The Human Rights Act 1998 and the Press Complaints Commission

Previous Annual Reviews have recorded the Commission's concerns about the potential impact of recent legislation - principally the Human Rights Act 1998 - on its work for ordinary people, as well as the amendments to that legislation that have occurred as a result. The period since the publication of the last Review has seen the full implementation of the Human Rights Act in October 2000.

The Act itself has proved to be controversial in many ways - although as former Chairman Lord Wakeham set out in a speech in January 2002, the controversy has been based far more on myth than reality. He outlined how:

• no Court has yet said that the Act "creates" a privacy law, a myth which arises from the unsupported comments of just one of the three judges sitting in the case of Michael Douglas, Catherine Zeta-Jones and Hello! magazine;
• fewer than twelve cases have in fact gone to Court in the eighteen months since the Act's implementation - October 2000 to March 2002 - a very small number that underlines the fact that actions under the legislation have proved cumbersome, inaccessible and practically useless for ordinary people;
• there is no evidence of individuals - whether in or out of the public eye - "bypassing the PCC" and going straight to Court. In the months since the implementation of the Act the number of privacy complaints coming to the Commission has gone up, and last year reached a record number (as set out on page 8 of this Review), dwarfing actions brought under the Act;
• there is no two-tier system of redress on privacy issues - celebrities are still coming to the PCC along with the vast majority of complainants who are not people in the national public eye - contrary to what some commentators have maintained.

Three important legal rulings have underlined how right the PCC and editors were to be concerned about the potential impact of the Act - but they have also served to give real teeth to Clause 12 of the Human Rights Act, which enshrines the importance of freedom of expression.

The first important judgement - in which the PCC was directly involved - was the judicial review sought by Anna Ford of the Commission's decision in her complaint against The Daily Mail and OK! Magazine. That judicial review - only the second in the PCC's eleven year history - was the Þrst case to come to Court following the implementation of the Act. Her action - like that of Moors Murderer Ian Stewart-Brady before her (see Annual Review 1996, p.10) - failed. In a crucial ruling, Mr Justice Silber said that:

"The type of balancing operation [between privacy and freedom of expression] conducted by a specialist body, such as the Commission, is still regarded as a field of activity to which the Courts should and will defer. The Commission is a body whose membership and expertise makes it much better equipped than the courts to resolve the difficult exercise of balancing the conflicting rights' [of] privacy and of the newspapers to publish" (High Court of Justice, Queen's Bench Division, 31st July 2001).

The second important ruling was that of the Court of Appeal, under the Lord Chief Justice Lord Woolf, in the case of A vs B & C - or, as was subsequently revealed, the footballer Gary Flitcroft and the Sunday People. In overturning an injunction which had been granted to the footballer by Mr Justice Jack restraining publication of an article about him, the Court of Appeal ruled that publication should go ahead. The ruling - repeating in effect on PCC jurisprudence - underlined that celebrities who court publicity may compromise their rights to privacy. The Court said that: "Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you may have less ground to object to the intrusion which follows" (Court of Appeal ruling, para. 11 - xii, 11th March 2001).

The ruling also made clear - echoing that of Mr Justice Silber - that the Court preferred matters of detail relating to privacy to be dealt with not by the Courts but by the PCC and, ultimately, by readers. In a section of the ruling relating to the substance of the Flitcroft case, the Court of Appeal said:

"Once it is accepted that freedom of the press should prevail, then the form of reporting in the press is not a matter for the courts but for the Press Complaints Commission and the customers of the newspaper concerned" (ibid, para. 48).

In the case of Naomi Campbell, the Court did not make any finding relating to Ms Campbell's privacy after she withdrew her action - instead ruling in her favour to the tune of just £3,500 in relation to breach of confidence and the Data Protection Act. The Court, however, found that the newspaper had acted lawfully in revealing that she had not told the truth about her drugs problem and the fact that she was having therapy.

There are a number of clear implications from these three cases - Ford, Flitcroft and Campbell - that:

• there exists no "law of privacy" in the United Kingdom;
• injunctions on matters relating to privacy under the guise of confidentiality should - as indeed the Government indicated at the time it established Clause 12 of the Human Rights Act (relating to ex parte injunctions) - now be extremely difficult to obtain;
• it is for the Courts to intervene only where the PCC has demonstrably failed in its task of balancing rights of individual privacy with freedom of expression. The PCC does not need to change its approach to privacy complaints;
• the "public interest" should be interpreted liberally - not to include everything that "interests the public" (which the PCC has always made clear is not an appropriate definition), but not exclusively relating to matters such as crime and public health either; and
• the Code, and editorial adherence to it, remain crucial.

The PCC has welcomed these judgements - which buttress effective and tough self regulation - in the interests of the public. As Professor Pinker also acknowledges on page 2 of this Review, the combination of these judgements also places a heavy burden on the PCC in handling privacy matters - a burden it is determined to meet with vigour and imagination.