Leveson Inquiry

Afternoon Hearing on 09 May 2012

Martin Clarke gave a statement at this hearing

Hearing Transcript

(2.00 pm) LORD JUSTICE LEVESON Yes, Mr Barr. MR BARR Sir, good afternoon. The witness we're hearing from now is Mr Martin Clarke. MR MARTIN PETER CLARKE (sworn) Questions by MR BARR MR BARR Mr Clarke, could you confirm your full name, please?
A. Martin Peter Clarke.
Q. And could you confirm that the contents of your witness statement are true and correct to the best of your knowledge and belief?
A. I do.
Q. You tell us a little bit about your background at the start of your witness statement. You've been employed by the Daily Mail, albeit not continuously, since 1987. You've worked in a wide variety of posts, including the picture, news and features desks. You've edited the Scottish Daily Mail, Ireland on Sunday. You were the executive editor of the Mail on Sunday, the launch editor of Live magazine and London Lite, and you've been in charge of MailOnline editorial since 2006 and appointed publisher in 2010. Perhaps I could pause there to ask you about the difference in terminology there. What is the difference between being in charge of MailOnline editorial and its publisher?
A. As publisher I'm responsible for both the editorial and the commercial sides of the operation, so I'm ultimately responsible for our profit or loss, and also the editorial output, which is unusual in newspapers but not unusual in the online world, in the digital world. LORD JUSTICE LEVESON So is that the equivalent of being the editor and the managing editor?
A. Yes, similar. If I can elaborate, it's because obviously on the digital side it's a very fast-moving business and you need to be able to take decisions very quickly, and obviously it streamlines the whole process if you're only really arguing with yourself rather than with a managing director. LORD JUSTICE LEVESON I'm not sure, sometimes arguing with yourself is rather more difficult.
A. It is. MR BARR You were outside of Associated Newspapers news editor of the Daily Mirror at one stage and you've also edited the Scotsman and were editor-in-chief of the Scottish Daily Record and Sunday Mail; is that right?
A. Yes.
Q. You tell us next a little bit about the circulation, if that is the right word.
A. It isn't the word we use, but
Q. It's the old media term I know. A little bit about the circulation of the MailOnline, and in particular you say it's now by far the biggest newspaper website in the UK, and according to comScore, the most visited newspaper website in the world.
A. Yes, that was true that month. I believe the New York Times got their heads ahead of us again last month, I have to say that in fairness to them, but if we're not the biggest, we're very nearly the biggest. Depends which month you choose.
Q. As for your income, I'm not interested in precise figures but I would like to know essentially what is your business model, how do you make money?
A. Essentially we make money from advertising. We are a free website. We took a decision a couple of years ago that we weren't going to put up a paywall because we did not believe that for a general interest newspaper a paywall was a viable proposition. It obviously works for papers like the FT or the Wall Street Journal, but when everything else, when all the other news on the Internet is free, whether it be from Sky TV or the BBC in this country, or Yahoo or AOL or one of the other foreign providers of English language news, then it struck us that it would be very difficult to charge for things that people could get elsewhere for free.
Q. You make the point in paragraph 7 that your content is available not just on conventional computers but also now on tablet computers and on smartphones, and that you have a growing readership, again if I may use the old media term LORD JUSTICE LEVESON It's probably still readership. MR BARR One hopes so, sir on this type of platform growing at a rate of 10 per cent a year?
A. More like a month.
Q. Sorry, a month. So is this very much the future of digital news?
A. Well, both. We see the future jointly as people accessing digital news via the web on a PC or via the web on a tablet but also via native apps and we provide native apps for the iPhone, the iPad and any kind of Android device, and we're also building them for other mobile phones because they offer an ease of access on a small screen that you don't really get from a normal website. And yes, they're growing faster than our web traffic is but that's extraordinarily fast. But our web traffic is still growing as well.
Q. You turn next to your editorial independence and business structure. Can I ask you, who did you report to?
A. Editorially I report to Paul Dacre, the editor-in-chief. And on a business side, I report to the managing director of Associated Newspapers, Kevin Beatty.
Q. And on the editorial side, what sort of frequency of contact do you have with Mr Dacre?
A. I speak to Mr Dacre most times most days of the week, but we don't sit down and discuss in detail the content of MailOnline. He trusts his editors to get on with it. In the same way as he trusts the editor of the Mail on Sunday or the editor of the Daily Mail in Ireland or the Daily Mail in Scotland to get on with it, he trusts us to use our best judgment. So, you know, I'm responsible for what goes out on MailOnline, for good or ill, not Paul.
Q. Accepting entirely that it is your decision ultimately and not suggesting that it's in any way improper, is there any occasion when Mr Dacre will seek to persuade you to follow one editorial line over another?
A. Never.
Q. So far as the proprietor of Associated Newspapers is concerned, what contact do you have with him?
A. I see the chairman on a reasonably frequent basis. Sometimes you'll see him several times a month, sometimes you won't see him for several months. It depends on his movements in this country and elsewhere.
Q. Again without suggesting anything improper, does he ever seek to persuade you to take one editorial line over another?
A. Not in the least. His engagement with the business is on a long-term strategic business basis. He's interested in the long-term strategic direction of the business, not the day-to-day editorial.
Q. Sticking with questions about your business and business structure, you tell us you have around 70 journalists a day spread between London, New York and Los Angeles. The phrasing there is a little curious: "around 70 journalists a day". Do you have a dynamic
A. It varies from day to day. It varies obviously with that many journalists, some will go sick so there won't be the same number every day, we have a smaller number on a Saturday and a Sunday, and obviously some days are busier than others. And it varies according to demand. Probably this week we'll have more journalists on to cover some big stories than we'd normally have.
Q. In terms of your business procedures, do you use Associated Newspapers' group procedures or do you have your own bespoke procedures for news online?
A. Sorry, can you explain that question again? I didn't quite catch that.
Q. Do you use group procedures or do you have your own procedures at the MailOnline?
A. To do what?
Q. Just general business procedures. For example, whatever practices you might have on the checking of stories
A. I'm slightly at a loss with the question. In terms of if you're asking do we operate the same way as print journalists, then yes, and we hold ourselves to the same standards of accuracy, libel, contempt and any other regulations.
Q. I'm thinking of your written policies and procedures.
A. Yes. Our journalists are subject to the same contract and HR procedures as the journalists on the paper. LORD JUSTICE LEVESON So these 70 journalists, you say who are split between London and America, are they full-time on MailOnline? They're full-time engaged
A. Not all of them are full-time. Some are casual journalists, the same as in any other newspaper. LORD JUSTICE LEVESON But they're not also working for the Daily Mail and Sunday Mail?
A. Not concurrently. Some of them will have worked on the paper in the past and some of them will be going back to the paper at some point and some have never worked on the paper. It varies. LORD JUSTICE LEVESON Just help me, remind me. Could you tell me how many journalists there are on, say, the Daily Mail or the Mail on Sunday?
A. I'll be honest, I don't know. A lot more than 70. LORD JUSTICE LEVESON I'm sure I've been told and we can find the details.
A. Off the top of my head, I wouldn't like to answer that. LORD JUSTICE LEVESON Thank you. MR BARR Moving now to the way in which you obtain stories, and I'm looking at paragraph 10 of your witness statement, you say here that as a rolling news service you, like the television and the radio, are: happy to report, providing it is legally safe and with proper attribution, what other reputable news organisations are saying while we try to confirm it ourselves." I'd like to ask you arising from that: why is it that you publish something at all which you have not yourselves checked?
A. I think that's because we're a 24-hour rolling news service and not a once-a-day newspaper publication. We're just following the same practice that any other rolling news service would follow on the TV or the radio. You'll quite often hear, won't you, on the Today programme in the morning they're reporting something that's being reported elsewhere by a news agency or a foreign TV station that they're unable to substantiate, and I think as long as we just follow exactly the same procedure. If every other news organisation in the world is reporting, you know, that the leader of North Korea has died, obviously it's incumbent upon us to do the same. We can't spend all day trying to wait until it's absolutely confirmed beyond all doubt. And that's what I mean by that. But we wouldn't report anything that didn't come from a source that wasn't reputable, or that, even if it was from a reputable source, would be in any way legally dangerous or subject to a complaint, because obviously it's no excuse that you didn't originate the report.
Q. I understand the generality of that answer, but if you are adopting other news agencies' stories, you are effectively putting yourselves into their hands, to some extent, as to the accuracy of the story. I'd like to know whether there's any specific procedures that you have to try and manage that risk.
A. All newspapers use content from reputable agencies, be it Reuters or AP or domestic agencies, and some of them, or the vast majority of them you know you can trust, and that's the way newspapers, TV and radio operate. If you get a piece of information from a source that you don't trust, then you have to check it before you publish.
Q. A problem more specific to an Internet publisher such as yourself is, as you describe later in your witness statement, you are competing against other Internet publishers who are subject to very different legal regimes to the one which you adhere to. How do you manage the risk of picking up somebody else's story, which might comply with, say, American law, but doesn't comply with UK law?
A. We have to comply with British law. So if an American website was reporting something that by British Standards was, say, libellous or in contempt, then we couldn't do it, clearly.
Q. Could you give us an indication, broadly speaking, of the sort of proportion of your content which is being taken from other sources and published
A. It depends what you mean by the vast you know, we have 70 journalists working very hard. We have all the content that comes from the newspaper, obviously, as well on top of the content that we produce ourselves, so the vast majority would be our own stories or stories from reputable agencies to whom we pay a fee, and that's just the way any newspaper works. We're no different in that.
Q. Do your journalists monitor, for example, the Twittersphere and take stories from what is being tweeted?
A. We monitor the Twittersphere and quite often Twitter will alert you to a story that you weren't otherwise aware of. Sometimes the tweet will be the story. If somebody tweets a comment, then obviously very often we will the fact that somebody's tweeted that comment is the story. Obviously you have to be careful that it is genuinely the tweet from the person you think it is, and there have in the past been rogue tweets with fake accounts that have fooled other people on the Internet, but Twitter now takes steps to make sure that celebrity accounts are who they say they are, they verify it, so you know if an account is the person it claims to be. Quite often the tweet will be the story.
