This is the text of The Guardian editor’s Orwell lecture on journalism and the phone-hacking scandal, given at University College, London on Nov. 10, 2011.
Thank you for asking me to give this lecture.
I’m pretty sure I wouldn’t have become a journalist were it not for George Orwell. His collected Essays, Journalism and Letters appeared in a four volume Penguin edition in 1968, when I was about 15. I bought them one at a time with my saved pocket money … and read every word. And, with each essay and article, I learned more about politics; about observation; and about how to write. I doubt that I have ever managed to match his clarity of thought and prose – but he was certainly a model of both, and so it’s a great honour to be here speaking in his name.
The invitation to speak tonight came just after the extraordinary events of the summer. I know you wanted the man with the inside track of the hacking scandal here tonight … and I’m only sorry that Hugh Grant was not available.
It has certainly been an extraordinary 12 months for the Guardian. This time last year we were bracing ourselves to publish the biggest cache of secret documents the world had ever seen. And the reverberations from the News of the World revelations are still being felt, with James Murdoch’s extraordinary apology-laden appearance before parliament today.
So tonight I want to talk about hacking – and its implications for the press and for Britain itself.
Much of the debate has centred on regulation. Orwell might have found it difficult to imagine future generations talking about regulation of the press. But then he lived in a gentler age without the kind of journalism that we’ve become used to. Famously, his 1946 essay on the decline of English murder began with the head of the household reading the News of the World (then selling nearly 8m copies a week) in front of the fire after Sunday lunch. But the postprandial subject matter then was not the infidelities of TV stars or footballers. It would have been lengthy reports about what were then public events – divorce and murder trials. And the News of the World wasn’t a 1% molecule of a giant international media conglomerate. It was owned by the Carr family, whose other titles extended to of the Greyhound Express and a humorous weekly periodical called Blighty.
But I think Orwell would have been deeply interested in the broader story – not of how you regulate the press, but how one man and one corporation came to have such sway over British political, commercial and cultural life – and how we came within days of allowing him a position of even greater dominance.
Rather improbably, over the past 12 months we’ve been chased by a number of major film studios wanting to make films about both the WikiLeaks and hacking stories. Stephen Spielberg was one of a number of producers who snapped up different rights to the WikiLeaks saga.
My most crushing moment when the American magazine, Adweek, ran a profile of me, headlined “the Ben Bradlee of phone hacking” – a reference to the legendary Washington Post editor at the time of Watergate. In the film he was a proper cigar-chomping, braces, growling, feet-on-the-desk kind of editor.
Well, that wasn’t the crushing moment. That was rather nice. It was the sentence: “But if you had to pick a man for this role from Central Casting, you almost certainly wouldn’t pick Rusbridger … he looks more like Harry Potter’s lonely uncle than the kind of man capable of bringing down Rupert Murdoch.”
So Bradlee is Jason Robards while I am the Charles Hawtree of editors.
What would the film of phone hacking look like? It could actually be made as comedy, thriller or family psycho-drama. You can imagine both Paul Greengrass and Stephen Frears behind the camera.
The obvious thing, if you were making a film about the phone-hacking saga, would be to concentrate on the extremely dramatic events of July 2011 – a month that saw revelations that plumbed new depths in journalism. There were resignations, arrests, a death, parliamentary debates, corporate high drama; family feuding; multimillion-pound payoffs, the closure of a newspaper … and the climax: the “most humble day” in the life of the most powerful media tycoon of this, or of any other, generation.
But to me the most interesting period in the story, though it might not make such a good film, was the 18-month period following the Guardian’s original revelation of the Gordon Taylor settlement – which blew apart News International’s “one rotten apple” defence in July 2009.
It was interesting precisely because almost nothing happened. Not, you might think, a promising piece of cinema, except to the followers of nouvelle vague. But fascinating in what it said about Britain and the settlement so many people in public life had made, over two generations or more, with Rupert Murdoch.
Let’s go back to 9 July 2009 and that Gordon Taylor revelation – which, we now know, had been the subject of so much internal discussion within NI since the previous year, though the executive chairman of News International, James Murdoch, seems to have been remarkable incurious about it. We broke it on the web on Wednesday evening, Thursday in print.
By the weekend the story was pretty much dead. The police conducted the quickest review in recent history – a few hours. News International came out with a statement saying that the Guardian had “deliberately misled the British public”. Saturday’s Times had Andy Hayman, the police assistant commissioner in charge of the original investigation, pouring cold water all over our disclosures. Sunday’s News of the World carried a thunderous leader attacking the Guardian – and reprinting the Hayman article from the Times. Hayman insisted there were “perhaps a handful” of victims of hacking and only a few hundred who had even been targeted. He specifically dismissed the notion that John Prescott might have been hacked.
