Self-regulation of the press can be made to work

Almost any day of the week, one can see that the code of practice relating to privacy is regularly breached

So a select committee of the House of Commons is going to hold an inquiry into privacy and media intrusion. This is primarily aimed at national newspapers. It will take place in February and March in the aftermath of Cheriegate. Tessa Jowell, the Secretary of State for Culture, Media and Sport, is expected to give evidence to the committee, which is chaired by Gerald Kaufman.

I hope this exercise won't be like a flea landing on the back of an elephant, unnoticed as the great beast crashes on through the jungle, uprooting trees and trampling on smaller creatures. The press is so powerful nowadays that its behaviour needs to be regularly examined. In truth, the press is at once brilliant and awful.

Of course, there is no prior restraint on the press in this country, nor should there ever be, for that is censorship, pure and simple. Instead newspapers work to a rule summed up by a phrase attributed to the Duke of Wellington: "Publish and be damned." What this means is that editors may do what they like, take whatever risks they have the stomach for, having first assessed whether they are likely to be contravening the laws of the land. Among these are contempt of court, official secrets and libel.

It is important to notice, however, that any person and any institution may find itself in trouble under these same acts, for they are not expressly press laws. One can publish a libel, for instance, in a circular sent by a company to its shareholders.

Thus when the select committee states that it would be interested to receive views on the case for specific legislation on the protection of privacy, I assume that it has in mind a law of general application, albeit one to which the media would have to pay attention. My first test would be to make sure it is not a press law. Would any organisation other than a newspaper or broadcaster be caught? Yes, one can conceive of examples, if for instance, in a hard-fought parliamentary contest a candidate revealed irrelevant details about the private life of a rival.

Broadly speaking, the courts treat newspapers harshly. Judges generally reject claims that either publication of the offending item or protection of sources is in the public interest. In my time as editor of The Independent, to give an example, it proved impossible to prevent the police seizing newspaper photographers' unpublished film of violent events, though we argued in court, correctly, that photographers' lives would be endangered if they were believed to be, in effect, police informers. This, then, would be my second test. Could a statute be drafted in a way that made a public interest defence a reasonable prospect?

The law, however, isn't the only protection available to those who fear being trampled on by the elephant, although what is left is pretty flimsy. Newspapers are proud of their system of self-regulation with the Press Complaints Commission at its centre. I should be, too, as I was part of the process that designed the original model. But now I see its faults.

Any day of the week, by opening a newspaper, one can see that the commission's code of practice relating to privacy and harassment is regularly breached. The reason is that, as if to compensate for strict treatment by the courts, the public-interest defence written into the newspaper code is too liberally interpreted. Why this is so requires a Marxist interpretation. For the fact is that the stories that result from invasion of privacy and "intimidation, harassment or persistent pursuit" are the very ones that best sell newspapers, or at least some of them. And in turn, to secure their economic interest, newspaper editors and executives have penetrated the inner workings of the commission.

The result is that although a majority of the 16 members of the commission have no connection with the press, this does not ensure, as the commission claims, that it is independent of the newspaper industry. Regulatory bodies are often captured by the industries they seek to regulate, even when the lay involvement appears dominant and, to take a harder case, even when they are established on a statutory basis. So well known is this process that a considerable academic literature describes it. The Press Complaints Commission is a good example.

Thus one is driven to contemplate statutory protection of privacy, with its likely disadvantages, only because self-regulatory protection is, in the event, so weak. And this is why a second question asked by the select committee becomes pertinent: what is the case for a statutory press ombudsman in place of the Press Complaints Commission?

I have some experience of this as chairman of the Financial Ombudsman Service. My board comprises a mixture of lay and industry members. But we are forbidden by the act of Parliament under which we are established to have anything to do with live cases. This is the exclusive work of the Chief Ombudsman and his staff. The board's task is to make sure that consumers are provided with an efficient service.

This model is much less susceptible to industry capture. If the Press Complaints Commission were transformed in this way, there would be absolutely no need for a privacy act.