Q. Can I have some idea of the level of checking that your organisation goes to before publishing a tweet-based story? Will you contact the maker?
A. It depends. If it was a celebrity who tweeted a picture of themselves and a comment attached and that is then that is the story, and providing we know from previous experience that that tweet account is genuine, then the story is checked. That's it.
Q. What
A. If the tweet was alleging something contentious, then obviously you would have to check it out in the normal way to normal journalistic standards. It depends.
Q. What steps do you take to ensure that tweets really are from who they say they are?
A. Unless they're verified accounts, then we treat them with huge suspicion. But Twitter now do provide a means for people to verify their accounts.
Q. You make the important point that one of the advantages of doing business online is you're able to collect statistical information about how many visitors you've got to your site, what they're reading and for how long, and that helps you to understand what your readers want to read.
A. Yes.
Q. Can you help us with what that information is pointing you towards?
A. It helps us it helps us craft a product that we know is engaging. We don't follow our numbers exclusively and I should point out that we don't pay attention to the overall number of people reading a particular story who may have been directed to it from Google or wherever. We're only really interested in the people landing on our dedicated home pages, the home page, the US home page or the UK home page, we're only interested in their behaviour because we want to know what stories are they interested in, so that we can make sure that the stories they are most interested in are projected best and that we follow best. But we don't follow that slavishly. Quite often it also helps us to craft headlines, so it means that if there's a story that I as a journalist and an editor think is really important that people should be reading but aren't reading, then it gives me the opportunity to recraft the headline or the intro or the picture to make sure that people do read it. It's not a question of just putting the most popular stories at the top, it's not as simple as that, but it allows you to craft the most engaging product that you can and clearly it's been a huge part of MailOnline's success because it's those direct visitors, the people who are landing direct on your home page, that the business is built around and that we edit for. We don't edit for aggregators, we don't edit for Google News or anyone else, we edit for people who type in "Daily Mail" into their browser bar and come to us directly every day.
Q. Your site is particularly famous for the right-hand bar with celebrity news stories, and you tell us in your witness statement that that accounts for about a third of the hits that you get on your site
A. May I just say, that bar isn't exclusively showbiz. There's feature material in there but it's lighter content than we project on the left-hand side of the page.
Q. What I want to come to is whether you have two separate markets running in parallel, the news market and the celebrity market
A. No. No, we don't. Only about 10 per cent of our visitors in a month only look at a news story, and about only 10 per cent only look at a showbiz story. The vast majority of our users look at both. If they were two completely separate markets, it would probably make more sense to have two separate websites. The reason it works is because the content works together, which is the way British newspapers have always worked. If you buy a tabloid paper, it's a mixture of serious news and entertainment. That's always been Fleet Street's model. LORD JUSTICE LEVESON Could I just interrupt and ask you about two separate markets running in parallel in a slightly different context? That is the market in the UK and the market in America. I choose America because that's where your other journalists are. You've made it clear that you ensure that you comply with English law in relation to your content. Do you comply with English law or American law in relation to your American content, which is presumably a different site?
A. Generally, if it's an American court case, we would legal it to American standards. Obviously not British standards, because we wouldn't perhaps report most American court cases. They have an entirely different legal system. So yes, our American content is produced in compliance with American law, and our British content is produced in compliance with British law. Of course, where it gets confusing is where you have stories that are live in both markets, and that's something that obviously this Inquiry has to kind of grapple with. LORD JUSTICE LEVESON That's actually why I asked the question. But presumably you then have to work to the highest standard, because you can publish less in America, but you can't publish more in the UK simply because you're also publishing in America. Is that right?
A. May I set out the commercial background to this first, because I think that I need to explain that background, explain why we publish in America first of all, because I think it's important that everyone understands that. As I explained earlier, we took a decision not to put up a paywall because we didn't think we could make it pay, and we still believe that's the case. Advertising yields online are lower than in print, so to have a viable future you have to be big, you have to have scale. Luckily the Internet provides us with an answer to that, it provides us with the rest of the world to which we can now export our content directly without having to set up a print plant in every country. So that's why we have an American operation. The third part of the pillar is that Fleet Street's legacy, its vibrant legacy, the fact that we are used to doing entertaining news that engages people and people find compelling, gives us a competitive advantage against American websites who maybe don't come from that kind of background. So that explains the success we've had so far. So in answer to your question, no, we can't always follow the highest standard of regulation if that regulation is unreasonable. If I can give you a specific example, Pippa Middleton, for instance, British newspapers have a voluntary embargo on pictures of her taken going about her daily business on the basis that she's a private individual, so we don't use pictures of her going to the shops or going to work. We only use pictures of her when she's at a public event. But I think your Inquiry has already heard that there are hundreds of pictures that drop in on the wires of her every day. The question is why are those pictures dropping if nobody's using them? The answer is they're being used every day in America by sites with which I'm in competition. We don't use those pictures because we stick by the agreement that the British newspapers have made, and that's a commercial disadvantage that I just have to live with. Similarly, there are things that we can't write, pregnancy stories, for instance. The PCC says that we're not allowed to say somebody somebody's pregnant unless they've confirmed it, whereas American websites reveal celebrities' pregnancies all the time. There was a case a few weeks ago where it was reported that Sienna Miller was pregnant and every other celebrity website in America, with which I'm in competition on one level, reported that and we sat on our hands for hours and hours and hours not reporting it until, bizarrely, her sister confirmed it on Twitter, at which point we thought, well, I guess that's okay then. We're happy to deal with that imbalance, if you like, and the fact that we don't live on a level playing field with our American competitors, but it's important to us that it doesn't get any more skewed, if that answers your question. LORD JUSTICE LEVESON Yes, but actually then your answer to my question isn't no. Your answer to my question is actually yes, because you don't put on the American website that which you wouldn't put on the British website.
A. No, we don't, because there is no such thing as an American this is important to understand. There's no such thing as the American website or the British website. There is just the website. If we publish a story in this country, it's visible everywhere in the world. Similarly LORD JUSTICE LEVESON Yes, it's visible I don't know, you'll have to help me. Do you have a I think the domain name for you in this country has a co.uk on the end. Presumably you have a different domain address in America?
A. We have various domain addresses, but it doesn't matter where you are in the world. We don't have dailymail.com, by the way, that belongs to an American newspaper in Charleston, but we have mailonline.com, which will take you to our website. But if you type mailonline.com in this country, you'll still go to our website. The internet it's the World Wide Web. LORD JUSTICE LEVESON I understand that. So what you're saying to me is you do not actually have two websites, you only have one
A. One website. LORD JUSTICE LEVESON website and therefore
A. With two home pages. LORD JUSTICE LEVESON I understand. And therefore I do understand that you do mean in answer to my question: yes, we do have to restrict what we publish on our one website
A. Yes. LORD JUSTICE LEVESON to comply with the highest standards required of English laws; we could get away with far more if we were only publishing in America.
A. Absolutely. The point I was making is that would be very difficult, a very difficult position to sustain if the highest standard was significantly higher, is what I'm saying. We're already at a competitive disadvantage. And this isn't hypothetical competition, this is the competition British newspapers are going to have to enter if they want to have a future, which is why we have a New York office, why the Guardian have also chosen to invest heavily in America, because they're a free website, presumably they've done the same calculations we have and have realised that the English language news is not one market any more, it's a global market, it's anywhere where they can speak or read English, and fantastically, Fleet Street is very well placed to exploit that market. In the 1980s when they deregulated the City, it gave the City a chance to compete around the world for financial business, and it did so fantastically. In a way this is Fleet Street's Big Bang, this is our chance to compete with everyone else in the world, and the home of the Internet is America, the biggest news providers in the world are American. My main competition isn't really, to be honest, the other Fleet Street papers. My main competition is AOL or Yahoo or People Magazine. LORD JUSTICE LEVESON But they are aggregators, aren't they?
A. No, Yahoo employs hundreds of journalists. AOL HuffPo employ hundreds of journalists. They produce content as well as aggregate content. But to be honest, most big sites now are a combination of the two. They are a combination of content producers and content aggregators. LORD JUSTICE LEVESON We'll doubtless come to that. MR BARR Just picking up on the structure of your website, and I have it on screen in front of me here, I can see that under the headline "MailOnline" there are a number of tabs and the third tab is US.
A. That will be the US home page.
Q. Is it right then that if someone logs on here and clicks the US tab and gets the US home page, are they getting content which is edited to American legal standards or to British legal standards?
A. It depends on whether it's an American story or a British story. If you look at the American page you'll find British content on it, the same as if you look at the British page you'll find stories that originated in America on it, and if it's an American court case it will be legalled to American legal standards. If it's a British court case, it will be legalled to British standards. We don't produce two versions of one story, or incredibly rarely do we produce two versions of one story. We don't geoblock content. Everything we publish is available everywhere in the world, so it's published according to the demands of that story.
Q. And so what do you do in the case of a story which has privacy implications and it involves a global superstar?
A. If it was I mean, before this Inquiry was set up, we had the superinjunction controversy and we clearly then obeyed British law, we're a British company. We don't break British law. It would be but American websites with whom I'm in competition obviously can ignore that. Any of them could have chosen to publish those names without any comeback whatsoever. This is the point I'm trying to make. We operate at a competitive disadvantage in some ways, but it's a disadvantage we're happy to accept, and journalistically we can see, for instance, when it comes to libel or contempt, some of the things that are written in America about live trials as a British journalist you find very shocking. So we're happy to abide by the British law and British press regulation. The only point I'm trying to make is that it does put us at a competitive disadvantage against not disreputable sites but very reputable publishers and it would be very difficult for us going forward if that regulatory environment was to become even stricter so that we ended up with a situation where maybe there was something that most normal people, reasonable people, would think was perfectly should be published yet we could not publish because of, say, an injunction, and American newspapers could publish. It's not 1936 any more, for instance. If you had a corollary of that situation where there was something that for whatever reason British newspapers weren't publishing and American publishers were publishing, as with the abdication, the British public would not be in ignorance. It would just be able to click on it and read it from an American website.
