Archive for December, 2012
The government’s secret political manoeuvres to create an alternative to Leveson undermine any claims they might have had to upholding the “Leveson principles”.
This post was first published at the New Statesman on 19th December 2012
Less than two hours after the Leveson report was published – just over 24 hours after he gained first sight of it – the Prime Minister rejected the report’s central recommendation. But, in his same Parliamentary statement, he committed to creating a new, independent system of press self-regulation that adhered to the Leveson principles.
Having rejected the first he is now failing on the second.
Central to Leveson’s criticisms of previous self-regulatory systems was the way in which they were set up. Each time, Leveson said, the industry focused on its own needs and not those of the public. Each time the result was a system that served the industry well but failed the public. Any new system, Leveson makes clear, should be set up in consultation with, and with the direct involvement of, the public – including the victims of press abuse.
This did not happen with the plan submitted by the industry to the Leveson Inquiry – the so-called “Hunt/Black” plan. The judge said he found it remarkable that, even after all the revelations about phone hacking and press abuse, Lords Hunt and Black could develop a proposal without involving victims, civil society groups or working journalists.
I find it extraordinary that, given the acceptance by Lord Black and the newspaper industry that the current system of press regulation has lost public confidence, they did not regard public views on the matter as of sufficient interest or importance to make any effort to ascertain them. I find it more extraordinary that, having had its attention drawn to this point by the Inquiry, there is still no sign of the industry making any effort to understand public expectations in relation to press standards. This lack of interest in the views of the public may be symptomatic of the approach that the press has consistently taken towards regulation over many decades. It demonstrates the extent to which the press continue to prioritise their own interests, with consideration of the wider public interest only in as much as it applies to the importance of protecting the freedom of the press, and only then to the extent that they can appoint themselves the arbiter of it.
As a result, the industry’s plan, like so many others before it, was biased against the public, and against the victims of press abuse. “It is important to note,” the judge writes on page 1622, “that the proposal put forward by Lord Black gives no rights of any sort to members of the public”. This is why, he says, so many previous systems have failed and why the new one must be built differently. “I have said, many times,” he continues, “that any new regulatory system must work for the public and for a system to work for the public it should have the rights and interests of the public at its heart.” The proposal put forward by the industry “manifestly fails that test.”
If there was ever a “Leveson principle”, this is it. A new system of independent self-regulation cannot be credible if it is not developed with the public at its heart, and done in an open, transparent and accountable way.
Yet this is the opposite of what is happening. A new system is being developed, at great speed, by senior government ministers and officials, and by newspaper editors and senior executives, entirely behind closed doors. Senior government figures are, we are told, devising an alternative to Leveson based on “Royal Charter”, a use of Royal prerogative created almost a millennium ago and used mainly in the medieval and early modern period.
A more opaque, Byzantine solution to the problem Leveson was seeking to address would be difficult to invent. A less democratic, open and transparent vehicle is hard to conceive.
At the same time a group of editors and senior executives are meeting, it is reported, on an almost daily basis to thrash out a new system of self-regulation that is “Leveson-compliant”. We do not know how they define Leveson-compliant, or even who is meeting or when since the process is shrouded in darkness.
At no stage in the last three weeks have either the editors or the government sought to make the process open or sought to include the victims, civil society groups, or working journalists.
To devise a solution in such an occluded and secretive manner contradicts the first Levesonian principle. If it does not change it will be the second betrayal of the public and victims in almost as many weeks.
Beyond the celebrities and politicians, there are ordinary people who often find themselves in the glare of the media through no fault of their own.
This post was first published at the New Statesman on 30 November 2012
At the heart of the Leveson report is an indictment of some of the past practices of parts of the press when it came to their treatment of ordinary people. Not celebrities or politicians but ordinary people who have, often for reasons entirely out of their control, suddenly found themselves in the media glare. In some of these cases, Leveson writes “there has been a recklessness in prioritising sensation stories, almost irrespective of the harm that the stories may cause and the rights of those who would be affected (perhaps in a way that can never be remedied), all the while heedless of the public interest.”
