Privacy Commission Day 2, Witness 2: Stephen Abell

Stephen Abell

The PM Privacy Commission spoke to Stephen Abell, director of the Press Complaints Commission, on Tuesday June 14, 2011. The commissioners are Sir Michael Lyons, Lord Faulks QC and Baroness Liddell.

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NB: This transcript was typed from an audio recording. The views expressed by the witness are their own.

Because of the possibility of mis-hearing and the difficulty, in some cases, of identifying individual speakers, the BBC cannot vouch for their accuracy.

ML Welcome Steven Abell who's director of the Press Complaints Commission. Welcome Steven, thank you for joining us.

SA Thank you for having me.

ML Would you like to just introduce yourself and say something about your experience in this area and your views on the current controversy about the balance between the rights of the press and the public over matters of privacy?

SA I'm the director of the Press Complaints Commission and one of the central functions of the PCC is to act to protect peoples' privacy both pre-publication and post-publication, and we are very aware as it is something we have to do on a daily basis of the difficulties of and also the necessity of balancing the rights of freedom of expression versus the rights of privacy. They are two rights that come into conflict and if necessary for people to resolve them, that conflict wherever possible, that is an essential function of the PCC. We, two strands of our work I suppose, one is pre-publication where we run a 24 hour advice line, emergency line for people to come to us with concerns about information that is about to be published. It's manned by senior staff at the PCC either about information that is about to appear in newspapers or concerns about potential harassment by journalists and broadcasters. Its pre-publication work, it's a 24 hour day process, but people come to us with concerns, then we advocate on their behalf to editors or the industry as a whole and the idea is that we prevent intrusive information appearing by working with editors by explaining to them what the code says, what the PCC has said in the past and working on behalf of the complainants with an editor to ensure that intrusive material doesn't appear. That's the pre-publication side of things. The other area of work for the PCC is the complaints work. We deal with about 600 cases last year to do with privacy where we issued rulings. General speaking we get about 7,000 complaints a year but of those about 1,800 to 2,000 are substantive complaints that fall within the terms of the code that the PCC enforces. So our role post-publication is to deal with complaints, to act as a dispute resolution mechanism, in some cases to settle complaints. We resolve nearly 200 complaints to do with privacy last year, but also to issue rulings on privacy which form in effort a body of case law and we then go out and train journalists about. So we reach decisions on privacy, we set principles and then we go out across the newspaper industry and make sure those principles are being enforced.

ML You used the word independence in those introductory comments but PCC is funded by the Press Commission includes serving editors amongst its membership. Why is the Press a so distinct area of regulation?

SA Well I think it is the system of self regulation. It is not so distinct. I mean the PCC and the Advertising Standards Authority are of effectively the same model and industries where there is an aspect of freedom of expression I think link well with notions of self regulation. So it is a self regulatory system there is industry involvement. But the purpose of the PCC is to also act independently of the industry. So although we are funded by the industry that goes to a third party body from which we take our budget. We do not ourselves ask for money from specific newspapers. We have a clear lay majority of public members who have no connection to the newspaper industry. They outnumber editors by 10 to 7. That is the highest lay majority of similar councils in Europe. One of the things that is also worth bearing in mind, the self regulatory mechanism for newspapers is a model that is pursued across most of Europe. It's like a lot of these things I suppose. It's probably a Scandinavian idea originally but it's gone across Europe and the PCC is seen as a leading light in terms of self regulation across Europe. So I think its self regulation that is industry involvement and that is appropriate and actually adds an element of peer review which I think is a strength and knowledge of how the industry works in practice. But you are quite right, what people need to have confidence in and what we continually work to do that is to enable to show is that we act independently of the newspaper industry and in practical terms in how we reach decisions with a staff that has not any connections to working journalists and a chairman whose independent and a lay majority. That's what we think establishes our independence. And just to say, if you look at the funding idea, we did some polling a couple of years ago and 9 out of 10 people thought that if there should be a complaints body it should be paid for by the newspaper industry because the alternatives are the tax payer or the complainants or if you ask complainants to pay you, you are heading down the same access for justice issues as the courts.

ML Is there a clear reason why we should regulate the press differently from broadcasters where there is a truly independent regulation in the form of Ofcom?

