Archive for the ‘Press self-regulation’ Category

The topsy–turvy world of newspaper regulation and government spies

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Press Freedom, Leveson, GCHQ and the Mad Hatter’s Tea Party

This piece was originally published at the New Statesman on 25 November 2013

At the Mad Hatter’s tea party in Alice and Wonderland the March Hare upbraids Alice for claiming she can solve a riddle:

“Do you mean that you think you can find out the answer to it?” said the March Hare. “Exactly so,”  said Alice.

“Then you should say what you mean,” the March Hare went on.

“I do,” Alice hastily replied; “at least – at least I mean what I say – that’s the same thing, you know.”

“Not the same thing a bit!’ said the Hatter. “You might just as well say that “I see what I eat” is the same thing as “I eat what I see”!”

“You might just as well say,” added the March Hare, “that “I like what I get” is the same thing as “I get what I like”!”

“You might just as well say,” added the Dormouse, who seemed to be talking in his sleep, “that “I breathe when I sleep” is the same thing as “I sleep when I breathe”!”

In Britain today, you might just as well say ‘The press is free’ as ‘Free the press’, or ‘the end of press freedom’ as ‘freedom to end the press’ or ‘state controlled press’ as ‘press controlled state’. So back-to-front, upside down, and misshapen has the debate about press freedom become.

On the one hand we have had a chorus of newspapers thundering about how the press Royal Charter on self-regulation of the press agreed on 30th October represents the end of 300 years of press freedom, and would allow politicians control of the British press.

On the other hand we have had many of the same newspapers accusing one of their own — the Guardian — of ‘treason’ and helping terrorists, for revealing the extent of secret surveillance by the British and US governments.

Both in principle and practice these newspapers have got the debate the wrong way round. They claim the Royal Charter represents an end to press freedom without providing evidence to support such a claim. At the same time they fail to see any danger to press freedom from the types of threats made by the government against the Guardian. Continue to mix the debate up and we will end up with a press cowed and politically compromised. But see the Royal Charter and Snowden affair for what they are and Britain could become a freer and fairer country.

The press Royal Charter has earned hundreds of column inches in the UK press in the past month. Countless leaders and news reports have intoned about the dangers for press freedom from political interference. ‘A press free from political ­interference is a precious inheritance’, The Times’ leader of 31st October read. The Royal Charter ‘grants politicians the right to meddle in press regulation for the first time since the licensing of newspapers was abolished in 1695’, claimed the Daily Mail. Whilst The Telegraph said that ‘The question of how our press is regulated is a question of how best to defend free speech. It is about ensuring that responsible newspapers have the freedom to publish what they wish and that the public have the freedom to read what we publish. That is why we cannot accept the current proposals for regulation by statute’.

We should take these claims seriously because, if true, they would justify the boycott of the system by many news groups, and undermine separate claims – made by Leveson, politicians, the group representing victims of press abuse, and others — that the Charter will protect press freedom and even enhance it.

So, does the Charter grant ‘politicians the right to meddle in Press regulation’, and does it in any way threaten newspapers freedom to publish what they wish, or the public’s freedom to read what they publish?

The first thing to make clear is that the Charter does not establish a regulator. It establishes a body whose sole task will be to check the independence and effectiveness of regulators set up by news organisations themselves, administering their own code of conduct. The body will base its assessment on a series of basic standards, written by Lord Justice Leveson, and copied into a schedule in the Charter. Those newspapers who have claimed the criteria were drawn up by politicians should compare Leveson’s wording with the wording of the Royal Charter. It is hard to fit a cigarette paper between them.

Politicians are explicitly excluded from the body established by Royal Charter. Further, they are excluded from the staff of that body, and from the Appointments Panel that appoints that body. Any regulator that wants to be recognised by this body is also explicitly banned from having any politicians on its Board. It is hard, therefore, to see how this corresponds to the Daily Mail’s claim that the Charter ‘grants politicians the right to meddle in press regulation’.

Royal Charters are, however, instruments of royal prerogative. As such, with most Royal Charters it is possible for privy councillors (of whom there are hundreds, including serving government ministers) to meddle. It was for this reason that an amendment was passed in the Enterprise and Regulatory Reform Act (2013) that prevents — by law — any interference in this Royal Charter by privy councillors. Again, it is hard to see how this corresponds to the Daily Mail’s claim.

What about The Telegraph’s view that the Charter jeopardises newspapers freedom to publish what they wish? No evidence is given to support this assertion, and it is hard to see what it could be based on. The Charter states that no regulator should ‘have the power to prevent publication of any material, by anyone, at any time’. Any regulator established should only have the power to offer redress to members of the public after publication. This contradicts The Telegraph’s assertion.

