Taiwan[202]

3.21 Prior to 1988 when all the major constraints on press freedom were removed by the Chinese Nationalist Government, the news media in Taiwan was under Government control. Journalists were treated as if they were Government officials. In 1963, the Newspaper Society of Taipei facilitated the formation of the Taipei Press Council which was the first self-regulatory body in Taiwan. Eight years later, the Press Council was replaced by the Taipei News Council which was formed to deal with complaints about the press, television broadcast, radio broadcast and news agencies. The News Council had power to initiate its own enquiries as to whether a media organisation was in breach of the council’s Codes of Ethics. In order to ensure that its adjudications were impartial, its constitution provided that neither Government officials nor incumbent journalists could be a member of the Council. In 1974, the Taipei News Council was expanded into a news council for the whole of Taiwan. Its membership includes bodies representing the interests of journalists, newspaper editors, the newspaper industry and the broadcast industry. The Council has ratified three Codes of Ethics for the press, television broadcast and radio broadcast.[203] Chen Gui-lan and others observe that the council is not effective in regulating the conduct of the Taiwan news media for the following reasons:[204]

a) The Council does not have authority to impose sanctions on an offending member, nor is an offending member obliged to comply with its rulings. Some newspapers have ignored the rulings or refused to publish the adjudications with prominence.

b) Although the members of the Council were not incumbent journalists, most of them have close connections with the news media. Further, since all the funds of the Council were contributed by the news media, the Council is more concerned with resolving a dispute by mediation rather than ensuring strict compliance with the relevant Code. It therefore fails to impose an effective check on the news media.

c) Since the Council lacks funds and professional staff, it does not have the resources to carry out long-term and in-depth investigation, analysis and comparative study.

3.22 Since 1988, the news media have developed vigorously and enjoy a wide degree of freedom which was unknown during the period when martial rule was in place. Although the News Council is no longer representative of the industry, the draft Covenant on Journalistic Ethics issued by the Taiwan Journalists’ Association in 1995 confirms that journalists should respect the right of privacy of news subjects unless a public interest is at stake.

United Kingdom[205]

Press Complaints Commission

3.23 General Council of the Press - The first Royal Commission on the Press was appointed in 1947 amidst public and parliamentary concern at the deterioration in the quality of the press and fears of a monopolistic tendency. It concluded that the press was insufficiently critical of itself as an institution. In the absence of a body overseeing the well-being of the whole industry, it was difficult to maintain standards of integrity and responsibility. The Commission therefore recommended that the press should set up a General Council of the Press consisting of at least 25 members representing proprietors, editors, and other journalists, and having lay members amounting to about 20 per cent of the total, including the chairman. It considered that it was for the profession itself to pass judgment on the conduct of the press. It envisaged that the adjudications of the General Council would have the force of rulings by the General Medical Council or the Law Society. After the profession was threatened with a Private Member’s Bill to set up a statutory Press Council, a General Council of the Press was established by the industry in 1953. However, all the members were drawn from the press and its chairman was the then proprietor of The Times. Out of the 25 members, 15 were editorial members (including 7 journalists members) and 10 were managerial representatives. The Council did not have any enforcement powers.

3.24 Press Council - The second Royal Commission on the Press was set up in 1961 to examine the economic and financial factors affecting the production and sale of newspapers and periodicals in the UK. The Commission criticised the General Council for its unsatisfactory constitution. It gave the press another opportunity to establish an authoritative press council with a lay element, failing which a statutory body should be set up. As a result, the General Council of the Press was replaced by the Press Council in 1963. The new Press Council had a lay chairman, 20 members nominated by the press industry and 5 lay members. The first chairman was Lord Devlin, a retired Lord Justice. A person who was aggrieved by any action of the press could complain to the Press Council. The Press Council published the Declaration of Principle on Privacy in 1976.[206] The objects of the Press Council included the following:

a) to preserve the freedom of the press;
b) to maintain the character of the press in accordance with the highest professional and commercial standards;
c) to consider complaints about the conduct of the press;
d) to deal with these complaints in whatever manner might seem practical and appropriate; and
e) to keep under review developments likely to restrict the supply of information of public interest and importance.