Q. Let's explore that in a little more detail. As a matter of principle, do you think it is good business practice to produce your product ethically?
A. You have to produce a product that's trusted. As I say, our business is not built around sensational one-off hits that may attract a lot of people virally. We build our business by growing the number of people who visit us regularly every day. In the UK over 60 per cent of our visitors come regularly. They don't come via Google or Facebook or one of the other third-party routes in, they come directly as a matter of choice, and that's how you build a business because those people consume the majority of your pages and you know who they are and you can build a relationship with them, and clearly you could not do that if you weren't producing a website that they trusted and respected.
Q. Isn't there an advantage, therefore, to having a product which can be seen as professional, kite marked to a gold standard?
A. Undoubtedly.
Q. And as we saw at the outset of your evidence, the imbalance that you tell us about hasn't prevented you in fact from becoming, if it's a neck and neck race, one of the two websites vying for the most popular website in the world?
A. We don't find the current regulatory environment too disabling. There are occasions when it can be frustrating or irritating, but it's not something that points a dagger at the heart of our business. But if things were significantly tightened, then it may well do.
Q. Do you mean tightened in the sense of the bar of the standards bar being raised higher, or do you mean tightened in the sense of
A. I think standards is a loaded
Q. If I could just finish the question.
A. Okay.
Q. Do you mean raising the bar as to the standard required or do you mean the degree of compliance with the bar set at the level that it is?
A. I think no, I think standards is a loaded term. I don't you know, in terms of accuracy, the gold standard of an editorial website is accuracy: are you right? Then you get into matters of value. One person's intrusion of privacy is another person's non-intrusion of privacy. LORD JUSTICE LEVESON But if accuracy is the only standard
A. Not the only standard. I said the most important, not the only. LORD JUSTICE LEVESON Yes, but therefore you're being somewhat overcritical of Mr Barr, because what he's trying to get at is the slightly different question of if there is a bundle of standards of which the most important is accuracy, the question that I think he's asking is: are you complaining that that bundle shouldn't get more restricted or are you complaining that the way in which the bundle is enforced shouldn't become more restricted?
A. I think essentially what concerns me most about the areas of this Inquiry is obviously the privacy area. We comply with the PCC code on privacy. We have a very good record against that, both in terms of PCC complaints and external legal complaints, or, as I explained by giving you the example of Pippa Middleton, it causes some issues at the moment, but they are not unendurable. But if the goalposts were to be moved in that area specifically, then that would put us at a competitive disadvantage against all sorts of people, and I don't just mean celebrity websites in the United Kingdom. Huffington Post, for instance, relies very heavily on celebrity content, and they've already set up an office here and if we moved our goalposts here, they could quite happily ignore them, if they chose. I think that's what concerns me most. You know, if we need to tighten up on the enforcement of anything, it's the law of the land. This Inquiry's been set up because of a failure to enforce the laws, not regulation. LORD JUSTICE LEVESON Well, you'll start an argument with me, Mr Clarke, which I'm not sure you'd want to do.
A. I certainly don't. LORD JUSTICE LEVESON The issue might be cast in slightly different terms. I mean, I've seen assertions just like you've identified, "Oh, it's all a question of enforcing the law", and then I've seen equally headlines where the police have done that and arrested journalists, saying, "Oh, it's become a Stasi state, the way they're arresting journalists", so actually there's a risk of trying to have it both ways.
A. I'm giving my opinion. LORD JUSTICE LEVESON Well I understand.
A. I certainly wouldn't criticise police for making arrests. MR BARR Picking up on one of the details from that answer, you talked about the Huffington Post in the United Kingdom and the Inquiry has heard from
A. You've heard from a very junior member of the Huffington Post, if I may say so. We haven't heard from anyone in a senior position at AOL HuffPo at all.
Q. But their position in the United Kingdom is that they abide by United Kingdom law.
A. Yes.
Q. So in their United Kingdom operations they're on a level playing field with you, aren't they?
A. At the moment in terms of what they publish about British celebrities in Britain, they operate to a different standard when it comes to American celebrities. I've seen celebrity stories on Huffington Post and royal stories on Huffington Post that we wouldn't have run, because we stick within
Q. On their American site?
A. No, there is no such on the Internet a page is a page, it's not a website. A page is just the bit you direct people to in that country, but everything you publish, everything HuffPo publish wherever they publish in the world is available to be viewed anywhere in the world via the right link. It's just a question of what you choose to project. The home pages are a bit of a red herring. International websites are just one organic thing, maybe with different outward faces.
Q. Can we move now to paragraph 26 of your statement, where you we'll deal with this briefly, I hope you say: "Fleet Street's intense competitiveness may have led some publishers down a murky path in recent years for which there can be no excuse but I believe that those abuses and criminality were largely confined to one newspaper group." Can I ask you, do you there have in mind one particular form of criminality or are you speaking about press conduct in general?
A. Without wishing to irritate Lord Leveson, this Inquiry was set up specifically because of the issue of phone hacking. That was what precipitated it. Its terms of reference were eventually much broader, and that's quite as it should be, but the catalyst was phone hacking, and yes, that's what I'm talking about.
Q. So if I draw your attention to the considerable body of evidence that this Inquiry has heard suggestive of difficulties on a more widespread basis in terms of press practice, culture and ethics, you wouldn't be seeking to suggest that there's no problem at all, would you?
A. I think the I think I think they're I think there are very, very few problems in groups other than the one that's at the centre of most of this trouble. I've worked for the Mail, as you pointed out, on and off for 20 years. It's an ethical decent newspaper run by decent people
Q. I'm not
A. I can't speak for the rest of Fleet Street, I can only really speak for the Mail.
Q. Can I ask you about how your publication deals with corrections. You tell us in paragraph 32 of your witness statement one of the beauties of being an online publisher is you can correct matters very quickly. I take it that that's simply by taking down the post?
A. Not always. Sometimes it's a matter of just going in and editing the story to correct a mistake in fact. Sometimes it's a question of taking it down. The Internet is an iterative process. We have far more interplay with our both in terms of the people reading us, because they can comment, and quite often we've changed a story either because somebody's pointed out an error of fact in it, one of our readers, or because they've pointed out to us that we've made an unfair interpretation of something. So that's one level. So it evolves over time through the interaction with the readers. But we also have a more interactive relationship with the people we're writing about, particularly celebrities, for instance. Quite often they will ring up and say, "You didn't get that quite right", or, "I'd rather you didn't say that", or, "Actually the truth is this", so quite often we'll just correct content as we go along. That's the way the Internet works. It's not like a newspaper where you publish it once and it's there it is in print and it's there forever more. Digitally it doesn't work like that. Or sometimes we'll just take the story down if LORD JUSTICE LEVESON It's actually not there forever more, because if it's in print, then it's gone by the following day, whereas if it's there online, it's recoverable forever.
A. Well, in print it's recoverable from any newspaper library. LORD JUSTICE LEVESON Oh yes.
A. And it has a tangibility and a physicality that you can go for. The point is that's why the Internet if we kill a story, it's not there forever more, it's gone. Within half an hour or so, it's vanished. MR BARR In what circumstances do you go further and draw explicit attention to the fact that there's been a correction?
A. I would say 99 per cent of the time, if people want either a small correction made or if they really object to a story and we agree with them and decide to remove it, 99 per cent of the time they would just want that correction either amended or erased. I don't recall somebody ever ringing up saying, "I don't like that story, you've got that completely wrong, but don't just kill it, please leave it up but correct it. Or put a correction up and leave the story amended". Very, very rarely do people want that. Obviously if there's a PCC adjudication that we've lost, and there have been a couple, then it's part of the agreement that we do make it plain that there's a that we made a mistake and this was the story and this is the PCC's ruling.
Q. Do you think
A. And we have to post those prominently, but 99 per cent of the time, if not more, people would just want the mistake corrected or removed.
Q. Do you think as a matter of practice it might be a good idea to post something recording the fact that there has been a correction so that those who have read the earlier copy, who might revisit your site, are aware that something they've read earlier has been corrected?
A. I think if somebody I think it would be impractical to record every single change you make as you go along. As I say, we're editing constantly, we're improving, we're polishing, we're changing headlines, we're changing intros. We're constantly it's an evolving organic animal of a product. So you couldn't record every single change you made as you went along, it would be impractical. But if somebody wanted us felt strongly that we should, then we would. Wherever possible, I try to where I think we have made a mistake, I try to correct as quickly and as cleanly as we can.
Q. If
A. It's which is why we have a I think digitally we have a very different relationship with the people we write to and the people we write about.
Q. In what circumstances do you publish apologies other than as a result of a PCC adjudication?
A. I can't think that we have.
Q. You tell us
A. If I can elaborate, because if the person is happy with the result of whatever complaint they've made, then they clearly haven't asked for an apology.
Q. You tell us at paragraphs 33 to 35 about the level of certain types of complaint. You tell us that in the last three years you've had 205 legal complaints, 35 were for privacy issues and of those three led to you making compensation payments and you tell us that you've had just six privacy complaints via the PCC. Those statistics speak for themselves in the context of
A. If I can just say the privacy payouts were all foreign courts, where we maybe fell foul of the fact that in Europe in Europe, basically and in some European jurisdictions they have a different level of privacy from that which we have in the UK, which is we're running out of time so I don't want to get into that, but that's becoming another big issue. LORD JUSTICE LEVESON Don't worry about the time, Mr Clarke. We can factor in sufficient time to cope with what you consider is sufficiently important.
