Afternoon Hearing on 10 July 2012

Dr Martin Moore gave a statement at this hearing

Hearing Transcript

(2.00 pm) MR JAY The position of the ombudsman within your system, paragraph 45 of Professor Frost's statement. We can see that it's the board who's going to appoint an ombudsman. He or she would be responsible for processing complaints and identifying issues of concern for the board. As your joint statement makes clear, cases raising points of principle will then be referred up. Will the ombudsman have a press background or not? PROFESSOR FROST I don't personally think that's essential, although it may well be quite useful. Certainly if we look at the example of the Irish Press Council, the ombudsman there does have a press background and I think the Irish find that very useful. But it wouldn't have to be. We certainly wouldn't stipulate that that person has to have a press background.
Q. With evidence we've received, the ombudsman, if the term's going to be used in its strictest sense, should be wholly independent of the regulator. Is that something that you're proposing or you're not too concerned about that aspect? PROFESSOR FROST I think that would work best if they were independent but clearly they would have to operate to the code and to the guidelines and good practice and any other policy documents that came down from the board, so they would end up being subservient to that.
Q. Is the ombudsman any different from a sort of first tier of complaints-handling, just giving the chair of that tier, as it were, a different label? PROFESSOR FROST Well, if you want to put it that way, I think that's how it would work, that the first complaints should go to the newspaper. If the complainant doesn't get satisfaction there, they would then go to the new body and the ombudsman would investigate and come to some conclusion. If, again, the person wasn't satisfied, they could then appeal to the board, but I would anticipate that most complaints would be fairly standard, would be dealt with measuring against the code and against guidelines for good practice, and the rulings handed down by the ombudsman would then be appropriate and that would allow for corrections, apologies, other statements to be published in the newspaper. MS STANISTREET It's also a system that the members of the public are really familiar with and the role of the ombudsman as somebody who approaches things in a fair and transparent way from the perspective of ordinary members of the public. I think that would be a very positive step towards rebuilding public trust in journalism.
Q. Is it part of the role of this ombudsman that he or she would be involved in the brokering of dispute resolution in the same way as the PCC is currently engaged in, or would you envisage the system working in this way: that the first bite of the cherry is complaint to the newspaper, and if that fails, now you're in the complaints system, the ombudsman deals with it and then there's a decision? How would it work? PROFESSOR FROST Certainly the latter. It seems to me the appropriate place to do the negotiations or the brokering is directly with the newspaper. You complain to the editor or to the readers' editor and there may well be a discussion about how best to approach that, and whilst it seems pretty straightforward that if you complain about a story, that there should be a straightforward correction, it isn't always in the complainant's best interests to do that, particularly in the area of privacy, so there may well need to be a discussion between the complainant and the editor about how best to handle it. But if, at the end of the day, there is no satisfaction for the complainant, then they would go to the ombudsman, who would then be controlled by the code and by the guidelines, and I wouldn't see any mediation negotiation taking place at that time.
Q. I suppose the parties would still be free to negotiate a consensual solution even if the ombudsman is seized of the matter. You couldn't prevent that happening? PROFESSOR FROST No.
Q. But then the ombudsman, if he or she were of the view that the matter was serious enough, might wish to take the matter to a resolution in any event because it involves a code of practice breach. Yes, I see. Couple of points on the conscience clause. You have mentioned the clause, but there are two issues I've been asked to raise with you. The first is: why is the conscience clause more effective than incorporating the code or it would be a variant of the code because you would tailor-make it for journalists into the employment contracts of journalists? PROFESSOR FROST If the contract contains the code of practice, it obligates the journalist to adhere to that, and we have no problem with that except of course it's not necessary obligating an editor to adhere to it, and we believe one of the major problems about unethical behaviour, particularly in national newspapers, is bullying in the newsrooms, where journalists are obliged, for fear of their job, to do certain things that they're not happy about. You have a decent job, worked your way up through the industry, you're now working for a national newspaper but every time you turn around, somebody is insisting that you do things that you're not necessarily happy about. Having a conscience clause which would give you the ability to say, "I think this is wrong and we need to discuss this", we feel shifts the balance of power slightly away from a bullying editor towards the member of staff. Now, I don't think any of us are naive enough to believe that this is a magic wand that would absolve journalists in every situation, and in any case, journalists need to be involved in the ethical decision-making process, but hopefully it would start to switch the power a bit, make editors realise that they can't just rely on bullying tactics and that there is a discussion to be had around these issues on a pretty regular basis. MS STANISTREET Without the conscience clause to balance the code being in a journalist's contract, it would simply be putting all of the onus and responsibility on that individual worker, without recognising the fact that journalists don't operate in a vacuum. They report and are directed to their news editor or to the editor of the entire newspaper. So there needs to be that balance, otherwise it would again be another way in which the industry is effectively washing its hands of its own responsibilities on ethics and on good practice within the workplace. PROFESSOR FROST If I may, Lord Hunt in his evidence said editors set the standards and they're the leaders. Well, I have to say they've not shown a very good lead over the last few years and that's partly because they've been able to bully our members into doing what they see as commercially appropriate rather than what it necessarily good journalism.
Q. The second point is: how would a conscience clause alter the culture of newsrooms? PROFESSOR FROST I'd love to say it's going to overnight make things wonderful, but it obviously isn't. I'm too much of a pragmatist to believe that. But as I say, it would shift the balance, and I believe this should just be the start of a change of cultures in newsrooms, one part of the jigsaw, so that there is a better balance about the way we go about our work and how we deal with it. Over the last 20, 30 years, the balance has been allowed to shift far too far in the direction of commercial imperatives and we need to draw back and say there are other things that we need to consider. Making journalists responsible for their work but allowing them to have that discussion with editors is one part of that. MS STANISTREET It would be a way a step in the right direction and it would give journalists, hopefully, the confidence to be able to challenge the situations that they sometimes find themselves in when they're pressured to deliver something that's unethical, to be forced into kind of, because of pressure of their boss, bad practice. But it is just part of the process, as Chris said. One of the key things we believe one of the key changes that would change the culture of the workplace is to allow the NUJ, as an independent trade union, to have collective bargaining rights for journalists in their workplaces, and the lack of independent protection and an independent voice in far too many newsrooms has meant that journalists haven't had the confidence to stand up to this. We heard Rupert Murdoch, when he was challenged about one of the examples that we'd brought forward to the Inquiry an example of a journalist who had been horrendously bullied in her newsroom and his answer was just to say, "Well, why didn't she resign?" Unfortunately, that kind of typifies the reaction of far too many proprietors and editors about this kind of an issue, and it's almost like if a journalist can't hack the culture that they're expected to work in and the pressure, then they should just then leave. And actually that's something that should be tackled in the workplace and it should be something that editors and line managers are held to account on and that doesn't happen in far too many parts of the industry at the moment. LORD JUSTICE LEVESON But how helpful I mean, this wouldn't be a hindrance of course it wouldn't but how far would it truly go if there's the culture that concerns you in a particular newsroom? Because the journalist may well be able to say, "Hang on a minute, you can't make me do this", and the editor will say, "Of course I can't make you do it but I'm asking you to do it. Now you decide whether you want to do it or alternatively, fair enough, we'll find somebody else." MS STANISTREET It would give them at least the protection. They would know that they couldn't simply be dismissed for not carrying out an instruction and that is the reality of life for journalists at the moment. If you add in the fact that far too many or increasing numbers of journalists work on a casual basis without any employment rights whatsoever, they can just be told: "Don't come in for your shift tomorrow", even if they might have been working there for over a year and have some degree of employment rights. But the odds are stacked against them. It's very difficult for individuals LORD JUSTICE LEVESON That's precisely what's concerning me and I'm wondering how far this goes to meet your concern. Because as I think both you and Professor Frost have said, this is a cultural thing and you're not going to change culture with a contract, you're not going to change culture with a statute and you're not going to change culture with an employment right. That's PROFESSOR FROST Sorry. As I said, it's one part of a jigsaw. I wouldn't want to pretend it's a magic wand because it simply isn't. LORD JUSTICE LEVESON But none of them are. PROFESSOR FROST None of them are but they work together to build the confidence of the journalist that they do have a part to play in this, that it is not part of their role just to do as they're told. It is part of their role to have a discussion. One of the things I notice quite a lot is when I talk to BBC journalists, for instance, there is a real expectation that they will be involved in that discussion. Even if at the end of the day the editor says, "That's how we're going to do it", they will be involved. That is not something you get any longer from newspaper journalists. Looking back 20, 30 years ago when I was a father of chapel, the NUJ shop steward, it was far from unusual for journalist to come up to me and say, "I've been asked to do this, I'm really unhappy about it. Does it breach the code of conduct? Should I do it? What's going on?" And we would be able to have a discussion, I would then be able to go with that journalist and talk to the editor, who I have to say the editor I was working with them was a decent guy, and he would say, "I accept your point", and we could have a reasonable discussion about the appropriate way to approach it. Things have got massively worse since then, so people are scared to go to the editor and have that kind of discussion. So even if we were facilitating that discussion with this, that would be a major step forward. MS STANISTREET Which is why collective bargaining is so important, because if you don't have an organisation within the workforce, if you don't have a union that brings the journalists together to talk about precisely those kind of quandaries and problems, it's very hard for any journalist to stand up and stick their head above the parapet and tell their editor: "Actually, I don't agree with you on this and I'm citing even if they had the conscience clause in their contract. But it makes it easier if it's a group of people acting together and saying, "We think this is wrong and this needs to be tackled or something needs to be done about it." LORD JUSTICE LEVESON This is the philosophical argument for collective bargaining throughout industry. MS STANISTREET It's not philosophical. LORD JUSTICE LEVESON No, I wasn't meaning that disparagingly, but what you've identified is the argument that is for trade unionism in every single workplace in the country. MS STANISTREET Absolutely, but in the journalistic context and I refer to the example of when I was mother of the chapel at Express Newspapers some years ago and the chapel collectively decided to complain about the ethical approach the editorial line that was being taken on asylum seekers, on the coverage of gypsies, on stories about Muslims. On all of those occasions, the reason why the chapel did that, the reason why it collectively stuck its head above the parapet was because there were individual members and journalists who were coming under huge pressure and at that time, at the time of the first complaint to the PCC, individual journalists were thinking about resigning and leaving their jobs because they just felt so much pressure and so much kind of bullying was going on that they felt they couldn't do anything about it on their own, but because their colleagues collectively were able to shoulder that burden, it made a huge difference and it and I'm not saying it transformed things at all. There were problems that we repeatedly came into, but it gave the management pause for thought when it was publicised and when there was a lot of attention focused on what the journalists had done. LORD JUSTICE LEVESON I understand the