3.25 The Younger Report - The Younger Committee on Privacy examined the Council’s performance on privacy in 1972. The Committee stated that it did not see “how the Council can expect to command public confidence in its ability to take account of the reactions of the public, unless it has at least an equal membership of persons who are qualified to speak for the public at large.”[207] It therefore recommended that the Council should alter its constitution so that one half of the membership was drawn from the public, and that the Council should nominate for each public member vacancy a selection of names from which the appointee should be chosen. It further recommended that the Council should establish an independent appointments commission which would be so composed that there could be no reasonable doubt about its independence of the press, its varied experience of public life, and its standing with the general public. Subsequently, the Council increased its lay membership from 5 to 10, but it also increased total membership from 21 to 31, thus ensuring that lay members remained in a minority. The Council’s general adjudication on privacy was codified but it remained opposed to the publication of a formal code of practice.

3.26 Although one of the objects of the Press Council was to maintain the character of the press “in accordance with the highest professional and commercial standards”, the third Royal Commission criticised it for placing greater emphasis on preserving press freedom than maintaining the highest ethical standards. The predominantly professional membership of the Council also tended to be satisfied with less than rigorous standards. Although its adjudications constituted a body of case law, it was not always clear on what basis they were made. There were no standards against which the public could judge the performance of the press. The third Royal Commission therefore recommended that the Council should:

a) obtain undertakings from newspapers that they would publish upheld complaints on their front page;
b) initiate more complaints itself, especially by way of monitoring and publicising the record of persistent offenders;
c) support an effective right of reply;
d) produce a code of conduct for journalists; and
e) supply detailed reasons for its decisions.

3.27 In response to the criticism that the Press Council failed to command public confidence in its ability to take account of the reactions of the public, the Press Council adjusted its membership to give parity between lay and professional members with a lay chairman. The lay members were appointed by an Appointments Commission which was comprised of members selected by the Press Council. The Council could not require publication of an apology or payment of compensation. Where it upheld a complaint, the only remedy available to the complainant was the publication of the adjudication in the offending newspaper, subject to the co-operation of the newspaper. It did not insist on front page publication of its adjudications, nor produce a code of conduct. Later it became clear that the Declaration of Principle on Privacy were routinely ignored. There were also instances where the offending newspapers refused to publish the adjudications with any prominence.

3.28 The Calcutt Report - During the 1988/89 session, two Private Members’ Bills on Protection of Privacy and Right of Reply were introduced. Both Bills completed their committee stages in the House of Commons but the progress was halted when the Government established the Calcutt Committee to consider what measures were needed to give further protection to individual privacy from the activities of the press. The Calcutt Report on Privacy and Related Matters[208] noted that the Press Council was not regarded as independent, partly because of its financial dependence on newspaper and magazine publishers. It considered that there was an inherent conflict between its roles as a defender of press freedom and as an impartial adjudicator in disputes.[209] There was insufficient interdependence between the responsibility of defending press freedom and that of considering press complaints to make it necessary for the same body to have to undertake both. It therefore recommended that the Press Council be replaced by a Press Complaints Commission (PCC), specifically charged with adjudicating on complaints of press malpractice. As the PCC must be seen to be authoritative, independent and impartial, all appointments to the Commission were to be made by an Appointments Commission which was independent of the industry. The Report also suggested that the PCC should have an independent chairman and no more than 12 members. In order to attract the support and confidence of the industry, a significant proportion of those responsible for adjudications should have experience of the industry.

3.29 The Calcutt Report recommended that the PCC should have the following features:

a) The PCC must have jurisdiction over the press as a whole, must be adequately funded and must provide a means of seeking to prevent publication of intrusive material.

b) The PCC should publish, monitor and implement a comprehensive code of practice for the guidance of the press and the public.

c) PCC adjudications should, in certain cases, include a recommendation that an apology be given to the complainant.

d) Where a complaint concerns a newspaper’s refusal to give an opportunity to reply to an attack made on a complainant or to correct an inaccuracy, the PCC should be able to recommend the nature and form of reply or correction including, in appropriate cases, where in the paper it should be published.

e) The PCC should have clear conciliation and adjudication procedures designed to ensure that complaints are handled with the minimum delay.

f) It should have a specific responsibility and procedure for initiating inquiries whenever it thought it necessary.

