Afternoon Hearing on 16 July 2012

Dr Neil Manson and Professor Baroness Onora O’Neill gave statements at this hearing

Hearing Transcript

(2.15 pm) LORD JUSTICE LEVESON Yes, Mr Jay. MR JAY We now have Dr Neil Manson, please. LORD JUSTICE LEVESON Thank you. DR NEIL MANSON (affirmed) Questions by MR JAY MR JAY You don't have in front of you, but maybe you know it off by heart. Your written LORD JUSTICE LEVESON Oh, let's not put him under that pressure.
A. If you're going to refer to numbered paragraphs, your pagination is different from mine and I haven't memorised it off by heart, so it might be helpful if you are going to refer to it. LORD JUSTICE LEVESON Better have mine. MR JAY This is your submission of 14 June 2012. I'm just going to ask you to confirm it's obviously your work and that in as far as there are facts and opinions honestly held, that's the case.
A. Yes.
Q. You've given us your full name. You're a senior lecturer in philosophy in the department of politics, philosophy and religion at Lancaster University?
A. That's correct.
Q. Can I ask you, please, to tell us about your main research and intellectual interests.
A. The research interests, broadly, are to do with things to do with the ethics of communication and knowledge. Over the past few years, I've written particularly in the area of medical ethics rather than the ethics of the press, but many of the same issues arise there in terms of privacy, confidentiality, what sort of things ought we know or not be allowed to know and so on. More recently, my research has turned to the press and I've written on the nature and ethics of spin, political spin, and also upon the ethical importance of, in certain cases and contexts, not finding things out and not seeking knowledge. So as I say, broadly, the ethics of communication and knowledge, which are, of course, directly relevant to the issues at hand.
Q. Thank you. We're not going to be able to cover, in the time available, each and every point which you argue with considerable care in your presentation to us. I'm going to alight on the highlights, as it were. I know you have this general observation: when we talk about a press, are we referring to a monolithic entity and if we aren't, what are we referring to?
A. This is an underlying worry, that when we talk about particularly talk about freedom of the press, that it's all too easy to think this is a unified entity that is the press, and of course, that's just a kind of accident of linguistics and had linguistic history been very different, there might well have been different names. There might have been I mean, prejudicing the top press and the bottom press or press number one and press number two and so on. Were that the case, were the language more finetuned from the start, there would be less slippage between arguments that are relevant to preserving the freedom of one kind of press, less slippage that would then transfer across to preserving the freedoms of other kinds of press insofar as they do very, very different things. Giving it the label "the press" covers all sorts of different activities, both in terms of different institutions, different newspapers, different media, but even within the media, within the newspaper, within a particular issue of a newspaper, there's going to be many different kinds of actions and activities, some of which are ethically absolutely fine and justifiable and permissible, and others which are much more questionable. So it's just an underlying worry that the way in which we frame the debate in terms of freedom of the press in contrast to something else say, censorship of the press isn't really finetuned enough to sort of tease out where the ethical issues actually lie. So it's that sort of sensitivity that I was trying to allude to.
Q. Without placing newspapers into individual categories, what are these two kinds of press you're referring to, or rather what sort of journalism is each one carrying out?
A. You could divide up presses in all sorts of different ways, but for the purposes of this submission, one of the key distinctions that I wanted to make was it's something that links us to certain kinds of argument, which maybe we'll come back to in a minute. Certain kinds of argument are supposed to justify freedoms of the press, and those arguments are about a certain kind of press that provides truthful relevant claims to an informed populace or in order to inform the populace for reasons of furthering and facilitating democratic participation. So that would be one way of distinguishing actions when the press did do that kind of thing from actions in the press that do other kinds of thing. The other kind of thing obviously includes lots and lots of things which are perfectly innocent, perfectly permissible. I mean, the editors of Good Housekeeping I take it write lots and lots of things which aren't specifically about furthering democracy. There's obviously notwithstanding wrong with writing with sofas and furniture and so on. So at the other end, there are problematic actions, activities and so on, where the press engages in activities which may breach important rights, which may harm people and where this argument from this appeal to democracy or furthering democracy doesn't really come into play. I wouldn't want to give them labels. That was just for a hypothetical reasons LORD JUSTICE LEVESON Can I ask you to slow down a bit?
A. Oh yes. LORD JUSTICE LEVESON I'm conscious that first of all I have to carry forward what you're saying, but also it all has to be written down.
A. All right. MR JAY Justifications in a free press, or rather the value of a free press. You define those on the second page, our page 00888. You describe them as content-based instrumental justifications. You then say immediately that there are considerable limitations in relations to those justifications. First of all, what do you mean by "content-based instrumental justifications", and secondly, what are the limitations?
A. All right, so by content-based, one kind of argument in favour of freedom of the press, which I've just mentioned briefly before, is that the press is in a special position to provide knowledge of certain kinds of facts to the populace that they otherwise would not know. So the investigative role and the communicative role of the press is very valuable, not in providing any old facts not just, you know: "Here's a list of all the things we thought of this week, or here's a list of all the cars this have driven down The Strand since Thursday." Those are facts, but not facts relevant to an informed populace making democratic decisions and so on. So immediately, we've narrowed the field of facts to the content that is relevant to achieving that goal. Now, it's an instrumental justification because the special kind of privilege of the press is being justified by appeal to its instrumental role. It's not valuable necessarily in itself; it's valuable insofar as it facilitates and furthers the provision of these special kinds of facts. So that's what we mean by "content-based" and "instrumental". So "instrumental" is furthering some other end, and "content-based" is: that further end requires certain things to be known. Not all contents, some contents. In terms of limits, I think this is something we'll expand on as we go along. Obviously that's not without bounds, without limits and so on, because any act of communication takes place within a rich normative context legally, ethically where there are further constraints upon things like finding things out. So we mentioned the investigative role of the press. The fact that the press has certain investigative powers doesn't mean automatically that it has carte blanche to do whatever it wishes to find things out. Similarly, its communicative powers will automatically be limited because all speech has certain constraints on it. Some of it's to do with contents, some to do with other elements. So if the proprietor of a very decent newspaper decides to broadcast their important content through a megaphone at 3 o'clock in the morning, that might be ethically improper, even though that was nothing to do with the content. In other cases the standard case of things like obscenity and hate speech it may be much more to do with the content. So the two points there is that the democracy-based argument is focusing on content, and the instrumental argument even that kind of argument isn't unconstrained. It has limits because considerations of speech always take place within a context, where there are other rights, other normative considerations in play.
Q. The argument from truth, which you deal with on page 3, which works along the lines that suppression of publications is problematic insofar as it reduces our chances of gaining true rather than false beliefs, you trace that back to Milton and its carried through to Charles Mill. What, in essence, is wrong with that argument?
A. Well, there's two general things that are wrong with it. When I say "wrong with it", there are two limitations to it. First of all, it only applies to those areas of the press or those actors in the press who are committed to getting at the truth. It certainly doesn't apply to people who are just saying whatever comes into their head or saying whatever is sensational in order to sell newspapers. So the argument on truth is limited in that respect. Much more problematically, the argument on truth is also limited in the sense that there's no guarantee that a free and unconstrained kind of free-for-all in terms of putting forward people's opinions is going to generate truths at all. One move you might make is to define truth in terms of whatever survives the competition, but that just seems crazy. Throughout history, lots of truths opinions have emerged to the fore, believed by lots of people that have, as it were, survived the competition of opinion at the time but they have been fundamentally flawed or false. So the deeper problem of the argument on truth is it seems to be appropriate and work very well if we picture certain contexts: an academic seminar or a small town village debating society where everybody listens critically to everyone else, each has one voice and no more than one voice, and all are reasonably well informed and committed to observing certain standards of communication. It doesn't work very well where you have people expressing their opinions with other aims in mind other than getting the truth for example, if their aims are to influence people, to sell newspapers, to rouse the rabble into doing something and where audiences themselves are not perfect. They may be already have false beliefs, prejudices, biases or lack the critical competence or the information needed to assess the claims that are being offered to them. We know from the history of how prejudices and biases and so on take hold of communities that the argument on truth seems to present this partly tempting but peculiar picture where if we all allow everybody to say what they want, somehow the truth will out in the marketplace of ideas. But a little more of and this isn't my original line of thought. A number of philosophers have criticised quite heavily the whole idea that the marketplace of ideas will lead to emergence of the truth. LORD JUSTICE LEVESON I'm just concerned for the smoke that is emerging from the lady who has to write is down, so I would be grateful.
A. All right. MR JAY It might be said it's a hallmark of a liberal democracy that the press is free, therefore any interference with a free press is inimical to the ends after democracy and is per se objectionable. Do you see any force in that contention?
A. Well, not exactly, because, of course I mean, here we have an analogy with something else outside the press. Suppose we argue that freedom of movement is absolutely central to a democracy. Seems quite plausible. I shouldn't, as the Prime Minister, be allowed to forbid people to go to Slough just because I don't want them to. It's very anti-democratic. We should be allowed to move where we wish, to assemble, meet people where we wish and so on. Various countries across the world don't have freedom of movement. You can't go certain places, meet certain people, and so on. Now, freedom of movement you might think is central to democracy, but my freedom to go to Slough doesn't thereby give me permission to drive there in the car across your garden without an MOT whilst drunk. There are lots and lots of standards there that are restrictive on movement in certain contexts which in that case would stop me going to Slough, and it would be absolutely insane of me to then say, "But my freedom of movement you're being anti-democratic, even though I'm drunk, have no licence, no insurance, have driven across your garden." I'm analogously going back to the press. Of course we're committed to the press being an absolutely central part of democracy and in a democracy you want to permit freedom of expression. That's absolutely right. Just as you want to permit freedom of movement. But it's not limitless. There are other norms in play, and then, even more strongly in the case of freedom of the press, if the press really is free, then of course it's free to, if you like, oppose democracy, to do things which actually might be undermining of democratic participation. So then you get into the slightly more paradoxical area where, in order to further democracy or democratic participation or the democratic wellbeing and civil health or civic health, then certain kinds of restriction might be necessary.
