Privacy and Injunctions - Evidence - Parliament

Sir Christopher Meyer, Martin Moore, Julian Petley, and John Kampfner—Oral evidence
(QQ 404–444)
they read in them, whereas we know that they believe and trust, rightly or wrongly, what
they hear on the radio and the television.
Martin Moore: One ought to differentiate between the law and regulation. While
necessarily they must interrelate, I think they are different. To come back to the question
about how you create a system in the 21st century when you have people who can dodge
outside and everything else, I do not hold to Mr Dacre’s view, and, by the sound of it, your
view on compulsion. I do not think that is desirable or practical, because people can
circumvent it more and more easily.
Rather than that, one has to think about how to create a system which people
volunteer to be a part of. The way to do that is to incentivise rather strongly. To
incentivise it, the two big levers are legal and financial: for example, “Come inside the tent
because you will benefit from significantly greater privileges when it comes to defamation
and privacy than if you are outside; come inside the tent because you might get differential
VAT exemption, analyses by the Audit Bureau of Circulations, and so on; come inside the
tent because it is in your self-interest to do so. Once you are inside the tent, you adhere to
the rules within it. If you do not, you can go outside into the cold, and beware of that.” In
that way you will get people opting in to the system rather than necessarily grappling with it.
The three nightmare questions you have to solve if you are trying to compel
people are: who will be in the system; if you are not inside the system, what
sanctions are there for being outside; and what are you compelling people to join
up to? Those are extremely hard to answer.
Q423 George Eustice: Mr Moore, do you have a view on the public interest test,
the argument about reportage and the law applying equally to all? I understood that the
defence was that, if it is in the public domain anyway, and the PCC code even contains that,
it is fair game. Is that your understanding?
Martin Moore: I am sorry; I do not understand. Will you repeat the question?
Q424 George Eustice: As to public interest, under the PCC code one of the
criteria is whether it is in the public domain anyway, so they can, therefore, say, “It is in the
public domain anyway, so we can report it.”
Martin Moore: There is a difficulty about the gaming of the system. As we heard in
the last session, there appears to be evidence—I have heard it elsewhere—to suggest that
when there are difficult items because of legal reasons, they are put out through other
avenues. It is very difficult to stop that, and in many ways one cannot stop it through the
law—hence an incentivised regulatory system.
There is a separate issue in the code. On the public interest test in the PCC code,
there is public interest in freedom of expression itself. To me, that is a very difficult line,
because essentially it is a get-out clause for almost anything. One can say there is a public
interest in private life, which I think there is as well. You will notice that clause does not
exist. As I understand the evidence submitted by a previous member of Ofcom to the
Leveson Inquiry, when Ofcom was debating its definition of public interest it looked at that
line and said, “We just cannot use that line because it is an escape clause for almost
anything.”
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