21 Oct 11 | Leveson Inquiry
Cross-posted at Hacked Off
The Lord Chief Justice, Lord Judge, has joined the debate about press reform with a speech warning of the risk of throwing the baby of freedom of expression out with the bathwater of cruel and unfair journalism. Things are not as bad as they may seem, he implied. Self-regulation in the form of the Press Complaints Commission has not failed, though it “might be strengthened”. The really serious problems, where they arise, can continue to be left to the law.
The plea for freedom of expression was eloquent and clearly heartfelt, though hardly controversial. Is there any serious participant in this debate who does not believe in the value of freedom of expression, or anybody who believes it should be placed at hazard when addressing the problems before the Leveson inquiry? Here, Lord Judge is pushing at an open door.
His arguments about the status quo, by contrast, are largely wrong-headed. Two stand out. The first is that the courts are successful in restricting serious wrongdoing and the second relates to the role and faults of the PCC. Let us look at them.
Lord Judge says this:
“First, crime is crime. If and when crime is committed by reporters with or without the support and encouragement of an editor, it should be investigated, and if on the available evidence there is a reasonable prospect of a successful prosecution, he or they are prosecuted. We do not say that the General Medical Council and self-regulation have failed when, as sometimes happens, a doctor sexually molests one or more of his patients, or like Dr Shipman murders them.”
Later he repeats the point:
“We must remember, that whatever lies ahead, the ordinary law of the land will continue. Crime will be crime.”
The Lord Chief Justice is saying that we can rely on the courts to deal with serious wrongdoing perpetrated in the name of journalism, just as it delivered justice and deterrence in the case of Harold Shipman. But can we? What if the courts had convicted and sentenced Shipman and he had emerged from jail to commit the same crime again? And what if, after a second conviction, he reoffended a third time? We would wonder then about the effectiveness of the courts.
This is what is happening in relation to the most cruel and unfair journalism we see today. In the cases of Robert Murat, Kate and Gerry McCann, the so-called Tapas Seven and Christopher Jefferies, victims of the grossest press cruelty went to court and won, yet the same group of papers went on to commit the same offences again, and again, and again. The law is not preventing this.
For another example, look at the libel record of the Express newspapers as compiled by Roy Greenslade and listed here. It is, as he remarks, an inglorious inventory, and the offences just go on and on.
Why is this serial offending happening? It is partly that the punishments available are no deterrent. The Express papers paid the McCanns £550,000 for well over 100 libels. That is around £5,000 each. Eight papers are reportedto have paid Christopher Jefferies around £500,000 for three days of outrageous character assassination: that is some £20,000 per paper per day (in the otherwise quiet New Year weekend). At these prices libel is good business.
To say that the ordinary law of the land will continue, as Lord Judge does, is therefore no reassurance for future victims of false, cruel and unfair journalism. Crime may be crime, but for the tabloid press this crime pays, and for the victims (just ask them) the scars remain forever.
Turning to the PCC, the Lord Chief Justice points out in his speech:
“Membership is not obligatory. The Commission has no investigative power. In reality it has no disciplinary power. When it works, as most of the time it does, it is because the press itself is prepared to comply with its rulings, not because it is under legal compulsion to do so. Its main role, and I do not seek to diminish it with faint praise, is to provide a sort of ombudsman/mediation service between the newspaper and an individual group which is aggrieved by an article. It cannot award compensation. To criticise the PCC for failing to exercise powers it does not have is rather like criticising a judge who passes what appears to be a lenient sentence, when his power to pass a longer sentence is curtailed.”
The problem here is not with the critics but the advocates. The press has always characterised the PCC as a regulator or self-regulator, even though, as Lord Judge says, it has never fulfilled that function. Editors and proprietors have made this claim repeatedly over the years because they want the public to believe the industry is regulated when it is not. This is a confidence trick, a trick which has helped to shelter the kind of newsroom culture that gives us serial libelling by the Express and the hacking of the voicemails of Milly Dowler, Sara Payne and Shaun Russell.
