lives of individuals and how this might tip the balance for or against publication in certain cases.
    For example, I think it is entirely legitimate to publish an affair of a politician or churchman who spends their time espousing family values but entirely illegitimate to publish the details of an affair of an individual who has made no such pronouncements but who merely exhibits weakness.
    Call it the ‘Why does the public want to know’ test.
    The answer to that question could be one of;
    1. Because it is information pertaining to an allegation of criminality.
    2. Because it demonstrates clearly hypocritical behaviour.
    3. Because it is titillating to the prurient.
    In my view, only 1 and 2 are valid reasons. Publishing for reason 3 may be demonstrating freedom of speech but it should not trump the right to privacy which, at that point, surely has more legitimacy?
    Finally, I’m fed up with the phrase “using the law to protect the rich and famous” as if being rich and famous means you have no rights. There is the smack of jealously and hypocrisy around this particular battle cry. If we believe in an equal society then the rich should have exactly the same protection as the poor.

  • Comment number 29.

    I would like to see an assessment of the question of ‘public interest’ discussed when it comes to the legitimacy of publishing the private lives of individuals and how this might tip the balance for or against publication in certain cases.
    For example, I think it is entirely legitimate to publish an affair of a politician or churchman who spends their time espousing family values but entirely illegitimate to publish the details of an affair of an individual who has made no such pronouncements but who merely exhibits weakness.
    Call it the ‘Why does the public want to know’ test.
    The answer to that question could be one of;
    1. Because it is information pertaining to an allegation of criminality.
    2. Because it demonstrates clearly hypocritical behaviour.
    3. Because it is titillating to the prurient.
    In my view, only 1 and 2 are valid reasons. Publishing for reason 3 may be demonstrating freedom of speech but it should not trump the right to privacy which, at that point, surely has more legitimacy?
    Finally, I’m fed up with the phrase “using the law to protect the rich and famous” as if being rich and famous means you have no rights. There is the smack of jealously and hypocrisy around this particular battle cry. If we believe in an equal society then the rich should have exactly the same protection as the poor.

  • Comment number 30.

    Pedro, I think you're on the right lines with the test of whether a story should be published. Unfortunately, most of what certain papers (maily the red-tops) would pay no attention to it unless it was the law. The PCC has few teeth, and given that it's run by the newpaper industries, it's no wonder that the red-tops feel free to publish whatever gossip they come up with, irrespective of whether it is truly in the public interest, rather than being interesting to the public.

  • Comment number 31.

    Oh, I think we should also have a clear differentiation between something that is "In The Public Interest" and something that "is interesting to the Public". Too often the first phrase is used when the speaker actually means the second...

  • Comment number 32.

    Jean Quatremer might be a possible witness.

  • Comment number 33.

    Further investigation into the relationship between police and media as already mentioned would be good. Rebekah Brooks has already admitted in a throwaway remark that police were (are still?) paid for stories.

    Also, I'd like to see whether illegal behaviour (beyond phone hacking) by reporters is routinely tolerated/ignored. For example, one recent report interviewed a former reporter who'd been explicitly asked by her (I think) editor to 'try and nick a picture from the mantlepiece' of a child who was in the news. This would be theft, and both reporter and editor should be prosecuted if it happened.

    In some circumstances there would be a genuine defence of 'action justified in the public interest'. But this example seems to me a clear intrusion of privacy - and the interview suggested that this kind of thing is routine behaviour.

  • Comment number 34.

    Rex Imperator at 5 makes an important point.

    Either the title of this commission should be altered (to "Media Privacy"), or the ToRs should be expanded to cover the huge amount of data that is collected about us - usually compulsorily - and then used for purposes (and by people) who have nothing to do with the (nominal) purpose for which it was collected.

    Consider that the Government may no longer carry out the census, since that amount of intrusive data has already been collected about us: "In future, data could be gathered from records held by the Post Office, local government and credit checking agencies - thought to be more effective." (http://www.bbc.co.uk/news/10584385)

    Try doing almost anything on-line without having to provide a raft of information unnecessary to the transaction, but which is commercially beneficial to the vendor .....

  • Comment number 35.

    1. You haven't defined what is meant by "private life". For instance, the paternity of a child is a matter of public record, public interest (eg for taxes, benefits and child support) and the human rights of the child to know its own parentage and background (eg as in donor insemination). So in what circumstances, if any, should the paternity or potential paternity of a child be within the scope of a privacy law?

    2. The high profile cases where privacy injunctions have been given up on or broken all relate to relationships outside marriage. Marriage is a set of promises between two people, but those promises are made in public and have legal and financial consequences for the relationship between the individual and the state: taxes and benefits, legal next of kin, application of inheritance laws. Adultery is one of the facts on which the irretrievable breakdown of a marriage can be proved, and divorce obtained. It is a breach of a promise made by the individual on which the state is relying. Is it contrary to the interests of public policy for the state to act to keep private that breach of the promise made?

    3. There are unasked and unanswered questions as to whether and when facts relating to the private life of one person should be kept private for the sake of other persons. One of the arguments which appears to have been used to gain injunctions is that there could be embarassment/teasing/bullying for the children (and/or wife or other family members) of persons involved in adultery. Is this a legitimate reason for the state enforcing privacy? Is there a real likelihood of serious harm to the children in the situation? Is there any potential harm which cannot be protected in other ways? In what situations should one person's privacy be protected to protect others? Why should the privacy of an adulterer be protected by the state when the privacy of the person with whom they have committed adultery (who may themselves not have broken any promises made to anyone, whether privately or publicly) is not?

    4. Regarding questions 2 and 6, it is notable that the cases most discussed recently relate to adulterous relationships, and that it is in these cases where public confidence in the system has been affected. There have been no expressed concerns regarding privacy laws on health matters, private financial matters, or non-adulterous relationships. Is privacy law working well in these areas? If so, does this indicate that it is the application of privacy law to adulterous relationships which is the problem, and not the workings of the law itself?

 

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