But what about future amendment of the Charter? This argument, which is perhaps the one made most frequently, is that the Charter provides a device that future politicians can change such that they can exert control over the press. The argument has been made more broadly than just by The Daily Mail and The Daily Telegraph.

According to these articles, this is how it might work. A future parliament, angry at the press for revealing something like MPs’ expenses, changes the Royal Charter in a way that constrains press freedom to do something similar in the future. For example, a future parliament alters the so-called ‘recognition criteria’ in the Royal Charter to include a clause preventing examination of MPs’ financial affairs.

This scenario might sound reasonable and credible. As such, it will cause sensible people who care about press freedom to worry. Except that, when examined, it becomes clear that it is neither reasonable nor credible.

This is how such a scenario would actually play out under the Charter system. If MPs were angry at the press they would first have to agree on what to do about it. Having agreed that a change in the Royal Charter was the best approach (highly unlikely, as you will see later) they would then need to convince two thirds of their number. Having convinced two thirds of their number, they would then have to convince two thirds of the House of Lords. They would then have to gain the unanimous agreement of the independent Board of the Recognition body (none of whom can be politicians). They would have to do this against a backdrop of public debate about the changes and, no doubt, many concerned voices published in the pages of national papers and elsewhere.

But let us, for the sake of argument, accept that the proposed change to the Charter passes these hurdles and the Charter is changed. What does this then mean? It means that, at the next three-year cyclical review (or at an emergency review – if the independent recognition body can make the case that one is necessary), a regulator or regulators – taking into account the change to the Charter – will have to decide whether to put themselves forward for recognition under the amended Charter criteria.

Given that the board of any regulator will include those working in the press, those with experience of the press, and independent members, it is unthinkable that they would put themselves forward if they thought the changes represented a serious infringement of their freedom to publish in the public interest. Why would they?

Assuming, therefore, that the regulator — or regulators — did not apply for recognition, then there would be no recognised regulator. The court costs incentives for participation, and penalties for non-participation, in a regulatory system would therefore disappear (since these only apply when there is a recognised regulator).

This is the failsafe that has been ignored by those in the press that rail against the Charter. It is not simply for the publishers to choose whether they join, or do not join, a regulator. It is also for the regulator to decide whether to put itself forward for recognition (as the industry’s Independent Press Standards Organisation has said it will not do). If they believe the Charter has been made too restrictive, then they can choose not to participate.

The regulator, or regulators, could then continue to do its job, without the court cost penalties or incentives of the Leveson system (in other words, essentially what we have right now). The change to the Charter, which would have needed to pass numerous democratic hurdles, and would have been years in the making, would turn out to be counter-productive, and would have no impact on the press’ ability to publish anything, at any time, to anyone. There would be no end to press freedom, no government control, no political interference.

Contrast this with an alternative scenario. Imagine that MPs are angry at the press for revealing MPs expenses and are determined to prevent it happening in the future. By a simple majority they introduce a change to the Freedom of Information Act to exclude the personal financial affairs of MPs. Or they could amend the Data Protection Act to protect the privacy of MPs’ spending. Each change only requires a majority vote in the House of Commons. The change comes into force within months and suddenly MPs can rest easy that their future purchases of bath plugs and film channel subscriptions will remain hidden from public view.

This is a real threat. This is something that could happen now. MPs can, and do, use and amend existing legislation in a way that genuinely threatens press freedom. Equally, they can turn to their existing powers and legislation already available — though not meant for journalism — to constrain and attack journalism.

In July, a senior editor and a computer expert at the Guardian destroyed a number of computers with angle grinders. The computers contained files leaked by Edward Snowden on the activities of GCHQ and the NSA. The destruction was directed by the UK intelligence service and was overseen by technicians from GCHQ.

In August, David Miranda was stopped while in transit through Heathrow airport. He was held under Schedule 7 of the Terrorism Act (2000). He was interrogated for nine hours and various personal items taken from him and not returned. Subsequently the authorities said he had been stopped based on the belief that he was engaged in espionage and was promoting a “political or ideological cause”. Miranda was promoting no such cause, unless the authorities define ‘journalism’ as a cause.

In October, the Prime Minister David Cameron stood up in the House of Commons and said that the Snowden files were ‘dangerous’ for Britain: “The plain fact is that what has happened has damaged national security”. He encouraged parliamentary committees to investigate the Guardian’s actions. In a subsequent debate he went further and threatened the Guardian with pre-publication censorship:

“I don’t want to have to use injunctions or D notices or the other tougher measures. I think it’s much better to appeal to newspapers’ sense of social responsibility. But if they don’t demonstrate some social responsibility it would be very difficult for government to stand back and not to act”.

