'The rottwiler lawyers will have a field day

Tim Hardy looks at how the new broadcasters' code on privacy has been received. Tim Hardy is a specialist in press and broadcasting complaints at Cameron McKenna.

The Broadcasting Standards Commission (BSC) – formerly the Broadcasting Complaints Commission – published its first code on fairness and privacy for broadcasters on 24 November.

The code is a welcome development. Previously, complainants had little to guide them regarding the commission's attitude to these issues, but at a time when the media are trying to shore up the existing regulatory regime and avoid a statutory privacy law, it spells out the basic principles to be observed in order to avoid unwarranted infringement of privacy.

The Independent Television Committee (ITC) and some current affairs journalists have attacked the code, complaining that it will make investigative journalism more difficult.

Steve Boulton, editor of World in Action, is reported to have remarked: “The rottweiler lawyers will have a field day.”

This reaction is predictable because the code is more restrictive than the ITC's code for independent broadcasters. There is also resentment that the ITC code is, in turn, more restrictive than the Press Complaints Commission's (PCC) code.

The new code is based on the existing codes of the BBC, the ITC and the Radio Authority, and it has, by and large, selected the best aspects of each code.

The section, “Dealing Fairly with Contributors”, spells out contributors' rights far more comprehensively than the ITC code and it recognises that rights should be afforded to “contributors” to the programme, not just to the “interviewees”.

It also makes it clear that those who are to be criticised should be given details of any arguments and evidence so that they have a fair opportunity to respond.

This greatly strengthens the contributors' ability to demand information about the programme in advance so they have the opportunity to prepare answers to any criticisms.

The most topical aspects of the code are the provisions concerning privacy and secret filming. Even before the tragic events of August, respondents to a BSC survey expressed their belief that programme makers were willing to flaunt accepted rules of conduct in relation to privacy in order to make programmes. In a poll in the Daily Mail in November, 91 per cent of the public said they supported the idea of a privacy law.

Against this background the BSC's chairman, Lady Howe, when launching the code, commented that the death of Diana, Princess of Wales, had highlighted the dilemma of balancing the right to privacy against the right to know, and had resulted in demands for even tighter controls on the media.

The pressure for tighter controls was reflected in the drafting of the code.

The first draft had provided that an infringement of privacy could be justified only by an “overriding” public interest but, following a number of submissions from broadcasters, “overriding” was deleted to bring it in line with the less onerous “important public interest” test in the ITC code.

Journalists are imaginative when it comes to justifying infringements, but even the PCC code requires that an infringement must be in the overriding public interest.

It is therefore not surprising that, following wider lobbying, “overriding” was reinstated. The ITC was disappointed because it will need to amend its code further to bring it in line with the BSC code.

In another important development at the launch of the code, Lady Howe said she believed that the PCC would be adopting similar provisions. She commented that “there is considerable virtue in the two branches of the media setting similar standards”.

The indications are that this will result in a raising of the standards required by the PCC and not a lowering of the BSC's standards, particularly if the PCC takes the Lord Chancellor's hints, made during the committee stages of the Human Rights Bill, that the PCC should set up a fund to compensate victims of press intrusion.

Lord Irvine told the House of Lords last week that self-regulation of the press needed to be “beefed up” if it was to deter the courts from intervening to secure compliance with the conflicting rights of privacy and freedom of expression required by the European Convention on Human Rights.