The judge cuts through the misleading impression that his inquiry was somehow about protecting the private lives of public figures, as some newspapers have claimed. He has made recommendations on the basis of evidence that a range of titles – not one rogue newspaper – were found to be routinely ransacking the lives of ordinary people with no suggestion of a genuine public interest, or any consideration for the repercussions on people’s lives. He references phone hacking, email hacking, covert surveillance, blagging, deception, harassment, blackmail, combined with a “reckless disregard for accuracy”.
In some instances, this was abuse of power against ordinary people on a grand scale. There are, the Metropolitan Police now say, over 2,500 victims of phone hacking. The Dowlers and others who gave evidence to the inquiry were the tip of the tip of the iceberg. There are the victims of the 7/7 bombing – including Professor John Tulloch and Paul Dadge (both praised for their heroism at the time); the bereaved families of victims of Iraq and Afghanistan; the parents of Holly Wells and Jessica Chapman (murdered in Soham); people in the Witness Protection Programme. All allegedly hacked.
Then there are the hacking stories that have hardly been told. Patricia Bernal, the mother of Clare Bernal who was shot by a stalker in Harvey Nichols in 2005. Her phone was reportedly hacked the same day her daughter was shot. Jane Winter (director of British Irish Rights Watch) whose emails, which included names of Northern Irish people whose exposure could put their lives in danger. Shaun Russell, whose wife and daughter were murdered in 1996. Christopher Shipman, son of serial killer Dr Harold Shipman. Tom Rowland, freelance crime reporter. Joan Smith, journalist and free speech campaigner. All allegedly hacked.
Neither was this simply about hacking. There was also a thriving illegal trade in other personal information, as revealed in two 2006 reports by the Information Commissioner’s Office. These reports, which identified national newspapers as some of the biggest players in this trade, also made very clear that this was not just about celebrities or public figures. The private investigator employed by the newspapers was asked to go for anyone even connected to a story:
A few of the individuals caught up in the detective’s sights either had no obvious newsworthiness or had simply strayed by chance into the limelight, such as the self employed painter and decorator who had once worked for a lottery winner and simply parked his van outside the winner’s house. This group included a greengrocer, a hearing-aid technician, and a medical practitioner subsequently door-stepped by a Sunday newspaper in the mistaken belief that he had inherited a large sum of money from a former patient. (from What Price Privacy, p.17).
The ICO has still not released the details of individual cases from the reports, but some of the names have been published. We know for example, that those people targeted included the families of Aimie Adam and Matthew Birnie, children shot at Dunblane; the families of Jessica Chapman and Holly Wells, murdered at Soham; Frances Lawrence, widow of Philip Lawrence, the headmaster stabbed outside his school; and Pam Warren, survivor of 1999 Paddington rail crash.
Those who dismissed the ICO reports as historic are reminded in the Leveson report of some of the victims of press abuse since then. Abigail Witchalls was stabbed for no reason in April 2005 while walking with her 18-month-old child. She was then harassed by the press while in hospital and highly personal information discovered and published without permission (including the news – which was not public – that she was five weeks pregnant). Robert Murat, who tried to help the police and press during the Madeleine McCann case in 2007 and was grossly defamed as result. Parameswaran Subramanyam eventually gained apologies and damages from the Daily Mail and the Sun in 2010 after both papers falsely accused the Tamil protestor of breaking his hunger strike in Parliament Square to eat burgers. Before winning his case he was ostracised by the Tamil community and contemplated suicide. Rebecca Leighton was wrongly alleged to be the “saline serial killer” by a number of papers, lost her job in nursing and was virtually unable to leave her home. In 2010 Christopher Jefferies endured trial by media for a murder he did not commit. In 2012, while the Leveson Inquiry was going on, the Bowles family, whose 11-year-old son was killed in a bus crash in Switzerland, were intruded upon and harassed, despite appeals to the press for privacy. This, the report makes clear, was not historic.
There are many other cases Leveson did not have space, even in his 2,000 page report, to mention. Sylvia Henry, a social worker, was wrongly accused of being negligent in the Baby P case, and, as a consequence, was banned from carrying out child protection work. Elaine Chase, a paediatric community nurse, was falsely accused by the Sun (on the front page and inside) of hastening the deaths of 18 terminally ill children by over-administering morphine.