A. May I raise this issue then? Because I think it is one that the Inquiry may wish to consider, which is that in France and Germany, in particular, they have a different level of privacy. If we take a picture in France or Germany, then we try we're not it's not our jurisdiction, and it's understandable sometimes that we make a mistake. We try and follow the law of that locality. But we now have a situation where we have some personalities, particularly one French personality, who is trying to sue us for pictures not taken in France but taken perfectly reasonably and legally in America, which would not be in breach of the PCC, let alone British privacy law such as it is, and we are going to dispute those because it seems to me unreasonable for foreign nationals to export their own countries' levels of privacy wherever they travel around the world. I only raise that to give you an inkling of the complexities and the issues that the digital business raises where you have a globalised business and globalised competitors all trying to pick their way through individual and varying jurisdictions. LORD JUSTICE LEVESON Would you not have run the risk, if you take your French example, of litigation in France in relation to that which you put on your Internet site, which is capable of being seen in France?
A. But that brings me back to the point of principle. I'm in competition with American websites. American websites, many of them ran the same pictures. They can't be sued because they're not based in the EU, so but that celebrity would have to try and sue in an American court and would get very short shrift. But because we're part of the EU, they can sue in a European court, ie their home court in France, and if I lose, then as an EU as a company based in an EU country, I have to pay up. It just gives you an idea of the very slight way the playing field is slightly skewed against us by being based in Britain and on a broader level in the EU. LORD JUSTICE LEVESON That's not by being based in Britain at all, because your premise was that the picture was perfectly legitimately taken and legitimately published in Britain.
A. No, but LORD JUSTICE LEVESON Your complaint is that the French have a different standard, which, if you're going to publish in France, you run the risk of falling foul of.
A. No, because no, you misunderstand me slightly. An American website the American websites published those, which were also visible in France, but they cannot be sued because they're not based in an EU country. It's not I'm not subject to the French law because I published it in France. I'm subject to the French law because I'm based in an EU country. That's the difference. This celebrity can do nothing to the American websites who published exactly the same pictures because they're based in America and American companies do not have to recognise judgments in EU courts. We do. LORD JUSTICE LEVESON Yes, that's a slightly different point. You still could be sued in the American company could still be sued in France for what is said to be a breach of French law. The only problem the successful claimant might have is enforcing the judgment in America if that's the only place in which that particular website has assets.
A. Exactly. LORD JUSTICE LEVESON So if they have assets in England or France or Italy, then they can pursue those assets in that country because that's part of the EU.
A. Exactly. But for the vast majority, they would not have assets in France. LORD JUSTICE LEVESON If they did
A. And also they would claim that they weren't subject to French law, being an American company. So it then technically, yes, I suppose they could go around and seize some offices from Yahoo in Paris, or whatever, but you then raise the bar yet further for the plaintiff because they have to not just win but they have to then seize the money rather than it's obviously much harder LORD JUSTICE LEVESON That's what happens in legislation, in litigation throughout. You not only have to win, you have to then find the money. Perhaps it's easy in relation to Associated, but it's not necessarily easy in relation to some other companies.
A. I don't think it's because these companies haven't got assets, it's because they're not based in an EU country. MR BARR Could I just try and understand the high level point that comes out of that. You're plainly explaining to us the practical issues you face in complying with several different legal regimes when you're running an international business. Are you I say simply but I know it's not a simple matter are you simply trying to communicate that difficulty and complexity to us or are you going further and trying to say: therefore, the standards bar in this country should be lowered?
A. No, I'm explaining how difficult it is already and suggesting that it would be very dangerous to businesses like MailOnline to raise it any higher. I still have a problem with standards, but for the purposes of shorthand, I know what you're saying.
Q. We were talking about complaints, and I think I should draw out that the statistics I referred to earlier are against the background of 400 or 500 stories that you print every day electronically. But in addition to those legal complaints and PCC matters, am I right to understand from your earlier evidence there is actually a much larger volume of shall we say more mundane issues raised with you directly with your readers which you deal with
A. I wouldn't characterise most of it as complaints. Complaints some of them, yes, people are complaining, in others they're just trying to help. But every newspaper and every TV station, every radio station receives numerous communications which might be characterised as complaints but are easily resolved, and if something is easily resolved, then it's not much of an issue for anyone.
Q. You then turn to subjects it is which are perhaps at the heart of why the Inquiry is interested to hear your views LORD JUSTICE LEVESON Mr Barr, I know it's slightly early, but I don't suppose we'll take the full afternoon, subject to anything else that Mr Clarke feels that he wants to deal with, but I think that we'll give the shorthand writer just a few minutes' break. (2.58 pm) (A short break) (3.04 pm) MR BARR I'll move now to some issues that surround the issue of how, if at all, does one regulate Internet news publishers. You start by discussing in your statement the position of domestic bloggers at paragraph 38 of your witness statement, and the point that you make, if I've understood it correctly, is you're finding it difficult to see what might force bloggers to join a regulatory arrangement.
A. It's a bit more fundamental than that. I think the point I'd like to try and make is that you can't really slice and dice the Internet up into different bits. People consume the Internet as a kind of continuous spectrum. They'll get up, they'll look at their friend's Facebook's page, so that friend on Facebook has published something. They'll then follow somebody on Twitter who has also published something and that person on Twitter may have Stephen Fry has nearly 4 million users. He can reach more people in an hour than I can. So is he going to be regulated? Then you have bloggers, and then you move through news publishers and then obviously Fleet Street, or what used to be Fleet Street, is just one portion of the people publishing news online. As Mr Murdoch said, in 20 years' time there may not be any newspapers. So it seems to me odd that everything's moving away newspapers become quite frankly a smaller part of the media landscape every year so why are we obsessing just with one area? Am I going to end up with a situation in 10 years' time where MailOnline or 20 years' time is subject to one kind of regulation because we used to publish a newspaper, and other publishers I'm in competition with are subject to an entirely different method of regulation? It's the big elephant in the room, and I think we're looking backwards fighting the last war rather than worrying about the troubles and problems coming down the track. Going back to your question, yes, bloggers are just one part of the Internet landscape and it's a good example. How do you compel a blogger to comply? He may, as you say, think it's worthwhile belonging to something that gives him a gold standard or a kite mark, or he may think it's more trouble than it's worth.
Q. Perhaps we can, to take your analogy, look forwards a little. If one takes Twitter in its normal usage as being effectively just a conversation
A. That's what I sorry to interrupt that's what I disagree with. I think Lord Leveson's referred to it as people chatting in the pub. Well, it's a very big pub, isn't it, where you can reach 4 or 5 million people with one shout? I don't think it is people chattering away in the pub. They're chattering away, it's like giving everyone their own private radio station.
Q. Would you make a distinction between those using the Internet to promulgate news commercially as opposed to non-commercially?
A. No. I don't understand the question.
Q. What I am saying is: do you think, for example, a blogger who is making money through his blog should be regulated?
A. So in that case we shouldn't be regulating the Guardian, because they make no money. The idea of whether you make a profit LORD JUSTICE LEVESON Oh no, no, no, no, no. Stop. Stop, Mr Clarke, and think just a bit more carefully. Mr Barr's question is perfectly reasonable. This is about whether those who are in the course of a business should be the subject of regulation. The Guardian is undeniably in the course of a business.
A. Well, that's a fair point, but that wasn't the question. The question was: should those who are making money be treated differently. No. But I don't agree obviously people who are in a formal business have to be treated somewhat differently. That's a level of practicality. The point I'm making is they can't be treated entirely differently. We cannot have a situation where people can individuals on Twitter can go and talk about big things that are happening, which for whatever reason newspapers aren't allowed to. We'll just become irrelevant and people won't bother coming to us any more because "Well they don't know what's going on, why am I reading about this on Twitter and why are my friends on Facebook all linking me to this person's blog when the newspapers have a wall of silence?" LORD JUSTICE LEVESON Let's give an example of that. There was in the recent past the publication on one of these, I think it was Twitter, but it may have been Facebook, the name of a victim of a sexual offence. Now, you know perfectly well that victims, complainants of sexual crime, are by English law entitled to anonymity. First of all, do you think that's a sensible legal provision?
A. Absolutely. LORD JUSTICE LEVESON So, therefore one does have to address what one should do about those who publish that sort of information.
A. I believe that I think the answer to your question is very simple: arrest them. In fact, I think that person's been arrested. LORD JUSTICE LEVESON I think that might be right.
A. Yes, so clearly everyone has to obey the law of the land, whether they be a newspaper or individually. If people are going or naming rape victims on Twitter, then they're very easy to find and the police know where they live. I don't see that it needs an inquiry to deal with that. LORD JUSTICE LEVESON With great respect, you might just talk yourself into getting more law, not less law, because what will happen is you will cause those that are responsible for law in this country to say, "Right, well, the way to ensure that people are not the subject of inappropriate intrusion is to legislate just that fact", and it will cover everybody. So what I mean I'm trying to do is to find out whether there is a middle ground. If there isn't, then I understand your position. If there is, I would like to know what it is.
A. I think it would be very foolish to go down the yes, of course, Parliament could legislate. Essentially all that would happen, and if you hamstrung British newspapers and British websites relative to their international competition, this is what I've tried to explain, is that the international competition will end up supplanting British newspapers, because they will be able to report things which British newspapers are prevented from. LORD JUSTICE LEVESON So you would permit the non-British newspapers, you would accept there's nothing we can do about a non-British newspaper publishing the name of a rape victim?
A. There is nothing that you can do. Obviously most reputable news organisations would never do something as objectionable, but there have been cases I would have to go away and look them up, but I'm pretty certain there have been cases where American newspapers have published things that would be names of victims and things which we wouldn't have done, but you're misunderstanding what I'm saying. I'm not arguing for looser control, I'm not arguing that as a new website we shouldn't follow the British law of contempt and libel and obey injunctions where privacy injunctions et cetera where they're granted, I'm not arguing that for a moment. What I'm arguing is that it's very difficult to it would be it is it would be very unpalatable for newspapers or newspaper websites like MailOnline to be placed under an even heavier burden of regulation when the rest of the Internet is not placed under any burden of regulation. But of course I'm not arguing for the freedom that people should be able to say what they like on Twitter, and where they break the law they should be arrested. LORD JUSTICE LEVESON That's why Mr Barr is talking about how one could go about regulating or providing an appropriate measure of regulation in Internet provision short of newspapers.
