Judge calls for libel and privacy reform

PCC should be abolished in favour of statutory regulator with power to fine

A senior Court of Appeal judge yesterday called for a tough new independent regulator for newspapers and claimed that the law of libel  “over-protects personal reputation at the expense of free speech”.

Giving a lecture at Oxford University, Lord Justice Sedley was critical of self-regulation under the Press Complaints Commission. He acknowledged that the PCC Code of Conduct set “admirable principles”, but suggested that “the more aggressive of its subscribers seem to have very little difficulty in circumventing”.

As an alternative, the Judge suggested a statutory regulator with power to fine newspapers for libel and breaches of privacy. Under such a model, the courts would be left to award modest damages proportionate to the harm suffered. Sir Stephen thought that such a system would end high libel awards. However, “if the reduced expense of defaming people is not simply to become part of the operating costs of aggressive journalism”, he suggested there had to be, “some form of statutory regulation, and regulation with rules, legal standards and teeth”. 

The Judge recognised the importance of investigative journalism, which, he urged, any new regulator should be under a duty to protect. However, in a clear attack on the Court of Appeal decision in the privacy case involving Gary Flitcroft, he said that genuine investigative journalism was “not about who a footballer has been sleeping with but about whether public figures have been on the take; not about a model trying to shake off a drug habit but about drug dealers getting police protection”. 

In the Flitcroft case, the Court of Appeal had refused an injunction on the basis that the footballer was a role model. Speaking yesterday, Sir Stephen said “one has to wonder what our moral custodians imagine goes on in young people’s minds”. He questioned whether the case would have been decided the same way now following the Princess Caroline decision of the European Court of Human Rights. 

The Judge argued that the law did not adequately protect personal privacy, particularly relating to sexual activity, and that this would be better protected by a new regulatory regime than by the courts. He claimed that an additional benefit of a regulator would be the end of no-win, no-fee agreements.

Under the Judge’s proposed scheme, a complainant would refer the case to the regulator, which would then investigate the case at its own expense. Any fine imposed would go to public funds.