These, in the light of what we now know, were astonishing positions for the police and Britain’s largest private media company to be putting on the record.
The police last week revised their score card of hacking targets to around 5,800 – including John Prescott. And we know now that Colin Myler, then editor of the News of the World, had been told what his lawyers thought of the NoW’s rotten apple stance: “fatal,” “very perilous” and “damning”. In fact the QC’s advice that Myler and team sought said that there was “overwhelming evidence of the involvement of a number of senior … journalists in the illegal inquiries.”
So the story was almost killed by a combination of the police and a newspaper company – both institutions supposedly dedicated to dealing in the truth – saying things which were not true.
The following Tuesday Nick Davies and I appeared before the House of Commons select committee on culture, media and sport. It was a packed, standing room-only occasion: there was widely-held perception – bolstered, I suspect, by some NI black ops – that the committee would give the Guardian, not the News of the World, a hard time.
As it was, Nick Davies flourished hard copies of the “for Neville” emails. The significance of them was immediately apparent. Andrew Sparrow, who has been covering parliament for a good many years, blogged: “Wow! I’ve been covering Commons committee for 15 years and I’ve never heard such a dramatic opening statement.”
You wouldn’t have guessed it from the next days’ newspapers, which barely bothered to cover the event, thus setting a tone for the next 18 months. A pattern had begun to develop.
In November 2009 the industry’s regulator, the Press Complaints Commission, published its own report into our revelations and – the “for Neville” email notwithstanding – found “no new evidence” to suggest that anyone except the already-jailed reporter Clive Goodman had been involved in phone hacking. The report, now withdrawn, could not resist having a little jab at the Guardian, of all people.
Within days there came the news that the News of the World was being forced to pay the astonishing sum of £800,000 in damages to a former News of the World journalist who got on the wrong end of the bullying culture that an employment tribunal found existed under Andy Coulson. Coulson at that point was within six months of walking through the front door of 10 Downing Street. No paper other than the Guardian thought this record £800k award was news.
The following month the commissioner of police, Sir Paul Stephenson, came to see me to persuade me that Nick Davies was barking up the wrong tree. So, the following February, did his assistant commissioner, John Yates. Sir Paul was gracious enough later to say that he was glad I ignored his advice.
At the end of February 2010 – an election now only 10 weeks away – came a story, which, when I first read it in an email from Nick Davies, pricked the hairs on the back of my neck.
The story was that Coulson, while editor, had rehired a corrupt private investigator straight out of prison and that this man, Jonathan Rees, was currently on remand on suspicion of sticking an axe in the back of his former business partner’s head (the case subsequently collapsed).
Due to our media laws which prevent British papers from writing about people facing charges we couldn’t use Rees’s name, but we did run the story – referring only to “Mr A”.
There was no follow-up. It was apparently not a story that the future Downing Street press secretary had been using the services of a known criminal now suspected of a notorious murder.
This was quite a moment for me. It did seem to me that there was an almost willful blindness in British police, press, regulatory and political circles to acknowledge what was becoming increasingly difficult to ignore. So I did two things. One was to lift the phone to Bill Keller, executive editor of the New York Times. He had none of the press restrictions that prevented us from telling the whole story. Furthermore, the NYT’s involvement would bring a dispassionate pair of eyes to the affair. If we were overflowing the whole affair the NYT would soon douse us with cold water. I also passed on the information about Coulson and Rees to Gordon Brown, Nick Clegg and David Cameron. Nothing happened.
The New York Times did publish a long and compelling story in September 2010 – after an exhaustive investigation of its own. It confirmed everything the Guardian had originally written, and added significant new findings of its own. The police reacted by treating the whistleblowers the paper uncovered as suspects.
The Murdoch tabloids switched their support to Cameron the following month. By May Cameron walked into Downing Street, Coulson at his side. The following month Murdoch launched his bid for full control of BSkyB.
I won’t labour the full narrative of all the dogs that didn’t bark during this period – and there were certainly notable exceptions in the press, broadcasters and MPs – but I hope you have the picture. All the forces in civil society that you would normally expect to be engaged in such a situation failed.
What explains this pattern of behaviour?
The simplest explanation is a combination of fear, dominance and immunity. People were frightened of this very big, very powerful company and the man who ran it. And News International knew it. They had become the untouchables of British public life.
Why fear? Well, this was a bad company to upset. It owned nearly 40% of the national press as well as the controlling influence in a broadcaster sometimes as referred to as an 800lb gorilla. It owned the satellite platform and the EPG on which competitors were listed. It owned significant swaths of sports and movie rights.
It is a company intensely interested in its political muscle – an influence which politicians now readily admit they routinely courted because they felt they had no alternative. There became an unspoken reciprocity about the business and regulatory needs of Mr Murdoch and the political needs of anyone aspiring to gain, or stay in, office. Here are the echoes of the Jim Taylor machine in the 1930s Frank Capra film, Mr Smith Goes to Washington.