A. Well LORD JUSTICE LEVESON It's not an unreasonable question.
A. No, no, and I think I'm answering it, I think, reasonably. But let's suppose that I'm arguing that I don't think that newspapers shouldn't be placed newspaper websites shouldn't be placed under a more tighter burden of regulation, but if you go back to your point with the bloggers, how do you compel a blogger to join some kind of regulatory system, how do you compel him if his servers are abroad, if he's operating abroad, if he's operating, say, from the United States where they have the First Amendment, which they seem to think is important, and which trumps everything, which trumps what we would consider reasonable protections against contempt or reasonable protections against reputation, they think the freedom of speech trumps that. If they're operating from that environment, where politicians and journalists take the view that, yes, some people will abuse the freedom of speech, but giving them the freedom is worth paying the price of that abuse, then it's very difficult to see how you could compel that blogger to join a British regulatory system. And also, you have to pick your fights, I guess. It's one thing to start locking people up for promulgating pornography or child porn. It's another thing to start locking people up because that's what it comes down to at the end of the day, if the state wants to enforce something, it has to use the law start locking people up for saying things, then I think that might be a price that is too high to pay for LORD JUSTICE LEVESON You're trying to prove rather more than we're trying to deal with. I'm not talking about locking people up necessarily. It might be a civil wrong. It might be a regulatory wrong. There are all sorts of mechanisms short of the criminal law to cope with this sort of problem. Or are there? And that's really the question.
A. I think you have to test something to destruction, and that's all I'm trying to do here. You're saying can we compel private bloggers who may be making a small amount of money from the Internet to sign up for regulation? Okay, it maybe stops short of prison, but somehow whether it's a civil case, ultimately if you refuse to pay damages or comply with the results of a civil case, the ultimate penalty is imprisonment. At the end of the day, how far LORD JUSTICE LEVESON Not for a very long time, Mr Clarke. Trust me.
A. Well, I don't you're much more eminent in the law than I am, but the ultimate sanction for contempt is imprisonment, whatever. LORD JUSTICE LEVESON Yes, contempt, certainly. Contempt, certainly.
A. The point I'm making is that how far is the state willing to go to compel private individuals and curtail private individuals' freedom of speech? And I'm suggesting that in the real world, when it came to a real point of principle, it would not be a price that the public was willing to pay to protect, say, a celebrity's private life. The weight of regulation, the weight of policing and the licensing system, whatever it was, would be out of all proportion to the harm that you are seeking to protect against, because at the moment the great harm, the harm of libel, the harm of prejudicing somebody's trial, the harm of invading somebody's home, all the big abuses are currently catered for either under the law or under the current system of regulation with the PCC, and as I say, I'm not arguing to be exempt from that, I'm just cautioning that there is a growing part of the media that isn't subject to any of that and that we have to be seen in that context. LORD JUSTICE LEVESON Do you think that the PCC then is effective? You've just spoken of it as though it was effective.
A. I think I don't think I don't think it's as broken as some people make out. I think there is a need I think there is a need LORD JUSTICE LEVESON I think you might be the second person throughout the whole of this Inquiry to think that.
A. Let me finish. I think there is a need to convince the public that it isn't broken, and I think obviously the press needs to do more to re-engage the trust of the public and that's why we as a company have suggested new arrangements. But I don't wish to point out the obvious, but that wasn't the fact that people were not people were not driven to the point of disgust by the fact that the PCC was broken. People the firestorm that caused this Inquiry to be set up was not caused by failures of the PCC. LORD JUSTICE LEVESON Mr Clarke, you're becoming an advocate. The fact is that the straw that broke the particular camel's back may very well have been the phone hacking incident, but there have been many, many more stories, and you don't need me to tell you about them, that have generated enormous public concern, and don't you see something, that we've discussed several times during the course of this Inquiry, rather interesting about the way there is some great public concern, there's an Inquiry, the press say it will be much better next time, we really will do it better, and then it improves for a while and then drops down again, then there's another inquiry, so we've gone through this cycle several times since the war. Don't you think that's a matter of concern to you as somebody who obviously
A. Yes, and LORD JUSTICE LEVESON feels extremely strongly about journalism?
A. Yes, and one of the things I enjoy about working in the digital environment is building a slightly different and more collaborative arrangement with our readers and the people we write about and the digital environment enables you to do that, enables you to be flexible, find compromise quicker. It's entire positive. Equally, as you say, we've been down this road and around in circles several times during the war, and the point I'm making is that now we're obsessing over an industry that is, as I say, becoming less important, and in the course of fighting the last war, we're going to stop newspaper websites from winning the next one, quite frankly, if we place the British press and British websites under a regulatory environment that is too strict. There wasn't much Mr Murdoch said that I agreed with except his sound bite that if we're not careful, we'll end up with no industry to regulate and this Inquiry will be academic because the British newspapers will not have survived. LORD JUSTICE LEVESON Do you mind if I object to the word "obsessing"?
A. No. Does that answer does that cover that point generally? MR BARR I'll move on. If you are concerned about the difficulties with regulating various people who compete with you on the Internet providing news, whether they be tweeters, bloggers or large commercial concerns, but at the same time you are content in principle to be subject to domestic regulation, what do you say the answer is?
A. It's it's it's very difficult. And to a certain extent let me say, let me I'm not arguing for lighter regulation of the press, at all. I wouldn't want anyone here to take that away. I'm warning against overregulation of the press and I have explained the background, the competitive background as to why that concerns me. As regards the broader Internet, and clearly I don't see you know, MailOnline is on the same footing as an individual blogger or certainly not some individual tweeter, and I and I think to a certain extent we as a society have to accept that the world has changed. The Internet is a very disruptive medium. It's disrupted many businesses, including newspapers. We're hoping to make the best of it. But it also disrupts not just newspapers, it disrupts politics, the law, and I think it's a great engine for democratisation. It allows people to know more about things that previously they were not privy to than they ever did before. It allows everyone, as I said, through Twitter or wherever, to have their say, and quite frankly there are people in the political establishments, legal establishments and even journalistic establishments who are pretty uncomfortable with that. We all pay lip service to democracy and freedom, but when it comes right down to it, I think some people, the elite in this country, are uncomfortable with it. But even though there is a downside, it allows people to be irresponsible to a certain extent, and be unpleasant to a certain extent. The upside, in the fact that how it engages people in in the matters of the day, how it engages people with each other, the commercial opportunities it offers to businesses, not just media businesses but all sorts of businesses that seek to compete with the rest of the world, I think outweigh the problems that it causes, and, you know, we used to get we used to get quite upset or the media used to get excited when there would be some kind of storm on the Twittersphere and 20,000 people would complain about something, until it happened half a dozen times and you just realise that's the Internet. It's not it's sometimes because we're used to dealing in an analogue world, in a print world, when the same thing happens online, it seems blown out of proportion. So my answer is this: the press endures tighter regulation than our competitive press abroad, particularly in America. We have no problem with that, I don't complain about that, but I would prefer not to see it get any worse. The law of the land should be enforced, whether it be a journalist abusing the law or an individual taking to Twitter to break the law. Whether it be racist abuse or sexual abuse or revealing somebody's address, the law should be the law as it stands should be enforced, within the bounds of free speech. So now if you would like to sketch out for me a bigger problem that needs solving, then obviously I can address that, but you're asking me you're saying what is the how do we regulate the Internet? My question is: do you need to regulate the Internet? Any more than you need to have a policeman standing in the corner of every pub watching what everyone says.
Q. You used the word enduring, endures regulation. Is that your mindset towards regulation
A. No.
Q. as something that you have to endure?
A. No, no, because as I say, if I'm frank, I'm British, and I spend a lot of time in America, and it's not for me to tell other countries how to run their business, certainly while I'm trying to do business there, but as I say, when I see some of the things that are written about people facing trial, or during a trial, and as journalist you think, well, thank goodness we have the contempt law in Britain. No, I don't know LORD JUSTICE LEVESON It may be that they do it slightly differently, because what they do in America is they sequestrate the jury, so they allow comment to go but the jury don't see the comment because they're sequestrated.
A. Sometimes, but quite often this comment happens before the jury has even been empanelled, when a person's been charged, where obviously in this country we wouldn't dream of doing anything like that. So sequestration is of fairly limited use. And they rarely use it. MR BARR Does it amount to this. Are you saying that in your opinion there is a large proportion of the Internet which is simply beyond self-regulation?
A. I think where you're dealing with the problem is the Internet enables everyone, not just news that's what I'm saying. It's a democratising agent. It allows everyone to have a voice. Things like Twitter and Facebook mean that everyone can have a voice. You could go home and set up a Facebook page tonight and if there was something sufficiently interesting on it, that link, the link to your Facebook page, if you left it open to all-comers, could be viewed millions of times by tomorrow morning. You could reach more people in the next 24 hours than MailOnline does, quite easily. The question is you have to accept that people have a freedom of expression and we have to just take the good with the bad to a certain extent when it comes down to individuals.
Q. Can I move now to paragraph 61 of your witness statement, please, where you describe as "ludicrous" a situation where to compete globally but comply with UK regulation and law MailOnline has to block some stories about British subjects from only its British readers while American websites can serve them in Britain. You wouldn't describe it as ludicrous, would you, complying with the law of the various countries in which you do business?
