Lord Wakeham's legacy: failure to protect personal privacy

'Protection of privacy may be at the heart of the press code, but it is routinely disregarded'
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Some years ago I chaired a working party charged with designing the Press Complaints Commission. I was strongly influenced by what, at the time, had been an effective City regulator, the Takeover Panel. I persuaded my colleagues that we should advocate two aspects of the City arrangements. Judgement should be given by one's peers, that is by editors. And a code of practice should be devised by the industry itself, and regularly updated. These recommendations were accepted and have more or less endured.

Nowadays, I am not so sure. I felt uneasy when I read a speech on privacy which Lord Wakeham, the chairman, gave towards the end of last month. It turns out to have been a sort of last testament before he departed to try to remove the stain of Enron from his reputation.

Referring to the industry's code of practice, Lord Wakeham argued what I once wholeheartedly believed: "Editors do take notice of it – and do judge potential stories against the benchmarks set by it. The reason for that is that the code is drafted by editors themselves, for editors. Criticism of an editor by the Press Complaints Commission for breaching it – which has to be published in full in his or her newspaper – is a serious professional matter: it is tantamount to saying to the newspaper's readers that the editor broke his or her own rules and has therefore been censured by his or her own professional body. Editors do therefore think twice before breaching the Code."

Actually, in one respect, they don't think twice, not when it comes to invasion of privacy. Lord Wakeham said that the industry's code places the protection of personal privacy at its heart: "everyone is entitled to respect for his or her private life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent."

Jolly good. Yet just have a look at Friday's newspapers, though any day will do. You will find pictures of Chelsea Clinton, the daughter of the former American president, going out and about with her boyfriend at Oxford. Girl student meets boy student, holds hands etc. I have no idea whether Miss Clinton or her friend minded or not. She at least is used to it. And because the worship of celebrity is so pervasive, perhaps the couple relished the exposure. The text accompanying the pictures was perfectly innocuous. One might conclude that the story was harmless. But unless express consent was given, it was also an exact example of invasion of privacy.

While protection of privacy may be, as Lord Wakeham says, at the heart of the press code, it is routinely disregarded. The cause is not hard to find. Invasion of privacy sells newspapers. It satisfies our desire to share vicariously the lives of famous people; it feeds our intense curiosity about what is happening behind closed doors; it allows us to cluck censoriously when bad behaviour is revealed. It is one of the reasons why many people buy newspapers. I confess to enjoying the Chelsea Clinton pictures because they had a fresh charm about them.

Nonetheless, I am convinced that protection of privacy requires better policing than the Press Complaints Commission can provide. I would add privacy to the laws which newspaper editors must take into account, along with libel, contempt of court, official secrets and so on. To refute this notion was the main purpose of Lord Wakeham's speech.

His first objection is that any privacy law would be inaccessible to the vast majority of ordinary members of the public. Laws of this sort, says Lord Wakeham, are designed only for those "with money to stake on an uncertain outcome in the courts". Yet ombudsmen schemes show that ordinary people can be provided with an effective system of complaint handling without expense even though they could – theoretically – go to law. With a privacy law on the statute book, the Press Complaints Commission could still go on providing its free service. Why on earth not? Indeed it would, I believe, have gained in authority if it had a legal back-stop.

Lord Wakeham's second objection is that a privacy law would be "misused by individuals who would prefer – usually for the wrong reason – that a newspaper did not give them the scrutiny which they were due. Injunctions would be deployed against newspapers undertaking legitimate investigative journalism. Costly actions would deter newspapers from scrutinising the lives of the very rich and the very powerful.

I don't deny the force of these arguments. How could I, seeing that they could be made with equal relevance in relation to the law of libel? Gagging writs and high expense are the familiar results of criticising people in power. But the operation of the law of libel has recently been improved from the point of view of newspapers. A strong public interest defence can be written into any privacy law. The national press, too, is tough and strong. It could live with a sensibly drafted statutory protection of privacy.