SA I think there are historical reasons too and I think that they are different media and historical reasons are when there is a limited spectrum and you require a licence from the government to operate and that was a powerful reason why broadcast was regulated in a statutory fashion. I think notions of statutory regulation for the press brings with it various serious concerns. In a lot of countries where that takes place it leads to states sponsored censorship and that is not a healthy thing for a democratic society. So I think there is a legitimate concern about the state becoming too involved in regulation of the press. I mean if you were to start from scratch now I suspect you would be looking more towards self regulation for the broadcast industry because once broadband opens up fully and there is a less of a restriction, if you like, there seems to be to be a very strong argument that you could have more self regulation of broadcasters where there is more opportunity for anyone to be a broadcaster and that's could in a historical sweep of things take place over the next many years. I'm not talking in the immediate future but one of the things I think is the expansion of information dissemination across online really suggests that a model for regulation is probably going to be more likely to be self regulation rather than statutory regulation because of the problems we see in the courts now of state enforced, primary legislation and trying to control information in a world where anyone can be a publisher and information can be squeezed out across the internet very easily.

ML In terms of my colleagues now. I don't think that in fact all the newspapers are signed up to rather...

SA No at the moment there is a financial dispute between Northern and Shell and the funding body for the PCC.

ML You spoke about a code. I wonder if you could tell the listeners how the code was arrived at and in very general terms it says.

SA Well the old Press Council which the PCC replaced in the early 90s didn't have a code. It was one of the central weaknesses of it. When the PCC was established in 91 it was recommended that a code be established because it sets out clear principles for the PCC then to independently enforce. So the code is 16 clauses. It deals with issues to do with accuracy, privacy and newsgathering. There the three main areas. It is reviewed on an annual basis. It has changed 30 or 40 times in the last 20 years. It can be amended due to cultural changes or to new concerns to new technology and the public and charities and MPs have an ability to petition the committee to have things changed so for example there was a concern raised by the Samaritans three or four years ago about the problem of suicide reporting. If you report a suicide and report too much detail it runs a risk of encouraging others to follow that path. Now that information was placed to the code committee. The code was changed. A new part of the clause was published which said do not publish excessive detail and now that is something that is enforced by the PCC. So the code is a living document and it changes on an annual basis more or less 16 clauses and it deals with the main ethical issues to do with newsgathering process.

ML You said that in the course of dealing with various cases, as it were built up a body of law almost. Do you think it is easy to identify where there is much more work considering privacy and where the public interest is concerned that privacy should or should not trumpet?

SA I don't think it is easy and I think that one of the things you will find out over the course of the next couple of weeks is that none of this is entirely straight forward. I think principles do emerge and I think experience of dealing with cases do lend to principles which can then be enforced at a later date though. Given an example, we had a case five years ago probably, where a woman was pregnant and she was 8 weeks pregnant and it came out in diary item in a broadsheet paper as it happened, and she came to us and said "actually I've not told my family about this. I'm concerned about it". Obviously with pregnancies there is a 12 week scan which is almost the all clear that there is a healthy pregnancy and this took place before that. This woman did have a miscarriage so the newspaper inadvertently said this woman is pregnant, she then has a miscarriage. So people know she was pregnant so it causes all sorts of privacy issues. Now what the PCC established in a decision was that before the 12 week scan these papers should not publish the existence of a pregnancy. That has become case law and it's regularly enforced now so with celebrity pregnancies you see uniformly now newspapers do not publish information to do with pregnancy until after a 12 week scan. Now it is a small thing but the idea is there is a broad principle there and everyone has a right to respect their private and family life and health and human rights act as also determines our code. But there's something that's been added to that in terms of the case law which is in a specific manifestation of pregnancy hearings as a rule that has been drawn up by the PCC. So I think you can establish principles which then fill out the thinking of privacy and I think that is an important function of the PCC.

ML I am going to ask you the question which you really dread. You're criticised very often for not having teeth

SA Yeah.

ML and dismissed I think quite frankly by people who may or may not have very much knowledge of what you can do. Why is this unfair criticism? I expect you want to tell me it isn't an unfair criticism.