Q. What are the points of contact and the points of dissimilarity between concepts of freedom of expression on the one hand and a free press on the other?
A. They are I'd like to say they were obviously different but if one reads a lot of things which are written in the public domain on freedom of the press, they're often articulated in terms of freedom of expression. But freedom of expression and freedom of the press are very different. Freedom of expression primarily, in the first instance, applies to individuals. Individuals have a freedom to express themselves in a wide variety of ways. It may be in linguistic ways, symbolic ways. It may be freedom of expression can include things like your hairstyle or what hat you want to wear. Now, that's on, if you like, the content of freedom, but the distance between freedom of expression and freedom of the press becomes even greater when we think about the justifications of those two freedoms. Why are they ethically important? Well, freedom of expression is ethically important for the development of individuals, to allow them to form relationships, for their psychological wellbeing and so on. Now, the press, although it involves individuals, is not an individual. It doesn't have interests. It doesn't form relationships in the way that individuals do. It doesn't develop from being a creature that can't speak to eventually being one that can and has formed its own path through life. When you add in the further facts about the differences between individuals and the press individual such as myself or anyone in this room, we can express ourselves in all sorts of different ways, but when I talk to you or I talk to someone on the bus, I'm not broadcasting my views to 4 and a half or 5 million people. So there's an important disanalogy there in terms of press power. So if you start adding up those differences, it looks like freedom of the press is very different from individual expression and freedom of individual expression.
Q. Thank you. LORD JUSTICE LEVESON And may have different counterbalancing features, therefore. In other words, nobody would deny that there are legitimate restrictions on free expression: hate crime, the famous shouting "fire" in a crowded theatre. Equally, there are and should be limitations on the freedom of the press, which are not necessarily the same.
A. And of course, logically, they might be the same LORD JUSTICE LEVESON Not necessarily.
A. You would need an argument to establish why they would be the same but given the major and important differences between them, it would be very unlikely that they would be the same. I don't believe they are the same LORD JUSTICE LEVESON No.
A. just because I don't believe there is an argument that connects the two of them automatically. MR JAY Balancing the public interest in a free press, as we're defining it, with other public interests and private rights this is section 4 of your submission. You focus on privacy, which I suppose is one of the preeminent private rights. You say first of all one over-arching problem is lack of clarity about the key concepts and their normative significance. Can I ask you to explain that for us?
A. Yes. The notion of privacy I have quite abstract philosophical views, which I shall spare you, here, just to spare everybody but more relevantly there is unclarity about what we mean by privacy, both in the descriptive sense and then there's unclarity in the normative sense as well, in terms of what private rights we're recollecting and what their limits are. One of the examples I allude to in the submission is the simple lack of clarity about what constitutes the distinction between private and public. There's lots of allusion to that in debates about press freedom, particularly things like: if I do something in a public space, is it thereby private? Now, here it's all too easy to draw a simplistic distinction, either in terms of spatial privacy or information privacy, which says that when we are in a public space, then all of a sudden all legitimate claims of privacy disappear, which seems to me to be underargued for, to say the very least. For example, suppose I have an embarrassing spot on my nose, and I walk down the street with that embarrassing spot on my nose. It's clear that my embarrassing spot, although in a sense I'd rather it remained private, I'm exposing it to people when I'm walking down The Strand and walking down Oxford Street. Now, that's a form of controlled exposure. I might not behave in the same way if people were three inches away from me with little cameras, broadcasting or with a long lens camera, broadcasting it to 10 million other people. There, our privacy interests doesn't seem to correspond to the fact that I'm in a public space doesn't immediately justify if you need an argument to justify the kind of broadcast of that information to 10, 20 million LORD JUSTICE LEVESON But you don't need the spot on the end of your nose at all, do you?
A. That was just an example. LORD JUSTICE LEVESON No, no, because if you're a famous person because you've made a film or you've written a book or for whatever reason, there is an argument that you are entitled to go about your life as a privacy citizen without having long lenses and all the paraphernalia of lost privacy and your movements spread around the world, isn't there?
A. I agree with you, but the difficulty here is articulating in a clear and defensible way why that distinction should hold, because one of the the counterargument that could be used by a journalist is: "They're already in a public space. All I was doing was recording something that were a reader of the newspaper to have been there, they would have seen what I saw. Were they to have been on that beach with binoculars, they would have seen what I saw, so in a sense they were in a public space." But the problem with that line of argument it just assumes a very, very simplistic conception of the private/public distinction. It doesn't take into any account what our privacy interests in particular are. Our privacy interests part of our privacy interests and there's lots of evidence from psychology, right down into animal ethology and animal behaviour we don't like being looked at, for example. It's distressing if people are staring at you. When you walk down Oxford Street, people tend not to look at you. Imagine walking down Oxford Street and everybody turns and stares at you and walks I know this happens to famous people, but there's a sense in which the responses that we make to knowing we're being looked at that way are very different to being just in a public space. LORD JUSTICE LEVESON So you agree with the argument that those who are publicly known are entitled to a degree of privacy, even though anybody who was in Oxford Street at the time could see them?
A. Yes, because LORD JUSTICE LEVESON How then do you defeat the argument that actually they are in Oxford Street and therefore anybody can see them? Why do you reach that side of the equation rather than the other?
A. Of course, because the fact that anybody could see them is very different because we would behave very, very differently if we thought everybody was looking at us, and we shape our behaviour this is why I pointed to the spot on the nose example. I would behave very differently walking down Oxford Street with a spot on my nose to if somebody said, "You are going to appear at Wembley Stadium with a spot on your nose with 30,000 people watching you and it's going to be floodlit for all to see." I might put a bit of powder or concealer on. Then the point is you can't run with the fact that were each of those 4 million people stood in front of me, they could see it, therefore it's all right for all of them to see it, especially with the long lens example, especially if the image is taken covertly, because that doesn't give the privacy subject a chance to alter their behaviour in line with the situation that they're actually in. LORD JUSTICE LEVESON But it doesn't matter, does it? Because unless that person is never entitled to leave their front door, they can't alter their behaviour not to be in Oxford Street or whatever, because that's part of the stuff of living. So it's not sufficient to draw a distinction between the long lens and the close lens because of altering behaviour, because in you're in a public space and you're well known so it's not a spot on the nose type example there's nothing you can ever do about it. You can't ever escape.
A. You can't ever escape. I'm agreeing with you. We're arguing about something one step down the line, which is why we should think that that claim holds true, and what I was trying to allude to was there is a difference between walking down Oxford Street just normally, with people going about their business who occasionally turn their heads and go: "Oh look, it's Hugh Grant", or whoever, "walking down over there", and being in a situation where you are being exposed to millions of people in a different way. LORD JUSTICE LEVESON I know we're agreeing. I'm trying to obtain from you the best articulation of why it isn't good enough to say, "Well, they're in public, therefore it's open season."
A. I think the best there's more than one thing. What I was trying to allude to was the way that our privacy interests vary depending upon the situations that we believe ourselves to be in. LORD JUSTICE LEVESON Yes.
A. You're absolutely right. There are lots of things a famous person walking down the street can't conceal themselves and alter their behaviour in every circumstance, but that wasn't the claim. It was about having an interest in, if you like it's the classic privacy interest, the right to be let alone, and there's a difference between being let alone in the street where people occasionally glance at you had and sort of murmur into their phone: "Guess who I've just seen", and from having your face or image plastered on every newspaper. It's the legitimate interest in not having the latter seems to be enough to justify a protection of that kind of privacy interest. MR JAY One of the points you develop under this section is the preamble to the code, which refers to the public's right to know, Dr Manson. You have a number of interesting points on that. Can I invite you, please, to explain those for us?
A. Yes. So this notion of the right to know is one which is also offered up fairly regularly as a justification, sometimes a justification for intrusive actions. One problem the logical problem is the right to know doesn't make any sense, because if it's supposed to be a claimed right you know: "I have a right to know" how can anybody else be under an obligation to ensure that I know? Because I may not believe them, for example. So that's the kind of sniffy philosopher's logic objection. But underlying and beyond that, there's actually a more important objection, which is that when people are talking about the right to know, there only really is any content if we can appeal to or identify some correlative duty. It may not be a duty to bring about knowledge, because there couldn't really be any duty to do that, but there could be a duty to inform and there are lots of cases and lots of contexts where individuals or institutions are under a duty to inform or a duty to warn. Now, if we look at the right to know as the correlative of the duty to warn, then certainly there seems to be lots of activities of the press which seem to fall under that heading. So if the press discover a serious wrongdoing by the Prime Minister or serious discrimination in the higher echelons of the judiciary or that a world famous football team has been taking bribes, then there seems a the obligation or the duty to inform relevant publics who would have an interest in a legitimate interest in knowing that, that looks okay. But there isn't a correlative duty to warn people about the state of Cheryl Cole's kneecaps or, you know, the kind of thing that appears in lots of newspapers, where again a journalist might cite in defence: the public have a right to know this. The simple response is: no, they don't. They don't have any right to know that at all. There's no obligation to warn them. They may have an interest in knowing it in the non-normative sense. They may be very keen to know it. They may buy the paper for the reason of finding it ought. But it doesn't mean that they have a right to learn of that, nor does it mean that any other person is under any obligation to inform them of it. So as with the notion of freedom of the press that we the started off with, this notion of right to know is one which, when you push it a bit further, doesn't really have the normative or legitimating mileage some people might think it has.
Q. Thank you. The public interest in truthfulness. You deal with that. I think we're particularly interested in the issue of sources and Milton on the bottom of the 10th page. Before we get there, could I invite you to explain what you mean by this public interest in this particular context?
