Freedom of the Press:
Freedom from the Press*

Sir David Calcutt, QC

As the Parliamentary Summer Recess once again approaches, it is perhaps appropriate
that we should be considering the balance which has yet to be effectively struck between
the freedom of the press, and freedom from the press - that is, the freedom of the
press to investigate and to inform the public about matters oflegitimate public interest;
and the freedom ofthe individual to be protected from public exposure, by the press,
of private matters, but in which the public has no legitimate interest.

After all, it is now over five years since the Government called for - and called
for as a matter of urgency - a Report on the measures needed (whether legislative
or otherwise) to give further protection to individual privacy from the activiti~s of
the press.

It is now over four years since the Government accepted, in principle, the
recommendations of the Committee on Privacy and Related Matters that a package
of changes (including some legislative changes) was needed, and accepted the
recommendation that this must positively be "the last chance" for the press to get
its act together, failing which statutory support would be inevitable.

It is now over two years since the Government asked me to review - and to review
urgently - the new arrangements which the press had put in place for self-regulation,
and to say whether, in my view, those arrangements should now be modified or put
on a statutory basis.

It is now over 18 months since the Government expressly accepted, in terms, my
conclusion that the Press Complaints Commission was not an effective regulator of
the press.

It is now over 15 months since the National Heritage Select Committee published
its Report recommending statutory support for the voluntary regulation of the press.

It is now over 12 months since the Secretary of State for National Heritage assured
Parliament that the Government envisaged a White Paper setting out the Government's
final views on press self-regulation, and said that the Government would do its best
to ensure that its response to the Select Committee's Report would be published before

* The Child & Co. Lecture 1994.



THE DENNING LAW JOURNAL

the Summer Recess - by which, I had assumed, he meant the Recess of 1993.
But, to date, no White Paper, still less any Government legislative initiative, has

yet been forthcoming.
My purpose in addressing you today is not simply to repeat what the Privacy

Committee said in its Report, nor what I said in my Review (though I will summarise
it); but rather to take stock of all initiatives, to see where we are - or rather, where
we have so far failed to be - and to see where things may go - or may fail to go
- from here.
The background is familiar enough. With increased concentrations of media

ownership, with decreasing overall newspaper circulation figures, and with cover-
price wars becoming increasingly intense, the temptation to go for the simply prurient
story, in pursuit of increased sales, often regardless of who may get hurt, becomes
increasingly difficult to resist.

Go back five years, if you will, to the 1988-89 Session of Parliament. In that Session
there had been widespread support for two Members' Bills, one relating to the
protection of privacy, the other to a right of reply. One had been introduced by Mr
John Browne, the other by Mr Tony Worthington. Each Bill had been given a Second
Reading. Each had completed its Committee stage in the House of Commons. Neither
of these proposals was new. Similar Bills had been introduced in the previous
parliamentary session by Mr William Cash, and by Miss Ann Clwyd. And these Bills
had themselves each been based on earlier Bills.

Public concern, in 1989, was temporarily assuaged by the familiar device of setting
up a Committee to recommend what should be done.

The Committee's terms of reference are now worth repeating. They were:

"In the light of the recent public concern about intrusion into the private lives
of individuals by certain sections of the press, to consider what measures (whether
legislative or otherwise) are needed to give further protection to individual privacy
from the activities of the press, and to improve recourse against the press for
the individual citizen . . ."

Considering, for one moment, those terms of reference, the focus of attention was
to be on the press; it did not extend to the whole of the media. This limitation had
its advantages; it also had its obvious disadvantages.

Secondly, the Inquiry was to focus particularly on those measures needed to provide
adequate protection to an individual's privacy: it was not principally 'concerned with
such other protection as might be needed.

Thirdly, the Government itself expressly contemplated that legislation might be
needed.

It was made plain from the outset that the Committee's Report was required urgently.
Parliament had been told that it was intended that the Committee should report within
one year; and Ministers on several occasions had spoken publicly of the need for
a speedy report.