It is true that the PCC does valuable complaints work and that whatever new dispensation emerges after Leveson, someone will need to do that work. It is also true, however, that the leadership of the PCC over the years has been complicit in the confidence trick and those people have some responsibilities to acknowledge.
Here it is worth noting a factual error made by Lord Judge. He cannot be blamed for the error because it is a common one, which the PCC has never been at pains to correct. In fact the PCC commissioners do have investigative power; they just choose not to use it. Article 53.1A of the PCC Articles of Association states:
“It shall also be the function of Commission to consider and pronounce on issues relating to the Code of Practice which the Commission, in its absolute discretion considers to be in the public interests.”
That is a clear mandate to examine infringements of the code without waiting for a complaint by a directly affected party — a mandate the commissioners failed to fulfil, for example, throughout the whole year of the Madeleine McCann affair, as flagrant breaches of the code occurred every day. It is a depressing and revealing irony that when, in a very rare instance, they did exercise this power, in the case of phone hacking, they used their authority to exonerate the News of the World and turn the blame on the Guardian.
An important point which also does not seem to be understood by Lord Judge relates to what happens after something goes wrong. Any regulator worthy of the name will conduct post mortems to establish the facts, where responsibilities lie and what lessons should be learned. If the press had been regulated, or effectively self-regulated, such post mortems would have occurred after each of the scandals listed above, with the consequence (one would hope) that the later scandals might not have occurred. As a result, the burden on Lord Judge’s courts might have been lighter and their relative impotence in newspaper libel matters less exposed.
The PCC, while it does good but limited mediation work, has never done this kind of work. Instead it has functioned as a figleaf for press misconduct. It has had no obvious impact on ethical standards in the national tabloid press and it stood by as an unregulated industry slid into its present state of disrepute.
Lord Judge say he would prefer press self-regulation with a “strengthened” and “more powerful” PCC that is not a “toothless tiger”. It must be “all-inclusive”, with authority “over the entire newspaper industry”. And like everybody else he does not want political interference or censorship. How to square these circles is a difficult problem with which Lord Justice Leveson, his panel and many other interested parties are already wrestling. Welcome to the debate, your lordship.
Brian Cathcart teaches journalism at Kingston University and is a founder of Hacked Off. He tweets at@BrianCathcart
12 Oct 11 | Leveson Inquiry, Uncategorized
The hazy terrain of press regulation formed the core of discussion at this morning’s Leveson Inquiry seminar.
Eve Salomon, chair of the Internet Watch Foundation, kicked off the session by making the case for self-regulation, arguing that the PCC’s successor should be an enhanced model that both raises standards and deals with complaints. Salomon argued the current Press Complaints Commission is merely a mediator,and that having investigative powers that would characterise it as a regulator. Referring to the phone-hacking scandal, she added that “no amount of regulation” will deter criminals.
Daily Mail editor-in-chief Paul Dacre was scathing, his speech attacked the “anarchic” internet and “elite” journalists who have “disdain” for tabloids, Dacre said the press is already “on the cusp of being over-regulated” due to the courts’ use of the Human Rights Act.
Though Dacre largely defended the PCC — he maintained it was “not a failed organisation” — he did concede that it needed reforming in order to regain public trust, and claimed it had “blunted the Sunday papers’ ability to find sensational stories.”
Any notion of licensing journalists or imposing fines was condemned; of “experts” in favour of licensing reporters, Dacre said: “my own view is they should emigrate to Zimbabwe.”
He added that the press are better behaved now than in the 1970s, during which time “harassment was rule rather than exception.”
Dacre went on to reveal that his newspaper, as well as its sister titles the Mail on Sunday and Metro, will introduce a corrections and clarifications column on page 2 of the paper next week. Currently no other tabloid runs such a column.
Will Moy of independent fact-checking organisation Full Fact followed Dacre, noting that, while some newspapers and journalists are “excellent” when confronted with mistakes, they are the “exceptions”. Citing the Daily Express’s twisting of house price quotes, Moy added that “newspapers cannot be trusted to regulate themselves”, arguing that a regulator was “essential.”