A. When we're talking about the public interest here, there's two different roles that public interest is playing, both in my submission and within the Inquiry more generally. In the one sense, public interest is used quite narrowly talking about the specific public interest defence. That's not the sense I'm concerned with in this particular section. When we talk about "public interest" here, "public interest" has been used in a much wider and general sense to mean something along the lines of what is the over-arching interest for all of us or what is the over-arching interest for the populace at large, in freedom of the press, truthfulness, privacy and so on. So the primary interest in truthfulness is that without it, we end up having no communication, or risk end up having no successful communication and no knowledge at all. If it becomes if a lack of truthfulness becomes widespread, then we undermine trust. If I routinely lie, others routinely lie or mislead, then eventually communication itself becomes something that's much harder to achieve. If you suspect everybody of perhaps actually, as a matter of logic, it doesn't work if everybody lies all the time, because then you just take the negation of what they've said, assuming certain competences, but if a sufficiently large number of people are sufficiently misleading then when somebody says something, unless you have further independent evidence, really you can't really do anything with what they have said without those further checks, and one of the fantastic things about communication is that we rely upon others for our knowledge. In order to rely upon others for our knowledge, a sufficiently large number of people have to be truthful. So that's the kind of deep and over-arching concern with truthfulness. Much more narrowly, of course, we all have much more specific and involved concerns with truthfulness, just in the sense that it's actually hurtful, distressing and so on to be lied to. And that's just a fact about human beings. Leaving aside any sort of detriment that might be caused if we act upon the basis of a false belief if we're deceived into believing that a certain investment opportunity will pay us lots of money and in fact it was going to pay us nothing at all, then obviously we've suffered financially and maybe in other ways, but even if we don't suffer financially or in other ways we're not going to be sort of lied today and led to our deaths, for example just the actual fact of being lied to is, by and large, one that is distressing, particularly if we're being lied to for self-interested reasons, ie self-interest on the part of the other party. LORD JUSTICE LEVESON And if that happens, at a public level, from public authorities, that has itself a damaging impact on our democratic process and the way in which we live our lives.
A. Indeed. There's A term I used elsewhere which I didn't use in here, which is epistemic pollution "epistemic" means to do with knowledge and "pollution" just being pollution where people who routinely deceive at the level of public life and in the media it is akin to a form of pollution, because we rely upon the great sea of others to provide us with knowledge, as a sorry, the metaphor does run a bit thin when the sea is something you're going to drink because you wouldn't drink from the sea, but we need to drink from the sea of knowledge in order to know that other people pollute that, make it unusable. So when the lying gets to a grand scale and is widespread, in particular, then the effects may be much, much greater than if it's just you know sort of localised and involving individuals in their own sort of everyday lives. MR JAY The point at the end of page 10, our page 00896, derived from Milton: a requirement that publications identify their author. Almost a moral requirement to identify a source in contradistinction to clause 14 of the code, which creates a moral obligation to protect confidential source. How do you see those two norms working out in practice?
A. Milton's claims aren't abouts journalistic sources, though he's particularly concerned with political pamphleteering. So it is the source of opinion. Now, actually, in the statement here, I don't specifically address anything to do with the protection of journalistic sources. The claim here was more narrowly focused on the information that we need as audiences to assess and evaluate the claims that we're given. I think that more can be done to allow us, as audiences, to understand what we're getting. So if the source of a news story this is particularly true of sort of PR and churnalism, people just cutting and pasting stuff from PR companies if we were to know the source of a claim I mean, lots of papers publish lots of things all the time that say things like: "A fantastic new holiday resort has just opened in Wales and we think it's brilliant." Now, if it's said the source is a PR company for that company, we would evaluate it very differently than if we thought it was a discovery made by the journalist his or herself and so on. As for the LORD JUSTICE LEVESON How far can you take that? Let's assume that holiday company had offered the journalist a free holiday at the resort. Should that be identified?
A. There's a balancing act here because in an ideal world, it would be useful if there were somewhere where that kind of information was accessible. Whether it ought to be disclosed in hard copy print might be quite difficult because it would make hard copy print unreadable, if you have, you know: here's a 400-word article about something and here's 600 words of footnotes telling you everything about it. But these days, given changes in information technology, that kind of information could be made readily accessible on a newspaper's website and I don't really see anything being wrong with that, if you are committed to truthfulness and being co-operative with audiences. LORD JUSTICE LEVESON But it's quite the reverse from there being nothing wrong with it. As I understand your argument, that would positively improve the value that those who read the article can derive from it, because they can factor into their assessment of what the journalist has written the advantage that the journalist has received. So if it was somebody who said well, is it the Michelin inspectors who go into restaurants without disclosing who they are, paying the bill and simply experiencing the food? That is different to the journalist who is invited to the restaurant, given a free meal and then writing about it. So it's am I right? It's not merely not a bad idea; it's positively beneficial?
A. Absolutely. It's positively beneficial, but my note of caution was in moving from the positively beneficial to a stronger claim that therefore it ought to be required, because there are lots of other considerations that might be relevant for why that might not be the first port of call in terms of obliging people to publish that type of thing. Philosophically, yes, of course, it would make that information much more accessible, evaluable by people in relevant ways, which would be a very good thing and thus not only, as you say, permissible but actually something that, were we to be what's the word? trying to construct a set of press practices that were going towards the ideal, from the point of view of audiences, then yes, it would be required. LORD JUSTICE LEVESON I'm a long way short of ideal.
A. Yes. LORD JUSTICE LEVESON It's a question of balance. MR JAY Section 5, the extent to which the overall public interest is currently well served. Your short response is "could be better", and you identify two main problems, which it's fair others have spoken to as well. I was going to ask you to focus on one key aspect of this, which is your call for a properly independent regulatory body, and drawing up the distinction between statutory underpinning of that body and the state determining the content of news media, which is at the bottom of page 12, 00898. Could I ask you, please, to explain that for us?
A. Yes. This just, again, returns to the point we started with, which is the way that the debate is framed in terms of an opposition between censorship on the one hand and freedom of the press on the other seems to be misleading and ill-conceived, and that when we think about sort of developments and changes to regulation it becomes relevant once again, because the enforcement or the assurance of good standards in communication isn't doesn't involve censorship of content any more than having an MOT test on your car determines where you're allowed to drive. It makes sure that when you do drive somewhere, others can rely you on not to crash into them because your wheels have fallen off. Similarly, ensuring standards of truthfulness in the press means that others can rely on what you say and take it into account in their actions, their voting decisions or whatever it might be. So that doesn't tell you anything about what the content is so it's not restriction on content; it just says that if you are going to put content in the public domain, it has to meet certain standards. Now, that seems to me to be those seem to be so clearly distinct, it makes me confused as to how anybody could move from suggestions that standards be enforced whether they be standards of truthfulness or standards where respecting norms of privacy how that would thereby directly entail any restriction on content. It does do indirectly, of course, because, for example, norms of privacy protect the discovery of certain facts. So doubtless there are facts about all of us which are would it would be a breach of privacy for a enough to inquire and find out about. So in a sense, the norm of privacy and rights of privacy protect those facts from exposure in the public domain. But the norm itself isn't concerned with content. The link to content is always indirect. Similarly with norms of truthfulness, to say that you ought to be truthful you can say anything you want as long as it's truth unlawful. So there's no restriction on content at all. It doesn't allow you to lie, so those contents are ruled out, but those are contents we should be ruling out anyway. LORD JUSTICE LEVESON Therefore it's not it doesn't impact adversely on free speech for an individual or a free press or the press?
A. No, especially if the main justification for a free press is in terms of its utility in informing us of relevant facts. I mean, I'm not ruling out entertainment, because entertainment is something else that the press does and there may be different questions that arise there, but in terms of factual reporting or putatively factual reporting, that's one of the main arguments. It gives us truth and those truths are relevant for our participation in democracy and to then say: in order to do that, the communication has to meet certain standards well, that's obvious and obviously true. There can be no possible complaint that that somehow constitutes illicit censorship which is inconsistent with democracy because it's a requirement of democratically relevant communication that it meets standards of communication. MR JAY Can we just see how the indirect argument might work, just to test the contrary view. Suppose you had a code which was within a statutory regime which recognised the right to privacy as the existing code does but said in relation to public interest that the right to privacy can only be overridden in exceptional circumstances where an overwhelming public interest is identified and that interest is limited to detecting or exposing crime or serious impropriety. It might be said that that regime would be limiting freedom of the press indirectly and be allowing politicians to get away with murder, some would say I'm speaking metaphorically, of course LORD JUSTICE LEVESON You'd better choose a different analogy, because I don't think it would allow that. MR JAY No, but it would make them unaccountable, since they would be effectively protected unless you could demonstrate extreme circumstances where their private lives could be exposed. So you wouldn't have direct intrusion, but you would have indirect intrusion and that would be objectionable. Is it not just a question of fact and degree then?
A. It is a question of the drawing the line in the appropriate place. So the mood that I wanted to highlight was keeping apart the notion of content censorship from enforcement standards. Now, once you get enforcement standards in place, then of course you have this indirect restriction on content. It's not content regulation, because content isn't being regulated at all, but it does, as you say, restrict it. But what types of content get to be restricted depends very much on where you draw the line, how you formulate is it serious impropriety, risk of serious impropriety, evidence of? Whatever it might be. But that's a matter for might be for Parliament or the courts to work out the detail of. But whatever details they work out, it's still very, very important to highlight the distinction between censorship content regulation on the one hand and standard enforcement or enforcement of standards on the other.
Q. I understand. Can we move on to section 6, please, the distinguishing features of the conduct and practices of a media industry which would make it an ethical one. Could you identify the hallmarks, please, of such a system?
A. Yes. I did put a brief warning at the beginning of that that a full response to that question might take considerably longer than we have here several lifetimes but particularly because in philosophy there are lots of different ethical theories with very long and distinguished histories. But all of them all the ethical theories that one finds in philosophy, all give considerable weight to the notion of respect for persons. There are different routes to getting to respect for person if you're a consequentialist, you get there one way; if you're a Kantian, you get there a different way and say slightly different things about it but respect for persons is absolutely essential to all philosophical systems, and one thing that I was struck by in reading through some of the earlier evidence on the Inquiry was when I was linking it over to a lot of my work in medical ethics, is over the past 50 to 60 years, there's been a massive transformation in medical ethics. It's undergone a serious ethical culture change where it has put this notion of respect for persons at the fore. So the old paternalistic days of doctors deciding what to do on patient's behalf and so on has been replaced by a very different set of practices. Now, obviously medicine and the media are very, very different in many respects, but in the very abstract level, it does look like the media or some aspects of the news media in particular are operating without any respect for persons at all, either respect for actually, listening to the NUJ the other day, the NUJ evidence, they have no respect for their journalists, no respect for audiences, no respect for the subjects whose privacy they invade. So across the board LORD JUSTICE LEVESON That's not the NUJ you're talking about?
