Privacy on parade

Lord Wakeham has been forced by his involvement in the Enron scandal to relinquish the chair of the Press Complaints Commission at an awkward moment.

Newspaper editors are divided about its effectiveness.

Outside the newspaper industry, there is a swarm of hostility against the commission, from politicians, aggrieved celebrities and a general public sceptical about the integrity of British journalism.

We have been here before. Prior to John Wakeham's appointment to the PCC in 1995, the press had been a reliable customer in David Mellor's "last-chance saloon".

It is widely agreed that Wakeham's diplomatic skills were important in heading off demands for a UK privacy law. Wakeham was also helped by a palpable sense among the tabloids following Princess Diana's death in 1997 that they risked offence to their readers if they were found to be victimising her children. It was the princess's death which provided the spur to toughen the PCC's guidelines on privacy and the protection of children. How, then, do we find ourselves at another crossroads?

Critics of the PCC say it is because the commission has been too preoccupied with short-term tactics, and "cosying up" to the rich and powerful has undermined its effectiveness, says one editor.

This, reply other editors, is sour grapes, based upon jealousy about rival papers' scoops, especially on big royal stories. And it risks opening the PCC to attack by its real enemies - those who would sweep away self-regulation and threaten the principle of press freedom.

Today's battle is very different from the one that took place in the Eighties and Nineties because it concerns not the principle of whether Britain should adopt a specific law to protect privacy, but the manner in which the 1998 Human Rights Act will make the right to privacy actionable in British courts.

This is the act which enshrines into UK law the contents of the European Convention of Human Rights. As such, it balances Article Eight's "right to privacy" against the "freedom of expression" clause in Article 10.9. So far, the act has been tested in only a handful of cases, most of which are still working their way through the courts. Only one has been resolved, when the newsreader Anna Ford lost her case, which had also been rejected by the PCC, that she was entitled to sit on a public beach in Majorca without having photographs snatched for publication in newspapers.

An unresolved case, involving the People newspaper, concerns a footballer who has so far successfully used the law to prevent a woman divulging details of his extramarital sexual relations. This matter is on its way to appeal, with the newspaper (and Lord Wakeham) arguing that the case threatens to undermine the right to free speech of the "other" party, not to mention damaging a best-selling product line for many newspapers.

Some judges have made no secret of the fact that they see the Human Rights Act as a way, in effect, of building a privacy statute via case law. But Lord Wakeham, in an intricate speech last month, dismissed as "myth" the idea that Britain now had a privacy law. In the 15 months since the act became effective, "not one judge or one court has said that the Human Rights Act 'creates' a privacy law".

Nor, he added, was there any evidence that complainants were bypassing the PCC in favour of the courts. Last year, the PCC received a record number of complaints (3,020), of which roughly one in six related to privacy. To which critics rejoin: that's because the press, cowed after the death of Diana, is slithering back to the worst of its unpleasant ways. Feelings run high, especially where children and adolescents are concerned. The temperature of the current debate has certainly been raised by the press's attention to the offspring of, to name a few, Prince Charles, the Blairs, Jack Straw and Lord Irvine. To the subjects of such media attention, this looks like commercial exploitation of vulnerable adolescents. But to newspapers it is a legitimate exploration of matters of public interest.

Where this will end is not certain, but what is clear is that it's no longer a case of self-regulation or the Human Rights Act; what we have is press self-regulation and the Human Rights Act.

This changes in a crucial way the context in which the PCC makes its decisions. Depending upon how case law develops, it may well put severe pressure on the PCC to become more rigorous in its judgments and perhaps even to consider harsher penalties.

In this trial of strength, the press will characterise the judges as enemies of liberty. Law-makers will reply that in a modern democracy, the news media are too powerful to be left to their own devices, and that, in the age of the internet, newspapers are no longer so easily distinguished from electronic media, which have always been more heavily regulated. Both sides believe they are acting in the wider public interest. It is turning into a test of different ideas as to what constitutes democracy itself.

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