point entirely, I really do. All I'm saying is that the problem is not a problem restricted to journalism. MS STANISTREET No, there should be collective bargaining rights in every workplace. LORD JUSTICE LEVESON I understand. Forgive me if I don't extend the terms of my reference to cover that. Yes. MR JAY Thank you. I'm not going to ask you to elaborate the section on wider issues at the bottom of page 13 because there isn't time, but can you just explain for us, please, the unwaivable moral rights point. I think you're seeking an amendment to the Copyrights, Designs and Patents Act of 1988. What is exactly the point here? PROFESSOR FROST I have mentioned it earlier. The Copyrights Act changed moral rights. Up until then, we had more control over what was written under our bylines, so if my byline appears at the top of an article, I have moral rights over that in terms of what's written or often, more importantly, what isn't written. There's a negative right as well. So I can prevent material being published under my byline if I disagree with it. In this instance, if I think it's unethical. Equally, I could argue about material that I had written being changed to make it unethical. That doesn't stop a newspaper publishing it without a byline or with what's known as a cod-byline, an invented byline of a fictional person, but it does mean that it wouldn't be there under my byline and that's quite important to a number of journalists who have become very upset quite rightly so when stories are changed or completely rewritten or a headline is put on the top of them which does not reflect what they wrote and what they know to be accurate and ethical. LORD JUSTICE LEVESON Is that going to cause a problem for a different issue that I heard about some months ago about journalists having a real concern about the number of bylines they have in order to make up evidence or to have evidence of their productivity? PROFESSOR FROST It shouldn't do, because we were talking there about the number of stories rather than the number of bylines. The number of bylines might be an easy way to count it but to have 20 bylines on the top of 20 50-word stories clearly isn't the productivity of someone who's produced two 3,000 word features. LORD JUSTICE LEVESON No, I'm sure. PROFESSOR FROST So I wouldn't have thought that would make any substantial difference. It's very easy for a newspaper to count up who has written what because that would appear on the computer system. We're talking about the actual byline going in the newspaper identifying who allegedly wrote the piece of material. LORD JUSTICE LEVESON Right. Could I just put down a marker that I'd like to know and it can be by submission or otherwise the contrary argument to the argument that's just been addressed. So as long as somebody makes a note of it so that press core participants address it, I'd like to know what the argument against it is. MR JAY The final point in your evidence, you make a plea on the last page, penultimate paragraph: "Code of conduct should require recognition of trade union rights within the workplace." You have already developed that point, but can we be clear what the current position is? We know that in News International titles, the NUJ has no coverage, as it were, and we understand the reasons for that, but are there any other newspaper groups where the position is the same, either de jure or de facto? PROFESSOR FROST Michelle might be better answering that. MS STANISTREET Yes, we're blocked out of News International because Rupert Murdoch set up a staff association and because of the loophole in the legislation, that acts as a barrier to any independent trade union that members of staff might wish to represent them actually having recognition right. There are other newspaper groups that are pretty hostile to the NUJ and it acts as an effective block to entry. Associated Newspapers I think would be in that category. It's certainly the case of wherever we don't have formal recognition rights, we often have very many members, individual members of the union; it's just that they have no recourse internally to any collective bargaining and that might be because we're blocked out in the way News International has effected it, or it might be that the fear factor of being seen to be active and involved in the union is a barrier in itself. MR JAY Thank you very much, both of you, for your evidence. LORD JUSTICE LEVESON One question before you go. Whistle-blowing. How could whistle-blowing operate in a way that didn't cause all the problems to befall upon the whistle-blower that you've identified in relation to journalists who stand up to be counted? MS STANISTREET It could come through the NUJ. That might be one mechanism of doing it. LORD JUSTICE LEVESON I suppose I led that. MS STANISTREET In the way that we've been able to, within the terms of the Inquiry. It could be done with the protection of anonymity or it could be done in a direct relationship between the ombudsman and the whistle-blower. I think there would be ways in which that could be achieved. Obviously, in cases where there was an NUJ chapel, it could be something that the chapel collectively takes a decision on and then raises, rather than the individual's name. LORD JUSTICE LEVESON Yes, my question wasn't specifically aimed at you allowing to push trade union collective bargaining further but I've got the point. Thank you both very much. MR JAY I've been asked whether you would rise for a couple of minutes while we switch over witnesses. LORD JUSTICE LEVESON Certainly. (2.24 pm) (A short break) (2.26 pm) MR JAY Sir, the last witness this afternoon is Dr Martin Moore. Of course, he's already taken the oath or given the affirmation. LORD JUSTICE LEVESON Certainly. And this is divider? MR JAY 23 in the bundle we have. DR MARTIN MOORE (recalled) Questions by MR JAY MR JAY We have a slight technical challenge. The version Dr Moore has the same text but a slightly different number of pages. LORD JUSTICE LEVESON That's fantastic. Is your copy marked in any way?
A. No. LORD JUSTICE LEVESON Right. What I'm going to do is it's much more important that you follow Mr Jay than I do, so I'm going to swap with you. Thank you very much. And I'll catch up.
A. Thank you. LORD JUSTICE LEVESON Dr Moore, before we start, can I thank the Media Standards Trust in general and you in particular for this extremely thorough piece of work, not merely on the effect of regulation, the future, but you've provided an extremely valuable, slightly different historical context and I'm very grateful to you.
A. Thank you. LORD JUSTICE LEVESON To all those who have been involved, please express my gratitude.
A. I will, thank you. MR JAY In terms of how this report has come together, there are two main authors and you obviously are one of them. There's an advisory group of seven people and you list those on the first two pages. We can see that they vary somewhat. There's Professor Barnett and there's also David Yelland, who was editor of the Sun about 15 years ago. The executive summary, first of all. We've read it, of course, Dr Moore, but in your own words could you encapsulate what you want to say?
A. Of course. I suppose we came at it, as Lord Justice Leveson said, with trying to think of this really, I suppose, to go back to basics and fundamentals, and not only think about the purpose of regulation but think about the context in which this Inquiry is happening and of the attempts to reform press regulation over the last 60 years, and we tried to do our best to review all the different proposals, suggestions and methods for reform of press self-regulation, and we came to a conclusion, I suppose, that was really rather simple, which was that the real focus should be about power and the conclusion was that with power comes responsibility and that large news organisations ought to be accountable for what they publish, and that the problem particularly to date has been that there's been a bit of confusion, I think, particularly because of the way in which regulation in the past has been split by different platforms and delivery mechanisms, et cetera, and we wanted to focus on really what we thought was the root of the problem, and so we deliberately excluded from our proposal all those that we felt were not causing systemic and structural damage to either individuals or the body politic. So we deliberately excluded from any regulatory obligations individuals, bloggers, tweeters, small publishers, independent publishers, independent journalists, and focused our attention on large news corporations, particularly given that this is the evidence that this Inquiry has heard of where the problem has been, and that's where we think the Inquiry should focus its efforts. I can go into more detail about the proposals if
Q. Yes, we will. You divide your report into five sections and the first section deals with the history, Dr Moore. You summarise it at page 13 on the internal numbering, 00360 on our numbering. You pick up here several common themes running through fairly recent history. It goes back to just after the end of the Second World War, the repetitive cycle of failure. The common themes you pick up can I invite you to tell us about those?
A. Yes. We went back and specifically looked at, as I say, the attempts to reform the press and particularly press self-regulation, since 1947, the first Royal Commission, and looking at that and the subsequent Royal Commissions and the Calcutt review, and indeed other committees like the Younger committee, it was relatively clear that there are some themes that were consistent. The first was that the discussions around reform were generally done between two groups at a very senior level within the news organisations themselves editors and proprietors and politicians and the very specific group that had been set up the Royal Commission, et cetera to look at the problem, and therefore those that were excluded were really the general public and the working journalists, which, given that this Inquiry has not excluded those, was particularly striking about earlier efforts at reform. The second thing that becomes relatively clear is that what starts as being almost the sole focus of the earlier inquiries the concentration of ownership and the increasing concerns about monopoly continues but shifts slightly, and from the late 60s and 70s onwards, the issue of privacy starts to become a greater catalyst for concerns amongst the press. The third theme is that despite what the inquiries have said and despite what others have said, both during and particularly immediately subsequent to the inquiry, the industry interests and by that, I particularly mean, as I say, the senior industry interests, the editors and proprietors have dominated the pragmatics have changed, perhaps not unsurprisingly, but they have dictated the terms of actual change subsequent to the inquiries themselves, and they have, in most cases with some exceptions, in most cases since 1949, chosen to make small evolutionary change rather than substantial change, and frequently to ignore many of the recommendations of the inquiries put before them. So in 1949 there was a recommendation that there should be a code of practice. That took 40 years to happen. In 1977, there was a recommendation that there should be prominent front page apologies. As we know, that still hasn't yet happened. So there is a recurrence in terms of the recommendations of these inquiries and the decision, if you like, of the industry to ignore them.
Q. Thank you. Looking at the section which is entitled "A brief history of self-regulation", page 15, our page 00362 it largely speaks for itself but we're going to pick up a number of points. Towards the bottom of page 15 this is the House of Commons looking at the position in 1946. The concern there was that: "Concentration of ownership and recent increases in the profitability of newspapers were having a direct impact on the progressive decline in the quality of British journalism. It may be so obvious that it goes without saying, but is that a theme that we see running throughout this tapestry of events?
A. Yes. Yes. I think, as I say, the catalysts do shift slightly, so we move slightly more from concentration of ownership towards privacy issues, but there is consistent concern which culminates in the formation of some sort of public inquiry. The public inquiry makes recommendations, many of which are ignored, but enough are taken up that and the political will dissipates and then there is an interregnum of 10 to 15 years until the public concerns and political concerns rise again, and after that time a new inquiry is set up and more recommendations made. LORD JUSTICE LEVESON I think I've made that point.
A. You have. MR JAY The first Royal Commission, which reported in 1949 this is the middle of page 16, 00363 it drew the conclusion that statutory regulation of the press would unduly limit the free flow of information. What did they have in mind when they were talking about statutory regulation of the press? Were they addressing the concept of statutory underpinning which has featured in what we've been discussing or were they speaking in terms of something more intrusive?
A. I think they were throughout these discussions and, I suppose, over the whole historical period, there has been an unfortunate tendency to create this sort of dichotomy between pure voluntary self-regulation and statutory regulation and nothing in between, and they were talking about a statutory regulator; in other words, a regulator that was created through primary legislation and which was presumably appointed members by the government and others, and that understandably they felt, as we do, was far too far and far too threatening of press freedom, and therefore they accepted the predominant view, which has often been the predominant view, that the only alternative was therefore voluntary self-regulation. What we've tried to do this time and I think others have as well is to demonstrate that actually there is a significant spectrum which if you put on the one hand side statutory regulation, on the other hand voluntary self-regulation, there's a significant number of possibilities in the middle which are better than the existing system and don't go nearly as far as statutory regulation.