3.30 The Calcutt Report made it clear that should the press fail to set up and support the PCC or should it become clear that the self-regulatory mechanism was failing to perform adequately, the PCC should be replaced by a statutory tribunal with statutory powers and a statutory code of practice.

3.31 Press Complaints Commission - Subsequent to the Calcutt Report, a Press Complaints Commission was established by the newspaper industry in 1991. The first chairman was Lord McGregor, who had chaired the third Royal Commission on the Press. It was hoped that an independent chairman would ensure that the decisions were arrived at with impartiality. The Commission had 6 lay members and 9 press members. All members were appointed by the industry. Press freedom was not the concern of the Commission. Its object was to enforce a code of practice by adjudicating complaints that newspapers had infringed the code. Robertson and Nicol suggested on the basis of the following observations that the PCC would not live up to the expectations of the Calcutt Committee:[210]

a) The rulings of the PCC were not backed by sanctions. Although the adjudications were published in a bulletin, the Commission did not have the power to require a censured editor to publish its censure. Nor was it concerned that its adjudications were published with prominence. It therefore failed to deter breaches of the code.

b) The PCC failed to resolve the problem of maverick newspapers which continued to publish sensational stories in disregard of adverse adjudications. Without any effective sanctions, there were bound to be newspapers not respecting their adjudications.

c) The PCC operated a code of practice produced and monitored, not by the Commission itself, but by the press industry.

d) The PCC was reluctant to undertake the responsibility of monitoring compliance with its code. It would not act unless and until a member of the public lodged a complaint against the offending newspaper.

e) The PCC was not bound to give the complainant a hearing. Complainants might feel that they had not been given a fair hearing if their complaints were not upheld.

f) The members of the PCC were appointed, not by a body which was itself independent of the press, but by a body which was the creature of the industry. Since the majority of the members were from the press, the PCC was perceived to be dominated by press interests.

g) There was no appeal procedure to which unsuccessful complainants could resort.

3.32 The Calcutt Review - In 1992, the United Kingdom Government invited Sir David Calcutt QC to conduct an assessment of the effectiveness of press self-regulation. The Calcutt Review concluded that press self-regulation under the PCC had not been effective.[211] The Commission failed to command the confidence of the press and the public. It did not hold the balance fairly between the press and the individual. It was not the truly independent body which it should have been. In essence, the Commission was “a body set up by the industry, financed by the industry, dominated by the industry, operating a code of practice devised by the industry and which is over-favourable to the industry.”[212] The Calcutt Review stated that the following changes had to be made to rectify the situation:

a) An independent person of high standing would need to be invited, by agreement between the Government and the industry, to appoint an Appointments Commission.
b) That person would need to appoint an independent Appointments Commission.
c) The independent Appointments Commission would need to appoint the PCC.
d) The remit of the PCC would need to make it plain that the Commission has no function positively to promote press freedom.
e) The code of practice would need to be drawn up by the Commission itself.

3.33 Statutory press complaints tribunal - The Calcutt Review recommended that a statutory press complaints tribunal on the model of that described in the Calcutt Report be set up. The tribunal should be accessible to those of limited means and its procedures should be as simple and as speedy as possible. It should have the following functions and powers:[213]

3.34 The Calcutt Review further recommended that the chairman of the tribunal should be a judge or senior lawyer. He should sit with two assessors drawn from a panel which might be appointed by the responsible departmental minister. It would be desirable for at least one of the assessors at each adjudication to have experience of the press at senior level.

3.35 In its White Paper on Privacy and Media Intrusion, the UK Government rejected the idea of setting up a statutory complaints tribunal or a statutory Press Ombudsman on the grounds that the imposition of statutory controls might open the way for regulating content, thereby laying the Government open to charges of press censorship. The Government also thought that it would not be right in this field to delegate decisions about when a statutory remedy should be granted to a regulator such as a tribunal.[216] Eric Barendt comments that the Conservative Government was reluctant to impose statutory controls because it did not want to antagonise the press whose support had been crucial to its chances at a general election.[217]

3.36 Existing Press Complaints Commission - At present, the PCC consists of 9 Public Members (including the Chairman) and 7 Press Members. All of them are appointed by an Appointments Commission which has 5 members.[218] Although the Chairman of the PCC is appointed by the industry, he must not be engaged in or, otherwise than by his office as Chairman, connected with or interested in the business of publishing newspapers, periodicals or magazines. The present Chairman is Lord Wakeham, former Secretary of State for Energy, and Lord Privy Seal and Leader of the House of Lords.