SA Shockingly I am going to say it is an unfair criticism. I think the evidence of why we are not toothless is in the work I've just been explaining. If the sanction of the PCC was meaningless, and if we're honest, it is the sanction that is imposed by Ofcom on the vast majority of the cases. It is the sanction imposed by the BBC Trust. The idea of criticising an editor for breaching a code, a code that he'd subscribed his or her newspaper to and making them publish prominently in their paper they've got something wrong, is something that editors do not like and they actively try and avoid it happening. So the fact that there is this sanction at the PCC it enables us to influence decisions for pre-publication, enables us to resolves disputes post-publication, because if a newspaper doesn't listen to the PCC, doesn't follow the terms of the code, they know that we will require them to publish criticism about the editor in that editor's publication. That to me I think is a significant sanction. Sanctions are always worth looking at and the PCC on an ongoing basis is always looking at sanctions to see how it can improve. One of the things we did recently following a governance view is take on board the notion that once we uphold a complaint or resolve a complaint we should then go back to the editor or the publisher in certain occasions and say what has changed in terms of the practice of the newsroom to stop this happening again. Has that, I mean, the code of practise is written into the vast majority of national newspaper journalists' contracts. So if a journalist or an editor breaches the code in a significant fashion that can have disciplinary implications. So we sometimes go back afterwards and say what's happened and they will say they have changed processes and this person has had a written warning of what disciplinary action has taken place and I think that does add a bit more meaning to the sanction where we publicly criticise a newspaper or we obtain remedial action. But we also go back in and say what's changed? This is not going to be shrugged off, what's going to stop it happening again? I think that is a legitimate thing to do, but you are right in the area of sanction; we've always got to be looking at it because people are concerned about it. I think it bases, or some people are concerned about it, not all people actually, and again we did some polling and the area of fines always gets thrown at us, an issue of money in some people's minds equals meaning, which I don't accept. If you say to people would you like a quick apology or a lengthy confrontational process involving a fine, most people want an apology.

ML I want to ask you about an area that we haven't been dealing with much yet, mostly we've been hearing about sex lives of celebrities and important powerful people. But actually there are some people who get caught up in potential invasions of privacy who are not bad at all; people who may be involved in some terrible tragedy and swept along by it. Their grief is of interest, their predicament is of interest. What can you do about that and do you think the law is adequate in this area?

SA I think to a large extent the law is almost irrelevant to this area because I don't think people you are talking about will access it in any meaningful way. I think it is very good to hear you say that because I think when we talk about privacy we can talk about footballer's sex lives and that isn't an important part of it. The privacy that is essential human right is available to everyone and it can be compromised in regard to everyone, it is not something that is the reserve of the rich and famous and everyone has concerns about their private life and you are absolutely right. One of the things that we come across most of all when we speak to people around the country is that they don't assume it will ever be in a newspaper and they think that privacy might be something for celebrities only. But if their child dies in a newsworthy fashion they will be at the centre of a news story and actually funnily enough today we've issued, which I'll give to you guys, it's a guidance to members of the public about how to deal with media attention following a death. We worked with Facebook, the Samaritans, various MPs and other bodies like that to say what happens when someone dies? What do the press do and how can we help? This guidance we're going to communicate it across every Police force, every coroners court so people are aware of the services the PCC can offer and in practical terms, let me give one example, if someone doesn't wish to speak to the press when someone dies, which is perfectly understandable, they can call us up 24 hours a day and say we don't wish to speak to the press, we will circulate that to every member of the newspaper industry, to every broadcaster, and say these people do not wish to speak, and uniformly these people don't get contacted. When Derrick Bird did shooting in Cumbria we contacted the Cumbrian Police two hours into the shooting and have subsequently been in touch with them five or six times, including at the time of the inquest and the first anniversary and were able to identify 10 families who didn't wish to speak to the press, to circulate that across the media, those people were not contacted. So in the real world where people suffer, have a potential to suffer real damage, periods where they are vulnerable, I think the role of the PCC is absolutely imperative. It's really down to us to make sure people know they can turn to us.

HL Your ultimate sanction you say is to require and editor to put into his or her own publication the ruling PCC against them, but if their action has put £100,000 onto his sales, do you really think they will suffer that much?

SA I think they will suffer that much. I mean, in certain occasions we can always refer newspapers to the publisher to say that further action needs to take place internally and that's for very serious cases, but the centre of sanction is to do that. But I think that is still a significant factor and you could argue that you could build into the economy of the story a potential fine, by saying we think it will put on X, and we will build the notion of a potential fine into that and therefore it could be something that is part of the economy of the story. When it's talking about reputation or damage, it's often what peoples concerns are to do with privacy ironically is their own reputation damaged. Its reputational damage for the company, for the editor, for the journalists concerned. You can't build that into the story, and I think that therefore is a meaningful sanction to be criticised not only by the PCC but then by other media. If you see when we adjudicate and criticise newspapers it gets picked up by various other rivals, by the BBC, by other broadcasters and I think that is a meaningful sanction and in some ways more meaningful than a financial sanction which can be boiled down to a question of economics which is not going to be paid by any of the people concerned in the stories, it is going to be paid out of the legal budget.

HL What do you mean by the economy of the story?

SA Well what I'm saying is that if you're looking at purely cost terms as you were you can say this will put on X amount of sales in their view and therefore any fine can be offset against the amount of sales if you were to look at it in those terms. I don't think people do but if you were to look at it purely in those terms. What I'm saying is that something like a criticism of the editor and of the newspaper is given prominent coverage is not something that can be offset in the way. It's something that has meaning outside of a financial equation and I think that is real meaning.