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FREEDOM OF THE PRESS: FREEDOM FROM THE PRESS

The Committee received a great deal of evidence. A number of witnesses, particularly
those from the press, provided the Committee with detailed analyses of press practice,
and of the wide constraints already placed on them. By contrast, a number of people
whose privacy had been the subject of intrusion by the press, often in distressing
circumstances, sent the Committee detailed dossiers of their experiences.

Many witnesses argued strongly for press freedom to investigate wrong doing.
By contrast, many members of the public wrote to us advocating restrictions on the
press. These ranged from the outright prohibition of particular activities, to various
forms of recompense, and to a variety of punishments for editors and journalists.

The Report of the Committee was completed almost within the year, and published
in June 1990. It was unanimous.

The Report recognised the balance which needed to be· struck between freedom
of expression and an individual's right to privacy. The Committee took the view that
freedom of expression was fundamental in a democratic society, but concluded that
this could not be at the expense of other important rights, including an individual's
right to privacy.

The Committee made a number of recommendations. They were intended to form
part of one overall balanced package. The principal parts of that package can be
summarised in this way.

First, any new means of redress would need to be carefully targeted, and should
not range more widely than was needed to meet existing gaps in protection.

Secondly, any new wide-ranging statutory civil rights, aimed at the protection of
infringement of privacy, although practicable, would not then - as part of the balanced
package - have been appropriate.

Thirdly, the most blatant forms of physical intrusion - pratices involving' 'door-
stepping", bugging, and the use oflong-range cameras - should, subject to appropriate
defences, be outlawed.

Fourthly, the existing statutory restrictions on reporting should be strengthened,
so as to provide added protection for children and the victims of sexual offences.

FiftWy, the press's own arrangements for voluntary self-regulation should be revised
and strengthened by setting up a new Press Complaints Commission (as detailed in
the Report), to replace the old Press Council.

Lastly, if the Press failed to demonstrate that non-statutory self-regulation could
be made to work effectively, then the new regulatory arrangements would have to
be given statutory support; and the form which that support would need to take was
spelt out plainly and in considerable detail.

In the light of what has happened, it is important to see what was said, in June
1990, when the Report (Cm. 1102) was published, both by the Government and by
the Opposition.

The then Home Secretary (Mr David Waddington, as he then was) said that the
Government warmly welcomed the general approach which the Committee had taken
on the delicate issue of balancing privacy for the individual against the maintenance
of freedom of expression. He said that the Government was attracted by those

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THE DENNING LAW JOURNAL

recommendations which offered the possibility of an immediate remedy against the
worst excesses of the Press.

He said that this was positively "the last chance" for the industry to establish an
effective non-statutory system of regulation. If a non-statutory commission were
established, the Government, he said, would review its performance after 18 months
of operation, to determine whether a statutory underpinning was required.

If no steps were taken to set up such a commission, the Government, he said, albeit
with some regret, would proceed to establish a statutory framework, taking account
of the Committee's recommendations.

Mr Waddington supported this by an article in The Times the following day. He
said that he considered the Committee's recommendations offered a genuine
opportunity to restore the responsible exercise of press freedom to all our newspapers.
But if, after a trial period, they did not, the Government he said, would not flinch
from introducing statutory regulation of the press.

This was, then, emphatically to be "the last chance" for the press to put its own
house in order. If that failed, the Government had made it perfectly plain that statutory
support would be needed. No suggestion was then made that such statutory support
would give rise to any constitutional difficulties.

Mr Roy Hattersley, speaking for the Opposition, gave an unqualified welcome to
the Report's positive proposals. He drew attention to the Home Secretary's own express
belief that newspapers would respond'to this one "Last chance"; but he said that
he (Mr Hattersley) had his doubts; and that was why the second recommendation
- the introduction of statutory regulation by an official body - was absolutely essential
if the "year of grace" was ignored and if the press did not mend its ways.

So, the Opposition, too, took the view that this was to be the "Last chance"; and
that if it failed, statutory regulation would follow; and, again, no constitutional anxieties
were raised.

But, following publication of the Committee's Report, the Government itself has
so far failed to initiate any of the recommended measures which required legislation.

