In an earlier post we provided an overview of the recent report of the House of Commons Select Committee on Culture, Media and Sport Committee in relation to Privacy libel and Press standards in general terms. In this post we focus on the recommendations made in relation to privacy.
The Committee looked at a number of aspects including the history and operation of section 12 of the Human Rights Act and recent privacy cases. It also considered a huge amount of submissions and evidence about privacy mostly from the media themselves including four editors, Paul Dacre, Peter Hill, Alan Rusbridger, and Ian Hislop, but also from victims of the media such as Max Mosley and from lawyers and Judges.
A Statutory Tort?
As previously discussed (here) the Committee reached the conclusion that “for now” matters relating to privacy should be determined by the common law rather than set out in a statute. The Committee concluded
We note, however, that the media industry itself is not united on the desirability, or otherwise, of privacy legislation, or how it might be drafted. Given the infinitely different circumstances which can arise in different cases, and the obligations of the Human Rights Act, judges would inevitably still exercise wide discretion. We conclude, therefore, that for now matters relating to privacy should continue to be determined according to common law, and the flexibility that permits, rather than set down in statute (para 67).
This reasoning is slightly difficult to follow. The reason for a statutory tort is to define the “limits” of the wrong in terms that have been debated in Parliament and have democratic legitimacy. There would, of course, be no difficulty in such a statute requiring judges to make a “case by case” analysis (indeed, this would be a necessary feature). Too much weight appears to have been given to the views of the media. On the one hand, they complain that the law of privacy is “judge made” and lacks democratic legitimacy. On the other hand, they oppose Parliamentary intervention. Their favoured position would, of course, be to have no privacy law. If that cannot be achieved (as demonstrated in our earlier post here) then placing the law on a statutory footing appears to be the most sensible option. It to be regretted that the Committee has resiled from the views of some of its predecessors on this point.
Section 12 of the Human Rights Act, Mr Justice Eady and “Fast Tracking”
The witnesses expressed different views on the effect of section 12. The Committee decided that whilst it did ‘raise the bar’ for the requirements needed to restrain the press from publication, there was insufficient data to form a concluded view on its operation. The difficulty for the media submissions was that most if not all of the decision were dependent on the particulars fact of the case and were mostly devoid of any real public interest.
The Committee did not accept the view of Paul Dacre and others that privacy law has singlehandedly been developed by Mr Justice Eady. They said;
“We have received no evidence in this inquiry that the judgments of Mr Justice Eady in the area of privacy have departed from following the principles set out by the House of Lords and the European Court of Human Rights. While witnesses have criticised some of the judge’s individual decisions, they have praised others. If he, or indeed any other High Court judge, departed from these principles, we would expect the matter to be successfully appealed to a higher court. The focus on this one judge regarding the development of privacy law, however, is misplaced and risks distracting from the ongoing national debate on the relationship between freedom of speech and the individual’s right to privacy”
The Committee did however express understandable concern about the delay in the appeals from decisions in first instance whether to grant or refuse an interim injunction. These delays have taken place in many of the recent privacy and confidence actions, for example, Lord Browne v Associated Newspapers, Napier v Pressdram, and Cream Holdings v Banerjee.
Privacy Recommendation 1
The Committee recommended that;
“that the Ministry of Justice should seek to develop a fast-track appeal system where interim injunctions are concerned, in order to minimise the impact of delay on the media and the costs of a case, while at the same time taking account of the entitlement of the individual claimant seeking the protection of the courts.”
This recommendation is clearly sensible and there is a good reason for media appeals to be heard within 7 days of the original interim decision. Where the appeal is from a final decision for instance at trial, the delay point is less pressing and the fast-track system should not apply.
Mandatory Pre-publication Notification and Mosley
The Committee were plainly impressed by the evidence of Max Mosley, the personal effect on his life of the News of the World Story and his arguments for prior notification. Many representatives of the media asserted that this was the norm.
Mr Mosley summarised his position succinctly in a memorandum to the Select Committee:
“The case for prior notification is simple, logical and irrefutable:
— By definition, something ceases to be private if it becomes public.
— The law requires certain things to be kept private.
— The court has a duty to enforce the law.
— The court can only enforce the law if informed.
— It can only be informed by the aggrieved party.
— He can only inform the court if he knows.
— Therefore he must be notified before publication”
However, the Committee shied away from recommending that there should be a legal obligation on the ground that there would need to be a public interest exception and that this would be difficult to formulate. However, they (inconsistently) went on to recommend make a recommendation as to the amendment of the PCC Code – subject to a “public interest” test which the PCC will be no better at formulating than the courts.
Privacy Recommendation 2
Instead the Committee recommended that the PCC should;
“amend the Code to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” test, and should provide guidance for journalists and editors on pre-notifying in the Editors’ Codebook”
It seems extremely unlikely that the PCC will change its rules in this way especially since such a move may well impact on the Max Mosley’s outstanding application in the European Court of Human Rights, where the media intend to make opposing the application and the Government will by now have filed its responses (we have asked the media representatives for copies of their submissions and have yet to receive a reply). Nevertheless the recommendation is sound. Even where there is a public interest in play, it is simple for media to state what the factual interest is, for instance disclosure of a particular illegal conduct.
The Select Committee concluded;
“We have concluded that a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a “public interest” exception. Instead we believe that it would be appropriate to encourage editors and journalists to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of Article 8″.
Privacy Recommendation 3
The Select Committee finally recommended that consideration should be given to amending the Civil Procedure Rules to make failure to pre-notify an aggravating factor in assessing damages in a breach of Article 8.
The sentiment behind this recommendation is understandable but is probably pointless. First, when “privacy cases” are pleaded, a failure to pre-notify is always relied on as an “aggravating factor”. Secondly, given the modest level of damages awards so far available – and the requirement that aggravated damages must be proportionate to compensatory damages – it is hardly going to be sufficient for the tabloids to rethink their strategy when not notifying their targets.
The Committee discussed the injunction in the Trafigura case and recommended that the Parliamentary Papers Act 1840 be replaced with a clear and comprehensible modern statute. They go on to recommend that
” a way is found to limit the use of super-injunctions as far as possible and to make it clear that they are not intended to fetter the fundamental rights of the press to report the proceedings of Parliament”
The freedom to report Parliamentary proceedings is, indeed, important – but Parliament must also guard against the use of its own proceedings to circumvent properly granted injunctions. The Committee did not address this last concern.