HL Do you ever test what the response of the public is to criticism that has been put into a newspaper? For example, if on page 2 of the Sun, the editor has had to publish an apology, do you ever do some focus groups or...?

SA We do focus groups to talk about general issues through the PCC and we do polling about things like apologies and.....

HL Specific apologies about.....?

SA No we say here is an apology, we don't do polling about that no. And it's something we'd be happy to look at actually but we do speak to people generally and say and what....and one of the polling we did a couple of years ago is what do you want when someone has got something wrong and I think this goes further than just newspapers. I think people often want hands up, I'm sorry; we shouldn't have done it - vindication. And vindication is possible through the PCC at no cost and I think that is the virtue.

HL There's been a considerable amount of publicity recently about allegations that certain newspapers are using illegal means to access bank accounts and to hack into emails. What are you doing about it?

SA Well I think they are serious, very serious allegations. The ones that I've seen primarily are not about what they are doing it's what is alleged to have taken place over previous years going back to the late 90's and through the 2000's. What the PCC is doing generally and this is also relates to phone hacking, specifically the News of The World in the 2004/5, We set up a body of people, an expert panel; a former chief constable, a professor of media law and an editor from Scotland to look at issues to do initially with phone hacking but more broadly to do with illegal or unethical access and I think the idea is that we will work with the police, we'll have to see what they come out of their investigation and take the information from it and work to build protocols in place within newsrooms to stop that thing ever happening again. I mean at the moment these are allegedly criminal acts and therefore it must be for the police to examine. In Operation Weeting, they're looking at phone hacking to do with Glenn Mulcaire, the News of The World. They are also I understand it looking at these subsequent allegations you're talking about to see whether there are grounds to examine it. Some of it goes back to the late 90's. Some of it has already been looked at before but they're seeing whether it should be looked at again. So I think the role of the PCC is to let the police complete that process but also then act when that process is complete to ensure that processes are in place across the industry to stop things like that happening again.

HL Have you any indication of what these processes might be like?

SA No I think and I'm slightly loathe to, I don't want to sort of forestall what this committee of people who've got a very open brief are going to look at but I think that the idea of , of proper editorial control as a proper chain of command to enable editors and other senior executives to have control over what takes place over newsrooms when either in terms of the behaviour of the journalists or in terms of the conduct of people who are working for journalists. There should be a proper auditable trail to, to ensure that newsrooms are properly controlled. I think that's something we looked at in 2007 when the initial arrest took place and convictions of Goodman and Mulcaire. I think that's something we want to do more of.

HL And if there is proper chain of command yet the alleged illegal activity is still taking place, what would you do then?

SA Well I think we have to see what comes out I mean we are talking at the moment of allegations of previous conduct. But the PCC has got to be alive to any issues that arise and look at them properly but I think we need to...I don't think we want to get into the hypothetical about that. I think we have a body of people who are examining the broad issue and the specific issue of phone hacking. The commission itself will always look at claims that are being made to see what more it can do and that's a process that will always be continuing.

HL Have you considered amending the code of conduct.

SA The code was actually changed in 2007 to make clear about 3rd party agents, enquiry agents. So the code was changed in response to the convictions of Goodman and Mulcaire. As I said before the code can always be changed and I think the committee of people looking at that will and are examining what comes out of phone hacking and other related matters to see if the code needs to be changed again.

HL But that's only about 3rd party, if a journalist was him or herself actually involved in the blagging is that covered by the code?

SA That was already covered by the code and arguably the 3rd party doing it for a journalist was covered by the code as well but it wasn't specifically set down since 2007 that was made more clear. But I think the virtue here of the code is it can respond to claims and to changes in practice and to say if this is going on and there needs....there's a lacuna in the code then that can be, then that can be tightened straight away.

HL Does it concern you that the word that's most often used to describe the press complaints commission is toothless and do you have any plans to enhance what you can do?

SA It always concerns me if people are critical about the PCC. I do not accept as it happens that the word most often used to describe the PCC is toothless. I think a certain constituency of people who are critics of the PCC may use it but I do not accept that as the predominant view. I think if you move out of the Westminster bubble sometimes or the London bubble as well you speak to people who have experience of the PCC about 80% of people who use the PCC come away with satisfied...with satisfaction at the process. About 80% of the public have no issues with confidence to do with the PCC. The claim about toothless is frustrating because in my view it demonstrates often a lack of active thinking on the person, past the person using it. I think it can be facile in some senses, received wisdom based on people who have no direct experience of the PCC and it can be from lawyers for example who may have a vested interest in people not using the PCC because we are free and therefore doesn't fit the business model of media lawyers too well. So, I am concerned if anyone is critical of the PCC and one of the things that we've done since I've been director we always go and see them, engage them, looking at ways to improve. We have people actively looking at sanctions of the PCC to see where it can get better. But I, I, I - it'd be wrong I think for you to come away I hope with a view that there's this accepted position that the PCC is toothless just because it's a, it's a catch phrase used by certain people because I do not accept that that's either true in fact or actually a true reflection of what people think of the PCC.

