The PCC’s submission to the select committee argues that a law would be of no use to ordinary complainants
Various sections of the PCC’s submission set out the benefits of self-regulation and the work of the Commission for ordinary people, particularly in relation to privacy. These are that self-regulation is fast, free, accessible, fair and flexible. The commission has a huge amount of experience in dealing with matters of individual privacy. A privacy law, and actions under it, exhibit none of these characteristics. The PCC submission states:
Slow justice – no justice
Complaints to the PCC are dealt with quickly. Legal action takes a great deal of time, meaning that it is often years before an individual receives any form of redress. For instance, the story about Naomi Campbell attending Narcotics Anonymous was published in the Daily Mirror on 1 February 2001. Final judgment in the matter was not handed down until 14 October 2002 – 21 months later.
The delay is borne out by the commission’s own experience of complaints brought through lawyers. While the average time to deal with all complaints was 32 working days in 2002, complaints made through lawyers took an average of 71 working days, 122 per cent longer. It took an average of 84 working days for a complaint through a lawyer or other representative to be resolved, which is nearly half as long again as complaints resolved directly with the complainant, without any difference to the success rate.
Complaining to the commission is free, which makes its service accessible to anyone. Actions under the Human Rights Act, as indeed would be the case under a privacy tort, would cost a great deal of money, with absolutely no prospect of an extension of legal aid. Estimates in Campbell’s case suggest that a prolonged action could cost upwards of £750,000. This makes privacy actions in court inaccessible to anyone other than the super-rich. However, the overwhelming majority of individuals affected by media intrusion are ordinary people who could never afford such bills and would never risk the prospect of bankruptcy if they lost.
It is sometimes suggested that an extension of “no win, no fee” actions in this area could assist individuals in utilising any law. To begin with, there would still be the prohibitive costs of insurance for those complaining. More importantly, most lawyers, certainly in the wake of the Anna Ford, Naomi Campbell, Jamie Theakston and Gary Flitcroft rulings, know that privacy cases are far from easy and never clear-cut. While some lawyers might be prepared to take the gamble, it is unlikely that sufficient numbers would want to deal with the burden of complaints that the PCC deals with every year.
Inaccessible to the most vulnerable
The PCC spends much time coaxing individuals who may be wary of complaining, often the most vulnerable, into doing so. We can do it on the basis that complaining is easy, that newspapers won’t victimise those who complain, that the process is informal and does not involve any of the legal paraphernalia that many ordinary people find off-putting.
The opposite would be the case under any form of privacy law. Particularly vulnerable people may well be afraid of the formality of the legal system.
Newspapers, as Naomi Campbell found out to her cost, tend to regard those who litigate against them as an enemy, and treat them accordingly in ongoing coverage That does not happen under self-regulation.
Fairness and flexibility
The PCC knows a lot about privacy and can tailor its dispute resolution service to the exact needs of an individual. Many people who complain to us simply want an apology, often privately, from the editor. This is particularly the case where individuals and organisations need to work together in the future: the complaints process, with its emphasis on amicable resolution, takes that into account. Indeed, some resolutions to disputes simply involve getting both sides talking.
The courts, however, as Mr Justice Silber noted in his ruling in the Ford case, are not well equipped to deal with matters of privacy. Nor is the legal process flexible: for those who wish a private resolution to a dispute without involving any damages, a legal action is quite impractical and simply serves to destroy relationships with newspapers or magazines – something those in the public eye, in particular, are often keen to avoid.
Parading your private life – to protect your privacy?
One of the other benefits of the complaints system is that it is private and confidential. Newspapers do not reveal material made available to them as part of an investigation, either during it or after it; and individuals do not have to give evidence in public and subject themselves to cross examination. The privacy of complainants is protected throughout.
The same cannot be said of an action in court. Newspapers will vigorously defend themselves in legal actions. Naomi Campbell, again, found that out to her cost, when she was questioned in detail about many very private matters – in the course of which she was exposed, as the judge in the case recognised, as a liar, and for a short time even opened herself up to a potential charge of perjury.
Protecting ordinary people or making them targets?
One of the strengths of the PCC and self-regulation is that the Code inculcates among editors a healthy respect for ordinary people – partly because they know that anyone can make a complaint, irrespective of their means or vulnerability. Editors seldom take a gamble on an ordinary person not complaining – and that is one of the reasons that standards have been raised over the years. It is simply not worth the risk.
However, under a privacy law, editors could rest assured that anybody other than the super-rich would be unlikely to take action against them. Editors might therefore be inclined not to take risks with celebrities but to intrude more into the lives of ordinary people. Perversely therefore a privacy law could actually make the situation worse for ordinary people – not better.
The situation in France underlines that point. There, many magazines have used fines against them to boast about the amount of interesting material they contain. Far from being a deterrent, fines become a marketing tool which increases circulation. How could that be of benefit to anyone?