Q. Thank you. Moving through the history, in 1952, Mr Simmons MP sought to promote a private member's bill proposing a statutory press council. This is page 17 on the internal numbering. That didn't happen. Then you say: somewhat presciently, he spoke in terms of this is at the end of that page: giving a warning here and now that if it fails [that's the voluntary press regulation model] some of us will again have to come forward with a measure similar to this bill." So we'll call that first-chance saloon, shall we? Then we have a second Royal Commission which, as we know, sat in 1961 to 1962. I don't think it's necessary to go through its conclusions. May we move forward to the 1970s. This is the Lord McGregor, third Royal Commission, reporting, I think, in 1977; is that correct?
A. Mm-hm.
Q. It came up with 12 recommendations, the leading ones of which you list in the middle of that page, page 20, our page 00367. That Commission was split on the issue of voluntary versus statutory intervention; is that right?
A. Well, there were increasing numbers of people who felt that the conclusions of this inquiry did not go far enough and that simply relying on the press to voluntarily reform themselves did not go far enough, and that was consistent with this inquiry.
Q. Thank you. We can come slightly closer to the present day by noting that in the 1980s there were a number of attempts I think almost exclusively in private members' bills, not that it often got very far to introduce more stringent regulation of the press. All of those attempts foundered, as we know. Then there was Calcutt. He was appointed page 23 following a series of high-profile incidents, which you itemise. The first Calcutt report was one final chance to prove that voluntary self-regulation could be made to work. Then, of course, the second report in 1993, which was somewhat damning of the performance of the PCC over the previous two to three years. Is that a reasonably fair summary?
A. He couldn't have been much more damning, yes. He was absolutely clear that in his belief it had failed and that therefore he recommended statutory solutions.
Q. Many have said, though, that the PCC has improved in a number of respects between the date those words fell from Sir David Calcutt and the present date. Do you feel there's any merit in that or not?
A. Yes, I do, and in the next section we talk about some of the genuine benefits of the current system, particularly with regard to the secretariat and the role they've played in conciliating and mediating complaints on behalf of complainants, and the very real attempt to both write and evolve the code over that 20-year period. The problem, as many people have already said, is that that it didn't happen in a vacuum but certainly the evolution of the code did not corresponded to the evolution of behaviour. As we've particularly seen between 2000 and 2006, despite multiple revisions to the code, they seemed to have little if no effect on the actual behaviour of certain organisations. LORD JUSTICE LEVESON Before we go on to part 2, just while you're thinking about the history in that section of that report, you've headed it, "The history of self-regulation", but did anybody suggest that this wasn't regulation? Because, of course, that's what I've been hearing now, that actually we've never had regulation of the press, it's never been that, and therefore it's never been tried and therefore we ought to try it. I'd just like your perspective on that.
A. I haven't seen it in those terms. In other words, people criticised it frequently, as we can see, and often, and said it was ineffective and not useful. I haven't seen someone say this is not regulation. I think part of what we particularly in our first report in 2009, one of the things that we did was to look at lots of other sectors doctors and lawyers and various other areas of public life and it was quite clear that there has been a substantial change in attitudes towards regulation over the last two decades and that that includes many theoretical studies of what regulation is and ought to be. So I think there has been quite an evolution of understanding, certainly in other sectors, but our belief was that there had not been a similar evolution in the press. MR JAY Thank you. Your second section, "What was wrong with the previous system?" you helpfully, on pages 30 and 31, 00377 and 00378, identify the problems reform needs to address and that really is a summary of some of the aspects of the culture, practices and ethics of the press which this Inquiry has highlighted; is that right? But of course it's not an exhaustive, all-embracing summary.
A. It's not, and I think it's terribly important that one can become quite well, I suppose literally academic in some of these discussions about reform and it seems terribly important to keep, as this Inquiry has done, reminding us and people as to why we're here because it can be sometimes, I think, too easy to forget certain aspects of the abuse and of the nature of the malpractice because one gets wrapped up in discussions quite justifiable discussions about press freedom and the issues around statutory control and regulation, and sometimes we forget exactly the eventual purpose of the reform. LORD JUSTICE LEVESON Anybody who has forgotten need only watch the first two weeks of the Inquiry.
A. Absolutely. MR JAY At page 32, 00379, you deal with one of the arguments which has been consistently advanced, which is that phone hacking and similar activities are and were illegal and should be dealt with by the law by which you mean the criminal law and therefore reforming regulation is neither necessary nor appropriate. You address that argument in the next couple of pages, or next page actually, but in a nutshell, why is that argument, in your view, a fallacious one?
A. Three chief reasons. The first is that one of the primary purposes of regulation is to prevent these problems either happening or escalating to the stage where there needs to be significant legal action, and the problem particularly in the case of phone hacking, as we've seen, is that because there was not only was there not regulation but there was the impression that there was regulation, some of these practices did become routine and institutionalised and it got to the stage and has got to the stage where the police were and are going into newsrooms and arresting journalists and taking material, and part of the purpose, it seems, of regulation is to prevent that happening, and in that sense, to protect journalism and to protect journalists from the strong arm of the law. Another reason is that and it's been said before at this Inquiry the law is a terribly blunt tool and it seems as though those who are arguing these problems were all illegal and ought to be dealt with by the law are suggesting that actually we should come to expect police to go into newsrooms on a regular basis. I think that most of us would rail against that and see that as a very bad direction for our society to go in. Thirdly and this is relevant to many of the other aspects, I think, of regulation the law to most ordinary people is very inaccessible, both in terms of money and in terms of time and in terms of complexity, and the idea that most of these people would have had the time and the resources to pursue their claims legally I think is wrong. Part of the purpose of regulation is to give people access to some sort of redress, some sort of justice.
Q. I think that third objection relates more to the civil law. It might be said that if the problem is covert, as it was with phone hacking, victims don't know that their phones have been hacked. We don't even get to that stage. But can I just raise one possible contrary argument? One of the purposes of the criminal law is deterrents. If the criminal law is properly publicised and it may be that journalists didn't understand that phone hacking was illegal then now knowing that it is, the deterrent effect of the law would stop it happening. Do you think there's any force in that view?
A. Well, again I think the regulation and particularly regulatory codes ought to be both consistent with and supplementary to the law and part of the purpose of a regulator would be to not only make journalists extremely clear of the code but of law, and part of the issue here, and still the issue, is that in some cases both in many cases, the regulator was not clear about that, and in some cases there is still a lot of inclarity about the law, particularly with regard to data protection.
Q. The section which begins page 34, 00381, "What was wrong with the Press Complaints Commission?" does this overlap somewhat with the evidence you gave back in January?
A. February.
Q. Yes, it was early February. Seems a while ago now. Are there any points here which you didn't make on that occasion? I must say, my somewhat poor recollection is that it covers very similar ground. Is there anything you want to draw to our attention specifically? Maybe points about the code of practice are points which you might care to develop for us.
A. Yes. Yes, I suppose this did develop over the course of Module 1 particularly, when it was really to slightly take issue with the impression that seems to have been left that there is nothing wrong with the code of practice and all that's been wrong has been the application of the code. If one looks carefully at the code of practice and it's not surprising, given that it has changed frequently since it was first instituted then there are clauses which are inconsistent, there are clauses which are ignored on a daily basis, there are clauses which are virtually unenforceable. So therefore I would say that it isn't fair to say the code of practice is entirely adequate and the problem is just the application; I think there are some serious problems with the code. It needs to be re-looked at and rethought.
Q. We heard from Lord Hunt this morning and I think a similar point was made by Professor Frost that the code is largely expressed in terms of "thou shalt not do this" and there's very little of "thou should be doing this and that". Is that an aspect which might be capable of improvement?
A. Certainly I think there's a very good book by Kovach and Rosenstiel, US journalists, who spent a number of years going to different newsrooms across America to ask journalists what they believed was their responsibilities and duties, and they came up with nine elements of journalism, and the first was that journalism's first duty is to the public, which is a positive as you say, a reason I think there are certainly good reasons to make certain clauses positive because otherwise you are always trying to police the lowest common denominator. LORD JUSTICE LEVESON You need to provide an absolute bottom, but try and raise the ceiling.
A. Exactly. MR JAY There's a point you also make on a slightly different theme, Dr Moore, on page 38, above the heading, "The code of practice", 00385. It's where you raise a warning, really, about statistics in relation to the Daily Mail. You say: "In 2010, there were 63 substantive complaints made to the PCC against the Daily Mail." You're not singling them out in particular.
A. No.
Q. They may be illustrative of a general point you're making. "In 47 of these, the Mail appeared to admit a code breach by correcting or apologising for the story, yet in the whole of 2010 there was not one upheld complaint against the Mail. In other words, even though the Daily Mail may have breached the code almost on a weekly basis, it looked as though it had an entirely clean record." So care needs to be taken with the
A. Well, it's a rather broader point, which we might come onto, about the difference between mediation and regulation, and actually I was concerned yesterday in the evidence given by Lord Black that the model that is proposed again emphasises the overriding role of mediation and does not seem to take into account that a regulator will generally make a decision as to whether or not a complaint has breached the code, and by making a decision, it then creates a precedent it may be a small precedent but it creates a precedent not only about the particular complaint but also about the organisation complained about, and by having those precedents, those precedents allow the regulator to take much more freedom to take future action. So, for example, if a regulator sees that an organisation has breached the clause on privacy seven times in two months, then it is much more able to say, "Actually, we need to question you about this and we need to potentially even do an investigation, because we have genuine concerns that you have not understood the clause and you're breaking it on a regular basis." If it doesn't make any ruling as to whether or not the organisation has breached the code, it can't do that. I think there is a very important and substantive difference there between mediation and regulation and the role that regulation ought to play in ruling on breaches of the code.
Q. Yes. Do you agree with the general thrust of the point which Professor Frost made, that the first port of call in relation to a complaint should be the newspaper organisation concerned. If that fails, then the regulator comes in. The point at which mediation should be addressed is at the first port of call, directly with the newspaper, but by the time the complainant, if he or she hasn't got satisfaction from the newspaper, goes to the regulator, the regulator shouldn't be mediating; it should be ruling or deciding. Is that the basic point?
A. That's the basic point, exactly.
Q. I need to correct something yesterday which was pointed out to me. I said words to the effect that a proper regulator doesn't require complainants to go to the perpetrator first. That, in fact, isn't right. If you look at the Bar Standards Board, for example, I think there is a provision that says if you want to complain against the barrister, you should go first to the barrister or his or her chambers to seek satisfaction. It's only if that doesn't work that you go to the Bar Standards Board. We see that idea being carried across into this somewhat different domain. Part three, Dr Moore, "Will any of the proposals on the table work?", page 41. You cover a number of issues here but I think the first one I'm sure you're keen to address and we've heard the point elaborated the first two witnesses of our fourth module is the commercial contract proposal. What do you see as being the problems with that, if any?
A. Well, unfortunately because I was hopeful it would work unfortunately, I think it's very disappointing. I think it's insufficiently different, I think it's insufficiently independent, I think it's insufficiently robust, and I think that the incentives that have been proposed are regressive and potentially, in some cases, dangerous for journalism.