He did see potential for “indirect regulation”, such as a readers’ editor, and added that the PCC needs to have more effective sanctions for dealing with repeat offenders. The readers’ editor of Observer, Stephen Pritchard, also made the case for more internal news ombudsmen, arguing that they could enhance trust (there are currently only two of them in the UK, at the Guardian and the Observer).
Later, the role of corporate governance in maintaining standards was discussed. Labour life peer Lord Borrie made the case for stronger ethical standards, arguing that they should not merely be “something that slips off the tongue of chairman at the annual general meeting.” Non-executive director of Channel 4, Stephen Hill, spoke in favour of “scrupulous” corporate governance, while Trinity Mirror‘s Sly Bailey argued that “no system of corporate governance” was bomb-proof: it could not stop a determined wrongdoer, but may “minimise wrongdoing.”
Damian Tambini, a lecturer on media policy and regulation at the London School of Economics, said it was unhelpful to oppose statutory regulation as a sort of “ogre”, noting that self-regulation might need statutory back up. Cardiff University journalism professor Ian Hargreaves also noted that we cannot compel individuals to join a system, and can only “create a system that’s so good most people want to be part of it.”
For Index CEO John Kampfner, the challenge of the Leveson Inquiry will be “setting out strength of corporate governance and ensuring that regulation doesn’t chill speech.” He added that any future regulation must not lead to any “excess of caution that damages investigative journalism.”
Follow Index on Censorship’s coverage of the Leveson Inquiry on Twitter – @IndexLeveson.
Click here for the full text of John Kampfner’s speech at this afternoon’s session of the Inquiry.
12 Oct 11 | Leveson Inquiry, Media Freedom
Index on Censorship chief executive John Kampfner addressed the Levesen Inquiry into culture, practices and ethics of the press yesterday, covering free speech, journalistic standards, and journalism regulation
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03 Oct 11 | Leveson Inquiry, Uncategorized
This post was originally published in the MediaGuardian section of The Guardian on Monday 3 October.
The putdown was exquisite and, one assumes, designed to make a point. When the Metropolitan police’s barrister told Lord Justice Leveson he was representing acting commissioner “Mr Tim Goodwin”, the judge looked up and said, after a studied pause, “I think you’ll find the name of your client is Godwin.” The laconic wit contained a message: you might not be on top of your brief, but I am.
The early signs from the Leveson Inquiry are good. The first year of his deliberations will stretch far and wide, covering everything from the ethics to the economics of the media. Each hearing will be conducted in the open. Whatever his eventual judgments, he wants even his potential detractors to acknowledge that this was a job thoroughly done.
A number of the key issues are clear. These include: how can you separate “proper” investigative journalism from “prurience”? When are underhand methods – secret filming, recording, impersonation, and, yes, phone hacking – justified? What are the lines of accountability when such operations are carried out?
Much of the argument will involve the twin unresolved questions of privacy and public interest. In spite of the best efforts of judges to interpret article 8 of the Human Rights Act, defining the public interest defence in these cases remains problematic. Time needs to be spent on this. The issues are often, wrongly, reduced to the rights of celebrities.
Celebrity influence
At the Liberal Democrats’ conference, Hugh Grant argued that the famous had every right to determine when and how their private lives should remain private. In other words, it is private unless or until they sell their wedding photographs to Hello! magazine. To adapt that old adage: what is the difference between tax evasion and tax avoidance? Having a good accountant. What is the difference between profiting from your private life and complaining about intrusion? Having a good agent.
Politicians who have dined with Grant, beguiled by his charm, accept his utterances about journalism unquestioningly. Many — including some who have argued for libel reform — appear now to accept a “control” agenda. This starts from some powerful assumptions: that Tony Blair’s description of the press as feral beasts is broadly correct; only statutory regulation, including fines and licensing, can tame these animals; and it is easy to differentiate between good journalism (broadsheet, usually liberal) and bad journalism (tabloid and mid-market, usually rabidly rightwing).