And on top of all this, there was – as we now know – a private intelligence operation. It was an intelligence operation which outsourced the dirtiest work to criminals and which, according to people in a position to know, had a formidable private investigation capability.
In the past few days we’ve learned how anyone who crossed this company – whether they were MPs asking questions or lawyers filing suits – were likely to be put under surveillance themselves. Tom Watson MP was followed for five days. Mark Lewis and Charlotte Harris, two tenacious solicitors, were followed around, together with their children. The private eye doing this work says he was employed right up to July this year. It was claimed in questioning today that all the members of the culture, media and sport select committee had been placed under surveillance. We know a former culture secretary had her phone hacked.
Days before his death in July 2011 Sean Hoare, a former features journalist at the NoW told the NYT that editorial staff on the paper had the ability to track, as well as hack, their chosen victims – ie they could locate their targets to within yards. It cost £500.
Here are the echoes of von Donnersmarck’s 2006 film, the Lives of Others. Not because anyone is saying this was an organisation with the evil intent or far-reaching consequences of the Stasi but because it was using the same methods as state intelligence services and because the evidence is that, culturally, no one at the News of the World saw any problem in this kind of systemic intrusion into precisely that – the lives of others.
So, just as people in public life sought the blessing or approval or this organisation, anyone this company decided to target was very vulnerable. Not only did the firm have the intelligence operation, it also had the means to publish any dirt it gathered to a mass audience. It had a formidable legal department which would defend any action and which constructed a public argument about why it was justifiable to invade privacy – up to and including the argument that it was commercially necessary
No wonder people were frightened of this company and may have decided not to challenge it. There are further echoes, inevitably, of films about the quixotic, sometimes cruel exercise of journalistic power in Citizen Kane and the Sweet Smell of Success.
What does all this add up to? It speaks to one form of media exceptionalism. It tells you why media companies – of all the private forces and institutions in any country – need particular rules, which guarantee plurality and a level playing field when it comes to competition.
What a muddled sets of laws we have. Last month the small, family-run Kent Messenger Group was prevented by the OFT from buying seven local newspaper titles in East Kent. And yet – right up to the moment when the House of Commons finally stirred itself to vote against the BSkyB merger in July – there seemed to be nothing in our competition and plurality laws to prevent Rupert Murdoch’s giant operation in this country doubling in size.
Just as it shouldn’t have taken the Milly Dowler story to wake people to what was going on at the NoW, it shouldn’t have needed Milly Dowler to wake MPs up to the issues at stake in the BSkyB deal. Ofcom is looking at this question, and it is part of Lord Justice Leveson’s remit. But the public debate is muted – partly, I suspect, because the issues are technical and more complex. But if the laws are inadequate to the task it is, bluntly, time to change our laws and I hope MPs and peers spend as much time thinking about the issues of market dominance as they currently are about regulating the content and behaviour of the press.
The phone-hacking saga tells us things about privacy, as well.
Firstly, it shows us that, in the wrong hands, there is sometimes a fine line between the exposure of private lives and blackmail. In several recent cases involving privacy injunctions the judges have actually used the word “blackmail” about material being hawked around Fleet Street and its agents. They’re not describing a literal criminal offence which the police should investigate. They’re describing a trade-off between money for secrets, and/or money for silence of the sort that is familiar from blackmail cases.
Secondly, it teaches us how sickened people feel when their privacy is invaded. “Violated” was the word used by the former Sun editor, Kelvin MacKenzie, when he looked at the pages which showed how his own phone messages had been intercepted. If you speak to other victims of the hacking they will tell you how deeply repulsive it was to think of a stranger listening into private communications with loved ones or family.
We write stories all the time attacking councils, corporations and governments for snooping or being careless with personal data. We understand “privacy” in many other contexts. An Englishman’s home is his castle and all that. But here was a newsroom blinded to the moral darkness of such intrusion when it came to their own behaviour. And, in that inability to turn a mirror on themselves, I doubt they are alone.
In the same breath as we, as journalists, expose the snooping of others we decry Article 8 of the Human Rights Act which insists that privacy is, indeed, a right for all to be balanced against other rights. Some journalists try to advance an argument that we, uniquely, have the right to disregard privacy when we choose to and that Article 10, which protects free speech, must always trump Article 8. I think that’s a very slippery argument to make.
Let’s acknowledge that this can also be a deeply political argument. There are many people who dislike and distrust any form of external intervention in the making and arbitration of our laws. They don’t want Europe – or anything that smells of Europe – anywhere near our own parliament or courts. That’s a perfectly valid view. But the backlash against Article 8 of the HRA needs to be read in that context as well – though it’s not entirely clear to many what the abolitionists want to do about the European Convention of Human Rights, to which the UK is signed up as a condition of EU membership.