The press, did, however, abolish the old Press Council, and set up, in its place,
a new Press Complaints Commission. But the new Commission, as set up by the
Press, differed significantly from the Commission which the Privacy Committee had
had in mind, the details of which had been fully spelt out in the Report. The principal
differences were these.

First, the members of the Commission were to be appointed, not by a body which
was itself independent of the press (as the Report had recommended), but, in effect,
by a body which was the creature of the newspaper industry.
Secondly, the Report had recommended that the Commission should not act as an
overtly campaigning body for press freedom; but there were signs that the Commission
was once again asserting, as the old Press Council had done, a positive role for the
Commission in defending press freedom.

Thirdly, the Commission operated a Code of Practice produced and monitored,
not by the Commission (as the Report had recommended), but by the industry.

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FREEDOM OF THE PRESS: FREEDOM FROM THE PRESS

Fourthly, the industry's Code of Practice reduced, in several significant respects,
the protection which the Privacy Committee had proposed for individuals: it failed
to hold the balance fairly between the industry and the individual.

Fifthly, the industry's Code of Practice widened the concept of "Public interest' , ,
thereby significantly reducing the level of protection which ought to have been provided
for individuals. .

Sixthly, the Commission was generally unwilling to operate a "Hot-line" to prevent
anticipated breaches of the Code, as the old Press Council had proposed, and as the
Committee had recommended.

Finally, the Commission was then unwiJIing itself to initiate inquiries, as the old
Press Council had done and as the Committee had also recommended.

The new Commission began work on 1January 1991. This meant that the I8-month
period - the time when the Government had promised a review of the Commission's
performance to determine whether statutory underpinning was required - expired
in July 1992.

It so happened that the end of this 18-month period coincided with the serialisation
in the press of Andrew Morton's book, Diana: Her Own True Story and this itself
gave rise to a good deal of further public concern about the behaviour of the press.

The Government invited me to undertake the Review of the performance of the
Press Complaints Commission. My Terms of Reference are again worth repeating.
They were:

"To assess the effectiveness of non-statutory self-regulation by the press since
the establishment of the Press Complaints Commission and to give my vie~s
on whether the present arrangements for self-regulation should now be modified
or put on a statutory basis; and to consider whether any further measures might
be needed with intrusions into personal privacy by the press."

The thrust of the Review was thus different from that of the earlier Report. The
thrust of the Report had been to consider what measures were necessary to give further
protection to individual privacy. The thrust of the Review was to assess the effectiveness
of the new self-regulatory arrangements.

The terms of reference of the Review plainly contemplated the possibility that the
voluntary arrangements might need to be put on a statutory basis.

There was no suggestion that, if a statutory basis were needed, any constitutional
difficulties would be likely to arise.

It seemed to me that, in conducting the Review, I was entitled to take, as my starting
point, the Report of the Privacy Committee (including the recommended statutory
support which would be needed if the proposed new self-regulatory arrangements
proved to be ineffective). After all, that Report, as I have already pointed out, had
been unanimous; it had been accepted, in principle, both by the Government and
by the Opposition; and the Government was well aware of my views about the fall-

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THE DENNING LAW JOURNAL

back statutory support which would be needed, and yet had chosen to come back
to me to undertake the Review.

I do not trouble you with the detail of the review. The main conclusions which
I reached, on the effectiveness of press self-regulation, were these.

First, the new Press Complaints Commission was not an effective regulator of the
Press.

Secondly, it had not been set up in a way, and was not operating a Code of Practice,
which enabled it to command not only press - but also public - confidence.

Thirdly, it did not, in my view, hold the balance fairly between the press and the
individual.

Fourthly, it was not, in my view, the truly independent body which it should have
been.

Finally, as constituted, it was, in essence, a body set up by the industry, and operating
a Code of Practice devised by the industry and which was over-favourable to the
industry.

It was with regret that I had to reach these conclusions, and, having considered
(and rejected) the possibility of modification, I recommended that the Government
should put press regulation on the statutory basis detailed in the Report of the Privacy
Committee.