These and lots of other ordinary people have variously been wrongly accused, misprepresented, hacked, harassed, monstered. Newspapers have, with notable exceptions, failed to report on many of the ordinary victims of press abuse, and have left it to Lord Justice Leveson.
The judge has, in a measured and proportionate way, sought to make sure these people had some access to fair redress. When the Prime Minister enters cross-party talks on the Leveson report, before he leaps to any more conclusions, he should dwell on the reasons why this inquiry happened in the first place.
Why Leveson won’t opt for the Irish model of press regulation – and what the ‘Irish model’ actually means
This was first posted on the Media Standards Trust blog on 30 October 2012
Saturday’s Times newspaper claimed it knew the answer to the million dollar question – what is Lord Justice Leveson going to recommend? The judge, the paper said, would reject pure self-regulation and go instead for a ‘system similar to the model operating in the Irish Republic’. Rather than clarifying exactly what this meant, the article then concentrated on why Lord Black and other members of the press might object to such a system.
Putting to one side whether or not The Times is right about the contents of Leveson’s report, what is ‘the Irish model’ and why do I think the judge is unlikely to recommend it in its current form?
The ‘Irish model’ is a system of press regulation recognized in Irish law. The 2009 Irish defamation act (Section 44) recognizes the existence of a Press Council and a Press Ombudsman, sets out minimum requirements for the Press Council, outlines the composition of the Council and its funding, and sets out the broad parameters of the complaints process (see Irish Defamation Act 2009)
‘Recognition’ within the Act means that those publications who become members are able to use a defense of ‘fair and reasonable publication’ when legal action is taken against them.
Sounds perfectly sensible and, to date, the system appears to be working pretty well and has all the big newspapers in Ireland signed up. So why don’t I think Leveson will recommend it for the UK?
1. The additional defences have not, as yet, been tested, and may not mean very much in practice. The courts are meant to take membership into account in defamation cases but are not obliged to. To date, no newspaper has sought to use the defence. In addition to which, as the Irish Ombudsman, John Horgan, said in his oral evidence to Leveson, it is not clear that the extra protection is even constitutional:
“Under our constitution, the parliament cannot confer a privilege on any one individual or group that is not available to the population as a whole. So the defence that is available to member publications of the Press Council is also in theory available to other publications, if they can satisfy a court that they operate to standards and procedures in no way inferior to those that have been accepted publicly by member publications. This, again, has not been tested in court.” (Leveson Inquiry, oral evidence, July 13th 2012).
Lord Justice Leveson has shown little interest in systems that appear symbolic rather than practical. Much more likely that, if interested in incentivizing membership through legal privilege, he will recommend something with identifiable, concrete benefits.
2. A similar but more practical system that is more likely to interest Leveson has been proposed at the Inquiry. The Tomlinson plan (submitted to Leveson by the Media Regulation Roundtable) recommends a voluntary system strengthened by contract within which, as a member, you get tangible protection from defamation or privacy actions.
If a member of the public wanted to take legal action against a member of this system, the person would first be compelled to go through an independent adjudication under the umbrella of the regulatory system. This would be the same for an ordinary person as for an oligarch. The adjudicator would be empowered to make findings on the issues and, if minded, award compensation. The person would not then be prevented from pursuing the case in court, but most cases would be dealt with through the regulatory system.
For news organisations anxious about huge legal bills this has clear, attractive benefits. Indeed an ‘arbitral arm’, as he calls it, is included Lord Black’s plan for PCC2. And the editor of the Daily Mail, Paul Dacre, said that ‘if membership of a self-regulatory body gave access to swift and cheap resolution of defamation and privacy cases, this would be a major boon for both the industry and the public’ (submission to Leveson Inquiry).
3. The Irish system puts oversight of the regulator in the hands of the relevant Minister. This is currently the Justice Minister Alan Shatter. Such a direct connection is bound to be seen by Leveson as too close a relationship with government. Especially after the events of the last couple of months, when Shatter called the regulator’s effectiveness into question following the publication of Princess Kate’s pictures in the Irish Daily Star, and the Justice Secretary went on to propose the introduction of a domestic Irish privacy law.
