When 'sorry' just isn't enough

The Radio 1 DJ Sara Cox is using the Human Rights Act to sue the Sunday People. Is this the beginning of the end for the Press Complaints Commission?
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Normally, when a newspaper prints an apology that is the end of the matter. Containing fulsome expressions of sorrow for distress caused, won't be repeated, blah, blah, the box that appears, usually at the bottom of the "nibs" column (news in brief) is the culmination of days, sometimes weeks and months, of fractious phone calls between lawyers.

Occasionally, the apology will appear more prominently, "above the fold", in the top half of the page, a sign that the paper concerned is well and truly in the mire. Very rarely, the sincere regrets will be on a right-hand page, the most important space, visually, in a paper and not given up by any editor without a struggle. And even more rarely, they will be printed above the fold on pages 1 or 3 – proof that the person upset is very important indeed, and the paper really did mess up.

So it was with Sara Cox, the Radio 1 Breakfast Show presenter, and the Sunday People. "Coxy", as she is known to her seven million listeners, is a good-time Northern lass who likes a laugh with the lads. But her smile vanished earlier this month when she was told the People had published nude pictures of her and her husband, Jon Carter, the DJ, on honeymoon in the Seychelles.

The following week, a chastened People printed a three-paragraph apology above the fold on page 3, acknowledging that Ms Cox and her husband were "deeply upset" by the photographs, which "should not have been published" and caused them "unhappiness and distress". End of story?

Not at all. Ms Cox is suing the People and the paparazzi agent concerned, Jason Fraser, under the Human Rights Act. She joins other high-profile figures, including Naomi Campbell, the model, who have sought redress by this route, through the British courts, rather than by the traditional one of seeking a ruling from the Press Complaints Commission. It is a new development: the Human Rights Act came into force only 12 months ago, and so far, none of the cases has been heard. But it is causing alarm at the PCC, the industry's self regulator, and in the offices of tabloid editors and showbusiness magazines.

If successful, Ms Cox and the others could call into question the whole raison d'être of the PCC, a body widely criticised for its lack of teeth in the face of devious paparazzi and avaricious editors anxious for increased sales. The Cox case will be a key test. She is being advised by Keith Schilling, a leading media lawyer, who believes the time-honoured voluntary system needs shaking up. "The PCC needs to be more proactive and better disposed towards the people complaining than they are at present. The fact the PCC comprises people from the papers themselves does not inspire confidence," said Mr Schilling.

Far better, said Mr Schilling, that a court of law can be told the full tawdry facts of what lengths the photographer went to in order to secure the snaps, and a judge can decide the appropriate penalty.

In Ms Cox's case, she was holidaying on a private island comprising villas which could only be rented for a minimum five nights' stay. The photographer is understood to have booked a villa, at a cost of £1,500 per night for five nights, and taken the pictures from a vantage-point overlooking Ms Cox's swimming-pool. There is no question of the photographs having been snapped from a public place, as the People apparently claimed, because the island is accessible only to people staying in the villas – and besides, said Mr Schilling, that is not the point: "The issue is not, are the pictures taken from a public place, but is someone entitled to a reasonable expectation of privacy?"

There is also the sense, in talking to Melanie Coupland, Ms Cox's agent, that the Radio 1 presenter is not just doing this for herself and Mr Carter, but for celebrities everywhere, fed up with Mr Fraser and his tactics. "We feel an apology which is not from him allows him to get away scot-free," said Ms Coupland. "We decided he'll get away with it, unless we take a stand."

The PCC is quick to dispel the notion this is a slippery slope or that its days are numbered, pointing out that legal actions are invariably more time-consuming, potentially expensive in terms of costs and that the actual award imposed may not be so great. Behind the scenes, noises from the Government when the statute came in suggested the level of likely damages would be similar to those handed down by the European Court of Human Rights – £10,000-£15,000. This is disputed by Mr Schilling, who says there is nothing in the act linking it with tariffs in European cases. He expects, as a minimum, to be able to pursue Mr Fraser's profits from the sale of the photographs to the People for first UK use.

What is especially galling to the PCC about the Cox case is that her agent originally complained to them and the apology, which they thought had resolved the matter, was not enough. "I'm very surprised if Ms Cox is taking legal action, because the resolution of the complaint was settled to her satisfaction," said Guy Black, director of the PCC. "The wording and the placing of the apology with her photograph above the fold on page 3 were all confirmed to us as being to her satisfaction, and the complaint was resolved on that basis."

The People, too, must have hoped that Ms Cox was pacified. A People spokesman said the paper could not comment on a legal claim from Ms Cox because it had received no notification of an action from her. "We will respond to any official complaint or legal action from her through the usual channels, as and when it is appropriate to do so," said the spokesman.

Mr Black stressed that the PCC has "never asked anyone to waive their legal rights when making a complaint," he said. It was always open to Ms Cox to sue, which, indeed, her lawyer made clear to the People all along she was minded to do.

There is no doubting, though, that her decision is an embarrassment for the PCC, and a slap in the face for self-regulation. Mr Black disputes that the threat of a hefty bill for costs, plus the possibility of damages for newspapers, makes the Commission's arsenal of a printed adjudication appear timid and meaningless. Ms Cox, said Mr Black, will not receive legal aid, her case will take some time to reach court, she may not win and, besides, the bulk of the PCC's intray does not come from rich celebrities, but from ordinary people who cannot afford to bring a legal action.

Nobody bringing a PCC complaint, said Mr Black, is prevented from going on to start a libel action. If they do, they leave themselves open to the possible public mud-slinging of a court case and the chance of ignominious defeat. As Mr Black said, doubtless Jonathan Aitken, who complained to the PCC originally, then raised his "sword of truth" in the libel court, only to see it crumple as his perjury was exposed, wishes he had stayed with the PCC. But somehow, Cox's pictures are different. Her decision is a blow to the PCC and, unlike Mr Aitken, the camera does not lie.