ML Perhaps I can stay on that broad issue of behaviours for a moment Stephen. In the document that you've recently published called 'Perspectives' there's a contribution from Professor Tim Luckhurst where he seems to support your view about the PCC having done good work particularly in that pre-publication stage. But he says the real focus for the future is the, are the ethics and behaviours of the press. Do you accept there's more to be done there and what's your role in that?

SA I think that's right, and I think that it's a...the challenge for the PCC in lots of ways is communicating lessons and information learned from the complaints process to more broad standard issues. So you have a functioning complaints process where information comes in, complaints are settled, case law is developed but then there's also a role for the PCC to act upon that information and I think that is something that we are doing more of and should do more of. Last year we did 60 training seminars across newspaper newsrooms where active journalists come in and we say here are the last 20 cases the PCC has done here are things you should know. We're going to do a seminar with the Attorney General to do with court reporting, we did one earlier this year with The Information Commissioner to do with accessing personal information. So I think that there's a strong argument there something that we should be doing more where we use the complaints process and we act to serve the public so we want that complaints process to work if someone has a specific problem we want to solve it. But we also want need to look at it more broadly as well and I think that's a process that is underway and I think that's something that we can do more of.

ML And do you accept that there are often time to time examples - I mean Max Moseley was sharing his experience from 2008 with us earlier this morning where illegal acts are either committed or condoned by the press to collect a story and that those aren't easily dealt with by your pre-publication.

SA What example did he give of illegal acts not being dealt with?

ML Well basically illegal recording of private events.

SA And some things...I mean pre-publication works when people use it. However, I mean there's an argument to be made actually with Max Moseley which has been made I think to him by our former chairman is that he could have used the PCC, he has a certain view of it although I think that may be changing slightly but he could have come to the PCC even post hoc and we could have offered him private vindication we could have, if we'd have upheld the complaint which is certainly possible, we could have...there would have been no other reporting about it there would have been none of this incessant coverage of his private life. I mean one of the ironies of taking a privacy action to court is the first thing you lose are your privacy. Whereas if he'd come to us, the terms of an adjudication are agreed in advance by the complainant, they can be anonymised, details can be omitted on request so he could have actually accessed the PCC and used it in a way that would have obtained him vindication in a private and proportionate fashion. On the other point about less, I mean I think lessons learned from cases is something that we do need to continue to look at so when cases take place, work out what has gone on and what should be changed differently for the future. And that's something I think we're committed to doing.

ML And in that particular case, have you, have you taken a close look at the Moseley circumstances just to see what lessons can be learned or would you only do that if it was subject of a complaint to you?

SA I think that we can look at broad issues, one of the difficulties we have sometimes in privacy actions, it's always good to know exactly what went on so we always like to have the involvement of the people concerned and one of the things we've started doing last couple of years is if a privacy case comes up we contact the people concerned and say please share information with us please do come to us and I think that something we want to do more of. So when a case comes if it doesn't formally come to us we still should be trying to get access to the information to see what lessons can be learned. Now, we don't want to interfere with people's right to use other remedies. I mean people of course have a right to use the courts and often or certainly sometimes that is a proportionate and appropriate response and I never want to suggest that the PCC is in competition with the courts cause I think actually we fit together in a complimentary fashion but there is, there are options available to us to be curious to try and contact people and get their side of events to se how that can feed into what the PCC is doing and I think again that's something we're looking to do more of.

ML Can I take us onto the issue of the role of injunctions? The recent controversy about the decisions over injunctions. I think I quote you correctly in saying in your New Statesman article that you believe that there is a de facto privacy law which would be hard to improve on and I draw from that, that you feel that actually the courts are the right place to make judgements and that the judgements are broadly you know, are being, are sound judgements. Is that fair?

