The Joint Committee on Privacy and Injunctions, set up last July following “super-injunction spring”, has published its Report. In the 59 page document the Committee comes out against a privacy statute and commends the approach now being taken by the courts. Controversially, it supports the “PCC 2.0” approach to media regulation and suggests that, for the present, there should be no statutory backing for the new regulator.
The formal minutes of the Committee’s session on 12 March 2012 reveal substantial disagreement about the contents of the report
The Committee’s recommendations contain a number of proposals for enhancing privacy protection. For example, it recommends that corporations such as Google should take practical steps to limit the potential for breaches of court orders through use of their products and, if they fail to do so, legislation should be introduced to force them to.
In relation to “pre-notification”, it recommends that it should be a requirement of a regulatory code that if a newspaper is intending to publish a story which concerns the private life of an individual then the subject of the story should be notified in advance unless there are compelling reasons not to.
The Committee accepts that the PCC lacked the power, sanctions or independence necessary to be truly effective but, surprisingly, comes out against statutory underpinning for a new regulatory regime, offering the press another stay in the “last chance saloon”. The report says
“At this stage we do not recommend statutory backing for the new regulator. Instead, assuming Lord Hunt’s proposals are adopted by all publishers, we recommend that a standing commission comprising members of both Houses of Parliament be established to scrutinise the process of reform over the coming years. The standing commission will report annually to Parliament on the progress of reform and the effectiveness of the reformed regulator. The annual report should be debated in both Houses. … However, should the industry fail to establish an independent regulator which commands public confidence, the Government should seriously consider establishing some form of statutory oversight” (paras 187 to 188).
The minutes reveal that an the Committee voted 12 to 8 to reject an amendment by Lord Hollick to state that the conclusion should be
“we think that statutory oversight of the reformed regulator is desirable. Otherwise major publishers could opt out of its regulation. Statutory oversight of the regulator would give it more authority over the industry and give the public greater confidence in it.”
The detailed conclusions and recommendations of the Committee include the following
- It does not recommend a statute declaring in broad terms the right to privacy. It disagrees with criticisms that privacy law has been “judge made” and does not have parliamentary authority; it has evolved from the Human Rights Act 1998 (para 41).
- It does not recommend a statutory definition of the public interest, as the decision of where the public interest lies in a particular case is a matter of judgment, and is best taken by the courts in privacy cases. (para 50).
- It does not recommend any alteration to the law under section 12 of the Human Rights Act 1998 (para 59).
- It recommends that super-injunctions and anonymised injunctions that were granted before the Master of the Rolls’ committee’s report and are still in force are reviewed by the courts to ensure they are still necessary (para 65).
- It believes the Attorney General should be more willing to exercise his power as Guardian of the Public Interest to bring actions for civil contempt of court in respect of breaches of injunctions online. The threshold for him intervening should be lower. Such action would provide a strong deterrent against future such breaches (para 104).
- It recommends that, when granting an injunction, courts should be proactive in directing the claimant to serve notice on internet content platforms, such as Twitter and Facebook. (para 109).
- Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology. It recommends that if legislation is necessary to require them to do so it should be introduced (para 115).
- It recommends that when served with an injunction, media organisations should only circulate the notice to those employees who have authority to publish. An up-to-date list of these individuals should be maintained by each organisation, and made available to the court upon request (para 119).
- It rejects the case for a statutory requirement to pre-notify. However, the reformed media regulator’s code of practice must include a requirement that journalists should notify the subject of articles that may constitute an intrusion into privacy prior to publication, unless there are compelling reasons not to (para 127).
- Courts should take account of any unjustified failure to pre-notify when assessing damages in any subsequent proceedings for breach of article 8 (para 129).
- The Committee recommends that the courts should have the power to award exemplary damages in privacy cases, if necessary by giving the courts that power through legislation. In deciding whether to award exemplary damages the courts should take into account the financial situation of the media organisation concerned (para 134).
- It notes that access to justice is essential for those whose privacy is infringed. Conditional fee agreements have provided people of limited means with the ability to take action when their right to privacy has been infringed; they have also been used by defendants in privacy cases. (para 147).
- The reformed media regulator needs to play a leading role in resolving privacy complaints. For this to happen, the regulator needs to have recourse to far more effective and timely sanctions than the PCC has. It needs to be, and be seen to be, independent of the newspaper industry. All major news publishers, including online publishers, should come under its jurisdiction (para 164).
- The reformed media regulator must be demonstrably independent of the industry and of government (para 170) but industry representatives should form a substantial minority of the body that determines complaints (para 171).
- Membership of the reformed media regulator should extend to all major newspaper publishers. It should no longer be possible for a title unilaterally to opt out of regulation with no sanction forthcoming (para 179).
- Significant penalties be imposed on news publishers who are not members of the reformed media regulator. For example, major advertisers should require membership as a condition of advertising in news publications, including on blogs (para 180).
- The Committee welcomes the initiative taken by Lord Hunt of Wirral in bringing forward industry-led proposals for replacing the Press Complaints Commission (para 186).
- It does not, at this stage, recommend statutory backing for the new regulator but recommends that a standing commission comprising members of both Houses of Parliament be established to scrutinise the process of reform over the coming years. (para 187).
- Should the industry fail to establish an independent regulator which commands public confidence, the Government should seriously consider establishing some form of statutory oversight. This could involve giving Ofcom or another body overall statutory responsibility for press regulation, the day-to-day running of which it could then devolve to a self-regulatory body, in a similar manner to the arrangements for regulating broadcast advertising (para 188).
- Where the reformed regulator is involved in negotiating an apology, it should have the power to determine the location and size of the apology the newspaper is required to publish, and the day of publication (para 195).
- It recommends that the reformed regulator should have the power to fine newspapers for unwarranted breaches of privacy. This will encourage publishers to consult the regulator on potentially controversial stories before publication (para 202).
- In relation to the mentioning of injuncted material in parliament, if injunctions are being breached gratuitously, or if there is evidence that parliamentarians are routinely being “fed” injuncted material with the intention of it being revealed in Parliament, then it recommends that the Procedure Committees in each House should examine the proposals made for new restrictions with a view to implementing them (para 231).