What else did we learn from the phone-hacking saga? Well, talking of rules and codes, we discovered that the thing that we call “self-regulation” in the press is no such thing. Whatever the original laudable ambitions for, and achievements of, the Press Complaints Commission the fact remained that it had no investigatory powers and no sanctions. No matter how much valuable work it did in terms of mediation and occasional arbitration, it was simply not up to the task of finding out what was going on in the newsrooms it was supposed to be regulating. I see that one of the first statements from Lord Hunt, now brought in to oversee the PCC, is that it is not a regulator. That’s a welcome statement of what the Guardian has been saying for some years.
The PCC was lied to by News International. It said it was very cross about that, but did nothing about it. Under more considered leadership, the PCC might, when faced with the Guardian’s allegations in July 2009, have simply said: “We’re not equipped to deal with this.” That would have exposed the powerlessness of the body, but it would at least have saved it from the folly of writing a worse-than-meaningless report which, as we wrote at the time, would fatally undermine the cause of self-regulation as represented by the PCC.
In the absence of anything that looked to the outside world like regulation, the rogue actions of, I hope, a few journalists, have landed the press as a whole with a series of inquiries which will last not months, but years, and which will, I suspect, be quite uncomfortable for all involved.
Many of my colleagues are very gloomy about all this. Some of the greatest advocates of transparency for others frown on what they see as washing dirty linen in public.
But, by and large, I feel positive about what’s happening. Here are a few reasons why:
1) The Leveson inquiry will provide a forum for the press to explain itself.
There’s a strand of media commentary that says we’re facing an existential challenge, so therefore we should circle the wagons and repel all the nosey parkers who want to interfere.
It’s true: the finances of the newspaper industry are in a pretty desperate state – hit by a combination of falling sales, declining advertising, rising costs and digital disruption. We could soon be facing the prospect of towns without newspapers. But it’s better to talk about this – and the serious implications that flow from it – than hope people won’t notice.
2) Secondly, Leveson is an opportunity to put the behaviour of a relatively small number of journalists into a wider context of decent editorial practices. There are tens of thousands of journalists in the UK – broadcasters, the regional press, magazines, the trade press. Most of them wouldn’t have any idea how to hack a phone or hire a private detective, and 99% of them don’t go to work to dig into other people’s sex lives. There’s a danger that all the static and noise sometimes created around privacy is quite unrepresentative of what concerns the industry at large – just as the Church of England’s obsession with gays and women sometimes drowns the valuable work and more fundamental teachings of the Church.
3) Thirdly, Leveson may well uncover uncomfortable truths about the way a number of journalists have worked in the past. That’s true – and that’s surely good, not bad? In what other sphere of public life do we think that transparency is an undesirable thing? With government or corporations – indeed, with any centres of institutional power – we generally believe that shining a light leads to good outcomes. Indeed, that’s the central argument for the press as a public good: it’s what we do all the time. So, we should have some confidence that good things will flow from holding the press up to scrutiny, however difficult it may be at times.
4) Finally, Leveson has already stimulated a debate and thinking about standards and journalism. His so-called teach-ins have brought together – for the first time in memory – all the national newspaper editors in one room. They have virtually all spoken and listened. The editor of the Daily Mail, Paul Dacre, has already come up with two extremely interesting moves – a proposal on ombudsmen and the creation of his own corrections and clarifications column – which show an industry prepared to think positively and creatively about solutions.
So it’s good to get many voices engaged. And to hear significant interventions from politicians and members of the judiciary, including the Lord Chief Justice, vigorously supporting the notion of a free and independent press. Who could have imagined our most senior judge quoting the scabrous 18th-century radical John Wilkes in aid of his argument?
So a positive way of looking at Leveson is that it provides an opportunity for the industry to have a conversation with itself while also benefitting from the perspective and advice of others.
Let me chip in for the first time with a few thoughts on the debate. The first is about the most local form of regulation, which we started at the Guardian in 1997 – the readers’ editor.
1. Readers’ editors
A character in Pravda, the 1985 Hare/Brenton play about a Commonwealth-born press baron (played by Anthony Hopkins) has a fictional journalist who comes out with the following line:
“If every time we got something wrong we published a correction, then a newspaper would just be a footnote to yesterday’s newspaper.”
The character adds: “A newspaper isn’t just a scrap of paper, it’s something people feel they have to trust. And if they can’t trust it, why should they read it?”
The sentiment is a recognisable one. Many newspapers hate owning up to errors. Until recently there was an undoubtedly genuine feeling that if we confessed to our mistakes people would be less inclined to trust what we said.
