October 2011

HOUSE OF COMMONS SELECT COMMITTEE ON CULTURE MEDIA AND SPORT – TELEPHONE HACKING AT NEWS INTERNATIONAL – INVESTIGATION
Publication of evidence to Select Committee in connection into inquiry to alleged illegal telephone hacking and interception of communications by News International employees and independent contractors:
http://www.parliament.uk/business/committees/committees-a-z/commons-select/culture-media-and-sport-committee/news/further-news-international-correspondence/

and further correspondence:
http://www.parliament.uk/business/committees/committees-a-z/commons-select/culture-media-and-sport-committee/news/news-international-correspondence/

HOUSE OF COMMONS SELECT COMMITTEE ON HOME AFFAIRS REPORT INTO UNAUTHORISED INTERCEPTION OF COMMUNICATIONS
Unauthorised tapping into or hacking of mobile communications 
Thirteenth Report of Session 2010–12 
http://www.parliament.uk/documents/commons-committees/home-affairs/unauthorised_tapping_or_hacking_mobile_communications_report.pdf

Press Complaints Commission sets up Phone Hacking Review Committee
On 19th January, the Commission discussed, at length, the issue of phone hacking at its monthly meeting. The Commission undertook to institute a working group, with a lay majority, to consider the new information that becomes available, and make recommendations to the Commission (which will be published). The purpose of this will be to draw together lessons learned as a result of the outcomes of the relevant police inquiries and ongoing legal actions. It will also consider the outcome of the current internal inquiry of the News of the World. The Committee will review the PCC's own previous actions in regard to this matter. The Phone Hacking Review Committee will comprise the two most recent lay Commissioners (who joined after December 2009), both of whom are experts in relevant legal fields: Ian Walden, Professor of Information and Communications Law, Queen Mary University of London, Julie Spence, former Chief Constable, Cambridgeshire Police. There will be one editorial Commissioner: John McLellan, the editor of the Scotsman. It is important to make clear that phone hacking is a criminal offence, and the Commission has been consistent in its condemnation of it. It has also been consistently clear that it is not the role of the PCC (or within its powers) to duplicate the investigations of the police, or to establish criminality. However, its role is to work to raise standards in the industry, and it is committed to take this opportunity (at the conclusion of the relevant processes) to do so in this area.

31 January 2011
http://www.pcc.org.uk/news/index.html?article=NjkyNw

Press Complaints Commission defends itself against attack on it by Prime Minister
PCC response to the Prime Minister (8 July 2011)
PCC response to the Prime Minister
The Press Complaints Commission has noted the Prime Minister's statement today.

We welcome that there will be a fair and open, evidence-based inquiry. We are confident that such an inquiry will recognise the considerable successes of the Press Complaints Commission, to which the Prime Minister himself referred some weeks ago.
We do not accept that the scandal of phone hacking should claim, as a convenient scalp, the Press Complaints Commission. The work of the PCC, and of a press allowed to have freedom of expression, has been grossly undervalued today.
However, as the PCC has said consistently, it believes that the outcome of phone hacking should be a more independent PCC. It is confident that it is precisely what the Prime Minister's inquiry will also have to conclude. There should be fundamental reform of the system, as we have already recognised and called for. But the PCC can, in the final evaluation, play its part in this. It is already doing so, and this can inform the work of the inquiry.
Now, it is for the newspaper and magazine industry itself to make the case for their continued independence from Government.
Meanwhile, the dedicated staff of the PCC will continue to serve the public (a service that effectively helps thousands of people every year), and uphold the ethical standards enshrined in the Code of Practice.

8 July 2011
http://www.pcc.org.uk/news/index.html?article=NjkyNw

Press Complaints Commission Independent Governance Review and PCC Response to the Review
The PCC has come under increasing attack as an ineffectual form of industry self-regulatory body and has been declared as not fit for purpose by most commentators from the Prime Minister David Cameron downwards – the PCC has in the past proved remarkably successful at adapting itself for survival e.g. at time of death of Princess Diana when the regulation of the paparazzi was the dominant issue – here proposals to tighten and reform of the governance of the body may prove too late this time to save the PCC in its current form

Independent Governance Review
http://www.pcc.org.uk/assets/441/Independent_Governance_Review_Report.pdf

PCC Response to independent governance review
http://www.pcc.org.uk/assets/111/PCC_Response_to_Governance_Review_2010.pdf

June 2010

Privacy

Students revising the balance between privacy and freedom of expression between rights under Articles 8 & 10 of the European Convention of Human Rights 1950 may find a recent lecture, 28 April 2010, by Lord Neuberger MR 'Privacy and Freedom of Expression: A Delicate Balance', useful to read see:
www.judiciary.gov.uk/docs/speeches/mor-privacy-freedom-expression-28042010.pdf