A. No, no, the NUJ had highlighted the fact that there was in an economically competitive media environment, especially younger journalists are put under incredible pressure. That's all LORD JUSTICE LEVESON Yes, I understood what you said, but I just wanted to make it quite clear before somebody takes a headline out of that.
A. Yes. All right, thank you. So respect for persons seems to be missing from at least part of the sort of everyday practices of a sizeable part of the media, and so the question was about what would make it ethical? It would become much more ethical if there were standards enforced where respect for persons was put to the fore, and also there would have to be something that actually enforced compliance with that. That was do you want me to say more about MR JAY It leads into the points you make under section 8, page 00901. My understanding of this is that it's not just being an adequate code, but you say something about the social, institutional, legal or practical contexts that motivates and secures compliance. That appears to be directed to a culture which ensures or secures and motivates compliance. Have I correctly understood it, first of all?
A. Yes.
Q. Secondly, how are we going to bring about that culture? It's not just the code which is going to do it, on my understanding of what you're saying.
A. That's why I thought the analogy with medical ethics is quite a useful one, because obviously then from the 1960s onwards, with the major changes in clinical ethics across the globe, there was also resistance, people who would say, "We're not engaged in all this stuff about informing patients. We know best." But a generation later, when you have compulsory ethics training as part of your GMC registration and so on, things gradually changed. But they changed it takes time to change. If you don't have that cultural change, it's less clear how certainly self-regulation wouldn't be effective at all unless there was appropriate cultural change, so I mean the short answer is: I don't know. It's likely to be long and difficult and resisted, partly because of economic pressures, partly because the media is not restricted to a particular geographical location. So you could change the culture here, but if other areas of the culture hasn't changed LORD JUSTICE LEVESON It's not just the areas; it's also media. So the press can say: well, it's true that the broadcasters have to be impartial but the Internet doesn't have to be anything.
A. That's true, but then something's limited about that line of argument because and I've heard it said that if you regulate us too heavily, people will just go to the blogosphere and that will be all the worse. I don't think that follows at all. My mum, who is in her 70s, she may suspect some things they reads in her daily newspapers, but that doesn't make her want to rush off to the blogosphere. She'll put on BBC News. I don't think there's a rush to the kind of Wild West. It may go the other way. If you are worried about content regulation and all you're left with is regulated broadcast news of a different kind the broadcast media then that seems to be as likely as people somehow disappearing off to the blogosphere for their content. MR JAY Dr Manson, you subjected the Editors' Code of Practice to a narrow analysis. Can we go through that quite carefully, please, and identify the key areas of concern to you. I don't know whether you have a copy of the code to hand?
A. I don't, but
Q. Maybe you should borrow mine, since LORD JUSTICE LEVESON We can possibly put it on the screen. Can we do that? THE TECHNICIAN I do believe I have a copy here. MR JAY Excellent. LORD JUSTICE LEVESON Super. MR JAY Can you read it, Dr Manson?
A. I can.
Q. You already made the point about the public's right to know. Clause 1: "The press must take care not to publish inaccurate, misleading or distorted information, including pictures." You have a concern, I think, about that provision? What is it?
A. Well, one major concern is it doesn't tell you what "inaccurate" or "misleading" or "distorted information" amount to. There ought to be an addendum at the bottom which says, "And by this we mean here is a further expansion of what we mean by that." So if I publish I can publish something that's true. One example I used in the submission was there's the reporting of science, a lurid headline that said some sort of terrible cancer has doubled, you're 100 per cent more likely to get it than you were yesterday, but it doesn't mention the base rate. It doesn't tell you how unlikely you were to get it in the first place. You're still fantastically unlikely to get it. In a sense there is it's accurate, it's true
Q. It's misleading, isn't it?
A. Well, the worry about "misleading" is misleading is an audience-relative notion. You can mislead some but not others. So in order to assess what kinds of misleading are relevant, we have to say a lot more about what kinds of misleading we're concerned with. Is it misleading the average person? Is it misleading the average person who is really ill-informed about science? Is it misleading the average person who has an understanding of the base rate fallacy? Unless you can spell that out, there's lots and lots of room there for either a misunderstanding at the top, in the PCC or in looking at: is this a breach of the code? Because if it's all blurred at the edges is this a breach of the code? Well, it sort of looks like it didn't mislead. Well, it might not have mislead you. It might have misled 3 million people out there. I haven't got the answer. I haven't got the detailed response to giving that account of what it means to mislead and what's the ethically relevant sense of misleading, but if it's not there, then really that's just waving a flag, saying, "We don't want to do bad things but we're not going to tell you what the bad things are."
Q. Another point you make is there's nothing in the code to suggest the press has positive duties
A. Yes.
Q. in any respect.
A. Yes.
Q. Where would you expect the positive duties to be in the code and what sort of duties would you like to see spelt out?
A. Well, I don't know I mean, the I don't know if it is the place of this code to have positive duties because if it's a heterogeneous press and a free press, then I certainly don't have a direct argument that says all media outlets, all news media must present must have political reporting. That might be a very good thing, but I don't think there's a solid philosophical argument that would support that. So in terms of positive duties, I've actually I noted the absence of it but that was actually linked to slightly different point earlier on. I haven't got an argument that says there ought to be positive particularly positive duties to provide certain kinds of content. I don't think I'd want to offer that argument. I think the key concern that I have with the Editors' Code as it stands is, first of all, its lack of clarity, and second of all, that it really doesn't get across any of the implication any implications for breaches. So it's along as I mentioned in the submission, the word "must" is used 32 times in the Editors' Code, but when you actually follow it through, it's like: "Well, you must do X and Y otherwise you'll be breaking the code", to which the response would be: "And?" Or: "So what?" Well, you'd be breaking the code. It's a very different kind of code would link that "must" to: "You must do X or these will be the consequences." And we know we've had the debate about the PCC the consequences might not be that great for breaches of the code anyway. So it was as a as something that's supposed to be action-guiding and action-directing, it fails on two counts, just because it's unclear and thus can't direct action in clear ways, and secondly it doesn't have any kind of motivating force because it can lead to the "so what?" response. "You must do that." "Well, suppose I don't?"
Q. The "so what?" response relates arguably to a different issue; namely the sanction is inadequate. But if you look at the code itself, just to run the contrary argument by you, if we look at our imperative auxiliary "must" you say it comes up 32 times it comes up in clause 1, against which there's no asterisk. So if it says you "must" do something, that is unqualified; you must do it. But it if you have an asterisk case like 3, privacy, then you must do it unless you can show the public interest exception applies. So although it's not great
A. But
Q. the editor, who has experience of this code, will work out what the obligations are, won't they?
A. When you say the one the subsequent one the press must take care not to publish inaccurate well, again, I think that's it's not unqualified. It's syntactically unqualified, there's no explicit qualification, but it's "must" or what? LORD JUSTICE LEVESON I'm not so sure that's right in itself, because all it's saying is the press must take care not to publish inaccurate or misleading information.
A. Sorry, it's even stronger. LORD JUSTICE LEVESON In other words, it's not saying it mustn't publish something that's inaccurate. It can take care, and if it's got it wrong, well, it's got it wrong. But then it's not a breach of 1(1) of the code.
A. Yes. Some of the "musts" are even weaker than others and that's a particular that's a hedged "must". MR JAY Yes. There's some absolute "musts", there's some qualified "musts" and there's
A. Even the absolute "musts" are limited here. LORD JUSTICE LEVESON It's interesting that some of the absolute "musts" still permit, if it's not inconsistent to say so, exceptions. So, for example I take one at random 6(3): "Pupils must not be approached or photographed at school without the permission of the school authorities." But that's subject to public interest. It's quite difficult to see what public interest might justify taking a photograph of a child at school without the permission of the school authorities, but I won't press for examples. MR JAY Can I ask you, please, about sections 10 and 11 of your evidence, starting at page 18, 00904. The code is underspecified and very unclear with regard to key concepts. You propose a code which might have a summary list of requirements, coupled with a richer and clearer set of addenda that clarified key concepts and constraints. Well, that's self-explanatory. Section 11, other changes and these are cultural changes. I think we did touch on some of those before.
A. Yes.
Q. And we looked at cultural change within the sphere of medical ethics. It might be said that the main engines for change were general dilution in culture elsewhere in paternalism and in deferential society. That was diluted and it became reflected in what medicine did. That leads to the final point you make about the responsibility of audiences, because at least one witness has said that part of the problem here is not just the culture in the press; it's the culture everywhere. If the press doesn't have an audience, it is dead. What's the precise point you're making in this final paragraph?
A. It was just something I wanted to put in for completeness' sake, because a lot of the debate focuses on can paint the press as somehow people sitting around in a room making up evil things to do. There's no if there's no demand for salacious gossip and long lens photos, then people wouldn't be paying paparazzi six-figure sums for photos of this or that member of royalty or whatever if people didn't want to see them and if it didn't make a difference to how they behave, if they didn't click once more on the website, didn't keep on buying a copy of whatever the paper was for another week in order to or switch their paper, even better, from one paper to another. So I really want to highlight that audiences have a responsibility too. If we're thinking about the culture, we're thinking about it's not about blame but in terms of characterising what normatively has gone wrong, then audiences have a part to play as well. Of course, the concern with audiences is primarily a concern about the privacy intrusion, not a concern with truthfulness, because audiences are actually the victim of breaches of truthfulness, whilst in terms of paying or contributing towards a culture of privacy invasion, they actually share some of the responsibility for it. One thing that occurred to me which I hadn't mentioned in the submission would be it would be very interesting just to explore further the idea of whether audiences would be quite so keen to commit themselves to buying these papers if there's a famous kind of thought experiment in philosophy. It derives from Kant and the philosopher John Rawls developed it in his ethics, where you have to imagine the world where you don't know which person you're going to be born as and then you have to reach a conclusion about what kind of society that would be.