But the truth, as all honest journalists know, is that newspapers are full of errors. Not just errors, but crude over-simplifications, mistakes of emphasis, contestable interpretations and things which should simply have been phrased differently. It seems silly to pretend otherwise. Journalism is an imperfect art – what Carl Bernstein likes to call the “best obtainable version of the truth”. And yet many newspapers do persist in pretending they are largely infallible.
We decided to change all that back in 1997 when we appointed a readers’ editor. We’d print their phone number in the paper every day and give them space independently to correct or clarify anything they felt we’d got wrong. To safeguard his or her position, I guaranteed in writing that I’d never interfere with anything they wrote and signed a contract saying they could only ever be sacked by the papers’ owner, the Scott trust. In addition, I gave them a weekly column to address concerns raised by readers.
A few years later I wrote that this was the single most liberating act of my editorship. It freed me from dealing with stroppy callers; it cut the legal bills; it enabled reporters to immediately have a means of clarifying or correcting their mistakes; and it gave readers the sort of complaints service they regard as commonplace in their dealings with any other organisation. Having a readers’ editor had led to a much more acceptance of the nature of the task we’re all engaged on at the Guardian.
On a pragmatic level it seemed to have an air of inevitability. The Guardian is now read by more than 3 million people a day around the world: that’s 3 million fact checkers – nearly all of them with access to social media networks on which they delight in pointing out things they disagree with or errors we’ve made. In addition, there are several media monitoring groups which scrutinize our content on a regular basis. In other words, if we get anything wrong, it will be exposed one way or another. Isn’t it better to be seen to be doing it ourselves rather than to be evidently leaving material uncorrected while others do the job for us?
But a better argument is that it’s just right. If journalists get things wrong there’s an obligation on us to do something about it. It should be baked into the idea of journalism that the search for truth is helped by allowing others to add to, or clarify, or respond to one version of events.
And, precisely because it is, in human nature, so hard to admit error, it’s generally better if someone other than the person ultimately responsible for the error, ie the editor, makes a dispassionate assessment.
Finally, there’s a pragmatic dollop of self-interest that ought to make us adopt readers’ editors and it’s this: the more we can be shown to be taking responsibility for our own regulation, the less outsiders will seek to impose it on us.
What better way to resist interference – including by a PCC successor – than demonstrating that we take the responsibility of correction and clarification seriously?
I don’t know how independent the Mail’s readers’ editor is – but Paul Dacre is absolutely right to start this and to have a fixed space everyday. That’s crucially different from dropping in the odd correction on a random page when all other defences have failed.
The latter is a pretence that error in journalism is exceptional. The former accepts that it is routine. Which do you think is nearer to the truth? As the Mail says, its journalists produce 80,000 words a night in the newspaper alone and “it is inevitable that mistakes do occur”.
So a good starting point for Lord Justice Leveson would be to make it a condition of belonging to a voluntary regulation regime that any newspaper over a certain size – say, 100 editorial staff, should employ, on a properly independent basis, a readers’ editor to correct and clarify material promptly and prominently – and to be able to demonstrate this to the regulator.
That’s a maximum of 1% of editorial cost going towards the business of liaising with the readers, hearing their concerns, allowing a response and, where necessary, correcting the record which now lives permanently online.
My second suggestion is now considered commonplace, though it was dismissed for years. I’ll state it anyway. We need …
2. A regulator with teeth
The PCC, as many of its critics never tire of saying, does many excellent things. It mediates well. It’s free to complainants. Many of its adjudications are sensible and coherent. We should build on its work rather than junk it altogether.
But one question the Leveson inquiry is bound to ask is: “How would a regulator handle a situation similar to the one the PCC faced in 2009?”- ie how could it behave like a proper regulator – with investigatory powers and sanctions – without being put on a statutory footing?
I suspect this was what Paul Dacre was hinting at when he suggested to the Leveson inquiry that the time had come to appoint some sort of ombudsman with powers to investigate professional or ethical standards and to impose fines. He proposed a “polluter pays” principle.
Here again, I agree with Paul Dacre. A useful example of a polluter being made to pay was the way in which the Independent Television Commission – the old regulator for ITV – reacted when, back in 1998, the Guardian published allegations about a programme on drug-running made by Carlton TV which included faked scenes. The ITC imposed a £2m fine after a thorough investigation, led by Michael Beloff QC and a former controller of editorial policy at the BBC. The corporate Affairs Director at Carlton at the time was someone called David Cameron.
Imagine, in July 2009, the PCC had called a leading QC and asked him/her to look at what had been going on at the News of the World. With powers to interview reporters and executives and forensically to examine the evidence – with NI paying the bill and with a £2m fine at the end.
It might not have got at everything – we can see how opaque such a devious media company can be – but the prospect of such an interrogation would have been a sobering thought for NI and would bear pretty heavily on the minds of all editors – so heavily that I suspect the services of the ombudsman would not often be in demand. The threat of his/her intervention – and there would need to be a suitable threshold of prima facie evidence – would be a real deterrence.