Reporting Family Proceedings

There has been immense controversy in recent times over the question of access to and reporting of family proceedings, especially those involving children. This has been highlighted by pressure groups such as 'Fathers for Justice' and others. In the light of these concerns the Department of Constitutional Affairs has published a Consultation Paper -Improving Transparency and Privacy in Family Courts [CP 11/06 - the consultation period closes on 30 October 2006] - the paper can be downloaded by going to:
www.dca.gov.uk/consult/courttransparency1106/cp1106.htm

The former Labour Government had reacted by introducing a new regime in the Children, Schools and Families Act 2010 ss11-21 the provisions of which are set out in the 3rd edition of the statute  book – but these have been criticized as hasty and knee-jerk reactions and have been criticized by lawyers and people working in the family and child-care areas and it remains to be seen whether the new Conservative/Liberal Coalition Government formed in May 2010 will activate the provisions.

Information Tribunal

Appeals from the Information Commissioner in relation to decisions under the Data Protection Act 1998 & Freedom of Information Act 2000 can be found at:
www.informationtribunal.gov.uk/

Defamation – Cost Control

Somewhat ironically, given that the tort action for defamation was considered only something for the rich given the large costs involved, the media are now complaining that the costs are too oppressive; particularly given that the Conditional Fee Agreements (popularly but misleadingly referred to as ‘no-win, no-fee’ agreements) can be used by both rich and poor alike - and that the effect is that the risk of these costs is having a chilling effect on them – those acting for claimants argue that what they are really irritated about is the ‘equality of arms’ it gives claimants of more moderate means. Various solutions are being propounded including tighter controls on the so-called ‘success fee’ or ‘uplift fee’ that can be charged by the solicitors acting for the claimant and more extensive use of cost-capping orders.
The Ministry of Justice issued a consultation document on the issue and is now considering its response.

‘Controlling costs in defamation proceedings’ –
www.justice.gov.uk/consultations/controlling-costs-in-defamation-proceedings.htm

Broadcasting – Public Sector Broadcasting Requirements

The main terrestrial channels (BBC, ITV, Channel 4, & Channel 5) have certain public sector broadcasting requirements imposed on them – with the BBC having the most obligations and Channel 5 the least. With increasing competition from digital non PSBR channels and the effects of economic recession increasing demands are being made either to limit or remove PSBR requirements or allocate some of the licence fee currently being paid exclusively to the BBC to other channels, e.g Channel 4, and to support the loss-making ITV regional news operation. Under s264 CA 2003 the OFT publishes regular assessments of how the PSBR requirements are being met – see Third Report:
www.ofcom.org.uk/consumer/2009/07/psb-report/

The Department of Culture Media & Sport have also published a consultation on the launching and funding of independent local news consortia – see ‘Sustainable independent & impartial news; in the Nations, locally and in the regions’ (June 2009)
www.culture.gov.uk/images/consultations/cons_sustainableindependentnews.pdf

Broadcasting – Free-To-Air Events Review

One of the most controversial issues in broadcasting over recent decades has been the fact that more and more live sporting events are only available on a pay-per-view or subscription channel basis. Ss97-104 Broadcasting Act 1996 and Article 3j Audiovisual Media Services Directive require or at least permit free to air broadcasting of certain major national or international events such as the Olympics or FIFA Soccer World Cup. The Government periodically reviews the list but this time is carrying out a major consultation on whether the list system which exists in the UK should continue, be amended, or abolished. See ‘Free-to-air Events Review (April 2009):
www.culture.gov.uk/freetoair/Consultation/introduction.html

Broadcasting – Implementation Of Audiovisual Media Services Directive

The UK Government needs to implement the new AVMDS Directive by December 9th 2009 – the Government has issued a statement about how they intend to proceed
www.culture.gov.uk/reference_library/minister_speeches/5932.aspx

OFCOM will be responsible for regulating the newly regulated video-on-demand services but it is expected they will do this in a co-regulatory process, with bodies such as the Advertising Standards Authority being the primary body of complaint with OFCOM having back-stop powers if self-regulation fails. OFCOM have now done this under s368B Communications Act 2003 by designating the Association for Television on Demand (ATVOD) to carry out certain of the regulatory functions in relation to on-demand television services with OFCOM having back-up powers if service providers ignore the decision or directions of ATVOD.  The Government have responded to massive industry pressure and permitted a limited degree of product placement to take place on UK regulated programmes. 

Reporting Family Proceedings – Access to the Media

The controversial question of permitting more openness in the reporting of family proceedings – particularly those involving children – is being done in a gradualist manner. In April 2009 rules were made to permit accredited press representatives to attend hearings at all levels. See Family Proceedings (Amendment) (No 2) Rules 2009 & The Family Proceedings Courts (Miscellaneous Amendment) Rules 2009.
www.justice.gov.uk/consultations/controlling-costs-in-defamation-proceedings.htm

However reports have been received of patchy enforcement – ushers refusing reporters admission etc.
See ‘Media rules cause chaos in family courts’ Afu Hirsch, The Guardian 26 July 2009 –
www.guardian.co.uk/uk/2009/jul/26/media-rules-chaos-family-courts

Further discussions took place in 2008 and 2009 to generally overhaul the patchwork quilt of separate proceedings and provide a more coherent and open framework while protecting the interests of the parties.

