A strong, free and vibrant press is essential to the good operation of democracy. Over the past 12 months, the culture and activities of the UK media have become the focus of widespread public concern, particularly in light of the phone hacking scandal. The balance between privacy and freedom of expression is at the heart of these debates about the role of the media. We have considered how this balance should be struck, who should determine where the balance lies and how decisions, once taken, can be enforced. In making recommendations, we have been guided by the following:
• the fundamental right to freedom of expression lies at the heart of this debate;
• the right to privacy is equally important. It is universal and can only be breached if there is a public interest in doing so;
• although definitions of public interest change from time to time, an over-arching definition of public interest is the people’s general welfare and well being; something in which the populace as a whole has a stake. It is not the same as that which is of interest to the public;
• we support the freedom of the press. The vitality of national and local media, in all its forms, is essential to the good operation of democracy;
• the rule of law in protecting the right to privacy should be upheld by all. If a judge has made a decision, based on hearing the full evidence in a case, that decision should be respected by those who have not heard all the evidence;
• justice should be accessible to all. Protection of the right to privacy should not be available only to the wealthy few;
• the Press Complaints Commission was not equipped to deal with systemic and illegal invasions of privacy.
A strong, independent media regulator is essential to balance the competing rights of privacy and freedom of expression;
• the law must apply equally to all forms of media: print, broadcast and online.
It is important that privacy injunctions are obtained in circumstances which justify the intervention of the law; injunctions should not be too freely or easily obtainable. Departures from the principle of open justice should be exceptional. We believe that courts are now striking a better balance when dealing with applications for privacy injunctions.
We conclude that a privacy statute would not clarify the law. The concepts of privacy and the public interest are not set in stone, and evolve over time. We conclude that the current approach, where judges balance the evidence and make a judgment on a case-by-case basis, provides the best mechanism for balancing article 8 and article 10 rights.
Interim injunctions granted in one of the legal jurisdictions in the United Kingdom should be enforceable in the other two UK jurisdictions in the same way as final injunctions are.
It is important that court orders apply to all forms of media equally. The growth of the internet and social networking platforms is a positive development for freedom
of expression, but new media cannot be seen to be outside the reach of the law. We recommend that the courts should be proactive in directing the claimant to serve notice on social networking platforms and major web publishers when granting injunctions. We also recommend that major corporations, such as Google, 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. An effective deterrent against future breaches of injunctions online would be for the Attorney General to be more willing to bring actions for civil contempt of court for such breaches.
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. Although this should not be a statutory requirement, it should be included in the media regulator’s code of conduct. The courts, when awarding damages in privacy cases, should take into account any unjustified failure to pre-notify.
The ability to protect the right to privacy should not be available only to the wealthy few. We recommend measures to reduce the costs of privacy cases. These include more robust case management by judges and the consideration of cost capping.
The most important step towards improving protection of privacy is to provide for enhanced regulation of the media. We conclude that the Press Complaints Commission lacked the power, sanctions or independence necessary to be truly effective. The new regulator should be demonstrably independent of the industry and of government. It should be cost-free to complainants and should have access to a wider range of sanctions, including the power to fine and more power to require apologies to be published. Sanctions should be developed to ensure that all major news publishers, including digital publishers, come under its jurisdiction. The reformed regulator should develop an alternative dispute resolution process, to provide quicker, cheaper and easier resolution of privacy issues. A standing commission comprising members of both Houses of Parliament should be established to scrutinise industry-led reforms and to report on them to Parliament. 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. 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.
Although freedom of speech in Parliament is a fundamental constitutional principle, we do not think that parliamentarians should reveal information subject to injunctions in Parliament unless there is a good reason to do so. We do not think some of the recent revelations of material subject to injunctions yet require a new parliamentary rule to prevent such disclosures; if such disclosures continue, then new rules should be considered. It is important that the media can be confident that they will be legally protected when reporting parliamentary proceedings in good faith. We therefore recommend that qualified privilege should apply to the reporting of all proceedings in Parliament. Here to read more.