Q. Can we deal with those points? The insufficiently different point may logically be the last point, not the first, not that I'm being critical. The insufficiently independent point can you explain what the issue is there?
A. Of course. Not to put it back to you, but I thought you did a very good job yesterday of questioning Lord Black about the role particularly of the funding body. We have, in the past, expressed many concerns about the role of the Press Board of Finance and it was helpful to hear Baroness Buscombe do the same in her evidence to the Inquiry, and certainly our hope was that like in many other regulators, the proposed regulator the situation would be entirely different, that like other regulators, the funding mechanism would be entirely transparent and easily calculable, that the funding body would, not to put to fine a point on it, essentially be an accounting body whose responsibility would be to collect the funds through that mechanism and distribute them to the regulator. But as it turns out, looking through the contract and, as you did, questioning both the contract and the witness statement, it would appear that the funding body essentially is a little bit like the statutory backstop for the proposed regulator, in the sense that it has the power of veto over various decisions. It's involved in the appointment both of the two members of the trust board, it's involved in other appointments processes as well, and all these things just it seems very strange. Why would the funding body have such control? Why wouldn't the funding body simply be an administrative function? Necessarily, it seems to say, both in terms of perception and, as it turns out, in reality in the past system, the funding body, which is entirely constituted by senior members of the press, still holds an awful lot of power, and therefore compromises the independence of the regulator.
Q. Insufficient robustness?
A. I think we took some time to look at commercial contracts and their use in this area and talked to I'm not a lawyer but we talked to lawyers about the use of commercial contracts. Most of them felt that the contracts were, in these circumstances, not really suitable and would necessarily need to be crowbarred, if you like, into being used in these circumstances, and that, for two reasons, they were it could potentially make the system more fragile. The first which was talked about this morning and Lord Hunt has said this himself that if someone chooses not to enter the system or chooses to leave the system, then it undermines the whole system. Secondly and I know that you asked questions about this and I've seen some of the submissions, but I'm still very unclear myself on questions regarding how one establishes the value of different breaches of contract, because the value partly because it's between two parties and therefore the injury has not been done to the regulator it's been done to a separate third party and partly because, as we know, it's very difficult, because each circumstance is unique, to work out exactly what value should be associated with particular incidents or series of incidents or, as they call it, systemic problems. For those reasons, I think it is there are serious question marks as to whether or not a contract is suitable and whether or not it would actually potentially be more fragile rather than less. I think that's I won't go into it just yet because I think we might talk about it further but I think that's exacerbated by the proposed incentives.
Q. The debate about the law you're quite entitled to set out your view and what you've been told by others, but I am going to put that to one side because it's largely going to be addressed by legal submission from this point. But incentives. You're concerned about the weakness of those. Could you tell us about those concerns, please? LORD JUSTICE LEVESON Before we go onto this, it is worth making this point, isn't it: that the whole need for a contract is to bind people in or out. That's not a problem that anybody really worried about in the past. I appreciate it's come up. But the real issue in relation to culture, practice and ethics of the press has been much more fundamental. It's about what happens rather than who is in or who is on you. So the contract at its highest copes with what might be considered to be a detail rather than the fundamental issue.
A. Yes. LORD JUSTICE LEVESON One of the things we have to be very careful about when we're looking at the proposed scheme and all schemes is not merely that detail which is important and I'm not minimising its importance, but it is the detail and make sure we don't forget that at the bottom of this is to try and find a way that actually will work in hopefully improving the ethical standards of that part of the press and of course, it's not the whole press, and I'm happy to say. I've not said it for some time; most of the press do a very good job doing what they're there to do, but there have been significant lapses, so the evidence suggests and which I will consider, and it's that that's still at the core. Is that a fair point?
A. I entirely agree. It seems bizarre that we are spending so much time and so much time has been spent on thinking about this issue of who is in and who is out as opposed to: what do they do when they're in? But equally, I recognise that the whole issue of jurisdiction and the world in which digital world in which we are now in, who is in and who is out becomes much more of a problem. So I entirely see the point. I suppose, given that and given that the contract is seen as one method of solving that problem, it seems to me that part of the difficulty is it creates potentially lots of other problems and could become a lawyer's charter, if you like, if goodwill fades and if people who are criticised because their standards have fallen choose to challenge the criticism and possibly the fines and whatever else. Then it becomes really rather a difficult and possibly an unhelpful system, despite the reasons it was set up. LORD JUSTICE LEVESON It will get bogged down in litigation.
A. Yes. MR JAY Incentives now, Dr Moore. You start this at page 49, 00396. This really works on two levels, I think. First of all, you look at a series of specific incentives and say whether they work or not as a matter of practice, but then you have a wider principled objection to incentives being the appropriate way forward. We're in your hands as to which order you would wish to explain your position to us.
A. I suppose it's worth saying that we approached this in the sense that we started out from saying: how far can you go in terms of strengthening and making more effective the current system without touching any statutory mechanisms? We looked very carefully at contracts and for the reasons set out here believed it was not effective enough and would not strengthen the system, and may even make it weaker. We then went on to look at incentives, and particularly the three types of incentives were: fiscal, financial incentives, like VAT exemption and other things; incentives based on privileged access to information, so whether that was press cards or PA feeds or advertising, et cetera; and then thirdly on legal incentives, which were some protection from libel or privacy, and, et cetera. Then we moved on to say: well, if these don't work and these aren't enough, what statutory mechanisms at the very minimum are necessary to make the system work? Incentives it was quite clear to us that fiscal incentives were very difficult and we went away and, having done the legwork we could probably have avoided ourselves the work but VAT clearly wouldn't work. LORD JUSTICE LEVESON Yes, we just went straight to the revenue.
A. Perhaps we should have done the same. LORD JUSTICE LEVESON I have the great power of being able to require people to answer questions.
A. Yes, yes. It took us rather longer, but we got there in the end. The second with information, not only did we feel that it was impractical, but actually, I think, as I mentioned at the beginning, regressive and somewhat dangerous to try and essentially, as we saw it, licence journalists through restricting access to information. The only one, therefore, that we saw as in any way viable was legal incentives, and legal incentives, I think, are useful and helpful. The difficulty comes twofold, one of which is that you don't solve the Desmond dilemma through the legal incentives, in that whilst helpful, there is no particular reason to believe that they will bring everyone into the system or keep them there once they're in. We can look at the way in which different news organisations behaved with regards to legal action in the past and they behaved quite differently. Different organisations take a very different approach to legal action. Secondly and I guess this comes to your point about the principled objections one of our primary problems with it's a little bit like the contract scheme. If you start from the position of saying "How can we incentivise people to be inside this system?" then you start from the position of saying "How can we coax in these big players?" Having started from that position, you almost inevitably, to some degree, disadvantage members of the public and independent journalism outside some of those large organisations, and you potentially distort the market. And I think that's one of the real I don't think it's insurmountable in certain cases of legal incentives, but it is a problem with all incentives schemes. LORD JUSTICE LEVESON I think I was trying to discuss that earlier today. The problem is you can't say you'll get a defence or you'll get some acknowledgment of your membership of the scheme if somebody who doesn't enter the scheme says, "Actually, my standards are just as good as theirs. I can prove it: here's what I do, here's how I do it. Therefore it's quite unfair of you to treat me differently to those who happen to be in the scheme. I have good reasons [I think I said A, B, C this morning] for not being in the scheme, but I'm just as careful about my ethical approach to journalism, as they are, even though I might have got it wrong."
A. One could go further than that. One could even say Michelle Stanistreet was saying this morning that the movement of journalists particularly due to casual labour and freelance is such that you can imagine there could be one or possibly even a small team of journalists who are working for a major organisation and use, say, the Ormond principles to decide whether or not to intrude upon someone's privacy, and they do it within a major organisation, but then they go off and do another story and they do it either freelance or for another small organisation, and they use exactly the same methods and exactly the same principles, and then it's very difficult to see why a court should look at the two and treat one different from that one simply because you're the member of the system. LORD JUSTICE LEVESON I think that's the same point. I understand. MR JAY You have three points, I think, Dr Moore at page 61. You've told us about the first point and you've just finished elaborating that. The second point: it might not work anyway. There is a third point on the next page. Incentives will always be an indirect solution. I was pondering on that one. Why is that inherently a problem if otherwise effective?
A. Only in a sense and this is, I suppose, particularly thinking about some of the plans which suggest a tribunal, special court or equivalent media organisations. One can absolutely see why there are good reasons for giving ordinary members of the public much less expensive, much quicker access to certain legal benefits and similarly to giving organisations but then the problem is if you piggyback lots of regulatory regulations on top of that, then, as I say, you are bringing people into the system for one reason and then you're piggybacking a lot of stuff onto it for other reasons, and that might compromise the court itself and also disincentivise people from joining in the first place.
Q. The next section you're going to tell us about the new system entirely. That's going to take some time. LORD JUSTICE LEVESON Yes, it's probably sensible to have a break. Thank you. (3.14 pm) (A short break) (3.22 pm) MR JAY You introduce your premise for a new system at page 64, our page 00411, and you make the point and you've already made it orally that there isn't a dichotomy between wholly free self-regulating press on the one hand and government-controlled press on the other. May I just ask you this general question, though: having rejected the pure or the largely pure self-regulating alternatives, including Lord Black and Lord Hunt's proposal, if I can put it in these bold terms, why aren't you attracted by a fairly simple solution, namely one regulator with different arms underpinned by a statute? Your solution is, if I may say so, more complicated than that. Why have you moved towards complexity rather than simplicity?
A. I think, as I said at the beginning I think at the very root the system as proposed here is very simple, which is it says that if you are powerful and large media organisations are powerful then you should take a responsibility. The difficulty is how to ensure that those organisations do take responsibility, given that we've seen over the last 60 years that when given asked to voluntarily, they failed to do so. So given that, we also given that we reviewed all the other possible ways in which to strengthen and make more effective the current system, once we thought: "Well, actually, we are going to have to use certain statutory mechanisms here", then in one sense it becomes simpler because you're saying certain large organisations ought to be obliged to self-regulate, but in another sense, there is the very difficult question of saying, "Well, how do we make sure that there is absolute protection from any sort of state interference or government interference, such that there can be no perception or reality of censorship or licensing or control?" For that reason, we came to the conclusion that actually what we really wanted here was self-regulation. We just wanted self-regulation that worked. And the way to make it work was to enable and allow and oblige self-regulation but to have very much in the background an auditor that would oversee the self-regulatory organisations and make sure that they were functioning properly and in the public interest.
Q. The essence of the new system is page 72, 00419, when you outline your proposals in six propositions. We'll have to look at these in more detail. The first two one can take together, that it's only organisations above a certain size who are going to fall within the regulatory net. That's correct?
