HL Deb 18 April 1994 vol 554 cc74-84

7.19 p.m.

Lord Harmar-Nicholls

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Harmar-Nicholls.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Cox) in the Chair.]

Clause 1 [Infringement of privacy by publication of photographs and films]:

Lord Kilbracken moved Amendment No. 1: Page 1, line 7, leave out ("the subject of") and insert ("portrayed recognisably in").

The noble Lord said: As a some time photographer I find interest in this Bill, although I no longer have any interest to declare. I have put down these three amendments simply because I want to help improve the Bill if I can in any way. I fully support the noble Lord, Lord Harmar-Nicholls, in his efforts to make it law.

The first amendment refers to the person that the Bill aims to protect. He is described in line 7 as: A person who is the subject of a photograph which has been taken". It seemed to me that that was not the best wording because of the likelihood that the photograph involved would be one in which more than one person—perhaps 30 or 40 people—would appear. The subject might be members of a cricket team, people on a dance floor or whoever else it may be. That will be the subject, not the person we aim to protect. Therefore, I suggest that the passage should read simply: A person who is portrayed recognisably in a photograph". I beg to move.

Lord Harmar-Nicholls

I believe that the noble Lord's amendment makes the Bill more lucid. I would be most happy to support it.

On Question, amendment agreed to.

Lord Kilbracken moved Amendment No. 2: Page 1. line 8, after ("film") insert ("or videotape").

The noble Lord said: A couple of lines further on reference is made to, the subject of a photograph which has been taken or a film which has been made". A videotape is not embraced by the word "film". It seems clear that the Bill should include videotapes. Therefore, I propose that the words "or videotape" be included, as stated in the amendment. I beg to move.

Lord Harmar-Nicholls

This amendment brings the Bill up to date and as a consequence improves it. I am most happy to accept it.

On Question, amendment agreed to.

Lord Harmar-Nicholls moved Amendment No. 3: Page 1, line 10, leave out ("intrude upon") and insert ("cause serious damage to").

The noble Lord said: This amendment flows from the helpful views expressed during Second Reading. I believe that it helps the Bill achieve what it set out to do when we first introduced it; that is, to make certain that, if it became a statute, it would not be played about with and that only if people were seriously damaged would we expect them to make use of it. I beg to move.

Lord Burnham

This amendment seems fundamentally to change the nature of the Bill. Many of your Lordships will remember the photograph taken in the late 1940s of two people in France kissing. The photographer died within the last month. In recent years the people claimed that they had been damaged by that perfectly harmless and delightful photograph. A considerable problem arose. It might have been considered to have intruded into the private lives of those people but in no way could it be said to have damaged them seriously.

A number of years ago a friend of mine was startled to be rung up one morning and to find that his picture was across the front page of the Daily Mirror as a person who the previous day had been convicted of assaulting youths at Piccadilly Underground station. The picture had come from a news agency. Next morning when I got to my office where I worked in the Daily Telegraph the picture editor of that agency was waiting to ask who the various people in the photograph were. That information I was able to supply. Several of them were Members of your Lordships' House. It might be said that the photograph as taken was totally harmless. I need hardly say that my friend found that occurrence, though distressing, highly profitable. The Daily Mirror was quick to correct the error and coughed up with hardly any pressure at all. But, if uncorrected, the picture would have caused serious damage, even if none of his friends would have believed it of him, or indeed had read the Daily Mirror.

This amendment would have supplemented any claim that he might have had for damages, but because of the laws of libel it was not necessary then, nor, do I suggest, is it necessary now. Anything which causes serious damages can almost certainly be covered by the libel laws as they now stand. Without the amendment in this form I believe this Bill to be dangerous.

There can be no doubt that many people in recent times have suffered grievously from monstrous intrusions into their privacy. I am sure that the noble Lord who sponsored the Bill has that in mind. The intrusion has come both from the reporting and the photographic departments of tabloid newspapers. Understandably, emotions run very high on this point. There is a general feeling that self-regulation has not worked and something more drastic must be done. As far as photographs are concerned I have no doubt that this Bill is that "something".

