Privacy on parade

Max Mosley’s privacy action in the European courts was doomed to fail, writes the PCC’s director, St

Privacy is out in the open once more. Media people tend to dramatise subjects that affect them the most, and there will always be a hint of special pleading about how reporting restrictions are discussed. But it cannot be denied that many have been rightly exercised about, say, injunctions and the power of Twitter, or Max Mosley and his relentless - if perhaps understandable - drive to stop tabloid intrusions by changing the law. The Press Complaints Commission entered the fray when, on 10 May, it upheld a complaint against the Telegraph for the "disproportionately intrusive" covert rec­ording of the Lib Dem cabinet minister Vince Cable. This is all important, and relevant, stuff.

As director of the PCC, I welcome the chance to discuss how we deal with this messy, tricky topic. We have just published our annual review - see pcc.org.uk/review10 - which shows how we help those who find themselves, however briefly, in the public eye.

One basic lesson from this document is that privacy matters to people. It was not that long ago that Facebook's Mark Zuckerberg was implying that the rise of social networking might mean that privacy would cease to be a "social norm". The thinking was that we would be so familiar with, and desensitised to, the free exchange of information that we would live our lives more openly as a result. This always had the feel of airy utopianism.

What seems to have happened is that people have not lost interest in privacy, but rather have a better sense of what it means in practice. Most people put some of their personal information on the internet (through social networking, or website comments) and consequently have a greater sense of ownership. The ease with which information can be circulated by others can become an object of fear.

Showing our teeth

At the PCC, we see this when people come to us, following the death of a relative, concerned about what may be on Facebook. We offer clear guidelines on how such material should be used by journalists, who now have to take into consideration such factors as: how private is the material; how accessible is it; what is its context; what is the public interest?

It is not surprising that some celebrities have resorted to injunctions (although perhaps no more than they have done in the past) when threatened with the prospect of losing their privacy. Sometimes they will have been justified, and certainly their reaction, their need to preserve information about their private life, is understandable. But, as we have seen, injunctions cannot silence the internet; they cannot stifle the gossip. When you try to squeeze hold of a piece of information, it will always slip between your fingers.

That was why Mosley's attempt to require journalists, by law, to notify people ahead of publication of articles about them was already an anachronism when the case started. The day on which the European Court rejected his proposal was the same day front pages were screaming about Twitter accounts ignoring injunctions. In this world of online information, everyone is a prospective journalist. Mosley's law would have had to be enforced on bloggers, or even people tweeting; it could never have worked in practice. If there is to be further regulation of social networking sites such as Facebook and Twitter, it will have to be self-imposed. They are global phenomena and cannot be controlled by Westminster and Whitehall.

A new privacy law does not seem to be any answer. Judges' interpretation of the Human Rights Act is a de facto privacy law, which could not - in my view - be practically improved upon. Legislation moves slowly; by the time we have agreement, the world will have changed once more. In 2003, the Communi­cations Act (the last time parliament legislated on media regulation) made no mention of the internet at all; in 2003, Mark Zuckerberg was establishing Facebook.

Any law would have to balance the conflicting rights of privacy and freedom of expression. That conflict will persist, whatever the legislation, because it is an irresolvable conflict in human nature: we like to keep some things private; we like to talk and share information without restraint. It is a conflict that the PCC wrestles with in its work all the time.

Last year, we issued nearly 600 privacy rulings, judging whether newspapers had kept to the terms of the Editors' Code. We sent out 100 advisory notes to newspapers, designed to prevent intrusion by journalists, mainly in the form of physical harassment. I cannot go into the details (for obvious reasons), but one type of case might involve grieving parents who do not wish to speak to the press about the death of their child. Even though there may be a public interest in the story, there is none in contacting those who do not wish to speak to the media. We ensure that the parents are protected.

At the celebrity end, we might be informed that an actor has been, or is being, pursued persistently by paparazzi. We inform editors of the concerns: the net result is very often that pictures are not purchased, the market for the images is affected and the harassment stops.

Law is not the answer

Our annual report should lay to rest the lazy and untrue claim that the PCC is "toothless". We could not have achieved all we did in 2010 in terms of helping individuals obtain protection prior to publication, or vindication afterwards, without effective powers.

If the code is breached, the PCC is able to obtain proportionate remedial action (such as an apology or, sometimes, voluntary payment) or criticise the editor in public. We now follow up cases to ensure that lessons are learned.

It seems to me that if top-down restraint will inevitably fail, then self-restraint must be seen to work. The PCC can improve press standards in three ways: intervening proportionately before publication; providing swift and sufficient remedial action to breaches of the code; using our experience to change bad practice in newsrooms, by offering training and guidance.

Samuel Beckett (perhaps the least likely name to mention in an article about celebrities and injunctions) once said that the task of an artist was "to find a form to accommodate the mess". That is a good way of characterising the challenge to the PCC and the press at the moment. The ideal of privacy is too messy, its application too fractured, to be dealt with by legislation. The most accommodating system has to be self-regulation, and we must work to make sure that it is up to the challenge.

Stephen Abell is director of the PCC

This article first appeared in Obama 2.0

2011-05-23