I also recommended that the criminal offences relating to physical intrusion and
covert surveillance, which had been proposed by the Privacy Committee, should be
enacted. I also recommended that the Government should give further consideration
to the introduction of a new tort of infringement of privacy.

On 14 January 1993 the Government published my Review. The Secretary of State
for National Heritage (Mr Peter Brooke) said in Parliament that the Government
accepted the case I had made for new criminal offences to deal with specified types
of physical intrusion and covert surveillance; but the case I made was essentially
no different in this respect from the recommendations which the Committee had made
some 18 months earlier, but which the Government had thus far disregarded.

The Government also accepted my recommendations that further consideration
should be given to introduction of a new tort of infringement of privacy.

More significantly, the Government also agreed with me that the Press Complaints
Commission, as then constituted, was not an effective regulator of the Press, that
it was not truly independent, and that its procedures were deficient.

My recommendation that the Government should not put press regulation on a
statutory basis raised, so Mr Brooke said, separate and more difficult issues which
needed to be carefully weighed. The Government, he said, was conscious that action
to make such a body statutory would be a step of some constitutional significance,
departing from the traditional approach to press regulation in the United Kingdom;
and that in the light of those considerations, the Government, he said, would be
extremely reluctant to pursue that route. That reasoning, I have to say, and in the
light of what had gone before, and which I have just outlined, struck me as curious.
Why should such statutory support be so significant a constitutional step that the

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FREEDOM OF THE PRESS: FREEDOM FROM THE PRESS

Government should be reluctant to introduce it? Neither Mr Waddington nor Mr
Hattersley appeared to have taken that view in 1990.

The answer must surely depend on the likely effect of the proposed statutory support.
If, of course, the likely effect would be to result in censorship and gagging of the
press, and to prevent responsible investigative journalism so as to shield the wicked
from exposure, that would indeed be a step of some constitutional significance. But
if the change simply makes effective, by providing adequate sanctions, that which
is presently ineffective, where is the "significant constitutional step"? And what is
its vice?

If the concept of press regulation is accepted by the press, as it surely must be
(the press having set up the Press Complaints Commission), then it must surely follow
that it is effective regulation that is accepted. Or is the press only prepared to accept
press regulations so long as that regulation is ineffective? That would be a cynical
view indeed. But, as the editor of one of our broadsheets once put it: "The people
who own and run our popular press are driven by commercial imperatives that brook
no interference."

The statutory support which the Privacy Committee proposed in the event of the
failure of the Press Complaints Commission (and which I recommended in my Review)
was designed to make, and would have the likely effect of making, a positive
contribution to the development of the highest standards of journalism. It would have
enabled the press to operate freely and responsibly. It would have given it the backing
which was needed, in a fiercely competitive market, to resist the wildest excesses.

The Committee's recommendations were designed to ensure, and would have the
likely effect of ensuring, that privacy, which all agreed should be respected, was
protected from unjustifiable intrusion, and protected by a body in which the public
- as well as the press - had confidence.

So much, then, for a summary of the position of the Report of the Committee and
of my Review.

My Review was, in fact, only one of several initiatives which were then being
undertaken in respect of the press. I should now say something of the other initiatives,
so that the two Government-sponsored Inquiries can be seen in a wider context.

Mr Clive Soley introduced a Bill entitled Freedom and Responsibility of the Press.
That Bill proposed the establishment of a body, to be known as the Independent Press
Authority, which would seek the presentation of news, by papers and periodicals,
with due accuracy. The Authority's proposed powers would have included the power
to determine questions of factual inaccuracy, and the power to order an editor or
publisher to publish a correction in the manner specified.

Mr Soley's Bill was given a Second Reading by a large majority. It had completed
its Committee Stage, but it was nevertheless' 'talked out" at its Report Stage in March
1993, and so effectively became dead. Although Mr Soley's concern and proposals
were different from mine, his proposals - like mine - envisaged statutory support
in the field of press regulation. He proposed a legally enforceable right to correction,
and a statutory complaints authority to enforce that right.