I cannot speak for television, but responsible newspapers have been agonising for years on this point. I remember discussing this matter over lunch with the noble Lord, Lord McGregor of Durris, at the time of his Royal Commission on the press in the late 1970s.

In countries where newspapers are to one degree or another censored, they have been unable to expose political, financial and social wrong-doing because of the restrictions placed upon what they may print. It is largely because of its campaigning activities, including the exercise of the ability to intrude into personal affairs, both public and private, that the British press has been able to expose so much wrong-doing.

Who is to be responsible for saying what is public and what is private? It is a question of the greater good. No one of any integrity can be happy with the situation as it stands at the moment. Nevertheless, I am on balance reluctantly convinced that if the media cannot be persuaded voluntarily to exercise the restraint that we all wish we shall have to let this intrusion go on in spite of all the horrors to which it gives birth.

Ideally, we hope that public condemnation will stop it, but realistically those who complain the loudest are the first to buy the newspapers in which the rubbish is written. While we were voting on the previous matter a noble Lord told me how much he enjoyed some of the particularly curious things that had appeared in the tabloid newspapers.

The poem runs: You cannot hope to bribe or twist Thank God' the British journalist, But seeing what the man will do Unbribed, there's no occasion to. As somebody whose family has for five generations been in a section of the British press with an honourable record for campaigning and reportage and who is convinced of the need for this to go on more or less in the way that it has done, I urge caution with this Bill. I suggest to the noble Lord that without this amendment it is desperately dangerous; with it, it is unnecessary and superfluous.

7.30 p.m.

Lord Harmar-Nicholls

My noble friend has 100 per cent. of my sympathy. What he is asking for should be achieved, and achieved soon, but I am afraid that the only way in which we are likely to achieve that is if we can persuade the Government to make the Bill a government Bill. We must recognise the constraints that exist in trying to rectify certain wrongs through the Private Bill procedure. As I have made clear on many occasions, such a Bill must be careful about the scope that it tries to cover.

On Second Reading—my noble friend may not have been here —my noble friend, speaking for the Government, said that she had every hope that the Government would be publishing a White Paper which would take us nearer towards what I suppose can be called a privacy Bill such as they have in France. That may meet my noble friend's wishes. It is said that politics is the art of achieving the possible. As I said on Second Reading, a privacy Bill is needed to meet the points that my noble friend has properly made.

All that this Bill can do in the meantime is to alleviate some of the problems that my noble friend has described and which we all know have occurred in recent months. The description given on Second Reading covers the Bill. We consider that the roof is in a bad state. We know that the building needs a new roof, but we know that the cost of a new roof is high and that it would take some considerable time to build. That does not mean that we cannot put a bucket under the present leaks to avoid damaging the carpets and other things. The Bill does no more—the noble Lord, Lord Donoughue, drew attention to this in his excellent speech on Second Reading—than for the time being provide a bucket for the one clause about which we can do something in a Private Bill. Short though the step is, it will be only one of many that the Government will take in the months ahead.

The Bill as drafted uses the word "intrude". But the interpretation of intrusion could mean that if one were photographed at a football match that could be deemed to be an intrusion, although it would not have done any harm to justify the taking of drastic steps. As a result of what was said on Second Reading, the amendment deletes the words "intrude upon" and replaces them with the idea that, if something is done deliberately to cause serious damage, then the person involved would have the opportunity to go to court to take action, similar to, as my noble friend said, a libel action to obtain damages for what was done. I believe that that is as far as we should try sensibly to go, otherwise we shall lose even the bucket under the leak. I should like, at any rate, to put that in place to begin with.

Lord Burnham

I oppose that course. My noble friend detected that I was not present on Second Reading. Had I been present, I should have opposed the Bill.