So, reader’s editors to deal at the most local level with accuracy and other matters. Secondly, a regulator with teeth. What else could this regulator do?
Well, let’s look at the list of people most journalists don’t want to have a hand in deciding what we publish: the list would include the courts, politicians, anyone domiciled in Europe, and any lawyers acting on conditional fee arrangements. So we want something British, non-legalistic, free from anything that smacks of the state, and something that’s cheap.
If that’s the case, then doesn’t logic suggest that we should be proposing to Lord Justice Leveson a new body which would offer a plausible and effective alternative to all these busybodies who are just dying to interfere.
3. PSMC: a one-stop shop
Let’s stick an M (for mediation) in PCC. Maybe called it the Press Standards and Mediation Commission. It’s now our own one-stop shop disputes resolution service so that people never had to go to law to resolve their differences with newspapers. It would be quick, responsive and cheap.
We could even make this a carrot to tempt people into the fold of independent regulation – ie newspapers that signed up to PSMC would have clear advantages to newspapers that didn’t.
Is it workable?
Well, let’s start with libel – and here it could be a positive advantage that parliament is currently discussion defamation reform, which could mean that Leveson could dovetail proposals with the excellent suggestions for overall reform which have come from Brian Mawhinney’s joint committee and from such organisations as PEN and Index.
How might it work? The PSMC would employ a small permanent staff to deal with libel questions, and would have a panel of qualified and neutral mediators.
The mediator could decide on meaning. S/he could rule on questions such as whether the piece was fair and accurate; whether it was an opinion or an allegation of fact; whether it was in the public interest; whether the subject of the article had a reasonable chance to respond and whether his/her response was included – ie the mediator, where appropriate, could go through the sorts of questions that crop up under a so-called Reynolds defence.
The mediator could rule on prominence and wording of any correction and apology and settle any issues of compensation. Most of the issues could be settled on paper. There would be no fees recoverable on either side, beyond the reasonable expenses of a claimant. A record of the discussions would be kept by the mediator.
What’s in it for claimants? It makes libel infinitely cheaper and simpler. What’s in it for the press: the same. The quicker, cheaper resolution of the vast majority of defamation cases.
Of course, the mediation might fail. But, before any court action could be started, the trial judge would read the mediator’s report of the attempts to settle. If a newspaper could be shown to have made reasonable and honest attempts to deal with the issue, that could be reflected in a cap on costs and/or damages. You could further and say that a reasonable offer of a correction and apology should be a complete defence to libel, subject only to the payment of damages.
Of course, the devil’s in the detail and there would be much to work out if one were to think seriously about dovetailing the law of defamation with a new regulatory regime. But I think there’s enough there to merit serious engagement.
So much for libel. But I described the PSMC as a one-stop shop. What about privacy? We are always hearing journalists deploring the use of the courts to create a backdoor privacy law. So can we go further and deal with privacy cases as well as libel?
Surely the logic is that we should try? But of course, we bump into the fact that, while there is a reasonable consensus about the iniquities of the libel law, there is much less agreement about the threat posed by a privacy law, or about the reasonable grounds for intruding on privacy.
What are the difficulties? Well firstly we need to …
4. Agree on what we mean by “the public interest” – and stick to it
I’m one of those who think the PCC’s definition of the “public interest” is actually pretty good. Until the PCC’s report into phone hacking, I was happy to serve on the committee which revised it. Others think it’s too prescriptive, old-fashioned, too obsessed with exposing iniquity, and too narrow.
But, whatever definition we come up with – and I’m all for expanding the group of people who help us get there beyond a small pool of editors – let’s believe in it and be prepared to argue it. If we fight legal actions and mount campaigns over articles that even we don’t pretend are in the public interest as we define it, aren’t we inviting people to be cynical about our motives and our commitment to self-regulation?
Under the HRA, and at the request of the media by virtue of section 12 (4) inserted into the Act before it was passed, judges are obliged to pay special attention to this code. The evidence is that they do – especially when balancing article 8 (privacy) and 10 (freedom of expression). They will normally ask a newspaper whether they are saying that an article is in the public interest, as defined by the industry code. But, in the overwhelming majority of recent privacy injunction cases, the newspapers did not in fact argue that there was any public interest involved.
To which one might respond, what’s a judge supposed to do? It’s fashionable to blame one judge, Mr Justice Eady, for single-handedly creating a law of privacy in this country. But a moment of self-reflection might concede that, as an industry, we have sometimes done ourselves no favours by testing the state of the law with a series of really quite weak cases – so weak that very few have been appealed and in some of which the newspaper didn’t even argue the merits of the case.
There’s simple pragmatism involved here.