A. May I expand upon that briefly?
Q. Yes.
A. Only because I think there's been rather an unfortunate elision between what Professor Onora O'Neill talks about as being individual speech as opposed to corporate speech. I think we, like her, believe that individual speech should be absolutely free from any regulatory obligations and one should be free individuals and small publishers should be free to say and publish what they like within the law. There is a significant difference between those individuals and small publishers and large organisations, which she calls "corporate speech", in the sense that those corporations speak to millions of people. They have the ability to influence the views of those people and to frame the views and the understanding of those people, and as a result have an awful lot of power power to do good and power to do harm and therefore they have, whilst absolutely the same they have the same freedom in terms of freedom of speech as individuals, they also have some responsibilities and need to be accountable because of the power that they hold. That's the distinction that we try and make by distinguishing between small publishers, individuals and others up to a pretty high threshold, and large media organisations.
Q. We're going to have to come back to that, but once you are above the relevant threshold this is paragraph 3 we have a system of what you continue to call self-regulation, external to the large media organisations, which those organisations, either individually or collectively, are free to create themselves but nonetheless they're obliged to create them because if they don't, the statutorily based backstop independent auditor will force them to. Is that what it amount to?
A. They're obliged to, yes, and they're obliged to regulate themselves. In some ways, this is, I suppose, looking at what happens or ought to happen already. So the internal compliance mechanisms are really, in a sense, good housekeeping and something that some organisations do do but quite a number of them don't, and joining an external self-regulatory organisation well, one could say that that would be the equivalent of the PCC. So it is not, in many ways, changing aspects of the current system in theory, but it is making sure that they happen and making sure they happen effectively. LORD JUSTICE LEVESON Why couldn't a very, very large publisher simply say, "All right, we'll employ a staff of four. Independently we'll set up an independent company and we'll say you are all independents and you are to regulate us." And each company does the same because you postulate several self I mean, self-regulatory organisations in the plural, so each of the big organisations does the same, and there is therefore no common standard. They each apply their own standards. They interpret the rules slightly differently. Presumably they have slightly different codes.
A. Can we jump forward a few pages? Because this is explained in terms of two things, one of which is that there are a series of criteria that a self-regulatory organisation has to surpass, and those criteria are set by the independent auditor, the backstop independent auditor. So should an organisation and one of the discussions that we had was that it should be impossible for an individual organisation to set up its own self-regulatory organisation. Necessarily, one has to do it in concert with other organisations so it can't be a single organisation, but that those organisations have to put together the proposal and then, similar to what's happened, as I understand it, in law with the Legal Services Board and what happened previously in financial services prior to the Financial Services Act, they approached the independent auditor and the auditor has to approve the regulator, and if it believes it is insufficiently independent, if it believes it is insufficiently effective, if it believes it has insufficient sanctions, then it does not approve the regulator. LORD JUSTICE LEVESON Yes. I've read it. I mean, I wouldn't want you to think that I'm only looking at this for the first time. I've read the whole thing, but it's the reason I ask now about it is because it strikes me as a very important part of the proposal. What happens if you get a large organisation who nobody else is prepared to combine with?
A. Ah, yes, we've discussed this on some bases. I think if I step back slightly in terms of "why not have one self-regulatory organisation and then a backstop auditor or some other mechanism for checking that it's working", there were really some important reasons for that. The first was that to have one self-regulatory organisation, if there was statutory backstop, could, either by reality or perception, raise questions around press freedom, because the temptation, if there was one organisation, would be much greater to try and pull levers and strings to influence that organisation and influence its decisions, especially if there was some statutory backstop behind it. The second reason was really much less much more future-focused, which was to say that we are in a world where the medium is atomising, where there are many organisations which are where news is becoming more difficult to define, exactly what news is and who's producing it, and that we wanted to provide a system and an environment, an ecology, where actually one could see this lasting for 10, 15, 20, 30 years, because it would be flexible enough to allow for other self-regulatory organisations in the future. MR JAY That would require a flexibility in the enabling statute setting out the backstop independent auditor, would it not?
A. Well, to a certain extent, the statute really performs three functions. The first is to oblige large news organisations to have basic internal complaints and compliance mechanisms. The second is to oblige those same large publishing organisations to participate in a self-regulatory organisation and we anticipate that actually there will probably be one to begin with. We should be realistic; at the moment there are not very much large news organisations in this country and in local news, four organisations, I think, represent two-thirds to three-quarters of the circulation. So it's a very small number of companies, so it would be quite odd if there were more than one regulator to begin with, and sorry, I've lost my thread, but that one would put the mechanisms in place to also prevent the proliferation of other self-regulatory organisations in the same way as the Financial Services Act 1986 did, which said that to set up a new self-regulatory organisation you need to have a rationale that demonstrated that it was functionally different. I'm sorry, the
Q. The third point you wanted to make?
A. Sorry, with regard to I'm sorry, go ahead. LORD JUSTICE LEVESON The statute. You said the three things the statute would do
A. I'm sorry. The third is to set up a BIA and to illustrate what it's to nominate its the principles under which it is set up and nominate and restrain its powers. LORD JUSTICE LEVESON For those who aren't as familiar with the paper as we are, that's the backstop independent auditor?
A. Yes. MR JAY If you wanted to have flexibility so that new entities, with technological change, were brought within the net, the statute which creates the BIA and currently within its reach would be these large organisations would have to be worded in such a way, possibly by enabling this to be done by statutory instrument, that new entities, if they arose, could, in the opinion of the BIA, be brought within the scope.
A. Potentially in the future. We have a section where we talk about how the system fits within both the current regulatory system and how it might evolve, and it certainly seems apparent to us that the current regulatory system, in terms of Ofcom and BBC Trust and others particularly Ofcom is going to need to evolve quite considerably, and that in the same way as Tim Sutor's plan suggests, that actually it is more effective to have he nominates Ofcom; we create an auditor, a backstop mechanism that oversees regulation rather than that regulates itself.
Q. Maybe we should come to that at the relevant point in your report. Dealing with the size issue, first of all. That starts on page 73, 00420. You've developed the key points already. You would apply the principles underlying the Companies Act 2006 and the definition of the small company there as being relevant to the creation of our threshold; is that right?
A. Well, once we had made the decision that rather than trying to limit the regulatory obligations by delivery mechanism or by platform but rather to do it by size, it was quite clear that actually there are already mechanisms within the law to distinguish large from small and the Companies Act was the most obvious one. And using the Companies Act, it was clear that there was this threshold at GBP6.5 million of revenue a year or over 50 employees that above which almost all the major media organisations fell and below which many of the independents and other small publishers and individuals. Fell, so particularly looking at individual companies and looking at also some of the other submissions that have been made as to who would fall within and outside that threshold, it seemed like the best mechanism to use. LORD JUSTICE LEVESON Presumably many, many newspapers would fall outside this threshold.
A. Local and independent newspapers, yes. LORD JUSTICE LEVESON So what happens to them? That's just free
A. What happens now, which is that they can voluntarily participate in a regulatory scheme. Our view was that not only has no evidence been presented to say that local independent newspapers have been guilty of any of this stuff, but that any sort of significant regulatory obligations would be potentially dangerous given the circumstances of local newspapers and others, potentially dangerous to put on them because the resources are such that they may not be able to participate. MR JAY But newspapers as large as Private Eye are outside the system you postulate. If you look at the criteria into a small company in the Companies Act, page 74, 00421, two out of three criteria have to be fulfilled. I know they have a circulation of just over 200,000. They may well meet the turnover and the balance sheet. I'm not sure which ones they would fail to meet. Maybe the 50 employees or less.
A. When we looked at Companies House, it looked as though Private Eye would be outside, would be below the threshold.
Q. Without singling them out for any particular reason, it gives us some idea of even if you were as big as that, you are outside the system.
A. Yes. LORD JUSTICE LEVESON You mentioned the Congleton Chronicle, Private Eye and the Huffington Post. Why did Congleton get mentioned?
A. I met the editor and owner. Very good local paper. MR JAY But obviously all the nationals would qualify. I suppose some of the smaller nationals such as, with respect to them, Morning Star, may not. I don't know. Many of the regionals would because they're part of much larger companies. I just wonder whether this is a somewhat blunt instrument and perhaps has a degree of arbitrariness inbuilt within it, depending which side of the line you fall. You can still be quite big but you're not regulated, or not compulsorily regulated. As you point out, you can nonetheless agree to be part of an SRO even on your system; is that right?
A. You can voluntarily agree. I think the point we were making is that one has to go back to the problem one is trying to address and if the problem that we're trying to address is systemic and structural, then all the evidence that's been presented has suggested that that is the problems have been with large news corporations, not with smaller ones. That's not to say that both small organisations and individuals cannot do harm, but it seemed to us that part of the prime one of the primary purposes of regulation is to deal with disparities in power, and that once you get to a much lower level, the disparities in power are much less and therefore it's much easier to exercise free speech and to respond as an individual or a small organisation to things that are published about you to an individual, a blogger or a tweeter, as compared to if you try to respond to a very large corporation, which not only has the ability to ignore you and not publish a response or a correction, but if you decide to try and take action, has the resources and the legal firepower to prevent you from getting any adequate redress.
Q. I can see the power point, as it were, but if one's looking at the Internet, one can have a small entity with extremely large coverage, and therefore maybe not be power, but impact, if that's the right way of looking at it, is being disseminated across a very large potential readership and equal potential for harm is there. But you're not bringing that within your system because it would be well below the small companies threshold within the Companies Act?
A. If it was a large publisher, then it would be. It wouldn't matter whether it was on the Internet or on television or in print. But no, I think one of the issues around clearly and I recognise that this is one of the not the the primary problem is with standards, but clearly there is this extremely difficult conundrum about instruction, and if you apply given that everyone has the potential to be a publisher and indeed many of us are if one applies regulation to everyone, then, well, that's the law. So therefore one has to draw a line and draw a line sensibly and draw a line with a rationale around it and again, if you look at other sectors or industries, it seems as though if you take something like BP and the oil spill, then of course one should have laws that try and protect people and allow them to take civil (inaudible) and everything else, but I think most members of the public would expect there to be regulations to try and protect things like the BP oil spill from often happening again. Similarly, institutions one expects large institutions to have regulatory systems that prevent abuse, the IPCC or others. So our conclusion was that in a digital world where it is impossible to regulate everyone, the law should apply and the law should certain aspects of the law ought to be reformed to reflect this but regulation should focus on the problem of abuse of power. LORD JUSTICE LEVESON So the position is you had to find somewhere that created a line. You could have chosen eligible for VAT relief, to register for VAT, which would have caught a lot of people and dropped out very few. You've chosen small companies defined by the Companies Act. One could think about different lines, provided you have a basis for choosing one line, so that it's bright enough to identify who is which side of it and then you can look for the reasons. But do I gather that the point you're making here is: "There has to be a line "
A. Yes. LORD JUSTICE LEVESON "We've chosen this one which we think works, but we're not suggesting for a moment that this is the only line that works. There just has to be a line."