Baroness Wharton

As a keen photographer, I have enormous sympathy with the motives behind the amendment. I share the concern of the noble Lord, Lord Harmar-Nicholls, for people who have been hurt by cruel and thoughtless reporting. However, I have reservations about the wording of the amendment. The Bill makes no distinction between public and private property. I believe that it should, because there is a great difference between taking photographs in a public place and the intrusive keyhole paparazzi-style photography to which we all object.

On Second Reading, the noble Lord thought that the subject would be ideal for the Private Member's Bill procedure, as its scope is so modest. So he decided to tag it on to the Copyright, Designs and Patents Act 1988. I feel that it falls more into the infringement of privacy area, if I read the noble Lord correctly. As he has just said, this is no more than a temporary measure designed to tide us over until we have a privacy Bill, I do not believe that this is a simple, little Bill. It covers a much wider area, and is open to diverse interpretation.

The words "intrude upon.' are being replaced by the words "cause serious damage to", which is an improvement. But serious damage for one person could be water off a duck's back for another. The result could be a flood of court cases with judgment being passed from a highly subjective point of view.

People in the public eye, be they in the entertainment industry or politicians, are well aware that in public places they are liable to be photographed by professionals and amateurs alike. They are of interest to the public. That is much of what photo-journalism is about. Indeed many such people have publicity agents whose job it is to keep their names and their faces before the public. Having said that, I agree that some restrictions need to be imposed upon the continual abuse of someone's privacy which of course is not in the public interest.

So far, the Press Council appears to have little power to control the type of intrusive photographer who harasses the ordinary member of the public after there has been a tragedy, perhaps a murder, within a family. The amendment does not cover that situation as that does not necessarily cause serious damage, although it causes immeasurable distress to that family which, after all, might be unable to resort to the courts. The well-known journalist Harold Evans has said: The camera cannot lie, but it can be an accessory to untruths". I give the example that the noble Lord, Lord Harmar-Nicholls, gave on Second Reading of the recent picture of the Prime Minister at a social function shown behind bottles and glasses at a table. Was it not the caption rather than the photograph which influenced the reader to see something in the photograph which was not there? A photograph is of no value until the owner markets it. Who then will be liable to be prosecuted? Will it be the photographer of the subject or the person who publishes the photograph?

I feel that we should wait for the Government's consultation paper on the infringement of privacy and see what it has to offer. It is for that reason that I cannot accept the amendment.

Baroness Trumpington

It might be helpful to the Committee if I were to repeat the Government's attitude to the Bill introduced by my noble friend Lord Harmar-Nicholls, and to the amendments which have been moved and which will be moved. I listened with great care to my noble friend Lord Burnham. I hope that the Committee will appreciate my brevity. We have grave reservations about the Bill. I think that we all agree that the protection of privacy, in particular the unwanted and unjustified attentions of the press, is an important but difficult issue. That photograph of the French couple kissing, was enchanting, but I wonder whether they were both married to the people whom they were kissing. That is a little point.

The essential question is how to balance the freedom of expression with other equally important rights, including the right to privacy. But the Bill, even with the proposed amendments, gives a disproportionate protection to a single aspect of privacy. I hope that my noble friend Lord Harmar-Nicholls will understand when I say that we are not convinced that this slightly piecemeal and unbalanced approach is the right one.

We can live with Amendment No. 3, although it does not go far enough, and the other amendments that are to be moved tonight. Although most of them improve the Bill by limiting and clarifying its application, they do not remove our fundamental objections. I agree with the noble Baroness, Lady Wharton, and again ask the Committee to be patient and await our proposals on press regulation and privacy.

Lord Harmar-Nicholls

My noble friend causes me to warn the Committee not to be bemused by the reluctance of the Government—the Executive —to allow private Members to do anything, other than regarding matters guided by them. I recognise my noble friend's reply, having heard similar replies during the 40 years that I have been in Parliament. It was what I call a civil servant's reply—

Baroness Trumpington

I never give civil servant's replies. I always speak for myself in my capacity on behalf of the Government.