Some MPs went further still. Julian Smith MP wrote to the head of the Metropolitan Police asking him to investigate the Guardian and calling on the police to compel the Guardian to cooperate.

This is what it looks like when a government attacks press freedom. Smashing computers in news organisations. Using existing terrorist laws not meant for journalism. Threatening pre-publication censorship and prosecution.

In the US The Washington Post also has access to some of Snowden’s documents. It has published a series of stories based on those documents. It has written opinion pieces about the NSA and Snowden, including one calling Snowden a patriot. Has the US government attacked The Washington Post? No it has not. Has it sent intelligence officials to destroy its hardware? It has not. Obama has even acknowledged the benefits of the debate triggered by Snowden’s leaks. ‘There’s no doubt that Mr. Snowden’s leaks triggered a much more rapid and passionate response than would have been the case if I had simply appointed this review board’ Obama said. Though this does not mean the US government applauds Snowden, far from it.

It is not surprising that the UK government should be angry about the Snowden leaks. Nor is it surprising, though it is depressing, that the government should threaten a newspaper that is publishing stories based on the leaks. Governments do not like their secrets exposed, and it would be strange if they did not react strongly to the possession of 58,000 intelligence documents (the number — we are told — that were leaked to the Guardian).

Much more surprising – and more depressing – has been the reaction of much of the British press. The Sun accused The Guardian of ‘treason’. The Daily Mail called it ‘The paper that helps Britain’s enemies’. The Telegraph has uncritically reported claims by the government and intelligence agencies that it has helped terrorists around the world (‘Terrorists are ‘rubbing their hands with glee’ after Snowden leaks’).

The press attacks on the Guardian are framed as patriotic attempts to promote security. Yet the arguments made and language used do not balance security with freedom to publish. Indeed, these papers urge the government to constrain the Guardian’s freedom, and egg on the most vociferous MPs. The MP Julian Smith even referenced The Sun’s coverage to ask if it was not ‘time for any newspaper that may have crossed the line on national security to come forward and voluntarily work with the Government to mitigate further risks to our citizens?’ (HC Deb, 28 October 2013, c666).

To what end are these newspapers doing this? If the government does investigate and prosecute, or institute new laws to better secure ‘national security’ then we will live in a more secretive country, one in which news organisations have to be careful not to publish material that may, in the Government’s view, damage our safety and security.

If that sounds familiar it is because most non-democratic states in the world have laws that prevent media organisations from publishing information that may threaten the security of the state. In Russia, for example, the law on Combating Extremist Activity (2002) can be used against media organisations whose behaviour is considered dangerous to the State. In Syria for decades the government was able to exert control over the media through the state of emergency law. In Belarus you can serve up to five years in prison for insulting the president.

Laws such as these give broad powers to the state to prevent publication of material they do not like, or that they believe may damage their reputation internationally. Stories, for example, like MPs’ expenses.

We live in a world of leaks. Storing vast quantities of information, removing it from government or corporations, distributing it, and publishing it, has become straightforward. Leaking, to a general or a restricted public, will become more, not less, prevalent. Manning and Snowden are not anomalies, they are forerunners.

When such leaks happen, what would the government and security services prefer? Would they prefer that future Snowdens simply dumped their documents on the web? Or would they prefer that future leakers approached responsible news organisations?

No doubt the intelligence agencies would most like leakers to come to them. Yet technological, political and societal developments are such that it would be foolish to imagine information available to more than a hundred thousand people will remain secret indefinitely. The information Snowden had access to was reportedly available to 850,000 people.

We need models of how to use these leaks responsibly. We need media institutions that have the capabilities, the expertise, and the journalistic ethics, to properly assess and manage these leaks. Attack these institutions and we encourage data dumping. What whistleblower will now choose to go to The TelegraphThe Times, The Daily Mail or The Sun?

The actions of certain UK newspapers will discourage responsible whistleblowing and cow brave journalism that is in the public interest. Worse, it could encourage the government to behave in a way that discourages other news organisations from accepting data in the future. Fearing, for example, that the government will enter their offices and smash their computers.

We cannot rely on the UK government to restrain itself. Nor can we rely on our media to defend media institutions from government interference. This is why Britain needs to have an equivalent of the United States’ First Amendment. Something that Leveson recommended in his report but which, bizarrely, was ignored by most newspapers:

‘In passing legislation to identify the legitimate requirements to be met by an independent regulator organised by the press, and to provide for a process of recognition and review of whether those requirements are and continue to be met, the law should also place an explicit duty on the Government to uphold and protect the freedom of the press’ (Leveson Report, Summary of Recommendations, #33).

