PCC on privacy regulation

Baroness Buscombe, Chair of the PCC has today addressed the Westminster Media Forum with a talk on privacy and online media and sought to make out the case why the PCC is indeed fit for purpose to regulate and police privacy.

The PCC has in the past been much maligned as a toothless regulator with minimal powers to reign in the excesses of the media - especially when it comes to privacy. Over the past year or so the PCC under Baroness Buscombe has been seeking to fight back and claim its space and relevance.

The problem with privacy has traditionally been that while the PCC may adjudicate that the press may have breached the PCC Code and invaded someone's privacy, there was little more the PCC could do and if someone wanted to secure privacy protection or seek damages for intrusion they would have to go to court. While the courts have in recent years allowed the introduction of a quasi privacy law through a series of judgments - notably Max Mosley's crusade against reporting of his sexual past-times with black pvc-clad women with whips - the PCC has also sought to do more behind the scenes negotiating between media outlets and aggrieved story subjects.

In absence of the law managing to properly get a sensible grip on privacy that balanced the protection of the right and the media's freedom to report, it has been left to the courts to create a privacy law but sadly this has been built around celebrity, political and business claimaints with the power to litigate and desire to suppress. So we have a trend in cases and judgments but still no clear law - beyond the interpretation of European law and human rights provisions in relation to privacy.

Enter the PCC which has an opportunity to respond more quickly than the law, albeit without the same level of sanction, compellability but which does nevertheless have the same potential to publicise its findings. So in delivering her views on privacy and the online environment and why the PCC was well placed to tackle this, Baroness Buscombe said; "In such a swift moving and developing environment I would strongly emphasise that only a flexible, non-bureaucratic and evolutionary system like that offered by the PCC can react deftly enough to change". So while the PCC may not be able to secure injunctions or financial settlements it can still react to and make a noise about privacy related issues - specifically where there has been a breach of the PCC Code in relation to privacy.

One area that the PCC has been developing its regulatory response to is in relation to social media where it has developed a five stage test:
•First, what is the quality of the information? How private is it in itself?
•Second, what is the context of the information? Material that has been uploaded as a joke between friends, for example, may not be suitable for journalistic use in a story about a tragedy.
•Who uploaded the material, or consented for it to be uploaded?
•How widely available is the material online; or, to put it another way, what privacy restrictions were placed on it?
•And finally what is the public interest in publication?

The key point is that just because something has become public or is in the public domain does not automatically mean that it is not private in nature and therefore deserving of privacy protection.

Mediabeak would argue that the true position is that as things stand the courts recognise (as they are forced to via the European Convention on Human Rights) that there are privacy rights and where they have cases before them have invariably in recent years upheld privacy rights - of those rich enough to bring or risk a case. But this does not create a balanced, workable or rational privacy law that balances the competing rights of drug taking models, sexual pracitces of business people or politicians or philandering footballers against the right of the media to expose where there has been drug taking, philandering, lying.

Meanwhile the PCC can adjudicate over cases involving normal people who have been intruded on by the press - it might not have the power and compellability of the courts but it can nevertheless effectively and quickly deliver a 'telling off'. So perhaps what one should take away from Baroness Buscombe's address today and the state of privacy law in general in the UK is that maybe we should be satisfied that there is a workable system that delivers an arguably old-fashioned 'telling off' but take comofrt in the fact that such system is accessible and responsive even though - if one is not a deep-pocketed celebrity - one can do little more without incurring significant court costs.

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