Lord Harmar-Nicholls

My noble friend Lady Trumpington knows that discipline is an important part of efficiency, and she is as efficient as the next person. It is clear that in a matter such as this the Executive would much prefer to have a clean and open field in which to develop their thinking. However, it takes them so long and the problem is that this issue is with us now and almost every day people are suffering as a consequence. My noble friend's observation is some confirmation of that.

The Bill will in no way interfere with the Government's preparation of their privacy Bill. Indeed, I am a little disturbed because on Second Reading only a week or two ago my noble friend, on behalf of the Government, suggested that the White Paper which would be the beginnings of such a privacy Bill was well on the way. Since then the Government have announced that that White Paper is further away than they thought. On Second Reading I warned the House that that would happen.

The problem, which is difficult, will continue and it will take a long time to resolve. I have studied the French privacy legislation that is in operation and it is intricate and difficult. When the Government try to meet the problems to which my noble friend referred, they will have a great task and I do not envy them.

In the meantime, this Bill does not answer all the problems but it deals with one of the most immediate and vicious. In recent months we have seen people adept in using a camera, distorting their positions and boring holes in dressing room walls, as was done in order to take a picture of Her Royal Highness the Princess of Wales while she was preparing to do her exercises. The photographer did that in order to have a picture to send round the world for all sorts of reasons and in order to receive lots of money. Photographers have received lots of money and will receive lots of money.

The object of the Bill is to do no more than to give people who believe that they have been damaged the same rights as they have if they are damaged by libel. A thousand-word article could not be as damaging as a distorted photograph, as was said by the noble Baroness, Lady Wharton. The Bill is no more than a humble, temporary measure which lets the Government know that a move in this direction is necessary. I hope that eventually the Government will go much further. However, that is no excuse for this Committee to refuse to take the present opportunity to go some way towards clearing up a dangerous and unfair situation.

I say to the noble Baroness, Lady Wharton, that the Bill in no way interferes with the actions or freedoms of the legitimate photographers. They can take what pictures they like and can carry on as they are. However, people do not write for newspapers and magazines articles which overstep the mark because they know that the machinery exists to deal with that. We want such machinery to apply to the taking of damaging photographs—

7.45 p.m.

Baroness Wharton

I thank the noble Lord for giving way. What will happen to an innocent photographer who takes a picture which in the eyes of the subject causes serious damage but the photographer does not realise that? There could be a compromising situation in a public place and a picture could be taken innocently. The subject could decide that it causes serious damage.

Lord Harmar-Nicholls

That is a hypothetical question. In accepting it, I expect that the subject will have to satisfy the court that he has been damaged in a way which requires compensation. If he cannot satisfy the court, no damages will have to be paid. The court will take into account whether the photographer was innocent in taking the photograph or whether it was taken deliberately. If it was deliberate, the compensation will be higher than if it were accidental. Another of my amendments provides that the subject must bring a case; the police cannot do so.

The more that I examine the issue I believe that inadequate though the Bill is in facing up to the big problems, it can go some way towards dealing with some of the smaller problems. It may well prevent this disease from developing into a big problem. I hope that the Committee will take the same view and I submit the amendment with considerable confidence.

On Question, amendment agreed to.

Lord Kilbracken moved Amendment No. 4: Page 1, line 10, leave out (", where copyright subsists in the resulting work").

The noble Lord said: Amendment No. 4 is a probing amendment. I do not understand the noble Lord's motive in including the words, where copyright subsists in the resulting work". When a photograph is taken or a video tape or a film the copyright automatically subsists in the person who takes the photograph, just as it does if he writes a book, a newspaper article or a letter—

Lord Burnham

Perhaps I may help the noble Lord. Every single press photograph that is taken is stamped on the back with a copyright mark.

Lord Kilbracken

Of course I know that perfectly well and a lot of my photographs have had that copyright mark stamped on them. I was going to say that if a photographer takes a picture, then initially the copyright belongs to him. Of course, if he is employed by a newspaper, there may be certain terms in his contract about the destination of the copyright or, if he is a freelance photographer and it appears in another paper, he may sell the copyright to that editor. But there always is copyright subsisting in somebody, initially in the photographer.