SA I think there is a de, I mean I think there is a de facto law through the human rights legislation. The code that the PCC enforces mirrors the human rights legislation. I think if you were to look towards codifying it further I'm not sure how you would indeed improve on it. You talk about broad principles right to family life, right to home life, to respect your health. I'm not sure further codification would be, would be proper. And we're not - the role of the PCC as I said is not to interfere with people's right to use the legal system so I think the PCC and the law fit together. I don't know always enough about the issues on each specific case to come to a judgement about whether I think the courts are making the right decisions and I think that's one of the interesting issues for everyone to do with this. It's very easy to talk about the people concerned and what you might think about it but unless you're the judge, you've seen the witness statements, who know precisely what's gone on, it's very hard to make a judgement about what is correct and what is not correct. But clearly the courts have a role in this area and that role I think is complimentary to the PCC.

ML And perhaps then you might help me to see why if you believe and the words used I think were "can't be improved upon" the whole system rather than individual judgements. There seems to have been something of a campaign over recent months against the decisions made by the courts. Is that, a bit led by the press themselves?

SA And that's I mean, I mean that's a good example of that's I mean to ask the press about, I mean their concerns are with individual decisions and as I say I'm not in a position to make a judgement about individual decisions. My point about the codification of the principle, I'm not sure you could improve upon the human rights act because I think that's sets out a very clear, broad principle. Now some of the concern is the question of balancing article 8 and article 10 bearing in mind what article 12 says and whether the judges are performing that balancing act appropriately. Now that's a concern for newspapers who have a vested interest in freely circulating information and I think it should be for newspapers to say why they feel that. The PCC has got no argument to make on behalf of newspapers, it's for them to, to, to discuss those sort of issues. So I think that the area of interest for everyone I think is how do you balance conflicting rights like article 8 and article 10 and how much regard do you give to people who commercialise their own life. I mean the code talks about having a regard to having own disclosures made by people so the notion of someone who makes their privacy a commercial property in some way and how much can that still retain the quality of privacy. That I think is an interesting area, I mean you do get that more in the celebrity field, how much is someone spoken about their privacy, allowed impressions to be gained about they do in their private life they are important issues and I thin that's an area of debate. But it's very hard to debate the specifics because we don't know all the details and I think that's why I'd be shy of, of, of forming a public judgement about specific cases without really knowing the full background of them.

ML And does the PCC just follow, does the PCC, has it established a test of when somebody can be judged to have commercialised.

SA No, I think it''s having regard to disclosure and that would be, and we talk about this with PR people all the time and one of the, the constituents of the PCC are PR's who come to us to say to deal with the privacy of their clients. And there's some in our prospectors report and one of the things that we say to them is that everyone has an option of setting out to a certain extent marking out what they regard to be their private life. And so if you talk about the fact that you're married that's one thing, if you talk about what you do in your, in the bedroom that's another and actually by your actions and your words you can set out in broad terms what you regard to be private and to a, in a slightly different sense people do this online with their social networking sites although have to build in a certain sometimes naivety of people not always doing this consciously, but if you are doing it consciously you could say here is my public persona online, here is what I want the world to see about me, here's what I want to restrict to my friends, here are pictures that I'm happy with, views that people have of me, I'm happy to interrelate on this online environment. So I think there is an argument that people can set down by their words and actions what they regard to be private and then the key word for the PCC is always proportionality. How proportionate is the action, are the actions of a newspaper in regard to that. And I think that's the test that's established but you come back again to the point this is all case by case stuff. Further than broad principles it's hard to, to codify a lot more I think which is one of the interesting issues to do with the privacy law.

ML Thank you

EF You were asked just now about the Max Moseley case and he's on record about what happened and the story and there's no secret there.


EF And you said that the PCC could have done things to provide an adjudication after publication but of course his real complaint was that ummm, there was no prior notification so there was no possibility of his establishing before a judge that there was an arguable case of privacy. Do you think that the law should provide that editors or journalists do as a matter of routine give prior notification in circumstances like that?

SA I think that, I'm sort of on the record as saying this as well. The problem with a statutory requirement for prior notification is its practical application. And in a world of online publication where everyone is a publisher how do you, I mean how do you enforce a requirement for prior notification? And it, I mean you use the term editors and journalists, well is it broadcasters, probably, is it bloggers, if you're going to tweet about someone, should you be contacting them in advance, the reason why I feel the Moseley bid which is entirely understandable what he's saying on the specifics of his case to, to have a statutory response to that I think is an anachronism and I think that the day that that decision came down from Europe, was the day in which everyone was talking about the fact that an injunction in this country had been circumvented by twitter, or however many it was were naming this person. So I think that what appeared to me was that the day in which he got his decision on this where the courts rejected what he was looking for on the grounds that it would be disproportionate was the very day people were saying that statutory restrictions have real problems in an online world. So I'm not sure there's a practical application to a legal change here which would be enforceable because it wouldn't just be the 10 national newspaper editors you'd have to worry about. It would be someone tweeting in Peru through a company based in San Francisco or it would be an American blog that's read over here in Europe whereas if you're reading it here is it bound by European legislation or not? And I think that in a global media and in a media which is pervasive online where people exercise their rights of freedom of expression so broadly I think that a statutory mechanism such as he was proposing is an anachronism at the beginning and I think that's the problem with it in my view.