See Government’s general approach in ‘Family Justice in View’ (Dec 2008) CP(R) 10/07, Cm 7502.
www.justice.gov.uk/consultations/docs/family-justice-in-view.pdf

This has resulted in Part II of the Children, Schools and Families Act 2010 ss11-21 which provide a new regime for the reporting of family proceedings – the provisions have yet to be activated.

Defamation Law Reform

A sustained campaign has been conducted in the media over the last couple of years about the adverse effect the law of defamation is allegedly having on the media in relation to the heavy costs involved following the introduction of the Conditional Fee Agreement system; the impact of so-called ‘libel tourism’ and the inadequacies of the ‘Reynolds’ qualified privilege defence.
The campaign has seemed to achieve a degree of success in a draft statutory instrument put before Parliament by the former Labour Government to limit the uplift in conditional fee agreements in defamation actions to 10%. However it was opposed and dropped before the General Election of May 2010 and it remains to be seen what the new Conservative/Liberal Coalition Government will do about the matter.

www.justice.gov.uk/consultations/docs/response-conditional-fees-consultation.pdf

Secondly a Libel Working Group set up in January 2010 has published a consultation document as the basis for a Libel Law Reform Bill (after the 2010 General Election).
www.justice.gov.uk/news/newsrelease230310b.htm

See also the Libel Working Group Report
www.justice.gov.uk/publications/libel-working-group-report.htm

In broad terms the main changes proposed are

1. a single publication rule – claimants must bring an action within a year of the original publication but with a power in the courts to extend the period where just and equitable

2. a review of the rules of civil procedure and conflict of laws to reduce the phenomenon of ‘libel tourism’

3. and the introduction of a statutory public interest defence in relation to defamatory publications

Further work is going on regarding the costs of defamation actions in relation to such matters as after-the-event insurance premiums etc.

Press Self-Regulation

The Press Complaints Commission has come in for considerable criticism in recent times with demands for a more effective system – possibly with an independent Ombudsman and more effective compensation for victims of breaches of the Code.

The role of Press Self-regulation has recently been considered by the Department of Media, Culture and Sport Select Committee particularly in light of the unedifying circus which has surrounded the disappearance of Madeline McCann and the attempts of her parents to trace her, as well as the allegations of systemic illegal interception of communications by the News of the World

See: Press Standards, Privacy and Libel (February 2010)
www.parliament.uk/parliamentary_committees/culture__media_and_sport/cms100224.cfm

The Report recommends that the PCC should be renamed the Press Complaints and Standards Commission, reflecting its role as a regulator, not just a complaints handling service, and that it should appoint a deputy director for standards. The regulator should have the power to fine its members where it believes that the departure from the Code of Practice is serious enough to warrant a financial penalty, including, in the most serious of cases, suspending the printing of the offending publication for one issue. The Committee concludes that there must be some incentive for newspapers to subscribe to the self-regulatory system. It recommends that the Government should consider whether proposals to reduce the cost burden in defamation cases should only be made available to those publications which provide the public with an alternative route of redress through their membership of the PCC.

Channel Four Public Sector Broadcasting Requirement

The Digital Economy Act 2010 sets out in more detail the PSBR requirement in relation to Channel 4 and allows the power for the PSBR requirement to be extended to Channel Four’s other digital channels – More Four, Film Four, and E4 and with accompanying powers of OFCOM to impose license conditions etc if they feel the remit is not being met.

See Digital Economy Act 2010 sections 22 & 23
http://www.opsi.gov.uk/acts/acts2010/ukpga_20100024_en_4#pb4-l1g22

Extreme Pornography and Indecent Images of Children in Scotland

The Criminal Justice and Licensing Scotland Bill 2010
www.scottish.parliament.uk/s3/bills/24-CrimJustLc/index.htm

Clauses 33 & 34 of the Bill provide for amendment of the law on the making of indecent images of children and the prohibition of extreme pornography.

Section 335A Communications Act 2003 and Article 3 Audiovisual Media Services Directive 2007/65/EC

OFCOM GUIDELINES FOR DEALING WITH REGULATORS OF OTHER EU MEMBER STATES IN RELATION TO UK-LICENSED CHANNELS

OFCOM has set out the guidelines that OFCOM will usually follow in dealing with media regulators from other Member States of the European Union when handling complaints about services which fall under UK jurisdiction but are primarily directed towards people in other Member States.

www.ofcom.org.uk/tv/ifi/Procedural_Guidelines.pdf