3.37 The Appointments Commission has a lay majority. This is to ensure that appointments of Public Members are made by a body that is not dominated by the industry. The chairman of the Appointments Commission is the Chairman of the PCC. The other members are the Chairman of the Press Standards Board of Finance (Pressbof) and three other independent persons nominated by the Chairman of the PCC. They are Lord Mayhew of Twysden, QC (former Attorney General and Secretary of State for Northern Ireland); Sir Geoffrey Holland (Vice-Chancellor of Exeter University); and David Clementi (Deputy Governor of the Bank of England).

3.38 None of the Public Members can be engaged in or, otherwise than by their membership of the Commission, connected with or interested in the business of publishing newspapers, periodicals or magazines. One of the Public Members has also been appointed as the Privacy Commissioner with powers to investigate urgent complaints about privacy and bring them to the Commission for decision. The Public Members include a dental surgeon, a solicitor, former Permanent Secretary of the Home Office, a professor of social administration, the chairman of the Mental Health Act Commission, the chairman of Edinburgh Festival Fringe, the Principal Deputy Chairman of Committees in the House of Lords, and a bishop. Press Members must be persons experienced at senior editorial level in the press. They are expected to bring editorial experience and technical expertise to the work of the Commission.

3.39 There is evidence that the newspaper and magazine publishing industry is committed to self-regulation under the supervision of the PCC. For the first eight years of the PCC, every critical adjudication by the Commission has been printed in full and with due prominence. Although the Code of Practice was written by a committee of editors, it has been ratified by the PCC. The PCC reports that adherence to the industry’s Code of Practice[219] has been written into the contracts of employment of the vast majority of editors in the UK, and into the contracts of a significant number of journalists as well. This provides the “teeth” of self-regulation that is otherwise lacking in a voluntary mechanism run by a press council. Besides, all the adjudications of the Commission are published in a quarterly bulletin which is distributed to all editors, members of Parliament, and other interested parties. The PCC also plays a role in the training of trainee journalists. Moreover, since many newspapers and magazines now provide an on-line version on the Internet, the industry agreed in 1997 that the Code of Practice and the PCC’s jurisdiction apply to both publications in a printed form, and publications on the Internet which originated from the publishers who already subscribe to the Code. The existing PCC is therefore different from the PCC at the time when Sir David Calcutt QC conducted the review in 1992.

3.40 The PCC is funded by the Press Standards Board of Finance (Pressbof) which is an independent body charged with collecting a fee from the entire newspaper and magazine publishing industry. The cost of running the PCC in 1996 and 1997 was £1,320,000 and £1,170,000 respectively. This arrangement ensures that the PCC has secure and adequate funding, while the independence of the Commission is at the same time guaranteed by a majority of lay members. Moreover, the publishers have donated space in their newspapers or magazines for advertisements about the work of the PCC. The willingness of the industry to provide financial support has been seen as a sign of its commitment to effective self-regulation.

Broadcasting Standards Commission

3.41 Although this chapter is on press self-regulation, we wish to add a few paragraphs on the Broadcasting Act 1996 which has effected certain changes to the regulatory framework for the broadcast media in the UK.

3.42 The Broadcasting Act 1996 establishes a Broadcasting Standards Commission (BSC) which constitutes a merger of the former Broadcasting Complaints Commission and the Broadcasting Standards Council set up under the Broadcasting Act 1990.[220] The Commission consists of not more than 15 members appointed by the Government. Persons who appear to be concerned with, or to have an interest in the preparation or provision of programmes for broadcasting are disqualified from being appointed as a member.[221] Members must not have such financial or other interest as is likely to affect prejudicially the discharge of their functions as members of the Commission.