EF But that leaves you effectively without a meaningful remedy.

SA Well I don't think it does, I mean I think the answer, I mean there is no perfect answer to this. I think that one of the things to anyone who thinks about this for any length of time is that this privacy and freedom of expression and circulation of information in an online world is a very messy area and there is no perfect answer. In my view, one if the answers, one of the strong answers is self regulation and not just the PCC I'm talking about here you can imagine self regulation being something that is established in other forms of online communication in terms of Facebook and Twitter. It wouldn't be self imposed regulation, by self imposed restraint, by an acception of a certain set of standards which are not being compelled as being a accepted at the beginning then you can have a framework by which decision are made which is not an attempt merely to circumvent authority and I think that you're right the notion that leaving it to every, leaving it open is not a viable option either but I think that philosophically at least, the time for self regulation is more currently relevant now than it ever has been because you have to have voluntarily acceptance of standards rather than imposition in my view or at least there's got to be a large amount of that.

EF But if in fact newspapers or editors or journalists don't agree to some appropriate self regulation there is then the danger that they will then have some sort of cumbersome mechanism imposed on them.

SA Well that has always been the threat for self regulation in every form of life and actually it's a threat from the PCC's point of view to be embraced as an opportunity because we have to make the case everyday for the validity of what we do and if you talk to people who work at the PCC it can be a slightly warying process but it's good in a way that we are not guaranteed by statute, we have no sort of cosy world in which we inhabit, we have to prove the validity of what we do every day so we, every case that we deal with is a case which could have meaning for self regulation as a principle, So everyday we've got to make sure the thing works I mean so we have to look at that as a as a as a positive and actually the newspaper industry has to recognize that they need to co operate with the PCC and make it work otherwise there is always the danger of statutory regulation and that will never go away.

HL One of the issues that comes up as we deal with these privacy issues is the balance between the public interest and the interest of the public. Do you have a sort of standard definition of the public interest?

SA We have a, well, we have a definition of the public interest in the code itself which is deliberately not exclusive I think that further codification of this is very difficult and the notion that people, some people talk about what the public are interested in as if anyone would meaningful believe that's what public interest should mean and of course it's not and I don't think anyone would credibly suggest that but we talk about the public interest includes but is not confined to protecting exposing crime, protecting public health or safety, preventing the public from being mislead by the actions or words of a person or an organisation and the public interest in the freedom of expression itself. So there are pointers there that you can refer to, allegations of hypocrisy, actions which are where you could breach the code and in some circumstances the law if you feel that you're preventing crime or exposing inappropriate behaviour. They're the sort of areas that we're talking about but I think it's hard to go down further and some of it will be on a case by case basis but recognition that there is an ideal called the public interest is very important and then it has to be argued out on a case by case basis but an editor has to be able to say if they're going to breach the code or breach the data protection act they need to be able to say why they've got a reasonable expectation that what they're doing is in the public interest and that will never be a simple equation but its something that they have to argue convincingly and its something that they have to argue convincingly to the PCC or alternatively a judge. And we point to areas where the public interest might be involved but I think it would be wrong to try and define it more narrowly than that.

HL Thank you

ML Hugh Tomlinson in his evidence to us yesterday said that in many of the cases which have been the subject of, of controversy recently, the newspapers involved haven't sought to define clearly the public interest that they've been pursuing. Is that your experience from the cases you've dealt with?

SA I think, no I mean, I think that we would ask them immediately so the first question is, is something intrusive and if you get to that stage then the only answer, the only next question you can ask is, is it in the public interest? So it's one of the things that we would ask second. We would ask first if it was intrusive. You don't need the public interest to justify non intrusive material so is it intrusive. And then if it is intrusive then is it in the public interest? Now, another thing we would require of the newspaper is that there's prima facie grounds for believing it's in the public interest so sometimes you can find notions sort of post hoc rationalisation where you say well actually we've run this story and now we've thought of a great idea that its in the public interest. But we want to see that built into the story and you do see that sometimes when, when newspapers run stories and there's a quite odd paragraphs in articles where they're clearly making the public interest argument and they're building it into the story but we would expect and this was true of the Telegraph case we did recently which was when they went undercover that the, we're looking for prima facie evidence that what they're doing is in, is going to be in the public interest and that's something that's actually part of the data protection act as well the idea of having reasonable grounds to believe that something is in the public interest and I think that has to be eh before the event rather than after the event and I think that the weakness of some arguments is if you think about it afterwards and you come up with a brilliant idea well that's just speaks to the quality of your ability to scramble after the event and that's not really what the PCC is looking for, its looking for, for, for prior evidence of the public interest being considered.