A. No. I was thinking specifically there of the 1936 parallel, to which I alluded earlier.
Q. That, I think we can agree, was a very long time ago.
A. Yes, it was a long time ago, but it's a very good analogy, isn't it? Very good analogy for where you had a very important fact that for whatever reason, because a judge, a single judge, had taken the view that British newspapers should be injuncted from reporting a fact, had taken the decision effectively to gag the entire British media, and that would obviously not just apply to newspapers, it would apply to British broadcasters, and individuals, obviously, also, if they were aware of it, but which American newspapers could report and beam, if you like, into British homes via the Internet. It's difficult, we're dealing with hypotheticals and I wouldn't want to cast aspersions on a judge's judgment, but you could see a situation where a judge had taken a decision that seemed to journalists, either in this country or elsewhere, perverse, in which case and British people would would learn from foreign media what their own media were not allowed to tell them.
Q. We're coming back to the argument from earlier that if you publish something here, whatever its sources, the law will catch up with you even if it may be more difficult practically to do so.
A. Well, the Americans take the First Amendment fairly seriously. I would say if you were seeking to pursue an American media organisation through the American courts for exercising what they considered their constitutional rights, you would have a very uphill struggle indeed.
Q. I'm looking now at the last page of your witness statement, where you talk in somewhat emotive terms about the issues we've been discussing. You say at paragraph 72 they can no longer control what people are allowed to know and you talk about rather than looking at how to handcuff the press while the rest of the web grows unchecked. Can I just be clear as to whether we're to understand the language that you're using as amounting to agreeing with what an earlier witness to the Inquiry, Mr McMullan said, when he said that in his opinion, privacy was a matter for paedophiles?
A. No, I wouldn't agree that. Everyone's entitled everyone is entitled to a degree of privacy, no question. What I was alluding what I was alluding to there was the point I was making earlier, which is that which is that which is that is that is that we are seeking to compete in a different medium with different rules against different competitors from different countries, and we already we already we already we already work under a tighter regulatory system and legal system than everywhere else and I wouldn't want to see it tightened any further. That's all I'm trying to say there. The point I'm making on a more general, if you like, philosophical level is that, as a society, we have to in a way stop worrying too much about what happens in every corner of the Internet and accept that the Internet brings us many, many, many brilliant things, but there's a price for everything. But I think if you asked people, "Would you rather have a free Internet and accept that every now and again somebody's going to behave badly on it, or would you rather live in North Korea where they don't have any Internet?", they would rather live in a free society and I think we have to balance the restrictions that regulation places on individual freedom against the benefit, and if you're asking me how do you regulate beyond the established media, I'm saying it's very, very difficult and probably you're using a sledgehammer to crack a nut but that's not the same thing as it as to say you shouldn't regulate the serious media. I freely accept that and in many ways personally I'm glad for it. LORD JUSTICE LEVESON I'm not sure the parallel between total freedom and North Korea is quite apposite, but would I be right in saying that I should not read paragraph 74 as saying: well, actually, rather than looking for restrictions, the new reality is it's almost anything goes, therefore we should try and explore how we're going to cope with it? I read that, you see, as rather saying that: far from the present restrictions, restrictions should be eased because of the problems of the Internet.
A. No, I'm not arguing that. I'm not arguing LORD JUSTICE LEVESON But do you see why I
A. Okay, I'm sorry if I misphrased that but I'm not, and I've said frequently, I'm not arguing that restrictions should be relaxed, I'm just warning against the unintended consequences of tightening restrictions further. I'm certainly not arguing that restrictions should be relaxed. LORD JUSTICE LEVESON Yes. MR BARR Moving on now to just a couple of systems-related questions I'd like to explore, first of all I think it's well-known that your publication and it was not alone ran into difficulties when it published an incorrect story about Amanda Knox?
A. Yes. Yes.
Q. Could you tell us first of all how did that error come about?
A. It came about through human error and overzealousness. There were three mistakes we made. The first one other people made as well, which was they misunderstood a verdict being delivered in Italian and basically got it round their necks and got it back to front. As you say, we weren't the only people who did that, other news organisations did it as well. The second error, though, that compounded it was the fact that we had prepared what in newspaper parlance is called a set and hold, which is when you're expecting a verdict late at night, in newspaper days when the paper was near edition, you'd have copy ready to roll, so you wouldn't have to sit down and write it from scratch and save time, which was sent out at the same time as the verdict. Now, that shouldn't have happened, because obviously it shouldn't have gone out because the verdict was wrong anyway, but it shouldn't have gone out full stop until it had been checked against what had actually happened and amended. So that should never have been published. And the third error was, because bear in mind this story was live for about a minute and 30 seconds, once we'd killed the story, because we realised very quickly we'd made a mistake, once we'd killed the story, we should have done something technical called flashing the cash, which would have erased the story from the Internet very quickly rather than leaving it sitting around for half an hour or so. So there were three errors made, all of which basically boil down to human error. I would say the one that made me personally I hate you know editors it seems to happen a lot with editors, but I wasn't in the office that day, the thing that made me angriest was that there was no need for it. It's a bit of a fiction that Internet sites and TV stations well I can't speak for TV stations, I can only speak for myself, I guess they are desperate to get a story out ten seconds before the competition. I have no interest in that whatever. There's no benefit to it whatsoever. First of all, Google News for instance isn't that important to us in terms of traffic. Secondly, even if you are the first person up there, the chances are you'll be knocked off the top spot by whoever files in five minutes' time, so my people are under no pressure to be 30 seconds ahead of the competition, so there's no need not to sit back and wait literally a minute until it was obvious what the verdict really was. We had a thorough inquiry, as you can tell, advice was issued, firm advice, to people, and I'll be very displeased if any of those things happen again. But we are dealing with humans, I'm afraid.
Q. Now there are a number of questions which a core participant wanted put to you. I'm not blaming anybody for this, but the fact is they came to you very late in the day, but I understand that you are prepared to deal with those by way of a supplementary statement?
A. Yes, I'll happy I didn't see them until gone 6 o'clock last night and they're all quite historical, so I'd have to go and check the facts and answer in writing.
Q. And a final issue on your systems, and I've picked from today's edition of your publication a story, and I'm not putting these questions because I want to criticise the choice of story or the publication, it's simply an example to explore how you go about the question of checking for factual accuracy and compliance with the code. The story I've chosen is one about an actress from the well-known television show "The Only Way is Essex"
A. We call it TOWIE.
Q. Yes, I know that. It publishes a number of photographs of this actress enjoying a holiday in Dubai. The photos are accredited to bigpicturesphoto.com. It's unclear from the photographs whether or not they were taken with the consent of the subject. Do you know whether they were or they weren't?
A. Well, it's not unclear to me. You know, this is my job. It was self-evident to me that those pictures were taken with consent. You can see the photographer, it's on a very short lens, right in front of her. There were several dozen of them in different poses and contexts, so it seemed to me
Q. I'm not going to suggest that one couldn't say they appear to be posed
A. I'm not saying that, but it was it was the issue of whether or not these were taken with consent, bearing in mind the fact that she is a star on a big reality show and the context of the pictures and no, they were clearly taken with her consent.
Q. What I'm asking is: did you ask or I think you've now answered my question, no, you didn't
A. In this instance, I didn't need to ask. It was I would stake my year's salary on it being taken with consent.
Q. Do you have any system in place for dealing with photographic agencies like Big Pictures to verify that the circumstances in which they have taken photographs comply with the PCC code or do you simply work on instinct?
A. No, we rely first of all, we rely on agencies like Big, as I think Darryn said when he attended the Inquiry, to follow the rules of the PCC, particularly British celebrities. If there is something that rings alarm bells because of the way the pictures look or because of the context, then we'll ring them up and say "How were these pictures taken?" and then they'll tell us and we'll make a judgment. Quite often it's an issue of it can be a contentious issue. We'll publish a picture, the celebrity or their agent will ring up and say, "You can't use those, they were taken in a way that was not acceptable", we'll speak to the agency and the agency will give an entirely different story and then you have to pay your money and take your choice and decide who you believe, and that's where the skill and judgment of editing comes in, I'm afraid. It isn't an exact science. If I get it wrong, then I can end up in front of the PCC or even a court. But these but you know, I think the Inquiry has to understand the world of celebrity. First of all, there's nothing wrong with showbiz. It's not a dirty word.
Q. Nobody's suggesting it is.
A. People, millions and millions of people enjoy popular culture, and thank goodness for showbiz stars that they do, otherwise they'd all be out of business. There's nothing wrong with watching X Factor or reading about it. I have to produce a website which makes a profit because profit is the only real way of having any freedom in journalism. The only journalism that's truly free is profitable journalism otherwise you're in hock to the taxpayer or a charitable foundation or some rich sugar daddy, so you have to make money. I have to produce a product that is engaging and entertaining and I do that by providing things that people want to read about, that they're interested in, one of which is showbiz. It's not everything we do, it's only about a third of the page impressions we do. We do loads of science stories and foreign coverage that are far in excess of what the paper does because I have more space than the paper does. Very few people wake up one morning and find oh my goodness, I woke up, I'm a celebrity. It doesn't happen by accident. I know that we are probably the celebrities' favourite website. I know for a fact that they are glued to us because I hear from them all the time. Most of them, their biggest concern in life is not appearing on it. This is a very good example of a nexus between PR, freelance picture agencies and newspapers and websites. And quite often I think the Inquiry has to guard against pictures that might to the man in the street seem to be intrusive but were in fact taken with the celebrity's full consent. Of course, quite often if we're not there now to take a picture, the celebrity will helpfully Twitter one just in case anyone missed it, so I think, you know, an awful lot of showbiz content has to be seen in that context. Does that answer your final point? MR BARR It does, thank you. Those are all my questions. LORD JUSTICE LEVESON You were concerned that time would not permit you to make all the points that you wanted to make, Mr Clarke. Is there anything else that you want to say?
A. No, you've been very indulgent. Thank you very much. LORD JUSTICE LEVESON I'm not sure about that. Thank you very much indeed.