Sadly, no newspapers have taken up Leveson’s call for a press freedom law. Instead, quixotically, many have tilted at imaginary windmills of their own making. They have chosen to rail against a voluntary system of independent self-regulation that will not constrain their freedom, rather than defend a newspaper that is being subjected to state interference under existing laws.

The rhetoric of press freedom seems to have disappeared into Lewis Carroll’s Wonderland, where up means down, left means right, and almost everyone has forgotten what freedom really means.

Written by Martin Moore

December 11th, 2013 at 3:46 pm

Welcome PCC precedent unlikely to have wider impact

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This post was first published at Media Standards Trust on 10th May 2011

The PCC’s adjudication against the Telegraph creates an important precedent where there are currently far too few. But on its own it is unlikely to have a major impact, either in the short or long term, on press practice.

The PCC concluded that the Telegraph’s use of ‘serious and intrusive’ methods of subterfuge was not justified by the evidence it had against the Liberal Democrat ministers concerned. It found that the Telegraph targeted eight Liberal Democrat ministers on a general suspicion that they did not agree with all the views of the Coalition government. Telegraph journalists met each of these ministers in their constituency surgeries, pretending to be constituents. In the privacy of the surgery they then recorded the politicians’ answers to the same series of broad policy related questions. There was, the PCC therefore concluded, a ‘dislocation’ between the vague and limited suspicions against the ministers and the method used to incriminate them.

The case was muddied by the fact that the Telegraph did – sort of – uncover a story of significant public interest. It recorded the Business Secretary, Vince Cable, saying that he had ‘declared war on Mr Murdoch’. Not so smart for the minister then responsible for scrutiny of the BSkyB deal. But the Telegraph only ‘sort of’ uncovered the story because it did so accidentally – it had not planned to ask Cable about the BSkyB deal – and did not, initially, publish those revelations (it was later accused of trying to hide the Murdoch quote because the paper was against the BSkyB deal).

Despite this, had the case only been about Vince Cable it would have been a much more difficult decision for the PCC. Even though the Telegraph’s Cable stories suggest retrospective justification (previously found inadmissible in Munro and Bancroft vs Evening Standard), the Telegraph could have claimed it was acting on additional evidence, the source of which it could not reveal. The PCC would have been hard pressed to disprove this and for this reason, would have found it difficult to uphold the complaint.

But since the Telegraph went not to one but to eight Liberal Democrat politicians, and asked each of them the same series of questions, it was much easier to conclude the Telegraph was simply fishing for stories. In addition to which its ‘haul’ from the other politicians was hardly the stuff of front page exclusives.

The PCC cites three previous cases as ‘relevant rulings’. The first is about the secret filming of an Emmerdale Christmas party from 2001 (Ryle vs News of the World). The second concerns a journalist from the Evening Standard who spent a week in 2001 pretending to be a primary school teacher in north London (Munro and Bancroft vs Evening Standard). The third is about a journalist who posed as a member of hotel staff in 2003 in order to investigate allegations of illegal working (Monckton vs Evening Standard). The first two complaints were upheld, the third was rejected.

These citations are useful not just as context for today’s adjudication.  They show how few precedents there are on cases of this kind, and how even these few precedents are dated. Their agedness is particularly relevant given what we now know about the extent of subterfuge – via phone hacking and other methods since 2003. Notice that there was not one upheld adjudication about the use of subterfuge by the News of the World or News International between 2004 and 2011.

In total there have been 15 upheld adjudications related to subterfuge since 1996, 5 since 2003 (from PCC published records). Few of these offer clear precedents. None of them refer to elected politicians. The only MP to make a subterfuge complaint was Keith Vaz  in 2008 – again against The Daily Telegraph. But this was about a letter passed to the Telegraph, not about any recording devices, nor was it upheld.

This adjudication is therefore very helpful in that it provides more detail about the level of evidence required by a newspaper before it starts secretly recording someone.

Even still, the case is unlikely to have significant long term impact. Tony Gallagher, the editor of the Telegraph, does not look set to resign. He has already made clear he strongly disputes the PCC’s decision and thinks it ‘has alarming implications for the future of investigative journalism’ (from The Guardian). The page 4 adjudication is unlikely to satisfy those who want tougher sanctions or at least adjudications that have closer equivalence (the original Telegraph articles were on a number of front pages). The ruling is also overshadowed by five years of inaction by the PCC over evidence of widespread subterfuge by the News of the World via phone hacking (including two ‘investigations’ that found nothing beyond ‘one rogue reporter’). Nor does the ruling effect those now outside the remit of the PCC, including Express Newspapers.

Still, it is a considered decision and the rhetoric of the PCC is stronger than it has been for some time.

Written by Martin Moore

May 23rd, 2011 at 11:22 am