ML And that case you refer to the Telegraph case is the one relating to Vince Cable and the...

SA Up to 8 Liberal Democrat ministers I think

ML Right, and you, you found against the newspaper on that occasion.

SA We did yeah

ML You felt it was unjustified.

SA Unjustified emm we felt that there was a public interest in the area of examining coalition politics which I think is true, and we felt, we felt I think the decision reflects this that the Telegraph did weigh up the public interest but in our view their, their judgement was on the wrong side of the line and we felt it amounted to, in effect, in effect a fishing expedition because they spoke to 8 different ministers I think, asked them very similar questions to see what they could get out of them. Well, we felt that if you're secretly recording a public servant going about their proper business you need a high bar to, to justify that and we didn't feel that the Telegraph reached that.

ML One final question from me Stephen is about the rise of new media and social networking you referred to it earlier on in discussion. Do you distinguish both personally and does the PCC distinguish between newspapers, established organisations with very substantial economic muscle and the contribution of what some would regard as no more than noise really in social networking or do you see this as a more complicated picture.

SA In terms of the specific regulatory environment of the PCC, we regard editorially controlled material that's being published by newspapers online as covered by the PCC so blogs for example that are part of the newspaper product are covered by the PCC. We're just looking now actually at tweets by journalists, if it's an official if you like, method by which the newspaper is communicating if it's editorially controlled then we're looking at expanding the PCC's remit to cover that. So that's the sort of editorial product. In terms of the noise from Twitter, we have actually established guidelines about how journalists should use Facebook, people's Facebook pages and Twitter, we had a case recently to do with that so we recognize that there's been a revolution in information dissemination online. And that means people are making available more than ever information. Now that doesn't give a carte blanche for newspapers to use it. And one of the things we work with is saying to newspapers that you have to look at the quality of the information. How widely available it is, what steps have been taken to protect it and that means that we've upheld complaints where newspapers have used freely accessible information taken from Facebook but taken it out of context and its been information which is private and we've criticised newspapers for using it. So, we recognize that Twitter and Facebook for example allows a lot of information to be disseminated and we've responded to that by saying, by developing these 5 tests that newspapers need to ask when they're using this information and I think that's an important thing for us to consider. I mean just example, we had a case recently and this speaks quite interestingly to notions of how injunctions work in in a world where people can circumvent them where newspapers.....there was a story that came out on a blog about a person, I don't want to give too much details, defeats the point of us acting at all, but about someone in the public eye and it was published on the blog and then it was widely tweeted so it was pretty widely established and the person came to us and said part of it is intrusive it deals with something to do with my private life so we intervened, circulated something to the newspaper industry and they voluntarily undertook not to refer to these specific details and this is the point I was making earlier about self imposed restraint rather than restriction, If you have self imposed restraint through a mechanism, the newspapers agreed that they didn't wish to compromise this person's privacy and therefore they didn't include the information even though it was publicly available online. Now if you compare that to what happens with injunctions, you get this notion that a critical mass has developed what with Twitter, with online material and it's an attempt to eh, and then arguments are made in a confrontational fashion to say well the injunction is meaningless but what we saw in that specific case in the last couple of weeks was that you bypass that, that, that argument because you're saying well these are the standards that you have accepted and you're imposing them on yourself so you need to make a decision about what the right thing to do is and in this case the information was not published in the mainstream media.

ML Thank you, I'll just check if my colleagues have got any more questions. Well just before we close this, can I just give you the opportunity speaking directly to the listeners as it were. Are you, what's, perhaps you could summarise your views about the adequacies of current arrangements to protect the privacy of the individual.

SA Well, the one thing I'd like to convey to listeners is something I try and convey to everyone I meet rather boringly which is that emmm the PCC exists primarily and almost solely to represent the interests of members of the public who have concerns about the way are being or may be treated by newspapers and magazines so the main message from me is that the PCC exists to help them, it's a confidential and cost free service and can be used at all times day or night and we are available to listen and help where we can and I think the other message is that the system that the PCC operates is one which fits in with the current system, but does - the current legal system but does offer some advantages and those advantages are those of cost, that of a lack of antagonism and the la - and confidentiality and that's three examples of areas where I think the PCC is effective and is there to be used by people whenever they need us.

ML Thank you, excellently put, thank you very much

SA Thank you.


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