3.43 The BSC is under a duty to draw up and keep under review a code for the guidance of broadcasters on practices to be followed in connection with, inter alia, (a) unwarranted infringement of privacy in programmes broadcast by the British Broadcasting Corporation or included in a licensed service; and (b) unwarranted infringement of privacy in connection with the obtaining of material included in such programmes.[222] All broadcasters in Britain are required to “reflect the general effect” of this code.

3.44 The BSC has to consider and adjudicate complaints relating to unwarranted infringement of privacy in, or in connection with the obtaining of material included in, the programmes.[223] There is no appeal against the adjudications but its findings are subject to judicial review. In R v Broadcasting Complaints Commission, ex parte BBC,[224] it was held that the Broadcasting Complaints Commission had jurisdiction to hear complaints about infringement of privacy, regardless of whether the material was subsequently included in the programme actually broadcast.

3.45 Only a person who is affected by the unwarranted infringement of privacy is entitled to make a complaint. If that person has died, a complaint may be made by his personal representative, relative or a person closely connected with him.[225] Where a complaint is upheld, the BSC may give directions requiring a broadcaster to publish a summary of the complaint and the BSC’s findings “in such manner, and within such period, as may be specified in the directions”. The broadcaster may be required to publish the finding in the press as well as on the air. It is obliged to comply with the Commission’s directions and report on any action taken by it in consequence of the findings.[226] The BSC will publish periodic reports containing, as regards every complaint, (a) a summary of the complaint, and where appropriate, (b) a summary of their findings and directions given by them, and (c) a summary of any action taken by a broadcaster.[227]

3.46 We note with interest that the Press Complaints Commission and the Broadcasting Standards Commission appear to be functioning satisfactorily. We are not aware of any claims that the British newspapers and broadcasters are controlled by the Government and the regulatory bodies; nor are we aware of any claims that press freedom has been compromised as a result.

United States

3.47 All the major professional media associations in the United States have developed codes of ethics. These associations include the American Society of Newspaper Editors, the Associated Press Managing Editors Association, the Radio-Television News Directors Association, the Society of Professional Journalists, and the National Press Photographers Association. In addition to these professional codes, many media organisations have their own codes detailing their policies regarding employees’ conduct.

3.48 Many local news councils were formed in the 1950’s and 1960’s. This grassroots movement gave impetus to the formation of the National News Council in 1973. It was self-appointed and supported by the Twentieth Century Fund and the Markle Foundation. It received and investigated complaints to which the media themselves declined to respond. The council comprised of 18 distinguished citizens. Only eight members were from the industry. Both the media and the complainants may be represented by lawyers at hearings. The council’s findings included both majority and dissenting opinions. It was dissolved ten years later because of lack of funding and resistance from major news organisations. However, there are regional news councils in a number of states including Minnesota, Oregon, Washington and Hawaii.

3.49 The Minnesota News Council was formed in the early 70’s. It receives and adjudicates on complaints which are heard in public. It has 24 members: half from the public and half from the media. It has had four state supreme court justices (all sitting judges) as chairmen. Bob Shaw, a founding member of the Council, says judges are good because they exude authority and know how to run a hearing, and they command prestige.[228]