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There was another intiative which was being pursued at the same time. In October
1992 the National Heritage Select Committee had announced that it would conduct
an Inquiry into Privacy and Media Intrusion. Its primary concern was to be with
the privacy of private citizens, rather than public figures. That Committee took evidence
during the Winter of 1992-93. Its Report was published in March 1993.

The Select Committee expressly reached the significant conclusion (which I had
also reached) that the Press Complaints Commission, as then constituted, was not
an effective regulator of the press. The Committee recommended that a statutory
press complaints tribunal should not be established (as I had recommended), but rather
that there should be appointed an ombudsman with statutory powers to oversee the
regulation of the media. The Committee also recommended that certain types of
intrusion should be made "civil offences" and other types criminal offences.

Thus the Select Committee, though differing from me about the means,' was also
of the view that some form of statutory support was needed if press regulation were
to be effective.

It really goes a good deal further than that. Although the Select Committee disagreed
with my proposals and did so with some theatrical display, the Committee's proposals
do not differ very much, in their effect, from mine. A voluntary Press Commission,
which has the support of a statutory ombudsman vested with statutory powers and
sanctions, is a very different creature from a voluntary Commission which has no
such statutory support. And a Commission, so supported, is not essentially different,
in its effect, from a statutory Complaints Tribunal.

The Select Committee's proposals, if anything, went further than mine. The conduct
caught by their proposed criminal offences would have been wider; and the Committee
recommended the introduction of "civil offences".

On 10 June 1993 the Report of the Select Committee was debated in the House
of Commons. The Secetary of State for National Heritage said that Governments
should normally seek to respond to Select Committee Reports within 2 months, and
that he regretted that it had not been possible to do so on this occasion. He said that
the political range and importance of the Committee's recommendations made a
response within the normal time-table impossible. But he assured the House that the
Government would do its best to ensure that its response was published before the
Summer Recess. But, as I have already indicated, the 1993 Summer Recess came,
and went, without any response having been made.

There has been a further initiative which I should also mention. At the end of July
1993, the Lord Chancellor's Department in response to my recommendations,
published a Consultation Paper which sought views on a possible new civil remedy
for Infringement of Privacy. Perhaps we may look, for one moment, at what had
been going on in the courts and elsewhere.

In Kaye v. Robertson and another ([ 1991] F.S.R.62; The Times, 21 March 1990)
- the case of the well-known actor who was photographed and interviewed in his
hospital bed - the Court of Appeal, though granting relief on the ground of malicious
falsehood, denied any right at common law for the protection of individual privacy.

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FREEDOM OF THE PRESS: FREEDOM FROM THE PRESS

Leggatt, L.J., said this:

"We do not need a First Amendment to preserve the freedom of the press, but
the abuse of that freedom can be ensured only by the enforcement of a right
to privacy. This right has so long been disregarded here that it can be recognised
now only by the legislature. Especially since there is available in the United
States a wealth of experience of the enforcement of this right both at common
law and also under statute, it is to be hoped that the making good of this single
shortcoming in our law will not be long delayed."

In the later case concerning the photographs of the Duchess of York, with Mr John
Bryan, in August 1992, Latham J. had refused an injunction to prevent publication
of the photographs, on the ground that English law did not (as was well-known) protect
personal privacy.

Lord Lester of Herne Hill (House of Lords, 24 May 1994) has said that the courts
are still capable of developing common law remedies for wrongful infringement of
privacy, and that they should be allowed to do so. But, as against that, it has been
pointed out in the Consultation Paper that, even if this were possible, development
by common law is uncertain both as to timing and as to content; and that it should
be for Parliament to legislate on privacy, and not for the courts to create a new right.

In launching the Consultation Paper, the Lord Chancellor said this:

"The time has come to ensure that the law protects the privacy of everyone.
This is a matter which has been the subject of cross-party study for many years,
and I think it right to offer concrete proposals for reform. The way ahead now
is to provide a new remedy for individuals, with appropriate defences."