Q. The veil of ignorance?
A. Yes. Behind the veil of ignorance, what kind of society would you choose? You can do a similar thing for the purchase of newspapers. If you didn't know whether or not you were going to be you or one of the victims of this paper's intrusive privacy policy, would you continue to do it? What kind of newspaper policy what kind of set of standards would you want for the press if you didn't know whether you were going to be just yourself or whether you were going to be someone whose child had just died in an accident and had 16 camera people trying to get their lens through the hole in the curtains? That kind of thought experiment is very interesting to see what people's actual thoughts were, but I'm guessing that most people would say, "Actually, I want the press to have standards." LORD JUSTICE LEVESON But you put it the way that you do, that audiences have responsibilities. The press would spin that straight back at you and say, "But our job is to provide the public with what we know the public actually wants", and the contrast is then made between the very substantial sales of tabloid and mid-market papers as opposed to the sales of broadsheet newspapers.
A. We know from the history of ethics and the history of the law that those kinds of arguments aren't very powerful. If they were powerful, we would still have slavery and bear baiting. "People really like bear baiting! They really like the Colosseum, seeing people torn apart!" Therefore we have to keep it? No, of course we don't. We reflect upon things as rational human ethical subjects and think how should we organise society and what rights do people have and what practices breach those rights? LORD JUSTICE LEVESON I'm very pleased that you said that rather than I did. MR JAY Thank you, Dr Manson.
A. Thank you. LORD JUSTICE LEVESON Dr Manson, thank you very much indeed, not merely for this afternoon but for the detailed submission you made. I've said to all your colleagues: I'm very conscious that these philosophical concepts do require thinking out and if there's anything you want to elaborate on in what you've said, you're very welcome to do so in writing at some stage, but it's not compulsory.
A. Okay. LORD JUSTICE LEVESON Thank you very much. MR JAY We'll have five minutes. LORD JUSTICE LEVESON We'll take a break. (3.25 pm) (A short break) (3.32 pm) MR JAY Sir, finally today, Professor Onora O'Neill, please. PROFESSOR ONORA SYLVIA O'NEILL (sworn) Questions by MR JAY MR JAY May I ask you, please, for your full name?
A. Onora Sylvia O'Neill.
Q. You've kindly provided us with a statement dated 14 June of this year and which you're content to adopt at your formal evidence to us; is that correct?
A. Yes. LORD JUSTICE LEVESON Professor, thank you very much indeed for this statement and indeed for the debate that you started with your 2002 Reith Lectures, which has now led I don't say inexorably but certainly by a somewhat torturous route to the way in which I've spent the last nine months. So thank you very much.
A. Thank you. MR JAY Professor, you've been Professor of Philosophy at the University of Essex and Cambridge. You were Principal of Newham College, Cambridge for 14 years ending in 2006, President of the British Academy ending in 2009, Chair of the Nuffield Foundation, ending in 2010, and you're now a cross bench member of the House of Lords. In a nutshell, is that
A. That is all correct and I have been in the House of Lords since 1999.
Q. Thank you very much. Can I ask you, please, first of all in the second paragraph, you say that in your opinion: "Most public discussion of press freedom and regulation during the last year has made little useful progress because contributors assume some favoured configuration of media freedoms without argument, then infer that certain types of media regulation are or are not acceptable." I'm sure most of us know what the point you're making there is, but could you make it absolutely explicit, please?
A. Yes. I think if we just say we're in favour of press freedom, we beg all the important questions. The important question is: which conception of press freedom and how do you justify it? Some people, including some who have given evidence to this Inquiry, have said that they're in favour of complete press freedom except where the law requires otherwise. That too seems to me a question-begging move, not only because the law is changing a lot we have to think at present about new legislation on defamation, the new draft directive on data protection and other pieces of legislation on freedom of information has just been amended but also because a law is probably not the whole story, and some of your other witnesses have said that, and I shall confirm that that's my view.
Q. Thank you. When we look at the term "freedom of expression", you rightly point out that it's used in various international, European Conventions and declarations of rights. But can I ask you to amplify the point you make on the second page of your statement at page 01155 of our bundle: "Contemporary claims about freedom of expression are quite often confused with JS Mills' much more specific claims about individual rights of self-expression." What did you mean by that, please?
A. I take it that the contemporary use by which I mean across the last 60 years has been about freedom to express content that is to say, a new term was needed because "freedom of press" was too narrow, the written word. Broadcasting had become important. Film was important. So "freedom of expression" is taken to be freedom to express content through whichever medium, technological or other, whereas "freedom of self-expression" was, as the term states very directly, freedom to express one's own individuality or sense of self and the like.
Q. Thank you.
A. So they require different arguments to justify them.
Q. And the arguments, of course, are different in relation to the speech rights of organisations, which of course is the principal focus of our Inquiry. It's not individual self-expression. You list three considerations towards the bottom of this second page; is that right?
A. Yes, I do, without going into (iii) there, which is a comment about Mill's famous harm principle, in that I don't think it does as much work as is popularly supposed in liberal societies. It is very difficult to work out the harm that a given speech act causes or is likely to cause.
Q. So the difficulty is in unpacking Mill's concept, because there may always be some degree of harm from the exercise of freedom of self-expression, but it's a question of factor and degree? Is that the point?
A. It's partly degree. It's partly that, of course, within the context of Mill's argument, you're looking at the whole utilitarian apparatus, where you're meant to argue about the harm of types of act, and that is extremely hard. If one considers, for example, the arguments about press freedom and the Danish cartoons, great harm was caused. There were hundreds of people dead at the end of that episode. But showing whose act, at what stage of a complex series of events, actually led to those harms would have been very difficult.
Q. Thank you. Then, on the next page, our page 01156, you look at other arguments. Under (c): "A quite different argument for freedom of speech and of the press appeals to the importance of seeking and establishing truth." Now, what are the strengths and limits of that argument?
A. Its strength is that truth matters in every domain of life, and by that I don't mean something particularly grand. I mean just being accurate about what is the case and what is not the case insofar as it's possible, and the arguments from truth-seeking are the great arguments of the 17th century, absolutely fundamental to our whole modern constitutional tradition, but they are arguments that, in my view, have two limitations. First of all, they're not going to establish anything about speech acts that don't aim or claim to say anything about what's true or not. So they're not adequate arguments for the media, because I think it's important that the media be able to publish plays and crosswords and the rest. So we need broader arguments than those that appeal to truth. Secondly, where we do rely on those arguments, where truth is the aim, I think that we get an argument for a highly restricted and conditional form of press freedom. That is to say, it has to observe the disciplines of truth-seeking. This is a highly useful argument. I think it's absolutely crucial to make the case for investigative journalism, but of course what it makes is not an unrestricted case.
Q. All these considerations lead you to conclude and this is subparagraph (d) that: "The public interest in freedom of expression and specifically in a free press is best construed as an interest in adequate or better than adequate standards of public communication that allow readers, listeners and viewers to gain information and form judgments so to participate in social, cultural and democratic life." So you're focusing there on the adequacy of standards, which include, of course, ethical standards?
A. They would also include ethical standards, but I think that, as it were, standards that some people will not think of as ethical standards. For example, standards in making judgments and in giving evidence, carefulness in formulation, are also relevant here. Perhaps they should count as ethical standards but not everybody sees them that way.
Q. Thank you. Can I ask you, please, to develop the point you made towards the bottom of that page: "Readers, listeners and viewers need to be able to grasp and assess not only speech content what is said but speech acts what is done in saying it."
A. I think the import of that is the following: the distinction between speech content and speech act is familiar, I think not only among philosophers, certainly there. What I do is quite important. I may say something and it may be understood, but the question of whether it is a joke or a truth claim matters quite a lot, and we have many cases of things going awry in daily life because people mistook not what a sentence meant but what the act of saying it imported, and I think we need to bear that distinction in mind. The speech act that the media most routinely perform is that of communicating, and in communicating I have somehow to convey to my audience what I'm saying. Is it serious or is it not? Am I, for example, conveying a warning of some impending catastrophe, something utterly serious, or am I just making a joke? That's the most obvious example where taking things up the wrong way, grasping the speech act the wrong way, will make a huge difference.
Q. Thank you. Question 4, which is the top of the next page, 01157. The question was looking at balancing various public interests against the interest in the freedom of the press. Your point was that our formulation omitted certain types of public interest.
A. Yes.
Q. Can we be clear what those interests were and what, as it were, the seriousness of our omission amounts to?
A. You specifically probed asking for omissions and I thought it was a useful question because when I thought about it, the public interest in good governance, things are that public goods for the whole community good governance, a sound currency and so on is one case of a public interest, and the public interest in there being goods for individuals for example, a right of self-expression, also a right to own property, a right to take part in things is another sort of interest. But it didn't seem to cover the whole spectrum because there are many things that we would regard as matters of public interest which are neither those of individuals nor concern the public as a whole. So we have a public interest, by two examples, that research and inquiry take place, not just that individuals be free to participate in research and inquiry. We have a public interest in there being many associations in civil society, not just in people being free to join such associations if they exist.
Q. Yes, I understand. Question 5 now, where the question was: to what extent I paraphrase is the current performance of the press, I suppose, adequate or inadequate? Your pithy response is that the current balance appears to you to be out of kilter: "It is evidently a matter of widespread and intense public concern." Can I ask you, please, as you do in your statement, to elaborate that point?
A. I suppose that one way of thinking about it would be to suggest that parts of the media express themselves in ways that might not be inappropriate if they were individuals and relatively powerless, but which, given that that is not their situation because they are quite powerful organisations, are not appropriate, and the constant reiteration of the importance of press freedom without thinking about the sorts of constraints under which it is well configured seems to me inappropriate, and not justifiable for the reasons I gave at the beginning of this evidence.
Q. The standards which you look to to judge current performance: accessibility, intelligibility and assessibility. You find the UK media as a whole generally meeting the first two of those standards but maybe not the third, assessibility. Can we be clear what you mean by that and the respects in which the media are falling short?