A. Yes, and indeed one of the things that we hoped that this report would do for the Inquiry of course, we think the proposal is a good one, but one of the other things that we hoped to do was to try to genuinely grapple with the very difficult questions, and one of the extremely difficult questions was to say: what should the jurisdiction be? And having given it a lot of thought, exactly as you say, we decided that it was better to define it by size and by power but using size as a proxy than by any other means certainly than by medium. In a similar way, actually, I suppose as Enders Analysis use revenues and share of revenues as a way of determining the degree of plurality in a market, but we've used it here as you say, we've chosen this line but the idea of choosing a line based on size we thought was a helpful one. LORD JUSTICE LEVESON I quite understand it, but how much further it's worth investigating the line it's very much a matter for you, Mr Jay, but I've got the point. Don't get me wrong, I'm not criticising you for choosing the line that way. I'm very grateful to you for making me think about where a line could be, other than at the extremes, so as to not catch private conversations but to catch those that really matter. Right. MR JAY Once you're big enough, the obligation kicks in, but the obligation breaks down in a number of ways, and the first respect is the mandatory obligation to institute minimum internal complaints and compliance mechanisms because you divide it up between the internal and the external. Internal is page 77, 00424. What we're looking at here, by way of summary, is proper systems of internal governance built within that compliance, and also a proper complaints system, which would have to meet minimum standards. Is that, broadly speaking, the position?
A. Yes.
Q. We can see the various attributes of the system of governance. One extremely important by-product: paper trail of decision-making, greater transparency and accountability. We can see the virtues of that. Making clear which senior executives and editors take primary responsibility. Again, the importance of that is well understood, and then the outcome will be a change in culture, one hopes or expects.
A. One hopes. I think this is one can underestimate the potential cultural impact of this in the sense that speaking to someone who was, for many years, working on writing newspapers, including a tabloid newspaper, who said that there is a genuinely different process by which one gathers a story, in the sense that from television and broadcast, in the sense that, as described here by a number of people, there is this series of checks and balances as to taking the evidence forward and then saying, "Can we use these methods to take it further, et cetera?" as opposed to the way it was described to me was that if one went into the editor's office in certain newspapers and said, "I'm thinking about going and finding this out and doing this sort of news gathering", the response would be: "Why are you telling me this? Why aren't you bringing me the story?" And actually what happens is that many journalists will go out on their own initiative and gather the information and go to the editor's office and put it on the desk and say, "Here is the story. Now, I think this deserves a front page, don't you?" At which point the only decision the editor has to make is to publish, as opposed to whether or not the methods should have been used in the first place to gather the information, and clearly, as we've seen in the Inquiry, the methods are extremely important with regards to privacy. So were these compliance mechanisms to genuinely be instituted in other news organisations, it should have a significant cultural impact over time, as well as providing the regulator with a paper trail, et cetera.
Q. It's the rationale of any good regulatory system that it will change culture, whether it's internal regulation or external. That's clearly established. Can I ask you this: in relation to internal procedures, who would be responsible for ensuring that internal complaints and compliance mechanisms were in place?
A. Well, the organisation itself would have to I understand there's been lots of discussions around what the terminology would be, but each organisation would have to nominate an individual a readers' editor, a compliance officer or an equivalent who would have an adequate degree of independence to then set up the structures, obviously in consultation within the news organisation, to create the complaints and compliance mechanisms. So I wouldn't suggest that we'd worked out exactly the process by which news organisations would go through to get there, but there would necessarily haves to be a named individual within the organisation.
Q. The follow on from that: what would be the consequences of failing to install or inaugurate such a system?
A. Well, as I say the three aspects of the statutory obligation the first is that they would be obliged to do this and it would be the responsibility of the self-regulatory organisation to oversee it and to report back on it, and therefore if, at the end of the year, the self-regulatory organisation reported that there were invisible or inadequate complaints and compliance mechanisms at a certain organisation, then the backstop auditor would have the ability to sanction it, and that could mean fines.
Q. Thank you. Then when we come to the related issue of external regulation, page 29, 00426, this is when our SROs come into play.
A. Yes.
Q. These will grow up organically to meet the obligation which the statute imposes on the BIA; is that right? The obligation falls on the large publisher above the relevant threshold, but the large publisher doesn't ensure or procure that an SRO is in place then the BIA will step in and enforce that obligation. Have I correctly understood it?
A. Yes. Sorry about the acronyms. But the second obligation is that large news organisations do participate in self-regulation and they do set up a self-regulatory organisation or possibly more than one, if there is a good reason for doing so. So in a very similar way to the way in which Lord Black has done already for the press, organisations would be expected to do exactly that, and then take it to the auditor for approval but then run it themselves. Or, sorry, the system would run itself.
Q. There are certain basic criteria which have to be established. So it's self-regulation, but it's also independent regulation, because what the large organisation could not do is fill the complaints body with its own nominees, as it were. As you clearly explain, there would have to be an independent forum for complaint resolution; is that correct?
A. There are three overriding criteria that the BIA would look at when and would be a prerequisite of any self-regulatory organisation. The first would be a code of practice, and the code of practice would be drawn up by the large news organisations but at a basic minimum, it would have to include provisions for privacy, accuracy and fairness. The second is a contract. Similar, I suppose, to the contract as described by Lord Hunt, but it would set out sanctions and responsibilities of the members. And the third would be an independent organisation, which at its minimum would be able to accept and rule on complaints and would adhere to the basic good governance as set out by things like the Hampton report with regard to transparency, independence, consistent, proportionality and targeting.
Q. We'll come to certain aspects of that in a moment, but can I understand an issue in relation to funding. Page 80 or 00427. This system is self-funding, on my understanding, but the amount each member organisation should pay would be determined by the member's arrangements for each system, under the proviso the funding has to be adequate to enable the SOL to fulfil the minimum criteria. What are those minimum criteria? You refer to appendix 2 but it's not clear how those are going to be determined.
A. The criteria are as I was describing on page 84. So meeting the accepted standards of self-regulation. So minimum criteria would be: an acceptable code of practice, a contract, an independent body that fulfilled certain functions, and were it to provide those and show that it was sufficiently resourced, then it would be approved.
Q. It's sometimes difficult to understand what comes first here. You have a number of organisations in the first instance who want to set up an SRO, and it may be in the first instance that all the large publishers you've identified will participate and create one SRO, because that will be the default position. Then they'll decide between themselves, is that right, in order to fulfil the minimum criteria which you list: "We think it's going to cost X amount per annum, we. Think, as there are six of us, we'll divide the necessary pot up between ourselves on an appropriate basis, having regard to our circulations or whatever, and then we put that proposal to the BIA to approve or to disapprove as it feels appropriate." Is that how you see it developing?
A. We built on two existing models. It's different to them, but as we understood it, that's very much the role of the Legal Services Board as set up by the Legal Services Act, that its responsibility is to approve the regulators in law and to make sure that they're working and functioning properly. Similarly, I referred to the Financial Services Act '86 and the setting up of the Securities Investment Board, which had a very similar role and which would look at and approve regulators and then check that they were working properly. So I think there are quite a number of precedents for this. I think there are similar bodies in healthcare. So the process would be as you describe, such that essentially it is self-regulation and the same as happens now certain members of the industry come together but then they have to not only exceed these criteria but then be approved by the backstop auditor.
Q. In the first instance, how would the backstop auditor know whether enough funds have been put in the pot to provide this basic it's more than basic, but to fulfil the minimum criteria it itself is setting? Given that this is a new regime, what principles does it have to go on? Is it going to say, "Well, the PCC for everyone cost nearly 2 million a year. We can see that there are X number of large organisations wanting to participate in this SRO. We think it's going to cost a proportion of the 2 million or more than the 2 million." How's it going to work?
A. I think, as you say, I think we have past precedent to go on. Not just in the press. What we did was look at the cost of the Legal Services Board and the cost of other regulators. We look at the cost of other regulators in media, the ASA and others, and of course Ofcom has put forward what it believes it spends on this aspect of its role as well. So necessarily I think initially it would be more difficult to establish exactly what the cost would be, but I think over time it should be much easier.
Q. You've already made the point that if we have one SRO up and running, which may be the position in the first instance, if another one wants to come along, it would need to establish an adequate rationale to the BIA of the need for a separate system and if it doesn't establish that, it's going to be stillborn. Is that how it's
A. Yes.
Q. So it may be, in practice, that we only ever have one SRO?
A. It may be. LORD JUSTICE LEVESON Doesn't this have a problem, Dr Moore? Because so far one could plant the present PCC into this scheme and make it the external self-regulatory organisation.
A. Mm-hm. LORD JUSTICE LEVESON With all the flaws, if they are flaws, that people have spoken of, and dominated by a very small number of people, perhaps even fewer. Then others will say, "Well, actually, the reason I don't want to join them is because they don't want me and I don't want them", for reasons which we don't need to elaborate. Would that be a reason to say to the backstop: "Well, actually, I need a different self-regulatory organisation because they won't have me" it's a bit like Groucho Marx: "I don't want to be a member of a club that will have me" "therefore I need a new one." Each one in turn could say it has to be different and then actually you've not changed one of the fundamental problems, which I can summarise using Harriet Harman's phrase, of editors marking their own homework.
A. I think we have in three ways. First of all, as I say, I don't think one should underestimate how significant a change it would be if news organisations did have proper internal complaints and compliance mechanisms. LORD JUSTICE LEVESON I'm sure that's right. I have no problem about that at all.
A. The second is that I think that certainly from my own perspective, the proposal neither the past PCC nor the proposal as I've seen it and understood it as it's on the table would pass the criteria as set out by the BIA. I don't think, as I said earlier when we discussed it, that it was adequately different or adequately independent. Thirdly and one of the keys to this system is to say that the cycle in the past, as I described, has been of attempts to reform and what seems like a honeymoon period of good behaviour and then a gradually decline and dissipation, and so one of the key things that we were thinking about was: how do we stop that cycle and create a self-correcting mechanism? The BIA is, if you like, a self-correcting mechanism such that the annual audits allow one to stop that decline happening and to, if necessary, fine and make recommendations about the self-regulation organisation such that it doesn't follow the same pattern. MR JAY It's the second of those three reasons which is likely to be the most important, Dr Moore: the minimum criteria you've referred to already. You list them at page 84, page 00431. Of course, if these criteria are not met, the BIA will not bless the SRO. There has to be an appropriate code of practice, and you list the attributes of the code. There has to be LORD JUSTICE LEVESON Just tell me where that is again, please. MR JAY It's under the heading "Meeting the accepted standards of self-regulation". LORD JUSTICE LEVESON Thank you very much indeed. It's the first time I've had to ask. MR JAY There's certain minimum standards and they include commitments to the protection of individual privacy and obviously Article 8, promotion of accuracy, fairness. Then there's a contract which sets out the rules of the organisation which the members have to sign up to and then there is the criterion of independence, which is obviously going to be very important. Then the responsibilities of each SRO should include but not be restricted to and then you have a list of functions. Are we going to see all of those in a statute? How do you see the BIA, which is a statutory creation, being required to check whether these minimum criteria are being met in relation to any particular SRO?