The Lord Chancellor's Consultation Paper suggested, in particular, five things.
First, that the right of privacy should now be recognised in law; secondly, that the
existing law offered only limited protection for privacy; thirdly, that there should
be a new civil remedy, allowing an individual to take a case to court if the infringement
caused substantial distress; fourthly, that privacy should cover a person's health,
personal communications and family and personal relationships; and finally, that the
defences of consent, lawful authority, absolute or qualified privilege and public interest
defence should, at the least, be available.

But the Consultation Paper makes it plain that legal aid would not be made available;
although "conditional fee arrangements" have been canvassed as a possible alternative,
this must be a significant shortcoming.

But, for my present purposes, it is again worth noting that the proposals made in
the Consultation Paper again envisaged a form of statutory support for at least part
of the ground covered by press regulation.

In the result, those outside the press who have recently had to consider this difficult
problem in any depth have all reached the conclusion that self-regulation, without
more is not enough, and that some form of statutory support is needed.

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Meanwhile, the Press Complaints Commission has, since January 1993, itself
pursued a number of initiatives. I should mention those which strike me as being
the most significant.

On 24 February 1993, it was reported in The Guardian that the Commission expected
to agree new measures designed to speed up the handling of complaints, and that
an increase in the Commission's budget was also likely to be agreed.

In May 1993, the Commission announced a series of measur:es designed to reinforce
public confidence in the authority of the Commission. Membership of the Commission
and of its Appointments Commission would be altered so as to meet a perceived
misconception regarding the Commission's independence. And the Commission -
not the industry - would take final responsibility for the Code of Practice.

In June 1993, the Committee launched a new "Help-Line" service. Its stated purpose
was to assist members of the public who were concerned that the Code of Practice
was likely to be breached in a press investigation relating to them. But the service
aimed to provide no more than information about the publication of the news agency
involved. It was a pale thing compared with the "Hot Line" which had been proposed
by the old Press Council, and recommended by the Privacy Committee.

In July 1993, the industry's Code of Practice was revised in a number of respects.
First, explicit responsibility was placed on editors for the actions of their journalists.
Secondly, specific provision was made about the use of long-lens photography to
take pictures of people on private property. Thirdly, the appropriate manner of reporting
of cases involving a sexual offence against a child was expanded and spelt out. Finally,
"Public interest" exceptions were given definition, and so narrowed.

In September 1993 the Commission made the anticipated changes in its membership.
In addition to the independent Chairman, the Commission, as newly constituted, was
to comprise eight non-press members and seven editors.

In January 1994, after the episode concerning the photographs of the Princess of
Wales in the gym, the Commission appointed one of its lay members, Professor Pinker,
to act as the Privacy Commissioner, giving him powers to investigate urgent complaints
about privacy, and to bring those complaints to the Commission for decision under
the Code of Practice.

Plainly the Code has now been strengthened, and now comes closer to the
recommendation of the Privacy Committee. But why, one may ask, was this not done
in the first place? And, even so, has enough been done? And can the industry now
deliver effective regulation? Even the present arrangements fall short of the
recommendations of the Privacy Committee.

Where stands the press itself in all of this? In matters affecting press regulation,
the press tends to speak with one voice. In whatever way the press may present it,
self-regulation appears to be the limit to which the press itself is prepared to go; and
initiatives suggested by others which contemplate a modest degree of statutory support
receive a uniformly hostile press reception, often bordering on paranoia. The press,
as the messenger, is not usually at its most detached and objective when it comes
to reporting stories critical of the press and of its own statutory arrangements.

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FREEDOM OF THE PRESS: FREEDOM FROM THE PRESS

The fragility of the present arrangements was dramatically highlighted by the events
surrounding the publication, in November 1993, by the Sunday Mirror (and then
by the Daily Mirror) of the photographs taken of the Princess of Wales in the gym.

So far as the Sunday photographs were concerned, the Chairman of the Press
Complaints commission condemned - on the Sunday - their publication, as a breach
of the industry's Code of Practice, and said that he expected the Mirror Group of
Newsapers to avoid any further publication of the photographs.