Any UK system will have to demonstrate greater independence from the State. TheMedia Standards Trust plan, for example (of which I am one of the authors), suggests an independent backstop auditor, which would ensure distance and independence of the press from any government or Parliamentary intervention.
The Irish model is useful to Leveson, for example to demonstrate that there is not a dichotomy between complete self-regulation and statutory control, but it would be strange if the judge recommended a voluntary system in which the tangible benefits are more symbolic than real.
With power comes responsibility, warns Martin Moore of the Hacked Off campaign
This post was first published at Index on Censorship on 17th September 2012
There is no shortage of quotes or aphorisms about the corrupting nature of too much power. From Thomas Bailey’s warning that “The possession of unlimited power will make a despot of almost any man” to Lord Acton’s ”absolute power corrupts absolutely”. Why does this happen? Empathy, as readers of Machiavelli’s The Prince will know, can be detrimental to the pursuit of power. “It is much safer,” Machiavelli wrote, “to be feared than to be loved.” Powerful people, in other words, can cease to see other people as human.
This appears to be what happened at parts of News International, where the subjects of stories — whether they were politicians, celebrities, public figures or the victims of a tragedy — were harassed, hounded, intimidated and discarded. It reached such a scale — the victims of phone hacking number in the thousands — because News International accumulated enormous power, and this power went almost entirely unchecked.
The Leveson Inquiry has laid out the consequences of such unchecked power. Individuals’ lives turned over, scarred, and — in the case of some victims — irreparably damaged. Swathes of public life corrupted. The political process distorted and prostituted. The most important result of the inquiry therefore has to be checks on this power. Sensible and proportionate ways of making these big media corporations responsible for their actions.
The media corporations will argue — indeed already have — that any checks on their power equate to constraints on their freedom of expression. This is disingenuous and misleadingly blurs the line between a corporation’s power to say and do what it likes, and an individual’s right to free speech.
Individual speech and corporate speech are not the same thing. As Professor Onora O’Neill said in her 2011 Reuters Institute lecture at Oxford:
Powerful institutions, including media organisations, are not in the business of self-expression, and should not go into that business. An argument that speech should be free because it generally does not affect, a fortiori can’t harm, others can’t stretch to cover the speech of governments or large corporations, of News International or the BBC.
Big media corporations have voices far louder than individuals or small publishers. They are watched, listened to and read by millions. Their capacity to do harm is disproportionately greater for this reason. They are also able to drown out smaller voices, to deprive individuals and groups of the opportunity to speak for themselves. And, should someone try to get some redress if they have been “monstered”, demonised or unjustifiably intruded upon, the corporation has the legal firepower to prevent all but the richest and most powerful from taking action.
Reforms should, for this reason, focus on these large corporations. Individuals, bloggers, tweeters, independent news sites, small magazines and newspapers should not be Leveson’s focus. They should be free to publish whatever they like within the law. They should be excluded from any regulatory obligations that might risk constraining their free speech.
Large corporations should still be free to publish what they like — they have a right to free speech too — but require a regulatory obligation to take responsibility for what they publish. In other words, they should have the mechanisms in place to justify their decisions to intrude on someone’s privacy.
Equally, they should provide a decent opportunity for the subject of a story to respond, ensuring a fair hearing and potentially fair redress if an individual believes what was written to be misrepresentative or inaccurate. These accountability mechanisms should be both internal and external.
In the 60 years before the Leveson Inquiry was set up, there were three Royal Commissions on the Press, two inquiries into privacy, and countless calls for press reform. All were pleas for powerful press barons to take some responsibility. Each time these large organisations failed to respond adequately.
Lord Justice Leveson says he does not want his recommendations to gather dust on some academic’s shelf. Nor does he want his inquiry succeeded by yet another in a decade’s time. If that is the case, then he should focus reforms on big media organisations and oblige them, for the first time, to take proper responsibility for what they do.