Supposing we all can agree on a public interest defence – including the 99% of journalists who don’t write about other people’s sex lives – then what would stop the PSMC getting involved in privacy as well as defamation?
It’s never been exactly clear what “the industry” thinks of the idea of policing the boundaries of privacy itself. It’s commonplace, as I say, to decry the judges trying to do it for us. So that suggests we should want to do so and that a one-stop shop that included privacy shouldn’t be unthinkable.
Indeed, in May this year the chair of the PCC, Lady Buscombe, boasted that the PCC was already “more active than judges in defending privacy”. She said: “The PCC operates a pre-publication service that can work with editors to prevent intrusion before it happens.” The PCC director, Stephen Abell has said the same.
But there are two challenges we would have to face up to:
• One is the question of prior restraint. Are we really capable of agreeing on, and resourcing, in a service which could prevent information from appearing because it believed it did not meet the public interest test of the code? It seems to be happening on an ad hoc basis already. Can we make it routine?
• Secondly, are we prepared for the PCMC to follow the general contours of the privacy jurisdiction as the courts have developed it?
The second is surely critical to persuading would-be claimants to use our one-stop shop over the courts. If it doesn’t look as though we take privacy seriously – or if we diverge wildly from the results obtainable through law – then people will simply carry on using the courts.
Why is this agreement over “the public interest” so crucial? Because, in the end, the public interest, and how we argue it, is not only crucial to the sometimes arcane subject of privacy – it is crucial to every argument about the future of the press, the public good it delivers and why, in the most testing of economic times, it deserves to survive.
It also leads us beyond self-regulation and into areas of the criminal law and the question of whether we can use this opportunity to lobby to rationalise the conflicting laws which now affect journalists, some of which enable journalists to plead the public interest, others of which don’t – including new laws on bribery and the regulation of financial information.
The act of phone hacking has, since 2000, meant a compulsory jail sentence without any form of public interest defence. I’m the last person to defend phone hacking. But it’s a little illogical that, for offences under section 55 of the Data Protection Act (which might involve even more serious breaches of privacy) there is a public interest defence. I’m not sure that makes much sense. Why don’t we make the defences and penalties the same?
So – we’ve looked at how we could pre-empt a lot of external interference by coming up with effective regulation of our own: we’ll get real about the public interest and we’ll use a new consensus about the public interest to rationalise the defences available to journalists when faced with the criminal law.
Finally, how can we use this opportunity to …
5) Learn from others
Anyone listening to some of the debate around issues facing the press would think we are the only ones grappling with difficult moral and ethical dilemmas. There’s a streak of exceptionalism in some arguments – a belief that the press alone should not have to engage with universal issues.
Issues to do with privacy and intrusion are not unique to journalists: indeed they are issues to which every citizen is becoming more and more attuned. The police, security services, public authorities, health services and private corporations are all working out the new rules of the game posed by technologies which have the potential to lay bare, store and analyse every aspect of our lives.
I would have loved George Orwell, who wrote his amazingly prescient novel, 1984, in 1948, to have eavesdropped a conversation I had with a senior Google figure recently. He was musing about the potential of the Google face recognition software the company has evolved, whose effects are so far reaching the company can’t quite yet decide what to do with it.
Essentially, the software can recognise and match a face to a name with any images sitting anywhere on the web, so long as one match has been made. What made this so troubling he said, is that digital spiders could then crawl the web and find every picture in the public domain and match it with an identity. So the moment one match is made, it would be possible to scan every street or crowd scene over several decades to see where a particular individual was. Link that to the sort of all-pervasive CCTV systems we have in this country and you have a formidable infrastructure – current, but also historical – for total surveillance.
An interesting contribution to the debate about the rules the intelligence services might use was made by the former head of GCHQ, Sir David Omand, who recently drafted a checklist of criteria that anyone in his former trade contemplating invasions of privacy should ask themselves. I think they can equally usefully be asked by any journalist – indeed, we’ve incorporated a version of them in the Guardian’s own code of practice. Here they are:
• There must be sufficient cause. What’s the harm to individuals or families that might follow from intrusion?
• There must be integrity of motive – the intrusion must be justified in terms of the public good which would follow from publication.
• The methods used must be in proportion to the seriousness of story and its public interest, using the minimum possible intrusion.
• There must be proper authority – any intrusion must be authorised at a sufficiently senior level and with appropriate oversight.
• There must be a reasonable prospect of success: fishing expeditions are not justified.
What a good set of questions for journalists to ask themselves. What’s more, the act of asking – if properly recorded at the time – would offer some sort of protection in the event of anyone, be it a regulator or a court, subsequently interrogating the behaviour.
Some journalists are uneasy at this notion of keeping an audit trail of thinking, authority and pre-publication decision-making? But isn’t that what we have got used to in using the so-called Reynolds principles for libel – laying a trail to show a court, if necessary, that certain steps of responsible journalism have been gone through before publication of matters of public interest?
