Enforcing the Editors’ Code through the courts, not the PCC
The Editors’ Code of Practice is the cornerstone of newspaper self-regulation and imposes a variety of standards which newspapers and their journalists are expected to meet. Some of its most contentious provisions concern the respect which must be shown for an individual’s privacy.
A recent high-profile case illustrates a novel approach towards enforcement of the code which may have far reaching implications.
Photographs of the actress Amanda Holden appeared in the Daily Star, together with a promise that further, similar photographs would be published the following day. Believing the code to have been infringed, Ms Holden declined the traditional step of a complaint to the Press Complaints Commission. Instead, she went immediately to court, relying upon the Human Rights Act 1998 and arguing that her right to privacy had been and would be breached by the publication.
As the case involved the balancing of an individual’s right to privacy against freedom of expression in a journalistic context, the Human Rights Act required the court to take account of "any relevant privacy code" such as the code.
The court awarded Ms Holden an interim injunction preventing further publication pending a full hearing.
Several important points emerge from this, although it is important to remember that this is an innovative case and is still at an early stage. Firstly, it is clear that the code now enjoys a special status. It certainly does not enjoy the force of law, and the court will not treat compliance with, or breach of, the code as determinative of whether an individual’s legal right of privacy has been infringed.
That said, the court must take the code into account, and it will obviously be harder for a newspaper to justify and defend conduct which does not comply with those provisions.
Likewise, the case highlights many of the perceived deficiencies of complaints to the PCC. It cannot take pre-emptive steps to prevent a newspaper from publishing material in breach of the code. Its only sanction is to compel the offending newspaper to print the critical PCC decision, so no damages can be awarded.
In many cases, therefore, legal action will prove attractive due to the remedies available. Nevertheless, complaint to the PCC will remain the appropriate route in the majority of cases, being far cheaper and speedier than legal action.
In any event, the eventual judgment in the Holden case will have important repercussions for the enforcement of the code and the extent to which privacy rights will curtail newspaper reporting.
John Tillman and Diane Hamer are members of the computers, communications and media unit at Lovells