[185] For an overview of the press councils in some of these jurisdictions, see: Li Zhan, Xin Wen Dao De (Journalistic Ethics) (Taipei: Sanmin Shuju, 1982).
[186] See M Armstrong, D Lindsay & R Watterson, Media Law in Australia (Oxford University Press, 3rd edn, 1995), chapters 9 and 11; and J Hurst & S A White, Ethics and the Australian News Media (MacMillan Education Australia Pty Ltd, 1994).
[187] The website of the Australian Press Council is at <http://www.presscouncil.org.au/pcsite/ apc.html>. The AJA withdrew from the Council in 1987.
[188] Australian Press Council, Survey of Complainants: Preliminary Report (1994).
[189] D A Kirkman, “Whither the Australian Press Council? Its Formation, Function and Future” (Australian Press Council, 1996), Part IV.
[190] Law Reform Commission of Australia, Unfair Publication: Defamation and Privacy (Report No 11) (Canberra: AGPS, 1979), para 230.
[191] J Hurst & S A White, above, 121.
[192] “Atlantic Press Council” at <http://www.media-awareness.ca/eng/indus/newsmag/atpress.htm> (15.1.99). The Atlantic Provinces include New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland.
[193] “British Press Council” at <http://www.bcpresscouncil.com/ink/> (18.1.99).
[194] “Manitoba Press Council” at <http://www.media-awareness.ca/eng/indus/newsmag/mapress. htm> (15.1.99).
[195] “Ontario Press Council” at <http://www.media-awareness.ca/eng/indus/newsmag/ontpress. htm> (15.1.99).
[196] H Kohl, “Press Law in the Federal Republic of Germany”, in Pnina Lahav (ed), Press Law in Modern Democracies - A Comparative Study (Longman: 1985), at 216-8.
[197] H Kohl, above, at 217.
[198] “New Zealand Press Council”, at <http://www.inl.co.nz/industry/presscouncil.html> (15.1.99).
[199] “Press Council of Peru established”, at <http://www.ifex.org/alert/00002445.html> (15.1.99).
[200] Håkan Strömberg, “Press Law in Sweden”, in Pnina Lahav (ed), Press Law in Modern Democracies - A Comparative Study (Longman: 1985), at 248-250.
[201] Håkan Strömberg, above, at 249.
[202] See generally, Ma Chi-shen, Hsin Wen Lun Li (Journalistic Ethics) (Hong Kong, 1997), ch 3.
[203] The Code of Ethics for the Press is reproduced in Annex 2.
[204] Chen Gui-lan (ed), Xin Wen Zhi Ye Dao De Jiao Cheng (“Course Materials on Professional Ethics for the News Media”), (Shanghai: Fudan University Press, 1997), 215-216.
[205] See generally, C Courtney, D Newell & S Rasaiah, The Law of Journalism (Butterworths, 1995).
[206] The Declaration provided that the publication of information about private lives of individuals without their consent was acceptable only if there was a legitimate public interest overriding the right of privacy.
[207] Report of the Committee on Privacy (Chairman: The Rt Hon Kenneth Younger) (London: HMSO, Cmnd 5012, 1972), para 189.
[208] Report of the Committee on Privacy and Related Matters (London: HMSO, Cm 1102, 1990).
[209] Paras 14.28 & 14.29.
[210] G Robertson & A Nicol, Media Law (Penguin, 3rd edn, 1992), 542-545. See also David Calcutt, Review of Press Self-Regulation (London: HMSO, Cm 2135, 1993).
[211] David Calcutt, Review of Press Self-Regulation (London: HMSO, Cm 2135, 1993).
[212] Above, para 5.26.
[213] Above, para. 6.5.
[214] Where a third party complaint is received in a case where the individual affected has declined to make a complaint, the tribunal would need first to ensure that that individual would wish to raise no objection to the tribunal investigating the complaint.
[215] Before initiating any investigation, the tribunal would need first to ensure that any individual affected would wish to raise no objection to the tribunal investigating the matter.
[216] The Government’s Response to the House of Commons National Heritage Select Committee - Privacy and Media Intrusion (London: HMSO, Cm 2918, 1995), chapter 2.
[217] E Barendt, “Britain Rejects Media Privacy Law”, (1995) 2 Privacy Law and Policy Reporter 109.
[218] PCC, “How Commission Members Are Appointed”, at <http://www.pcc.org.uk/about/appoint. htm> (1.5.98).
[219] See Annex 3.
[220] Part IV, sections 106 - 130.
[221] Schedule 3, para 3.
[222] Section 107(1). The BSC has issued a code on fairness and privacy which came into effect on 1 January 1998.
[223] Section 110. The BSC will not entertain a complaint if the matter complained of is frivolous or is the subject of proceedings in a court, or is a matter in respect of which the person affected has a remedy by way of court proceedings and it is not appropriate for the Commission to consider a complaint about it: section 114(2).
[224] The Times, 16 October 1992.
[225] Section 111.
[226] Sections 119(1)-(3) and 120.
[227] Section 119(8) and (10).
[228] B Shaw, “How to Start a News Council”, at <http://www.mtn.org/newscncl/General/Shaw. html> (4.5.98), p 4.