Conclusion
An essential function of any regulatory system - particularly a self- regulatory system - is to provide to the industry being regulated, as well as to the public, adjudications clarifying the precise scope and meaning of the provisions of the relevant code of conduct.
That is precisely what the Younger Report asked for 40 years ago. Although the Code of Practice adopted by the Press Complaints Commission included a clause on privacy, adjudications interpreting and applying it have provided little guidance as to precisely what standards are expected of journalists and editors. The Commission’s decisions are frequently only summary in analysis, thus failing to provide insight into the bases for them. Furthermore, that analysis which the adjudications do feature often missed the most obvious points, and hence obscured the issues that should have been dispositive.The quality of output of adjudications cannot encourage anyone to conclude that the industry’s ‘last opportunity’ (the euphemism of Mr David Mellor QC, repeated ever since) to make self-regulation work, especially self-regulation superintended by a Royal Charter, has been grasped with that degree of effectiveness which would allay disquiet about the lack of press responsibility. Indeed, Calcutt Mark II stated that ‘the press has demonstrated that it is itself unwilling to put in place a regulatory system which commands [respect], not only of the press... but also of the public, and which fairly holds the balance between them’. Sir David Calcutt QC made no analysis of the Press Complaints Commission’s case law on clause 4; yet he saw ‘no realistic possibility of that [unwillingness] being changed by voluntary action’. Was he perceptive in that regard? It is an open question whether the freedom of the press is intact. Time will tell.
It is tolerably clear that there may be some private law remedy for the infringement of privacy, and we will have the benefit of case law from the courts.
While the proposal is being translated into legislative action, and some statutory guidelines given to the crucial issue of the public interest defence, the industry and the public will look to the new regulator under the superintendence of the Royal Charter (or some like body) for guidance and assistance in a delicate area of social policy - the more so if the Government withdraws from its move towards a law on privacy. The basic notion of what is ‘private’ and the breadth of public interest defence will have more impact on privacy jurisprudence than any other sub-issue. Editors and journalists, as well as the public, must be provided with meaningful guidelines about precisely what is in the public interest, lest it be concluded that any determination of what is permissibly publishable on grounds of newsworthiness is left to the self-servingThe Jurisprudence of Privacy 275 interests of the press. It is a prime function of a regulatory body that it should delineate the boundary between freedom of expression and reasonable journalism.