But on the following day - the Monday - the Daily Mirror repeated publication
of the gym photographs, and described the Press Complaints Commission as a body
which existed "to protect the liars amongst our disreputable rivals".

It was not so much the publication of the Sunday photographs that was significant,
but rather the contempt shown for the Commission on the following day.

Peace, at least outwardly, was restored later that week, but only after an apology
had been made by the Mirror Group, and, more remarkably, after the Chairman of
the Commission had withdrawn remarks made by him.

If that is the way in which a significant player is prepared to treat publicly its own
regulatory body, what hope is there for effective self-regulation? As the Secretary
of State was reported to have said at the time, the Press Complaints Commission
must make a "quantum leap" if self-regulation was to survive.

Finally, and more importantly, where now stands the Government in all of this?
I have so far taken the Parliamentary story up to the debate which took place in June
1993.

During the Autumn of 1993 there were many reports of impending Government
activity, but, again, nothing happened. And the Criminal Justice and Public Order
Bill contained no relevant clauses.

In February 1994, it was reported in The Independent (14 February) that a
comprehensive White Paper on press regulation would be published in March, but
that Ministers had yet to agree on introducing a new civil law of privacy. It was said,
however, that the Cabinet Committee on Home Affairs had given clearance to the
Secretary of State to proceed with his long-awaited White Paper on the Press.

One of the more entertaining episodes in the press's campaign to maintain self-
regulation, was the production, in February 1994, by the combined efforts of the
Association of British Editors, the Guild of Editors, and the International Press Institute,
of a paper called Media Freedom and Media Regulation. Produced, no doubt, in the
expectation that the Government was indeed about to produce its long-awaited White
Paper, the press, by describing its paper as "an Alternative White Paper", at least
demonstrated that the press assumed that the Government was unlikely to propose
what the press itself would have wished. As it is, we now have an "Alternative White
Paper", but no original "White Paper".

In March 1994 it was reported in the press (The Times, 12 March) that the Prime
Minister had ordered a re-think on long-awaited Government plans to tighten regulation
of the press, and that a White Paper, due to be published in March, had been torn
up amid signs that the effort to lessen press intrusion had run into serious difficulties.

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In April 1994 it was reported (The Daily Telegraph, 9 April) that the Prime Minister
had intervened to give the press' 'One last chance" to introduce effective self-regulation
over invasions of privacy. The report was in these terms. "After months of wrangling
in Whitehall over the content of a Government White Paper on privacy, Mr Major
has decided that there should be a final review period in which newspapers can
demonstrate a willingness to make self-regulation work. However, later this Spring,
Ministers still intend to publish a long-awaited privacy White Paper containing
proposals for legislation. A draft Privacy Bill, accompanying it, is intended to act
as a "Sword of Damocles" hanging over the media. Mr Major has decided to hold
the Bill in reserve - to be introduced only if it becomes evident that the media have
spurned the final opportunity to address growing concern over gross invasions of
privacy. "

No-one would suggest that the issues involved are anything other than complex
- which is presumably one reason, at least, why the Government set up an Inquiry
in the first place. No-one can quarrel with a desire, on the part of the Government,
to get it right. But, assuming the report is accurate, "a final review period", "a
final opportunity", and another "one last chance" all sound distinctly ominous: we
have been there before.

But why should there be such inordinate delay? There may sometimes be good
sense in some delay; but undue delay may raise wider questions about political will
and determination.

As Mr Gerald Kaufman, who was the Chairman of the National Heritage Select
Committee, said at the end of the debate in Pariament on 10 June 1993 "If no action
is taken, the press will slide backwards in the belief that it has got through its crisis
and that it is now all clear for it to return to some of the deeply objectionable ways
from which, we hope, it is beginning to emerge."

But that was now said over a year ago. It is for this reason that it now becomes
important to consider the Government response made in a debate in the House of
Lords in May.

On 24 May, Lord Ackner, in Committee, moved an amendment to the Criminal
Justice and Public Order Bill to insert a new clause directed to breaches of privacy
with intent to obtain and publish information (as proposed by the Privacy Committee).