So there are five modest bits of input into the debate that’s arisen since the events of the summer. You’ll notice the recurrence of two words that keep cropping up: “public interest”.
You can’t avoid them – and we shouldn’t want to. The public interest – the public good that results from what we do – is the main thing we have going for us as we make a public case – to the public – about the value of what we do. Sure, we can argue about the commercial need for papers to have enjoyable stories that people like to read. But, in the face of unprecedented financial, digital, legal and regulatory challenges and threats, we will always ultimately have to defend what we do on the basis of some notion of the public interest we serve.
The foundation of the PCC back in 1990 was a significant attempt to lash together news organisations with differing traditions and audiences around a common code on which we could all agree. You could argue that no one got very much out of it in a narrow sense. The FT doesn’t really need the PCC to make sure that it stays on the ethical straight and narrow. And the Daily Star showed just what it thought of the constant criticism by the PCC by walking out of it.
But there seemed to be an overriding imperative to agree a common professional and ethical code to which we would not merely pay lip service, but which would actually inform everything we do. Only by acting together could we repel the people who were looking for any excuse to tie our hands.
That imperative is equally strong today. And a commonly agreed definition of the public interest has to be at the centre of all arguments about libel, privacy, confidence, data protection and regulation.
This is an incredibly anxious time for journalism. Anyone watching the recently released film, Page One, about the New York Times, will have picked up the everyday awareness within the newsroom that even one of the most powerful and professional newspapers in the world is clinging on to financial viability.
So the film is about the current fragility of our industry. But it’s also about the both the immense pace of transformation and the way the basics of journalism never change. For me, the most lifting moments are those that simply show journalists trying to get at the “best obtainable version of the truth”. We see them asking questions, probing away at data. We eavesdrop earnest discussions in the newsroom about getting it as right as possible before they press the button to publish. And we see the power of a great newspaper as an institution.
Towards the end there’s a sequence in which David Carr, the compellingly watchable media correspondent, is probing away at the circumstances behind the near-implosion of the Tribune company under its new owners, who seem to care little for the company’s core journalistic traditions or mission.
At the end of all his digging Carr leans back and says something to the effect of, “I’ve now done my job: this is where the institution kicks in.” Meaning: he, as a reporter, now depended on his editors to stand up to pressure, to publish and to defend his work.
It’s one of the reasons we need the fourth estate. To defend our Moscow correspondent when he’s threatened by the Russian state. To get Ghaith Abdul Ahad out of jail when the Libyan government arrests him. To resist the police threats to prosecute Amelia Hill under the Official Secrets Act. To pay the £100k legal and accountancy bills to publish a 10-day series on tax avoidance. To allow Ian Cobain the time and resources to uncover, inch by inch, the story of Britain’s apparent complicity in rendition and torture. To support Paul Lewis in his quest to get at the truth of the death of Ian Tomlinson and Jimmy Mubenga; or undercover policing; or the English riots. To give David Leigh the freedom and backing to investigate the illegal bribes paid by BAE or the toxic dumping tricks of Trafigura. To back David Conn as he remorselessly peels back the intersections where big money meets sport. To assemble the team that can make sense of the biggest trove of government, diplomatic and military secrets the world has ever seen – and to publish them comprehensibly and safely.
Brilliant reporters, with the backing of a solid, independent institution behind them.
And then there was Nick Davies. There were several people in the summer who compared what he did with the phone-hacking story to what is still the text book case of how a newspaper can unearth and defend a story of overwhelming public interest – Watergate. Indeed the comparison was made by Woodward and Bernstein themselves.
Nick Davies was threatened, lied to and ignored, but he did what good journalists do: tracked people down; won their confidence; verified what they told him; checked it with others; and, over time, painstakingly built up irrefutable evidence of what had gone on inside the News of the World.
The eventual truth was revealed to the public, not by the police or parliament or the courts or any regulator. It was revealed by a reporter.
So, as we enter this period of reflection and investigation of the worst of what journalism can do, let’s also keep in mind the best of what journalism can do.
And that, for me, is a primary message for Leveson and the debate around hacking. Over the coming period we’ll hear many uncomfortable truths about failed regulation, distorted priorities, illegal practices and a betrayal of the both the public and the public interest.
But it’s also a once-in-a-generation chance to celebrate great reporting, to think again about what journalism at its best can do and what it should be.
The films about newspapers are evidence of this split in how the world views journalists and proprietors – with directors sometimes portraying them as evil, sometimes as heroes.
Tonight I’ve ended up highlighting Nick Davies and his work. And that – thinking about the best, not the worst; the potential of journalism rather than its misuse – seems the most appropriate way to honour the memory of one of this country’s very greatest journalists, George Orwell.