A. Thank you. MR BARR Sir, the only remaining item of business for the Inquiry this afternoon is for me to mention a list of statements that we'd invite you to take as read. LORD JUSTICE LEVESON Yes. MR BARR They are: Mike Garnatt of the UK Press Card Authority, Sean Lawrence Bellew, the third witness statement of Liz Hartley, the third witness statement of Paul Dacre, response by HMIC to further CP questions on the PNC, Media Regulation Roundtable proposal for future regulation of the media by the MSA, witness statement of Damian Green MP, a letter from Mr Colin Crowell supplementing his oral evidence, a submission by Inquest and appendices 1 to 5, the third witness statement of Alexander Owens, witness statement of Nick Davies dated 28 March 2012, second witness statement of JK Rowling, second statement of Lord Stevens, second statement of John Ungoed Thomas, witness statement of Mike Sparham and the Prospect Union, witness statement of Andrew Thomas, Public and Commercial Services Union, the second witness statement of Richard Caseby, response of Collyer-Bristow to the second witness statement of Mr Caseby, letter from Catherine Taylor about the oral evidence of Mark Lewis, witness statement of Tim Lord, and a witness statement of Gillian Phillips. LORD JUSTICE LEVESON Thank you. I wouldn't want anybody to misunderstand the process of the Inquiry. It is inevitable, if the Inquiry is not to take very much longer than it has taken, that choices have to be made about those witnesses who will be asked or required to give oral evidence. Those whose evidence is taken as read, whose statements will appear on the website, should not feel aggrieved on the basis that less attention is being paid to what they say or their views. Attention will be paid to what they say and to their views, and full consideration will be given to all that these statements contain. Indeed, before statements are read, they are, as I understand it, circulated and complaint can be made, if it is appropriate, about the statement being read, and a decision will then be made. I simply want to emphasise that statements being put into the record are not in any sense second class statements. They are just as important as other evidence that I have heard from the witness box. Thank you. Thank you very much, you needn't remain there. Mr Sherborne, the issue. MR SHERBORNE Yes, sir, I don't know whether LORD JUSTICE LEVESON Let Mr Clarke go. MR SHERBORNE That's what I was going to say. He may want to leave the hot spot. Application by MR SHERBORNE Sir, I indicated before the luncheon adjournment in the light of Mr Gilmour's evidence this morning that there is an application or an issue that I would wish to raise. It's been forewarned to some extent in Mr Crossley's email of last week, which I hope has been drawn to your attention since I mentioned this matter before lunch. Mr Crossley's email was, for understandable reasons, directed at the evidence and questions that might be asked of Mr Gilmour. But it does indicate in general terms the nature of what I'm seeking, although the issue is more targeted. Can I just briefly explain the context? As the core participant victims have repeatedly stated, throughout modules 1 and 2 of this Inquiry, the unlawful and systematic trade in the mining of people's private information which was revealed by Operation Motorman is as good as any example of the culture, practices and ethics of the press. I say as good as any example because perhaps in contrast to what we've seen in relation to the News of the World and its use of voicemail interception, we have evidence here, hard evidence, that this practice of buying people's private information because these people would not give it willingly, or just because a newspaper could, thanks to people like Mr Whittamore, that this practice was widespread throughout Fleet Street, and because particular offenders such as Associated Newspapers, who were top of the table, claim never to have used the similarly dark art, we say, of hacking. Again, unlike the investigation into the interception of voicemails, which was rife at the News of the World, the Inquiry's hands are not tied because of a fear, understandable as it is, of prejudicing a criminal investigation and which as you yourself, sir, said may take so long that we may never, heaven forbid, reach part 2 of this Inquiry. Your hands are not tied therefore in relation to what Operation Motorman reveals about the press as a whole, and it's therefore all the more important, I submit, that this is fully investigated under modules 1 and 2. Let us not forget what Operation Motorman has shown us about the culture, practices and ethics of the press, and that is the endemic use across the board of unlawfully purchasing information, not just about the rich and famous, but about members of the public who have found themselves under attention from newspapers, whether through their own acts or unwittingly LORD JUSTICE LEVESON You have to be a bit careful about the use of the word "unlawful" given the statutory defence, haven't you, Mr Sherborne, which we've not investigated. MR SHERBORNE We haven't investigated it and that's one of my points. But what, in my submission, we have heard is clear evidence of the types of information that were being sought by these newspapers which included criminal record checks, friends and family numbers, DVLA checks and requests for the private numbers of people who deliberately sought them to be ex-directory. Listening, as we did, through Mr Gilmour's evidence, to the answers that those few journalists who were in fact questioned, questioned either in the presence or with the knowledge of the legal departments of the newspapers for which they worked, listening to their answers given in synchronised chorus that they didn't know that this material had been obtained unlawfully in my submission was hardly credible. As I say, the sheer number of those types of checks, of criminal records, friends and family numbers and so on, is a testament to this. LORD JUSTICE LEVESON Again one has to be careful because the officer spoke about seven journalists and that was the entire number that considering, of course, they weren't considering Motorman MR SHERBORNE No, they were not considering Motorman. We've heard from Mr Owens, we're heard from others and we've all seen the material ourselves, so we know the volume and we know the nature of the checks that were being carried out at the request of a number of newspapers. That's why I say it is reflective of the culture, practices and ethics of the press one doesn't need to single out precisely which newspapers were involved or who did what to whom and when. And we say again it is equally not good enough to say, as Mr Dacre did, for example, and he is but one example, that this was just a quick way of getting information which could otherwise have been obtained lawfully, if journalists had just a little bit more time to do so. A lazy journalistic tool, apparently. Again we say the scale and the nature of the checks and requests that were carried out at the request of these newspapers is a complete answer to this. Put simply, these are details which could not have been obtained by wholly lawful means. And whether, for example, as Mr Thomas said, this illegal trade in personal information, the victims of which number as many as they are in relation to Mr Mulcaire's activities on behalf of the News of the World, whether, as Mr Thomas said, this is more or less serious than hacking is irrelevant, because both were the unlawful tricks of a very tawdry trade in people's private information. And whilst to greater and lesser extent some of newspapers have put their hands up and admitted to the use of Mr Whittamore, of course they had to because we have seen it in the books that the core participants have been privy to, the answer which has come back from the core participant media organisations is that this is all historic. One core participant, I recall, described it rather optimistically as "very historical". Let me explain very briefly why that is not the case and why we say there are questions, important questions, about this which still need to be answered. It's not historic for a number of reasons. To start with, it's not historic in terms of the dates alone when these activities took place. Just to give you two examples: after all, Milly Dowler's phone was hacked into by the News of the World before Mr Whittamore's offices were raided and whilst he was still plying his very lucrative trade. And when "What price privacy now?" came out, it was in the same year as Mr Mulcaire was convicted. Simply because the full scale of what took place at the News of the World only came to light, despite the company's best endeavours, much later doesn't make what was revealed by Operation Motorman in 2006 historic. It is also not historic because as also appeared clear from the evidence of some of the core participant media organisations, these newspapers continued to use Mr Whittamore after his offices were raided, after he was arrested, after their journalists were interviewed, after Mr Whittamore was convicted and even, even after "What price privacy now?" was published. But equally important and what makes this far from historic, we say, is the true consequence of this systematic purchasing of people's private information without their knowledge and in flagrant disregard of their rights, not to mention, we say, also the law, over a number of years, and that is, for example, what has happened to the journalists who routinely used Mr Whittamore's services, of which there are many, as the Operation Motorman books reveal? What has happened to the information which they obtained as a result? Has it mysteriously disappeared? I wish I could answer those questions, despite having sat in this Inquiry since November of last year, but I can't. Those who can answer it, namely the core participant media organisations, we say have never properly done so. And this failure has real significance for the Inquiry because, and I take this as one example only, Mr Caplan, in his opening submissions, like other core participant media organisations have done and no doubt will do as well, placed great store upon the fact that no penalties were awarded against any newspaper for this and no journalist was ever charged. We've heard about this this morning from Mr Gilmour, as I said, and whilst the police have explained what they did in relation to this investigation, and the problems that they found, we have had no proper answer from the newspapers. We now know as a result of Mr Gilmour's evidence that not only were the journalists questioned, but they were done so with the full knowledge and support of the newspapers' legal departments and also external solicitors. There are, we say, questions which need to be answered. Did the newspapers in the face of this mount an aggressive defence, like News of the World did, in relation to hacking, or did they take it seriously and clean out the Augean stables? That brings me to the application. What I'm not asking you to do, sir, as you invited me, is to seek the names of individual journalists, something to which they clearly object, despite the fact that they are so keen on other occasions to name names, and we're not asking for the unredacted files of Operation Motorman to be published so the public can see them, despite the clear public interest there might be in it. What we are asking the Inquiry to do is to require these core participant media organisations to answer what we say are relatively straightforward questions which they have not done so far. The first of those is: what steps, if any, were taken in relation to those journalists who used the services of Mr Whittamore? Were they in fact fired? Were they disciplined? Were they admonished in any way? Or are they in fact still working for the newspaper, as we believe, and have even been promoted to senior positions, as we understand it? The second of the questions is: what steps, if any, were taken to identify whether any of this information, any of the information obtained through the use of Mr Whittamore, was and is still being retained or used by the newspaper? And if no such steps were taken, why not? And it needs now to take place. We say these are questions which are relatively easy to answer, because the core participant media organisations have all the information they need. They have both the internal information as regards what was done at the time and they have all of the Motorman information which was provided to them by the Inquiry. Presumably that was one of the reasons why this material was given to them back in December, and it is answers that they can give in writing. We say however the logistics are dealt with, these are questions which need to be answered and need to be answered before the end of this Inquiry. Sir, that is my application. LORD JUSTICE LEVESON To some extent, the factual framework which forms the basis of your specific inquiry, and which is postulated by reference to the evidence, also and already speaks to culture, practice and ethics. It's there. And the investigation of culture, practice and ethics is necessary in order to review the extent, if at all, to which the regulatory regime