A. I think it is extremely difficult for the ordinary reader to know whether claims that they read in the press are well-founded. It's as elementary as that. They can't even know with any certainty whether those claims are, in effect, paid-for content. They can't know in whose interests they are being made. They can't tell how good the evidence behind them is. We all know that the standards can be met by the media, because we have parts of the media that meet them to a high standard.
Q. Do you feel that that is the main defect, as it were, in the press as currently configured? You're not directly addressing now I know you do elsewhere issues such as harassment and intrusion of privacy rights, et cetera, but
A. It's once we get beyond the standard legal constraints, which I think, by and large there are exceptions when we're discussing in public interest journalism, but by and large, defendants of present media practice have not been keen to say, "But we should be allowed to defame, to harass and so on." They will say that they should be permitted to make everything to say anything that lies within the law. Of course, it is the context of this Inquiry that a great deal has been done that was a breach of the current legislation, so we now do know that there has been hacking, we know that there are cases of defamation, we know that people are frightened to speak up because of the fear of what will be done to them. I was quite struck last summer, as the scandal broke, to hear members of the Commons culture, media and sport committee saying quite publicly that they had refrained from saying certain things not because they were afraid that the media might turn against their political party and lose them the election, which I had supposed might have been a consideration, but because they were afraid for themselves, and that seems to me very unhealthy in any democracy, that people are intimidated LORD JUSTICE LEVESON But you've just given three examples. The first two contravene the law.
A. Indeed. LORD JUSTICE LEVESON The third may not, depending upon precisely how it's done.
A. It may not, but intimidation is a bad atmosphere in a democratic society. LORD JUSTICE LEVESON That's a slightly different point, because what I'm trying to focus on is not merely the criminal law or the civil law. One can look, in relation to the criminal law, at the adequacy and ability, in its pursuit, of those who are in authority to pursue these cases, because there are no victims who report a crime to the police and it's very difficult to uncover information and once you do, then there are all sorts of good reason why it's quite difficult to get through to the possibility of prosecution. Then there's the civil law in its complexity and its expense and all that surrounds there. But I am also looking at that area which isn't necessarily a breach of the criminal law or the civil law.
A. Yes. LORD JUSTICE LEVESON And I think that your third category actually encompasses that. You mention intimidation, and there may be other examples as well. It's how to cope with that
A. I think that is the difficult thing, and, as it were, the substance of the discussion of adequate press regulation comes up there, in that it is not a matter simply of extending the criminal or the civil law. I take it that there may be reasons for such changes. I suppose that the promised defamation legislation is an example of such a change, if it comes about, but I had in mind here something which is not a matter of civil or criminal law. The atmosphere of intimidation surprised me, because it turned out that it was not what I think was frequently alleged, that newspapers or journalists led politicians to be fearful of loss of support come the next election; it was that they were afraid of, to put it crudely, their personal lives being turned upside down, and everybody has some person within their family or circle whom they would not wish to see exposed. LORD JUSTICE LEVESON I understand. That's merely I say "merely". That is one example of the concern that's been expressed in the Inquiry, among a number of others as well, of course.
A. Yes. Yes. No, but I think it's a serious one because when people who are not shrinking violets, like MPs, say that they have pulled their punches in a routine way because of this fear, I think that is quite damaging to democratic life. LORD JUSTICE LEVESON Yes. MR JAY Thank you. Still on page 01158, you identify what could be done to make it easier for the public to assess media claims without detriment to press freedom. What you're looking at, Professor O'Neill, is a regulator of media process as opposed to media content, since the later would constitute censorship, which worked to an improved press code, would have a statutory basis, would be independent from government and corporate interests. The importance of a statutory basis, though, and the strength of the contrary argument that a statutory basis is, in itself, offensive, since it in some way does amount to government intruding in a sacrosanct area can I ask you to address those points?
A. I haven't actually seen any argument or certainly none that I found convincing to suggest that a code does intrude in a sacrosanct area. I have tried to think of them, but it is usually a matter of assertion on the assumption that a code will allow government to interfere with the expression of content. I think if government can interfere with the expression of content, that is indeed disastrous. That is censorship. That is what has to be avoided. But regulation of process is another matter, and the regulation of process is something that, it seems to me, the advocates of the status quo, with its rather weak and disjointed code, already accept. They have no argument against certain forms of regulation of process. For example, they think that the advertising standards issues are perfectly acceptable restrictions on media freedom. If you have ever looked at product placement television in the United States, you will know what sorts of results you get when you don't have those restrictions. So I don't think it's actually controversial; I think it's just a matter of assertion that you cannot have a code that does not intrude into what you called a sacred space. You certainly can, in my view. LORD JUSTICE LEVESON Which raises a slightly different question as well, which is whether a code which has any form of statutory backing or underpinning really allows Parliament or is likely to allow Parliament to get into the sacred space in a way that would be unacceptable.
A. I think that Parliament would have to keep itself out of that space, which it's perfectly able to do, and that's why I suggested, under clause (d) no power to require the publication or non-publication of certain specified content should form part of the code. No power to censor. That could be made explicit. MR JAY Thank you. At the bottom of this page, you deal with two big questions. The first big question is whether regulation should be voluntary or obligatory. You say that the question is not an easy one to answer. It's not clear, if I may say so, whether you favour the voluntary solution or whether you're merely respecting the strength of the argument that there should be voluntary participation.
A. I think that the reason I'm quite hesitant at this point is that we're in a period of media convergence which is making regulation of all sorts quite difficult, and because the so-called new media seemingly can, in practice, however you legislate, duck under any code, I'm particularly concerned about the possibility indeed, the prevalence of anonymous publication, traditionally, of course, the domain of the poison pen and the hidden slanderer. So I hesitate to be too definite at this point because I don't really entirely see how one proceeds on this issue, but the issue seems to me to be the one of feasibilities more than it is one of desirability. The arguments about what restrictions would be unacceptable or acceptable seem to me not too difficult, but the arguments about how you regulate the blogger who is, in fact, inventing a lot of his or her material seem to me extraordinarily difficult, and that's my reason for hesitation. I know you've heard other witnesses who have probably been able to say more about the implications of convergence, but I regard that as the most difficult single thing that faces this Inquiry, that if there is a different code, then perhaps all the practices that are damaging and intimidating to citizens will, as it were, be driven out of visibility, but the content will still be published and will be repeated. There are measures you can imagine that will deal with this, and one of them is for the code to take a dimmer view of the publication of content where its source is anonymised tips or the sorts of things you get in the vox pops. LORD JUSTICE LEVESON The code could do that, but it doesn't actually deal with the rather wider problem of bloggers who may have a powerful megaphone themselves because of the extent to which their material is available on the Internet, but also who don't come within the jurisdiction because they have placed their
A. Yes. LORD JUSTICE LEVESON servers in America somewhere and they don't live here. Then you have this rather difficult area or space with the broadcasters, with all the statutory regimes surrounding Ofcom and their requirement for impartiality on the one end, and then the bloggers on the other end, and you have the press in the middle and it doesn't matter whether the press is the published press or the digital press. There are a number of distinctions which we've discussed at various stages in the Inquiry. One could be those who are in the business of publishing news, which might catch some bloggers who are obtaining revenue from their website, or you could restrict it more and seek to catch those who are in what might be described as the general news business, where they are collecting facts and not merely presenting individual comment, which is the blogger, but researched facts and opinion on the basis that it has been, if not peer-reviewed as science might be, at least subject to certain criteria which the citizen can accept as valid and worthwhile.
A. Is your example something like Reuters here, who have something like very high standards in the collection of facts but aren't themselves a newspaper? LORD JUSTICE LEVESON Correct.
A. Yes. LORD JUSTICE LEVESON Correct, and there may be others, because it's quite important not to tie whatever happens in the Inquiry down to print media, because ten years ago one couldn't have visualised what it would be like now, and I wouldn't care to start to imagine what the position might be in ten years' time from today.
A. My assumption is that the open access revolution will slide through all forms of publishing, creating commercial havoc, and that all those social and business practices that underpin things like attribution or fact-checking or going to sources are going to be changed. They won't necessarily always be worse, but they're going to change a great deal and that is why I find it particularly hard to comment on the limits here. I take it that your terms of reference lead you to look mainly at the press LORD JUSTICE LEVESON Absolutely.
A. but they are no longer a discrete set of institutions. LORD JUSTICE LEVESON I'm sure you would agree with me that we must do absolutely everything we can to facilitate and encourage the practice of true journalism that is, reporters going out there, researching the facts, providing for the public the opportunity for the public to hold power to account I think that might be a better expression of it than themselves holding power to account and then putting that out in the public domain, which seems to me to be a very different activity to those who simply pick up tittle-tattle or gossip and then throw it out in a blog with some comment, all of which is unattributable, and none of which can be pinned down or necessarily verified.
A. I very much agree, and I think that the contrary to some of what one has read in the last year about public interest journalism, good public interest journalism enables the public to judge what is said. There may be cases where one has to hold back on the source of certain information, but good public interest journalism seeks to make the sources and the evidence as available to the public as is feasible, given certain other constraints. LORD JUSTICE LEVESON Quite apart from the dynamic of the Internet and all those problems, the other trick that has to be grappled with or concern that has to be grappled with is the distinction between that type of journalism and the journalism that depends upon inappropriate invasion of privacy, which is simply for the purposes of entertainment without any public interest basis to it at all.
A. I would we have perhaps slightly skipped to public interest journalism. I think that genuine public interest journalism has to meet two standards. First, it actually does have to aim at the accurate reporting of something that is the case. It has to be aimed at truth. So it has to, as it were, accept the disciplines of truth-seeking. If we think of the famous examples of investigative journalism, the sorts that people learn about when they're becoming journalists, that was done. Secondly, it has to be a matter of public interest that this information be made available, so that if you I think the journalists who discovered about the Watergate scandal are a good example of this. It was absolutely vital that people understand that from the White House itself the law was being broken and it had to be both accurate and in the public interest. So I don't have any difficulty in knowing what's genuine public interest journalism. I have some difficulty in answering the question: how, in practice, do we prevent things that are neither in the public interest nor a matter of truth-seeking masquerading as public interest journalism? And I'm looking forward to the debate on the Select Committee of the House of Lords report on investigative journalism next week. I have to refine my thoughts a bit before that. LORD JUSTICE LEVESON Well, I'm also having some difficulty in answering the question, and that, it seems to me, is one of the very big questions that I must answer.