At the party conferences, delegates have queued up to denounce the media. The convoluted motion passed by the Liberal Democrats was regarded by Nick Clegg’s office as excessive, and that was after they had managed to tone it down. At Labour’s conference, Ed Miliband distanced himself from Ivan Lewis’s suggestion of a mechanism for “striking off” journalists. At the top of the parties there appears to be a greater understanding of the need for a proportionate response.
The motives among MPs appear mixed. For some, it is revenge for the expenses scandal. For those whose phones were hacked it is understandable fury. For others, notably on the left, it is pay-back time after years of Blair/Brown fawning at the feet of the Murdoch empire. For many it is none of the above, more of an inchoate sense that something must be done.
In broad terms there is, even at this early stage, consensus on the following: those involved in the industrial-scale hacking of not just celebrities but victims of crime should be prosecuted and feel the full weight of the law. Cross-media ownership laws should be tightened considerably to prevent the concentration of power in the hands of certain moguls. The Press Complaints Commission, which failed not just on phone hacking but on the media’s conduct towards the McCanns and other high-profile cases, needs radical reform.
Much of the work is likely to be focused on this area. The terms self-regulation, independent regulation and statutory have become highly charged. How, for example, do you license newspapers and not bloggers? Who is forced to abide by which rules? And how can the rules prevent governments from punishing coverage they dislike? This is much easier said than done. Remember Kate Adie’s reports on the US bombing of Libya in 1986 and Norman Tebbit’s response? Within a few months the BBC director general was gone. Remember Alastair’s Campbell’s assault on the BBC and the Hutton report? Within a few days of its publication, the director general was gone, the organisation became more pliant and relations “improved”. With the right levers in place, governments can effortlessly cow journalists and their managers.
As ever in British public life, international perspectives are rare. A few close to home might be helpful. France’s strict privacy laws not only protect the rich and famous from unfair intrusion; they have successfully been used on many occasions to prevent investigation into the public activities of politicians. Currently a French judge stands accused of hacking into the phones of reporters at Le Monde who were digging for information about the finances of a Nicolas Sarkozy ally. Do we want to emulate this?
Take Hungary, another EU member. Its new media law, passed in 2010, attacks a free press by imposing state control over public service broadcasters and the right to levy fines on publishers. Hungary is perhaps the most dangerous example, but there are others too. In Italy, editors are regularly dismissed for getting on the wrong side of Silvio Berlusconi.
The challenge for Leveson is to tighten procedures that help prevent wrongdoing without killing an already sickly patient. To say so is not to defend an industry or a vested interest, but to protect one of the few checks and balances against untrammelled authority.
Investigative decline
Look back over the past decade — to the road to war in Iraq, to the behaviour of bankers and more — and ask yourself, have journalists found out too much about the activities of those with power or too little? Open any newspaper and search hard for unvarnished and unspun insights. During a decade in the Westminster lobby I saw more stenography than journalism.
Hacks do the bidding of politicians, business leaders and football managers in order to preserve good access. Next time you see the word “scoop”, perhaps it might be better to substitute the word “plant”.
Leveson has made clear that among the many subjects he wants to look into is the economics of journalism. It is important he does. Investigative teams are expensive and in decline. Reporters rewrite press releases partly out of laziness, mainly because they have to fill papers. In short, journalism – for all the outrageous behaviour unearthed in Hackgate and other scandals – is too weak, not too strong.
The English libel laws, which Index on Censorship has been at the heart of reforming, have stopped many important investigations over the years. They are so draconian that the US Congress passed legislation protecting its citizens from our courts. It is important the UK government does not dilute its commitment to introduce the full defamation bill in 2012.
The Leveson Inquiry is timely. British journalism must improve. But it is important to remember that a perfect press does not exist anywhere. One that is raucous and troublesome is better than the malleable alternative. Be careful what you wish for.
