20 August 2001 – The Sun has lost its appeal against the decision of County Court judge Roger Cox to permit former police station clerk Esther Thomas to sue the paper under the 1997 Protection from Harassment Act (see PressWise Bulletin No 40 for details). Counsel for The Sun, Desmond Browne QC, had argued – as we argued ourselves – that the Human Rights Act would have been a more appropriate measure under which to consider the complaint. But Lord Phillips, Master of the Rolls, ruled that human rights legislation could be overridden by domestic law designed to protect individuals. Ms Thomas could therefore proceed with her £50,000 claim for damages.

Thus, by publishing a series of ill-considered articles calculated to appeal to some of its readers’ baser instincts, The Sun has opened the door for judicial interference in press freedom by use of an Act which Parliament intended to be used for a very different purpose. The paper’s contention that the publication of articles (there must be more than one) could not constitute harassment did not hold water. Nor should it, but that is beside the point. There will now be an opportunity for those far less worthy than Ms Thomas to use the Act as a threat to prevent exposure of their misdeeds in the public interest.

There are already sufficient legal restraints on the press in the UK. Some might say more than sufficient. The libel laws, the Official Secrets Act, the laws on confidentiality and data protection, to name but a few, all impose significant restrictions on the sort of investigative reporting which is vital to a functioning democracy. The one thing that these laws have in common is that they serve to protect the interests of government and the wealthy rather than the common citizen. True, they sometimes backfire – witness the Aitken and Archer libel cases, and the farce of the Shayler and Spycatcher actions – but the overall effect is chilling.

What is needed is some form of press regulatory body which can enforce ethical standards and protect the innocent from harassment without involving the draconian attentions of the judiciary. Such a system works reasonably well for radio and television (which often share ownership interests with newspapers) but the opportunity to extend it to the press has been totally shirked by the government in its upcoming Communications Bill.

At present the only remote possibility of averting the hazards of the Protection from Harassment Act would be total reform of the Press Complaints Commission, freeing it from the perceived domination of newspaper proprietors and giving it meaningful powers of investigation and compensation. Dream on.

A Royal Commission on the Media is also long overdue, but there is no sign that the government would be willing to appoint such a body. Failing this, PressWise urges the establishment of an Independent Commission to consider the vexed questions of regulation, cross-media ownership, the concentration of provincial newspaper ownership, and journalistic training. Anyone willing to help fund such an initiative is urged to contact us as soon as possible.

Bill Norris
Associate Director

(Bulletin No 47)