Therefore, I do not see any need to include the provision: where copyright subsists in the resulting work", since it always does, as far as I know, subsist in the resulting work.

It also seems to me that there is nothing in this new Bill about copyright at all. It has nothing to do with copyright. Copyright does not enter into it and I personally would be happier if it was not tagged on to the Copyright, Designs and Patents Act, but stood as an Act on its own, although I appreciate that there may be difficulties about that. Therefore, I am suggesting that those words should be deleted because they are unnecessary. I beg to move.

Lord Harmar-Nicholls

I understand the noble Lord's reaction to this because it is quite true that the purpose of the Bill has nothing at all to do with copyright and yet the word "copyright... appears in it, and I wish it to remain there.

I can explain that with reference to the Private Member's Bill procedure. Earlier in the Committee I referred to the Bill as a Private Bill but, of course, a Private Bill can be promoted only by local authorities, companies and so on. This is a Private Member's Bill. When the need for this protection was brought to my attention, I had to find a way in which to use the Private Member's Bill procedure in order to give effect to the necessary shift in the direction of a privacy Bill. The only statute to which I could attach this Private Member's Bill was the Copyright, Designs and Patents Act, because the procedures for its operation are already embodied within that legislation. Therefore, copyright is merely a vehicle by which to give effect to those provisions. That avoids the necessity of a larger and more complex Bill.

The other day I read that Miss Sarah Keays, who everybody knows about now, is instituting in the courts a claim for damages against someone who has published a photograph of herself and her companion which was taken some 20 to 25 years ago. The photograph to which she objects was taken by her own camera. She had obviously handed her camera to someone who had taken the photograph of her and her companion She is taking legal action under copyright legislation. She feels able to take that action because the photograph was taken with her camera, although she did not take the photograph.

If my Bill, with the help of the noble Lord, reaches the statute book, she would be able to instigate proceedings under this Bill, if she feels that she has been damaged. Without this Bill, she must rely only upon the argument as to whether or not the photograph is copyright; and I know that the noble Lord, as a photographer, has some experience in that field.

The current law does not cover a photograph which is taken with one's own camera. That is why the word "copyright", is included in the Bill. I have had to use that legislation for the Private Member's Bill procedure. I understand the noble Lord's confusion but I hope that he will feel that it is worth taking a risk in order to give effect to the protection which we all wish to see.

Lord Kilbracken

I am afraid that Miss Keays is going to be disappointed because it does not matter who owns the camera—that has absolutely nothing to do with it—what matters is who presses the -tit", if I may use a professional word. That is not she and the copyright does not reside in her.

Having listened to the noble Lord and not having been completely convinced by him, I nonetheless feel that I should let the matter go. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Harmar-Nicholls moved Amendment No. 5: Page 1, line 17, at end insert:

The noble Lord said: I dealt with this matter when I answered the point raised by the noble Baroness. The person who has suffered the damage must take the legal action. It is not for the police or any outside body to allege a breach of the criminal law. The subject of the photographs must take the responsibility for proving that he has been damaged. He must be responsible for taking that action. I beg to move.

Lord Kilbracken

I think that I must just mention that, in view of the acceptance of my first two amendments, for which I am most grateful, it will be necessary to make minor consequential amendments to this amendment. However, that can be dealt with on Report.

On Question, amendment agreed to.

Lord Harmar-Nicholls moved Amendment No. 6: Page 1, line 17, at end insert:

The noble Lord said: I do not expect that there will be any objection to this final amendment because it is so obviously right. We are making certain that this legislation does not prevent the legitimate publication of photographs in the interests of public security. I expect that there will be unanimous support for that proposition even from the Government.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Remaining clause agreed to.

House resumed: Bill reported with amendments.

House adjourned at eight o'clock.