A. No, the statute, in the same way as the Legal Services Act, when it established the Legal Services Board, set out a series of objectives for the Legal Services Board similarly, we set out objectives and principles by which the BIA would function and we set those out in this document about what those objectives ought to be. It would be part of the responsibility of the BIA to then take those objectives and turn them into guidance and turn them into exactly what it believed the exact criteria as to what it believed a sufficient contract was and what it believed sufficient threshold for the code was, et cetera. These are what we believe the responsibilities of the BIA ought to be, as translated from the principles and the objectives of it being set up.
Q. All right. There's nothing to stop then the BIA, acting lawfully within the general parameters which would be set out in the statute, coming up with a different version of the three basic points here, namely a different version of what the code of practice says, a different version of what the contract provides for and a different version of what the independent body, what its functions are; is that fair?
A. Well, to a certain extent. I think we have to recognise that not only is there precedent in other industries; there is precedent in the press. And we are working from the basis of experience and the basis of experience of 60 years of looking at what has and what has not been effective and what is agreed consensually by the industry already and what is not, and we have reached a point where there does appear to be a degree of consensus that a code of practice is a good thing and that we have, if not agreed an exact code of practice, one that has been very helpful in the last 20 years; that a contract, whilst only a piece of the puzzle, perhaps, is a helpful piece of the puzzle and that the public require an independent body which accepts and resolves and offers redress for complaints.
Q. If you have a statute which sets out very general principles and the BIA is then told to go away and draw up a detailed scheme under these three rubrics code of practice, contract and independent body, et cetera what would happen is that the BIA would have to consult on any idea it came up with; is that right?
A. One would hope it would.
Q. Yes. In order to meet basic standards of fairness it would have to. But then wouldn't there be a series of prolonged negotiation then between the BIA and the various stakeholders as what the attributes of the first SRO would look like? It wouldn't necessarily look like that which you've come up with. The industry may come up with a weaker proposal than the proposal we see here. Do you see that danger?
A. I see that danger, but the industry has already come up with a proposal and the industry's proposal is not particularly as I say, I don't think it adhered to some of these elements, but is not particularly far away from this.
Q. Hm. Don't we need a system, though, which binds all the stakeholders of course, they all have a different perspective of the industry in particular to adhere to the three different elements which break down into subcategories in such a way that there's less room for debate about it? Isn't there a concern that, okay, you've come up with a series of principles which look good on paper and I'm sure most of these one can agree with but the industry may be saying, "No, we don't agree with this, we don't agree with that", and the first SRO the first one is going to be the most important could look weaker at the end of the day? Isn't that a problem?
A. No. One of the keys to this and it is clearly central, particularly given the conversation you had yesterday is that this BIA is set up in statute and therefore it has certain statutory obligations, and therefore whilst obviously it should engage in consultation with the industry, it has an equal responsibility to consult with civil society and to consult with some of the past victims of press abuse, as this Inquiry has done. Therefore it seems to me that the idea that it would become craven to the industry is not fair, in a way, to the proposal, because the proposal specifically it was a big step to say that this ought to be set up in statute because our belief was that otherwise it would not have the independence to do exactly as you say. It would not have the independence to define what it believed to be an adequate code of practice, adequate contract and adequate independent body.
Q. Maybe part of the problem could be surmounted by the statute, although it would confine itself to principles, going into a fair amount of detail in each case so that the code of practice the statute would say: well, the SRO must create a code of practice and the code of practice must reflect the following minimum standards. Then you would include within those standards protection of individual privacy, Article 10 rights, promotion of accuracy and the need to be generally fair. So the principles could be quite tightly drawn but still confer a substantial degree of concession to the BIA at the end of the day. Is that
A. Yes, they could.
Q. In what circumstances, though, would you envisage a second SRO ever acquiring life in relation to the national press? Because it would be difficult, wouldn't it, for anyone to say, "Well, we need to, on objective grounds, establish a separate system", unless, I suppose, the SRO has failed in some way?
A. To give one example, let's say the regional press decided that it did not want to be part of the same self-regulatory system and said, "We don't suffer from any of the similar problems. We have a very different way in which we deal with things and we also think we can do it with more light touch regulation than perhaps the nationals can." The BIA might look at their proposal and say, "You're right, the regional press can do this in a very different in a quite different way and therefore there is a functional reason for having a separate SRO."
Q. Can I turn that on its head? Having said there may only be one SRO in the first instance, there is, I suppose, a danger, without naming particular newspaper groups, that there are fault lines between them and that two of them, say, set up their SRO, Northern Shell with reluctance because it would be with reluctance on past form sets up their SRO, and then all the others, although they're not necessarily a very happy bunch, set up their own SRO. So we could have three SROs with different standards, couldn't we? That's one possibility?
A. I don't think with different standards. I think the standards well, they would have to be basic minimum standards that they had all surpassed. So they might have different standards over and above a certain threshold, but they would all have to have met the basic minimum criteria and they would all have to be accessible in the same way. So, in other words, if we start from the position of the public again, a member of the public at the moment has very little awareness of where they ought to go if they would like to complain or make a correction, partly because if you go to most newspapers or on their websites, with notable exception, it's quite difficult to find where one ought to go. If this was in place and one had obligatory internal mechanisms and had to notify the public in the same way as the financial services industry had to notify the public about where they need to go, then there would always be a simple and straightforward way of seeking at the very first instance making a complaint, asking a question or trying to correct something via telephone number, email address, et cetera, and the clear indication of the fact that you are first going to the news organisation and we are regulated by X. So there are you're therefore, from the perspective of the public, this system would be much more accessible and easier to understand. If it was not possible to resolve it through the organisation itself, then as set out here it would be obligated to escalate it to the regulator or the individual could do that themselves.
Q. If there were more than one SRO, wouldn't the public be confused, at least as a matter of perception, wondering: why do I have to go to this SRO rather than that SRO and on the face of it that SRO looks as though it would further my interests more than the one I'm being forced to go to?
A. First of all, I don't think it would be confusing and for exactly the reason I have expressed, in from the sense that I mean, when, as often happened, people were questioned about their awareness of press regulation, there was pretty limited awareness of press regulation, understandably so. I think from the perspective of the public, the system would be much easier to access, and for most of the public, whether it is the Press Complaints Commission or the Press Council or the press I think it's immaterial as long as they get satisfactory redress and that redress happens in a timely fashion and they are happy with the consequences. LORD JUSTICE LEVESON I can see the value of having a backstop independent auditor to keep everybody's nose to the grindstone and I can see that that might be seen as sufficiently far removed from statute not to create the concerns, which I'm sure are genuine, however they are expressed, about impact on free speech. But I am concerned and I'm testing I'm not deciding, I'm testing how the opportunity for a multiplicity of self-regulating organisations is going to help, because what might well happen is that some groups, as Mr Jay was postulating, will set up their own with their own independent members, but they'll all be their own independent members. They'll doubtless be selected for their own independence and their ability to hold the ultimate organisation, the publisher, to account, but they will be different people, who were perhaps more or less in tune with the fundamental ethos of the papers that they are regulating, and we're dealing with some very powerful people here, and the smaller the SRO, the more difficult it will be for it to be muscular in the exercise of its independence. I'm concerned about that feature of the plan. I see I understand how you've got there and I'm not saying anything about it at all, but I'm seeking to see whether there is a way of coping with the problem, and it may be that you say, "Well, we'll have a backstop independent adjudicator who will then identify what the minimum criteria are and then you, industry, have to get together and sort one out. And if you aren't all signed up, then there will be consequences because you've not all signed up", so in other words, in that way you're forcing people into an independent regulatory mechanism, which but it's not the statute that's doing it, it's the independent auditor.
A. Yes. Sorry, perhaps I didn't explain myself very well. That in a way is essentially how it ought to work. Because of the obligation to be a member of an SRO, the auditor ought to be saying, "You need to get your act together and get into this and this is how we recommend you do it, and if you don't want to join this particular SRO you have to give us an extremely good reason as to why not and you have to be not only that but you have to be extremely clear as to what the what you are going to join and why it's going to be more effective." LORD JUSTICE LEVESON Yes, but the problem with that is then there's be a race to be the first, won't there? Because some people will say, "Right, we've got one. Actually, we can take down from our shelf the idea that Lord Black and Lord Hunt worked on, here we have our independent people, we have our organisation, we have the editors involved in a way that we think is appropriate, and we can tweak it a bit to fit in with whatever other requirements there are, and therefore we say to everybody else who's not really very happy about this organisation, 'Well, that's it, you're stuck with this'."
A. I suppose it depends if you come from the position of saying there will almost certainly be a proliferation of SROs or from the position where you say actually it's in most people's interests to be a part of a shared system, which most people believe it is in their interest, despite the fact that some news groups have unhappy in the past and some have left, but most have remained despite elements of unhappiness, so I think the certainly going from historical precedent, the momentum is behind a single organisation and therefore I'm not sure that there would necessarily be a race to proliferate. Indeed, our discussion suggested that it would probably be the opposite, that it would be people would want to be members of one organisation. LORD JUSTICE LEVESON But then you're going to have to make requirements such as, "We don't expect editors to be on this", or whatever, and then you'll be fighting about that sort of detail with the independent auditor as to whether that's a necessary requirement of the system. Won't you?
A. But part of the purpose of the guideline go back to the independent auditor are to set out exactly that sort of thing, to say, "We would not find it acceptable if you peopled this organisation entirely with serving editors". LORD JUSTICE LEVESON You've moved the argument then from what's in the statute that sets up your independent auditor to the argument with the auditor and all sorts of challenges to his decision-making and his attempt to sort it out, which I'm not so sure isn't what I was supposed to be doing. I'm very happy to pass it on to somebody else
A. Sorry, I certainly wasn't meaning to tread on toes LORD JUSTICE LEVESON No, no, don't
A. I was just trying to flesh out the points we made about good governance and about the Hampton Report were supposed to indicate that part of the responsibility of the BIA would be to do exactly that, to set out what it believed to be a transparent system, an independent system and a consistent system and a proportionate system. LORD JUSTICE LEVESON Well, I suppose if this gets legs, and we'll have to think about it, obviously, then I can provide some assistance by saying what I think such a system can be and then people can accept or reject it as to what they think is right, which is what will happen anyway. All right, yes. MR JAY If a large publisher doesn't participate in an SRO, then the penalty's a fine; is that right?
A. That's right.
Q. But the penalty isn't any more than that, presumably because if it were, that would breach Article 10 rights?
A. Yes. And it would potentially start to veer into issues around licensing and censorship. LORD JUSTICE LEVESON Is that one-off?
A. No, cumulative. LORD JUSTICE LEVESON So every day?
A. Well LORD JUSTICE LEVESON Every month, every year, whatever you want?
A. To be determined. LORD JUSTICE LEVESON Yes, yes, yes. MR JAY I suppose it would be for the BIA to determine what the fine should be or maybe even the statute to set a maximum amount of the fine.
