By Amber Melville-Brown, David Price Solicitors & Advocates, London


Self-regulation

In his swansong for the media, former Prime Minister Tony Blair attacked the press as 'a feral beast'. When the House of Commons culture select committee report on self-regulation was published just a matter of weeks later, therefore, one might have expected it to find it likened to a velvet muzzle on a dangerous dog. But instead, self-regulation has had had a good pat on the head.



The committee's investigation into self-regulation was set against a backdrop of press activities which caused 'the public and politicians to question the integrity of methods used by reporters and photographers to gather material for publication'. Such activities included specifically those of Clive Goodman, the royal editor of the News of the World, intercepting phone messages of public figures including Prince William, and 'the hounding' of Kate Middleton, his sometime girlfriend.



Ms Middleton complained to the Press Complaints Commission (PCC) under clause 4 of the PCC code that a photograph published in the Daily Mirror was taken in circumstances of harassment. Some months before, on her 25th birthday, she had had to run the gauntlet of more than 20 photographers and five television crews when she emerged from her house amid speculation of an imminent marriage proposal from Prince William. Her solicitors did not then make a formal complaint but wrote to the PCC - which forwarded the letter to editors - warning that if they published photographs which were taken in circumstances of harassment, a complaint would ensue.



The subsequent complaint about the Daily Mirror concerned what it considered to be an innocuous photograph of her with a cup of coffee, but which it was later told was taken in circumstances where she felt harassed. The newspaper apologised and the complaint was settled. The PCC issued a press release reminding all editors 'of the need to refrain from using photographs when the subject of the picture has asked the photographer to stop photographing them, and there is no obvious public interest reason for persisting'.



However, this was too little, too late for the select committee: 'The response of the PCC was less than impressive: it waited for a complaint to be made on Ms Middleton's behalf but could have intervened sooner by issuing a desist notice to editors.' It concluded that the PCC should be more proactive in its approach to protect individuals from media scrums: 'The commission should be readier to depart from its usual practice of issuing a desist notice only in response to a request.'



Information gathering

The committee also cast its withering gaze over techniques used to obtain information other than photographs. The activities of the royal editor - which amounted to 'one of the most serious breaches of the Editors' Code of Practice uncovered in recent times' - was the peg. He was convicted of illegally accessing voicemail messages left for members of the Royal family and other public figures, having obtained that information from a freelance private investigator whom he paid out of a slush fund made available for investigating royal stories. He was sentenced to four months, and a freelancer to six. The newspaper's then editor, Andy Coulson, strongly denied any knowledge of these events, but felt he had no option but to fall on his sword and resign.



The PCC issued recommendations advocating stricter controls on cash payments to staff. These were endorsed by the committee, which recommended that they should be 'adopted as a matter of course by all newspaper and magazine publishers'. They included:

l Employment and contributor contracts with the press to contain an explicit requirement to abide by the code of practice;

l Employment and contributor contracts to include a requirement to abide by the Data Protection Act (DPA);

l Regular internal training on developments on privacy cases; and

l Rigorous audit controls for cash payments.



The committee was concerned that similar 'slush funds' 'can only further the belief that editors condone such payments - on a "no need to know" basis - as long as they provide good copy' and that this might give the impression 'that editors will turn a blind eye as long as good stories are the result'.



Information gathering and the DPA

The select committee also reported on Operation Motorman, an investigation conducted by the Information Commissioner's office into alleged offences under the DPA. Section 55 makes it an offence knowingly or recklessly to obtain or disclose personal data without the consent of the data controller.



The Information Commissioner's investigation centred on the activities of a private investigator at whose home were discovered records of transactions with reporters from weekly and Sunday tabloids, Sunday broadsheets and weekly magazines, involving data illegally obtained from various sources, including BT, the DVLA and the Police National Computer. Some convictions were secured for corruption and data protection offences, but they resulted in nothing more than conditional discharges due to parallel criminal proceedings, which took precedence.



The select committee report noted the disappointment of the Information Commissioner that the result 'seemed to underplay the seriousness of the offences under section 55'. While the investigation showed that 'large numbers of journalists had had dealings with a private investigator known to have obtained personal data by illegal means', the committee was concerned at the apparent 'complacency' of the industry. But with the select committee endorsing the decision of the Ministry of Justice to introduce legislation to allow for custodial sentences for section 55 breaches, any such complacency may be a thing of the past.



Legislation was, however, not the main concern of the select committee. It notably refused to recommend privacy legislation: 'To draft a law defining a right to privacy, which is both specific in its guidance but also flexible enough to apply fairly to each case which would be tested against it, could be almost impossible.' And while there appeared some less than desirable techniques for filling 'white space', the committee was not prepared to sacrifice self-regulation in favour of legislation. To rely exclusively on the law, it said, 'would represent a very dangerous interference with the freedom of the press'.



On 20 September in Edinburgh, the chairman of the PCC, Sir Christopher Meyer, addressed the ninth annual conference of the Alliance of Independent Press Councils of Europe. The two unanswerable arguments in favour of self-regulation are, he said, freedom from state control and the flow of information globally and instantly in the digital age. 'Self-imposed rules are more effective and more philosophically desirable than legal ones' and this is of particular importance in today's media environment 'where one can be a publisher and national legal boundaries are meaningless'.



Sir Christopher concluded his speech by suggesting that self-regulation, which offers 'a transparent form of modern, light-touch media regulation' was about to have its day. As the former PM left Downing Street for the last time, his wife Cherie Blair told the assembled press: 'I don't think we'll miss you.' Her husband's parting pop went a little deeper.



Given the excesses of the 'feral beast' which gave rise to the select committee report, there will be critics who think that Sir Christopher's 'light touch' is far from what is needed. The select committee concluded that press regulation is 'a subject which, particularly in the light of the recent speech by Tony Blair... deserves careful examination in the future' and those critics will once again have an opportunity to have their say. But for now, self-regulation lives to fight another day.