A. Some of it seems to me less difficult than it might be, in that if the journalism fails on either of the two criteria that's to say, it wasn't truth-seeking anyhow, or it wasn't a matter of public interest anyhow then it's not public interest journalism, it's not investigative journalism, it doesn't deserve special protection. But in order to get to a position where that would be something that we could hold on to a bit more firmly, I think it has to be the case that there is more clarity about the sorts of things that good journalism is expected to be open about, like being open about the sources and interests where it can be done without endangering the sources. LORD JUSTICE LEVESON I understand that, but you also have to be rather clearer about what you believe is truly in the public interest.
A. Yes. I don't believe in these major matters which require legislative framework, we ever sail with a completely blank view about what is in the public interest. So in the public interest is all the things that enable the public to pursue not merely their individual interests but their common life and the political life of society. LORD JUSTICE LEVESON One of the reasons why I'm very reluctant to embark upon a definition of the public interest, which some have encouraged me to do, is because the public interest is actually a very different concept depending upon the context in which you are considering the question. There isn't one over-arching definition of the public interest which would serve every single circumstance. That's what I presently think.
A. I agree with that, although I believe it might be possible to get off the deck what I have seen as the most meritricious claims to be doing something that's in the public interest on the grounds that something interests the public. That subjective conception of what is interesting to the public the tittle-tattle, I suppose seems to me one that could be got off the deck, and again, one would expect that an editor who sanctions activity that he or she might not otherwise sanction because a piece of journalism is important in the public interest will be able to say, "I thought this was a matter of great public interest because it was this sort of thing. That is a matter of public interest." There will be borderline cases and that doesn't bother me, but I do think we need to hold on to a perception of the public good and the public interest or I'm not sure what we should be expecting the media to do at all. LORD JUSTICE LEVESON Yes, I agree. I'm not suggesting that one doesn't have to flesh it out in some way, as long as one isn't seeking to define the term for all purposes for all times, because each fact-sensitive case will throw up slightly different considerations, and broadly similar situations might generate slightly different results, for reasons which are good and valid.
A. I agree, and I don't think that one is going to find get much headway by trying to have a fully spelt out definition of the public interest. But we talked about this previously, the three broad categories: that which is in the interests of the public as a whole, that which such as good governance and sound currency, the associational interests, which it is of interest to the public that these associations and activities exist, and then the sorts of public interest which are closer to individual rights, all seem to me important. MR JAY Press ethics now, Professor O'Neill. It's section 6, page 01159. Just two points I'd like to draw out, if I may, because what you say is largely self-explanatory. You refer to the meeting of adequate ethical and epistemic standards in journalistic, editorial and business practice. I'm particularly interested in the last one, business practice. Could you tell us, please, what you had in mind there?
A. I didn't pick it up in my examples, but I'm particularly interested in the question of conflicts of interest between a media organisation and what it is reporting. Some media organisations go very light on reporting certain sorts of content which the public have some interest in being aware of. For example, I think there are newspapers that go very light on commenting on violations of human rights in China. There are other much more local examples where certain local businesses will be given a completely free ride. So it's very often business practice that is uncommented on is very often the business practice of the media organisation itself and its connection with certain matters of wider public interest.
Q. Thank you. The second point is that you refer to the adoption of more specific ethical quotes suited to particular types of the media. Can I ask you, please, what you had in mind there?
A. Well, the media are a broad church, even if we're talking about the mass media. I think there will undoubtedly be different sorts of codes for a publication that is mainly interested in business news and that is mainly interested in sporting news. So although I can see the point of a press code for all print publications, I suspect that certain groups of publications will have an interest in developing their own code more specifically in dealing with certain sorts of things. For example, I cannot imagine that the FT needs to say very much about the sorts of conflict of interest that arise in covering sport and offers of so-called hospitality by sporting organisations.
Q. Thank you. Section 7 I'm going to pass over because that's self-explanatory, but section 8, please, about the strength or efficacy of professional ethical codes on their own, which is likely to be important in this area. You make it clear that a voluntary industry code is unlikely to achieve enough in the context of journalism. Why, in a nutshell, do you say that?
A. I think we have enormous experience in this country of the limitations of self-regulation for powerful professions and institutions and in fact, we've more or less eliminated self-regulation, I think, even for the bar, by the way, but we have certainly eliminated or squeezed self-regulation for most other professions I am familiar with. If you think about doctors or accountants or the like. Often this is a matter of considerable regret because everything works very well if self-regulation is functioning as people hope that it will, but it goes bad when there are temptations, conflicts of interest, colleagues whose reputation and livelihood you can save by not really applying the code with any rigour. So I don't really see a good case for journalism being unique in retaining the privilege of self-regulation in a society where other professions no longer have that privilege and business does not have that privilege. LORD JUSTICE LEVESON Let me see if I can provide you with an argument to the contrary which has been advanced in the Inquiry: that if you take the professions, each of the persons who seek to practice that profession all require a licence to do so. Whether it's a doctor, a lawyer, a barrister, a solicitor, an optician, all are mandated, permitted by the state to do what they do and to subject other people to their profession, whereas journalists are doing no more than, collectively, each pursuing their individual rights of free speech, and because that is an inherent right, contra the ability to practice medicine or the law, there is something different about it. Now, I give it to you and I'd be very interested to hear how you would deal with it. Have I done it justice, Mr Jay? MR JAY (Nods head) LORD JUSTICE LEVESON Thank you.
A. First, I think not all professions are regulated professions, if we actually look at the rich panoply of professions. I know some will say, "No, no, only the regulated ones really count as professions", in which case my own profession is not a profession. Academics there are all sorts of demands before you become a university teacher but they are not a matter of getting certified or certificated, whichever the word may be. Therapists are another good example. There was a hope, an aspiration, that we should make therapy into a regulated profession or set of professions. It foundered on the sheer lack of agreement about what this set of practices was. So we have, I think, numbers of other examples of things that are at least colloquially thought of as professional practice which are, as a matter of fact, not regulated in the sense that there is control of entry, and I explicitly said that I thought that journalism had reason to remain among those because regulation of entry is not an acceptable move there. I would, however, note that although regulation of entry is not an acceptable move, these other nonregulated professions often face a very large array of forms of regulation. So there may not be being a scientist may not be a regulated profession, but when you do scientific research, you will find a great deal of regulation. LORD JUSTICE LEVESON So in other words, it isn't good enough to say, "We're not a profession" because that's the other argument: "We're not professional, we're just running a trade." That doesn't wash. It doesn't get you through the problem of having to have some standards to which all who are involved should aspire. Is that
A. Yes, I think it's quite a risky argument to say, "We're only a trade", because we have no squeamishness about regulating trades. LORD JUSTICE LEVESON I'm merely trying to put to you a number of the points that have been made during the course of the Inquiry.
A. No, I see the great temptation, and it is linked to the fundamental failure to get in mind a determinate conception of press freedom which is to be defended, and the thought that "We're journalists so we can't be regulated" seems to me lame for a number of reasons. If they are just a trade, they can be regulated. If they are a profession, they can be regulated. If they're neither of the above, then what is the claim to privilege? MR JAY Your conclusion in relation to an ethical code for the media is that it should have statutory backing but it should not threaten media freedom and set out requirements that are needed to secure communication that are adequate for social, cultural and political life. One of the arguments which you advance for the need for a statutory code is that you say: "Traditionally, ethical codes worked because there were embedded in cultural and social norms that were widely respected and adhered to, making shame and exclusion the principal sanctions for violation." Well, those attributes, I suppose, are lacking in journalism. It's implicit in what you're saying, I think.
A. I think that until very recently they were not lacking in journalism. I remember reading Mr Andrew Marr's book, "My Trade", in which he describes being a trainee journalist on the Scotsman some years back now, and if he did things badly, a reader would ring up the editor of the Scotsman and he would be carpeted, and that was the old culture. It is a much more fluid world now, in which it's clear that it is harder to rely purely on the cultural sanctions of as it would be in other professions.
Q. Under section 9 of your evidence, you subject the Editors' Code of Practice to a thorough analysis and critique. Some of your points are specific to clauses in the code; others are more general. Can I ask you, please, to explain the more general point, which you characterise as various omissions, exaggerations and weaknesses.
A. I didn't really think that this was a thorough analysis of the code, because of course by this stage in my evidence, I thought I was being rather lengthy, but LORD JUSTICE LEVESON You'll encourage me to ask you, Professor, that if you don't think this is thorough and you'd like to be thorough
A. Lord Leveson, I think I've probably been thorough enough for your time and mine, and the code, it seems to me, needs rewriting. That is my conclusion. It does have gaps. It is and it doesn't have I don't know whether Professor Megone may have said this to you because I wasn't able to watch all of his evidence, but when I discussed it with him, he he knows a lot about professional ethics. It's not clear what the animating principle of the code is. The code is I think he has said this a series of prohibitions and a few requirements, but I think it would be more to the point for the code to take a clear view of what journalism is for, and I take it or the press are for, and I take it that it is for communicating with audiences, and that was my sort of central picture of what they seek to do, and that from what certain things follow about how you achieve that purpose and achieve it to an adequate not an outstanding standard. We're talking about a code; we're not talking about the highest possible aspirations for all journalism, which I regard as a bit airy fairy. LORD JUSTICE LEVESON What you're trying to do is find somewhere between the base minimum, which is the criminal and the civil law, and the highest possible aspirational goal, to provide a level which satisfies the requirement of public interest journalism but does not inappropriately impact upon the personal rights of others. Would that be fair?
A. Yes, including that and probably quite a bit more. It's about the standard or standards that a reader, listener or viewer may reasonably expect to inform the publication that he or she is reading, or for that matter, listening to or watching. And those standards, it seems to me, could be clearer for all concerned, and something that are just could be just a matter of routine practice. So I wouldn't go for the aspirational in a press code. LORD JUSTICE LEVESON I agree. By using the shorthand words "public interest journalism", I was encompassing the standard that a reader might reasonably expect to receive so as to be informed.