has failed. At the end of the day, would you agree with this proposition: the purpose of this Inquiry cannot be to answer all the factual issues not just because of the present police investigation, not just because of what I say for shorthand is the self-denying ordinance, but also because it would be quite impossible to look at ten years of journalistic endeavour across a wide range of titles, to do balanced and fair justice to individual incidents? What it's driving towards as I have seen, but help me if you think I'm wrong, is to create what I have called a narrative to justify the conclusions I reach as to the regulatory regime, and the question is: to what extent will I be helped by investigating further specific facts in an attempt to devise the answer to the questions that I have to answer? Now, I can quite understand the two specific questions that you have asked. The second is perhaps of greater significance than the first, and I'll tell you why I think that, and I'll let other people comment if they want to in due course. And if not today, then tomorrow, because this is obviously an important matter. I don't want people to feel that they have to respond on the hoof. There is a value to the question: what steps have been taken to identify whether this information is still being used? Because that affects the here and now. And I can see an argument that, although I'm not descending into detail, the here and now is important. What steps were taken against journalists who used Whittamore, and what is their present position now, is a slightly different question because that really goes to what I make of the answers which I've already received, namely: well, we think this was legitimate. Because I would then have to analyse: well, was it legitimate or what do I make of this answer that all these cases where there is if I use the formulation of principle that I discussed some weeks ago strong prima facie evidence of breach of the law can be answered by saying, "We accept that, but actually we looked at it" or "we didn't look at it", whatever. The fact is that if I consider that to be the case, strong prima facie evidence, then it's important that I introduce, it seems to me, a regulatory regime which copes with that problem, whether or not it was dealt with properly then because of all the other events. It's not just Motorman that I'm talking about, it's not just Caryatid that I am talking about, it's not just the McCanns or the Watsons or the Jefferies. I could carry on with the different stories that we heard last November. Because they all may provide material which allows me to reach conclusions all directed to the recommendations that I have to make. And in that regard I bear in mind what Mr Clarke has said, because he wasn't, I think, the first to speak about the problem of the Internet. I think I made the point about it being the elephant in the room very, very early on in the Inquiry, so I'm alert to the problem, and so there's a, if you like, rock and a hard place through which I have to manoeuvre myself. But the question I'm really asking, Mr Sherborne, is: I understand the reason for the request and I understand that any one of your clients are entitled and doubtless have gone to the Information Commissioner to find out personal details about them, but I want to know to what extent, for example, your first question helps me solve what I have to do. MR SHERBORNE Sir, I understand that. Can I start by answering that question, or a number of the matters that were raised in the course of that question? This isn't personal to any particular core participant victim, because we fully understand that the task which confronts you, the task which confronts the Inquiry, is to look at the culture, practices and ethics of the press and, in the light of what you conclude about that, to make recommendations as to the future. That raises three elements, to my mind. The first is, certainly in relation to Operation Motorman and what we know: what are the facts, what is the evidence about the practices which were revealed by Operation Motorman? I don't need to rehearse those. And the questions I ask are not directed at that. But as important, I say, in terms of shining a light on what the practices, culture and ethics and I apologise for repeating that phrase so often but as important in shining a light on that as the actual facts of what Operation Motorman revealed is the way in which the newspapers themselves dealt with what was revealed, whether they accepted or admitted that it was a breach of the criminal law or not. LORD JUSTICE LEVESON To some extent we know. If we take Mr Dacre as an example, he said in terms: from this moment on I think I have it right nobody will use a private inquiry agent. MR SHERBORNE Yes. LORD JUSTICE LEVESON Now, actually, because I am not going to be focusing in on the Daily Mail generally in relation to the wider question of culture, practices and ethics, I could equally take the example of another newspaper, which I believe carried on using Mr Whittamore for some years. MR SHERBORNE Yes. LORD JUSTICE LEVESON And I ask you: is that not enough to say for the purposes of the Inquiry, well, this is a risk against which I ought to be ensuring I am covered, not necessarily to make the system more strenuous upon those who wish to abide by ethical standards, but to raise the bar of enforcement? MR SHERBORNE Yes, and that's of course the third element as to what you do in the light of what you conclude about the practices, culture and ethics, but we're missing out, with respect, the second element, and I'm not directing this at any particular newspaper, and, sir, you give an example of a newspaper that came out with a very clear statement. But there are other newspapers which didn't come out with clear statements. LORD JUSTICE LEVESON Yes. MR SHERBORNE That's what I mean by the second element and that's why we asked the first question, and indeed the second question that we ask. Can I put it this way, and I apologise for being colloquial, but the question for you is this: was it cover-up or clean-up once Operation Motorman had revealed what it revealed? One only has to look at what happened in the analogous situation of the News of the World and hacking to see why that does throw light, why it's significant, we say, on what you have to consider for the purposes of your report. LORD JUSTICE LEVESON Let me enter into a debate on that question with you. In fact, for regulatory purposes, I asked the question without reaching a conclusion because I've not thought it through. Does it matter, in this sense: if any solution that I propose for the regulatory regime is going to require or permit a regulator to become rather more engaged in the allegation of wrong and to provide perhaps a swifter remedy, perhaps a cheaper remedy, all the things we've talked about for the future, does it become necessary to answer your question and I ask it rhetorically and is it possible to answer your question without going into the facts in very much more detail than is possible within the context of all the elements of the terms of reference that I have to address? Do you see the point I'm seeking to make? MR SHERBORNE I understand it, sir, but in one sense, in order to be fair, to use a phrase, to the media core participants. Take two possible scenarios. Take a possible scenario where every single newspaper, when it discovered its use of Mr Whittamore, what had been done, had come out with an unambiguous statement, there was never to be any more use of private investigators, we have looked at everything that we've done in relation to Mr Whittamore and we have made sure that none of the material we've obtained is to be used, all of our journalists have been told that whether it was in breach of the criminal law or not this was something we didn't want to do, if all of the newspapers had done that and that reflected the culture, practices and ethics of the media, then there would be no need for the kind of regulation that you might contemplate. Take the other end of the extreme, that none of the newspapers said that, and they all thought that this was in effect something they didn't need to take seriously because, to put it bluntly, nobody in the prosecuting authorities took this particularly seriously, and therefore there LORD JUSTICE LEVESON Well, some of them did and some judges didn't. MR SHERBORNE I wasn't going to apportion blame. LORD JUSTICE LEVESON No, well I'm not well. MR SHERBORNE But you see my point, sir. There are two possible ends of the spectrum, and we don't know, because there's been no investigation, where on that spectrum the true state of the culture, practice and the ethics of the press lies. LORD JUSTICE LEVESON But the truth is that it isn't a binary answer. The fact is that across the spectrum different media interests approached the problem in different ways. But once you have a situation where there are some who are not ascribing to it the significance that I might think it should have, or that a regulator properly informed is likely to think it should have, which is perhaps a better formulation, then I have to create a system that deals with that. MR SHERBORNE Of course, and if you've reached and I'm sure you haven't, sir if you've reached a conclusion that there were some or say you reach a point somewhere over the summer or whenever it is that there are some media organisations that didn't take it seriously enough, then of course you would come up with that at stage 3 with some regulation which would deal with that, which would impose checks where internal checks had failed. But, in my submission, in order to get to that point, in order to get from A to C, you need to go through B first. LORD JUSTICE LEVESON Well, yes. The question is MR SHERBORNE And that is why question one is framed in the way it is and question two, I hope, needs no further elaboration. LORD JUSTICE LEVESON I understand about question two. All right. We have certainly identified your concerns. I think it's probably sensible that they are addressed by the media core participants, and I'm happy to listen now or I apprehend that over the next day or so we do not anticipate that the evidence which we've organised will take all day, and therefore if people would like to just reflect upon the issues that you've raised and I notice that you're suggesting written responses, which is something to be taken into account then it may be that's the most sensible thing to do. Let me just ask Mr White and Mr Caplan, because they're the ones who are here, whether they want to respond or whether they want to think or what the position is. MR WHITE My Lord, we'd like to reflect. LORD JUSTICE LEVESON Thank you. Mr Caplan? MR CAPLAN Likewise, please. I think it's convenient, maybe we could deal with it tomorrow or in writing, whichever suits you, sir. LORD JUSTICE LEVESON Yes. I'm trying desperately not to generate yet more written rulings, not least because I think I've issued three in the last eight days, and I'm happy to avoid having to do yet more and more, simply because it all creates more and more work, whereas I think this is very much a and creates work for you as well. MR CAPLAN Yes. We certainly wish to respond, if I may say so, forcibly. LORD JUSTICE LEVESON I'm sure you do. MR CAPLAN But maybe it could be tomorrow. LORD JUSTICE LEVESON Yes. Let's see if we can find the time to do it. I can understand why the second question could legitimately call for an answer for all sorts of reasons, which would not trespass on the overall impact of the work of the Inquiry, but might come under the description "fair enough". You've heard what I've said about the first. I'm not ruling upon it. I see the point that Mr Sherborne makes, because it just provides another couple of dots for me to join up in the analysis, but on the other hand I'm sure you've understood that I am focusing very much on the recommendations that I have to make and that must be in the context not merely of Motorman, but also Caryatid and all that has flown since, including the many stories that we've had of less than satisfactory journalism to put alongside, I say immediately, the very fine journalism about which others have spoken. All right. I think we'll call it a day there. 10 o'clock tomorrow. Thank you very much indeed. (4.18 pm) (The hearing adjourned until 10 o'clock the following day)

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Witnesses

Martin Clarke

Journalist & Media

Gave a statement at the hearing on 09 May 2012 (PM) ; and submitted 5 pieces of evidence

Editor of MailOnline, the website of the Daily Mail and Mail on Sunday, at the time of the Inquiry. Previously Editor-in-Chief of the Daily Record and Sunday Mail, Clarke had also held editorial positions at the Daily Mirror, Scottish Daily Mail, The Scotsman and the Irish Mail on Sunday. Giving evidence to the Inquiry, he defended some web stories that had been criticised by detailing sources and defended other claims, such as that "racism is hard-wired in the human brain", by reference to original sources. Clarke told the Inquiry that "news speaks for itself".

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Afternoon Hearing on 09 May 2012

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