Earl Ferrers, speaking on behalf of the Government, said this.

"There is now doubt that the behaviour of certain sections of the press, intruding
into personal lives of both celebrities and ordinary members ofthe public, has,
on occasion, been nothing less than deplorable. . . When any suggestion is made
that there should be legislation to curtail such activities, there is a pathetic cry
of 'Don't touch the press'. If there is to be freedom of the press - and there
should be - it is a privilege which carries a two-way responsibility.

In any proposal for legislation which attempts to balance two rights, there
are inevitably problems of principle and of definition which have to be resolved.
It is essential that any proposals in this field should find the right balance between,

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FREEDOM OF THE PRESS: FREEDOM FROM THE PRESS

on the one hand, the application of criminal and civil law , and, on the other
hand, the freedom of the press and the rights of others, notably the right to privacy.

Any legal formulation in this difficult and sensitive area must be defined as
clearly and unambiguously as possible if we are to ensure that it catches
unacceptable intrusions but that it allows legitimate investigative work to continue.

I shall not conceal from the Committee that we have found it very difficult
to reconcile those conflicting claims and to ensure the necessary precision in
any legislative proposal.

The various efforts which have been made in the past to control the excesses
of the press behaviour are only too well known.

The Committee is aware of how much time has passed and the fact that the
Government have not yet made up their mind on these important questions. But
I can assure the Committee that the Government have not been idle.

It has become plain to us that the issues involved are very complex and sensitive,
but they need to be considered as a whole in order to ensure that the balance
is properly struck."

So far, then, so good. But there then followed an indication that the whole matter
would one day - but not yet - be thrown back into the public arena. The Minister
said this.

"With an issue of such importance, it is essential that we get things right and
that any proposal should be the subject of fully informed and national consideration
. . . We propose to issue a White Paper on the whole subject of press intrusion
into privacy. In addition to dealing with the questions of self-regulation and a
new civil tort, the White Paper will also consider in some detail the various
questions, both of practice and of principle, to which any extension of the criminal
law in this area would give rise. This will give Parliament and the public an
opportunity for us to take a wider and fuller view."

The Minister had given no indication when the White Paper would be published.
Lord Ackner asked for this information; but the response was not encouraging.

The Minister said that the White Paper would be produced when it was ready,
but that it was unlikely to be immediate, because the Government had yet to make
up its mind. But if the Government does not make up its mind, what will happen?

Lord Renton enquired about the true nature of the Government's intended paper.
Was it truly to be a White Paper (as the Minister had described it), which, as Lord
Renton put it, was' 'rather conclusive and usually a prelude to legislation"? Or was
it, in truth, what is commonly spoken of as a "Green Paper" - i.e. a consultative
paper?

The Minister replied in these terms.

"It is clear to say my noble friend Lord Renton and the Committee that the
Government have not yet made up their mind and are considering the position.
the object of a White Paper is to enable the Government to say 'There are our

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THE DENNING LAW JOURNAL

thoughts', and find out what is the reaction of the public. That will be the purpose
of the White Paper. "

In saying this, the Minister was simply confirming what he had said earlier.
But ifthe Government's purpose is to engage in national and public consideration, in

what are acknowledged to be very complex and sensitive issues, was there any real
point in setting up the Privacy Committee in the first place? And who is likely to
guide national and public consideration, if it be not the press? But if there is to be
such consideration, why should there also be the delay?

The real issue, I suspect, may be a very different one. It is this. Does the Government
really have the political will and dertemination to do what it judges needs to be done?
Fu rther delay, followed - one day - by a paper which perhaps offers another" last
chance", and which invites public consideration, followed possibly by yet another
"Last chance", may only serve to foster at least the thought that, notwithstanding
all the recommendations which have been made, there is, in fact, no political will
to do anything about it at all.

As the 1994 Summer Recess approaches, with still no Government repsonse, so
too - and perhaps you may say "thankfully" - does the Long Vacation; and I leave
all these thoughts to you for your peaceful vacation contemplation.

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