A. Potentially, but the BIA ought to be the one defining that.
Q. What would happen if the BIA were unable to approve any self-regulatory organisations either at all or in relevant subsectors?
A. I think part of the responsibility of the BIA ought to be to make sure that there are successful a successful or more than one successful SRO established and it's clearly in the interests of the SRO to do that and therefore it's in the interests of the SRO to work with those who are setting it up to make sure that it happens.
Q. It may be that the BIA would need power to say that if an SRO is not created within X period of time, that would have to be a reasonable period of time, then the fines begin to kick in.
A. Yes, and it would be its responsibility to give recommendations as to what its expectations were.
Q. The BIA would have power to strike off a poor performing SRO once created. If only one SRO existed, the constituent members would then PDQ have to set up a new one; is that right?
A. Yes, or join existing ones.
Q. Depending on whether there were any existing ones. This is a mixture of a market-based system where the SROs would be competing with each other, but against a system of compulsion where the large news organisations know that if the SRO is not created within X period of time, fines are going to be slapped on but we don't know how the market's going to shape up. We could, and this is the application, have one SRO, or we could, albeit unlikely but it's possible, have a number of SROs. Is that a fair summary?
A. The point is to give is exactly that, to give the freedom to (inaudible) to the market and to prevent any actual or perceived influence by the state.
Q. Within your system there's an appeal board, which you touch on at page 87, 00434. There are other points of detail in relation to the BIA itself. The BIA would have to be (a) free from state interference and (b) sufficiently independent. You set out at page 91 how the BIA might look in terms of who comprises it in the first instance?
A. That was a suggestion for the Appointments Commission.
Q. For the BIA?
A. Yes. One of the issues we grappled with at length was it's the guardians going back and back, and we felt it wasn't satisfactory simply to talk about the establishment of a backstop auditor without bottoming out exactly how its appointments process would work and how it would be funded and how it itself would be accountable because, if set up in statute, then necessarily one would expect there to be some sort of accountability mechanism for seeing that the BIA is functioning properly and again we didn't want that to be a backdoor route by which the government could have an influence.
Q. The same issues would arise in relation to any system with statutory underpinning. One would have to be concerned about the appointments board, accountability of the system, funding of the system.
A. Exactly.
Q. So there's no problem with that. It's issues of detail which should be considered. Can I deal finally with part five of your report, the issue of the public interest defence in law, because your viewpoint is that there should be really a statutory definition of what public interest means; is that a fair summary of it?
A. We believe there should be a public interest defence in law, yes.
Q. We're talking here not necessarily criminal law but really the law as applied by the regulator, so the internal law of your regulatory system; is that right?
A. No, it's
Q. More generally?
A. No, this is a law. LORD JUSTICE LEVESON You are talking about the criminal law?
A. Yes. Well, at least referenced in things like the Regulation Investigative Powers Act and other various laws where there is there is not currently a public interest defence. LORD JUSTICE LEVESON Let's just talk about that for two minutes because, before I started a year ago, this was a subject I knew something about. If you follow this through, there is a risk of consequences which I'm not sure you will necessary intend. Let me tell you what they are and ask your observations upon them. I am a journalist and I have a story that I want to investigate. I say to my editor, "I know that X, a prominent Cabinet Minister, is doing something which is illegal, hypocritical, whatever, because I have very good sources who tell me so and therefore I would like to tap into his telephone or hack into his email. I know it's illegal, but I have some very good information. This is the information." And the journalist tells the story. The editor says, "All right", and off he goes and does all that and doesn't reveal that story at all, but does reveal, for example, sexual misbehaviour. He then says, "Now I have a different story I've got about this sexual misbehaviour, I'd like to publish it", and there may or may not be a public interest in it, but they publish it let's assume there is but not a public interest sufficient to have justified a breach of the law. Then the police get involved and say, "We're very concerned about this. It looks as though there's been a breach of the criminal law", to which the journalist says, "Well, no, because I investigated this story with my source information that this Cabinet Minister was guilty of criminal or other misbehaviour." "Oh," say the police, "you'd better let us investigate that." "Oh no," says the journalist, "I'm not prepared to reveal my sources but it's a source I've used lots of times and it was utterly reliable." How can ever the police ascertain whether there was such a source? In other words, you create a perpetual defence to any impropriety because the journalist will never reveal the source of his information.
A. Wouldn't one in those circumstances be able to say that the defence is compromised by the fact the journalist, understandably, will not reveal sources, in the sense that if not only will the journalist not reveal sources but will not reveal any information or evidence as to the basis as to why they took the action in the first place, then that surely necessarily significantly weakens their defence that they took action in the public interest? LORD JUSTICE LEVESON They say, "I don't have to reveal my source, I have Article 10 protection, but this was absolutely genuine, and I've used this source many times and he's produced lots and lots of good stories, and the fact that it didn't this time but produced another story, well, you know, that's life." That's the problem I mean, I put it to you as an illustration of the problem of creating a defence in law to the breach of crime, and that's actually why earlier in the Inquiry I asked the DPP to consider articulating grounds whereby he would decide in the public interest whether a prosecution was appropriate. In other words, I allowed for the flexibility which wouldn't be available if it was a pure defence. Do you see the point?
A. I absolutely do. We met with the DPP a couple of weeks ago to go through the proposal that the CPS had put together with regard to what would be essentially a definition of the public interest such that it could offer guidance to journalists in the event of possible prosecution, and it is, I think, a significant step forward from where we were, partly because our concern primarily was well, two concerns, one of which was that journalists would and don't currently feel protected because they don't know what would be or would not be considered to be in the public interest because there hasn't been the guidance that existed before, but secondly, we felt that by better defining the public interest, one necessarily draws a much clearer line between what is the private sphere and what is the public sphere and the points at which one is justified intruding into a private sphere because of public interest justifications. So I think that the guidance that the DPP is putting together is extremely helpful and we are just starting a project on this. Our concern was that twofold, one of which was: was it enough to have guidance and continued discretion from the perspective of journalists who are trying to do work which is in the public interest, and perhaps it would be over time as precedents built up, it certainly wouldn't be initially, but also whether or not and this is I suppose a much broader question having a public interest defence in law to a certain extent clarifies and cements the position of the semi-constitutional role of public interest journalism in society, so it much more clearly defines a role in a sort of in a very different but a similar way to the way in which the First Amendment does in the US, in the UK. LORD JUSTICE LEVESON How have you captured, then, the journalists and there may be just a few who are prepared to be utterly cynical about this and want a specific type of story but then not be entirely truthful about where they got the information for the story from? In other words, how do you cope with the problem that I've just identified? First of all, a journalist should be very, very cautious before embarking upon a course of conduct which involves breach of the criminal law. I'm sure we'd agree with that.
A. Mm-hm. LORD JUSTICE LEVESON Secondly, if he has a true public interest justification, then that will come through, and I hope the guidance would be sufficient. But let's assume you have an extremely oppressive prosecutor who then presses on regardless. There are mechanisms the court has to prevent an abuse of the process. Next, fourth, there is the well-known attitude taken by a jury for extremely oppressive prosecutions and Mr Clive Ponting would be able to give you some evidence of that, and finally, there is the judge who may very well have taken a view about whether it was worthwhile or not, whether this was a difficult decision or not a difficult decision, and ultimately if he feels, "Well, there wasn't a defence but I do think it wasn't an abuse of process and the prosecutor was entitled to prosecute but I don't think it was worth of punishment", he can absolutely discharge the journalist. I appreciate the journalist has gone through the mill, but that goes back to the very first point, that he ought to be very careful before he embarks upon a course of conduct which breaches the law, and it's not quite the same for Section 55, because in Section 55, the data protection, you might have got the data, but it's also an offence to publish it. So if you've only got the sexual misconduct and you publish that, that can be challenged as whether there's a public interest in publishing it. You see the point?
A. Mm. LORD JUSTICE LEVESON In other words, there is a way of permitting the defence in Section 55 offences but not for other crime. I'm very interested and if you want to come back to me on that at some stage, you're very welcome, because I've simply used you as the vehicle to expound this problem.
A. I appreciate that, and as I mentioned, we have just received a grant to do a project both looking at whether it would be possible to have a public interest defence in law, whether it would be constructive and beneficial and whether it would be practical and, sorry, what the consequences would be, so I would certainly like to come back to you. LORD JUSTICE LEVESON And when will this be done by?
A. Well, we can accelerate the process. LORD JUSTICE LEVESON Yes. Forgive me, when will it be done by?
A. When would you like a submission back? LORD JUSTICE LEVESON Don't tempt me, Dr Moore. I'm very happy to receive anything you want to provide for me, but it needs to be sooner rather than later. It's well known that I hope to provide a report in the autumn at some stage. It would be very upsetting if I did so and six weeks later the Media Standards Trust produced something which I hadn't considered.
A. Absolutely, I understand. LORD JUSTICE LEVESON Sorry, Mr Jay, I rather took over that. MR JAY No, no, those were all the points I wanted to draw out. LORD JUSTICE LEVESON The civil law might be different, and I recognise the civil law and indeed of course there are building up defences, public interest defences, within the civil law.
A. Absolutely, and I suppose the two key aspects, which again we will go away and think much more about, is the difference between a defence in the exemption and the degree to which it can be a defence and not, as you say, a route by which anyone can do anything. But also, secondly, there is, I think, an increasing need for a much better and more substantive legal definition of public interest journalism, and indeed that's what the New Zealand Inquiry spent much of their time doing, to see how they could better define that, so that it encourages the practice of journalism and encourages an expansion and openness around public interest journalism, which I fear otherwise may contract, and some of the proposals, I think, that were put forward to the Inquiry would lead to a contraction of public interest journalism rather than its expansion. LORD JUSTICE LEVESON I don't wish public interest journalism to contract. I'm very keen to encourage the best because the best is extremely good and very important for our society, and I'm not suggesting that journalists are looking for ways to lie and scheme and be dishonest about where they get their stories from or the reasons for their stories, but in the light of all the circumstances and the very important provisions of Article 10 in relation to sources, one has to be very cautious in this area, as I'm sure you will acknowledge.
A. Absolutely. LORD JUSTICE LEVESON Dr Moore, is there any other aspect of the report that you feel we've not touched upon that you would like to address?
A. You have gone through it very substantially and I'm very grateful for that. LORD JUSTICE LEVESON Thank you. We'll swap again. Thank you very much indeed, Dr Moore. We're back on Thursday. (4.45 pm) (The hearing adjourned until 10 o'clock on Thursday, 12 July 2012)


Gave statements at the hearings on 08 February 2012 (AM) and 10 July 2012 (PM) ; and submitted 8 pieces of evidence


Understand all the key topics and the context behind the Inquiry's findings

Journalism & society
View more
View more
View more
Future of journalism
View more
Background & history
View more
Subsequent developments
View more
Ethics & abuses
View more