A. Yes, I think that's right. And accuracy is important where there are truth claims. I would be peeved if the football results were misreported, but that doesn't happen, interestingly enough. Not much, anyhow. But inaccuracy in other domains of life is very often tolerated in a way that it seems to me halfway competent journalism can get certain things right and can correct them when it doesn't. Nobody is, after all, asking that journalism should miraculously attain standards of total accuracy on everything reported. They're asking that they should get it broadly right, and that when they get it broadly wrong, they should correct it. Promptly. With equal prominence and so on. But I do wish to say that I think there are standards also for the non-truth-seeking parts of journalism. Those matter as well. LORD JUSTICE LEVESON How would you articulate those?
A. I think that it is partly to do with not exposing either the people about whom you are ostensibly writing, if they are real people, to derision although that may come closer to the truth-seeking bits and not demeaning people. Most of the non-truth-seeking content is perfectly fine in this respect. So if one is thinking about games and puzzles and fiction and drama, I think there's generally no problem within the confines of the law, of course, but maybe there could be, for example, games which have a sadistic or gladiatorial aspect to them that one would want to ask questions about. MR JAY Professor O'Neill, the six principles of openness that you refer to in relation to a future press code four of those are either entirely self-explanatory or you've already developed. Can I just ask you, please, to comment on two of them? Item (iii), openness about interests. Are you expecting there proprietors, editors, if necessary, to be open about their own interests in relation to the taxes they pay or do not pay? How do you see that that one operates?
A. I would have thought that was a pretty reasonable requirement. We expect other people in public life with less in the way of influence to be open about the property they own and open about the political issues they support, open about other things. I'm not perhaps going to Scandinavian levels and suggesting that everybody's tax return be online, which I did find rather surprising, but at the same time I think we could have a great deal more openness. If I may give my reasons, they have a lot to do with what you might call humble rather than grand journalism. For example, in the reporting of local council affairs or in the sort of columns on property, it is acceptable and I have actually discovered one case where a journalist extolling the lovely houses in a certain square in London actually owned two of them and had one of them up for sale. Now, I think readers should have been told about that, and there's nothing that secures that at present. There's nothing that secures other than a very limited set of requirements in some newspapers that where shares are owned, editors are informed about the ownership, and then there's a sort of period of a no-go period during which they may not write on those shares or may not trade in those shares, perhaps, and I think that it would be only straightforward and very simple indeed to inform readers, listeners and viewers about the financial and property interests of those who are publishing. LORD JUSTICE LEVESON Well, that might be one of two ways. As a matter of generality, that could, I suppose, be on a website.
A. Absolutely. LORD JUSTICE LEVESON But in relation to your particular example, that is so blatant that that would have to be a declaration within the article itself.
A. Yes. LORD JUSTICE LEVESON Wouldn't that be right?
A. I think so. That's a standard practice in our walks of life, that you have your declaration of interests on a website, but then if you are present at a meeting where a particular matter is discussed, depending on the nature of the thing, you are silent or you withdraw or you declare it and so on, and I think many of us in public life are utterly familiar with the distinction between declaring our interests and declaring our conflicts of interest, and both are important. MR JAY The other area, Professor O'Neill, was item 5, openness about most sources.
A. Yes.
Q. We can read from the code as currently constituted, clause 14 we looked at it this morning. Confidential sources: "Journalists have a moral obligation to protect confidential sources of information." That may or may not be understood to be an absolute rather than a qualified moral obligation. It's clear, however, from your analysis, that in your view there should be a general rule that sources are disclosed but there may be certain circumstances in which sources are kept confidential. Why have it that way around?
A. I think the default in favour of openness is actually what good journalism does. They try to give the source when they can. The difficulty about the confidential sources is the problem that the reader has in knowing (a) was there any source at all, and (b) was it a reliable source? And I think I'm struggling and I'm not alone in thinking that it's important to find some way of dealing with that. A standard way is to say: no, you do not publish the source but you file a letter with your editor or you discuss it with your editor, but that may not work any longer. But that is the sort of thing that seems to me important. Let me put it this way: I'm very struck by the difference between commercial confidentiality and professional confidentiality. In professional confidentiality, I may have a duty to keep in confidence what my client tells me, and if I communicate it to a third party, to do so with the agreement of the client and with like restriction on the content. So that would be a typical medical view of confidentiality. In commercial confidentiality, it seems to me that people have much more freedom to slap confidentiality on something that they would like to keep some parts of confidential but they slap it on the whole thing, and it is at the will or whim of the individual person in business to say, "This is a matter of commercial confidence." There are conventions, of course. Now, journalism, it seems to me, is in danger of going too close to the commercial one, which I think is already questionable, and not to the professional one. How it's to be worked out in detail is difficult, but I think it has a lot to do with the quality of the culture that an editor or programme maker sets for what is done and that there are clearly newspapers which do not permit their journalists to be so liberal with the allegation of having a confidential source that the readers can no longer judge whether there's any source at all.
Q. As you rightly pointed out, there are occasions in which the claim the source is confidential is a mask for the fact that the source simply doesn't exist, and the journalist hides behind it for all purposes.
A. Yes, and I don't know a way of dealing with that problem other than editorial control. That may be a weaker system than we like to believe, but that is the only one I can see there. However, a lot of journalism does not need to have any qualms about this because it would be better for being open about its sources.
Q. The moral problem arises to the extent to which a journalist makes a promise to his or her source that the source will be kept confidential, but if the making of such promises was not encouraged or if it were encouraged, it would be on this basis, that the journalist would tell the source, "I'm going to have to share what you're telling me with my editor, but that would go no further than my editor", that would or might resolve some the practical issues you refer to, might it?
A. I think that that would probably be a fairly effective discipline, because although there might be editors who would be completely lax about this, I reckon that lying to your editor is probably still regarded as an unfortunate tactic. I hope.
Q. Thank you. LORD JUSTICE LEVESON Then it's necessary for the story to be stood up anyway, because otherwise the source could actually say anything
A. Yes. LORD JUSTICE LEVESON and although obviously the journalist and the editor have to be concerned about the law of libel, it depends on precisely on what the story's about as to whether there is a potential defamation or actual defamation that might be thrown up by the story.
A. Yes, and I think we have a problem. There are lots of cases where the sources are obscure, the information is unclear, and again, good journalism will indicate this. We all know those conventions: "A usually well-informed source said that Rumours are flying around that They could not be corroborated." Those phrases, which are the mark of quite responsible journalism, it seems to me could be used more widely. We've all been listening to reporting on Syria, most of it not from within Syria, or much of it not from within, and we have heard those phrases again and again as the qualifiers that mark good journalism by indicating where the source cannot be named, must be protected and so on. But very often, that's not the situation and I don't think we can take the practices that may be needed and can nevertheless be responsibly handled when lives are at stake as the reality when people are actually hiding their friend's commercial interest in a local planning decision. MR JAY Your practical proposal in relation to the process for improving the code, this is section 10, you say: "The first answer might be to secure Parliamentary approval for having a statutory code and the appointment of a body including but not dominated by media representatives to undertake the subsequent tasks." You'd want, presumably, a range of opinion upon that body and that may include, might it, representatives from the world of academia; is that right?
A. I think those of us who know much about the press are mainly in in the academic world are mainly professors of law and journalism, so might be too close. I don't think it's obvious, and I haven't gone that far, but I do think one needs to get a code that brings together the experience of very well-informed, perhaps retired editors and journalists. You have to have people who know the trade in there, but you also have to have people who are concerned primarily for the public interest, and in any future code it would seem to me important to get some clarity about the statutory basis and then the content of the code, and, of course, the additional codes that particular newspapers may wish to develop for their own staff or the like will separate it. LORD JUSTICE LEVESON It doesn't have to be a statutory code, does it? It's sufficient if, on this model, and I appreciate that people challenge the model, if a statute underpinned an organisation that was itself required to develop a code, with criteria as to the type of persons who should be involved with utterly independent appointment mechanisms?
A. I think we're quite good in this country at making independent appointments, and we put actually quite a lot of money into the appointments processes, and I don't see any particular difficulty here, although no doubt the recommendations of any such body would be and rightly contested and subject to a lot of public debate. I suspect that it's the minimal statutory backing that is the most controversial, because there are clearly interests, mainly perhaps within the media, in retaining the privilege of self-regulation, and I've noticed a lot of misuse of the phrase "independent regulation" for what is actually self-interested regulation. So what we need first to do is to get away from that, and the specific content of the code is, in my view, a subsequent question, one that of course needs answering, but as I've stated, I think such a code should not be too aspirational. MR JAY Professor O'Neill, thank you very much. Those are all the questions I had for you. LORD JUSTICE LEVESON Thank you very much. Is there any aspect of material which we asked you to consider that you feel you've not had the chance to develop?
A. Something that I think I should have said more clearly is that complaints procedures are important, but they aren't adequate to secure public goods. Complaints procedures work in a context where you're considering individual goods and an individual complainant, and I believe that the Press Complaints Commission has been hobbled by the fact that its main form of activity has been as a complaints body. Somebody perhaps can pick up that task, but it's a minor task in the context of securing minimal standards. LORD JUSTICE LEVESON It's a standards body to which you've been addressing from your points.
A. Yes. LORD JUSTICE LEVESON Thank you very much. I've said to your professional colleagues that I'm very conscious that asking people to talk on this topic is difficult. They've expressed their views in writing. If, on reflection, there's something that you want to add, please do not hesitate to do so.
A. Thank you very much. LORD JUSTICE LEVESON Thank you very much indeed for your time. MR JAY We're reading in the evidence of Professor Waldron and Professor Thompson. LORD JUSTICE LEVESON Thank you very much. Right, tomorrow morning, 10 o'clock. (4.47 pm) (The hearing adjourned until 10 o'clock the following day)


Gave a statement at the hearing on 16 July 2012 (PM)
Gave a statement at the hearing on 16 July 2012 (PM) ; and submitted 1 pieces of evidence


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